Tag: Enbridge

Why Do Canadians Seem to Care So Little about Protecting the Great Lakes from Line 5?

Great Lakes from Space

Dr. Daniel Macfarlane, Institute of the Environment and Sustainability

By Daniel Macfarlane

As a Canadian living in Michigan, I’ve never seen a state or province that identifies with the Great Lakes the way Michigan does: their silhouette adorns t-shirts, water bottles, and bumper stickers everywhere. At the same time, I would say that the Great Lakes-St. Lawrence system is woven into the nationalisms and founding mythologies of the Canadian nation-state, especially in central Canada, in a way that isn’t true of the United States. You might even say that the Great Lakes are in the DNA of the territory now called Canada.

The Great Lakes and St. Lawrence River are the historic Canadian heartland—the equivalent of the East Coast of the United States. All three founding nations of Canada (Indigenous, British, and French) crowded the shores of these sweetwater seas and the St. Lawrence River. Nowadays, the Great Lakes-St. Lawrence basin hosts the political, financial, and industrial hubs of Canada, and about half the country’s population.

But if the Great Lakes are so important to Canadians, why do they seem to care so little about protecting them? Specifically, I’m talking about Enbridge’s Line 5 pipeline.

Line 5, a hydrocarbon pipeline, runs through Michigan’s Upper Peninsula, across the state’s venerated Straits of Mackinac, and then through lower Michigan to Sarnia, Ontario. Built nearly 70 years ago, and in a deteriorating condition, Line 5 daily transports about 23 million gallons of oil and natural gas liquids from the Canadian West.

Line 5 is a ticking time bomb, especially at the Straits, where Enbridge is proposing a tunnel for this decaying and dangerous dual pipeline—but if you read the fine print, it will take a decade to build and taxpayers will be on the hook for the risky endeavor.

If the Great Lakes are so important to Canadians, why do they seem to care so little about protecting them? Specifically, I’m talking about Enbridge’s Line 5 pipeline.

In November 2020, Michigan Governor Gretchen Whitmer revoked the 1953 easement granted to the Lakehead Pipe Line, now Enbridge, for the Straits crossing. Enbridge ignored the Governor’s May 12 deadline to shut down Line 5, with backing from the Canadian government, and the matter was sent for mediation. But in early September, the State of Michigan moved to break off this “unproductive” dialogue.

On October 4, 2021, the Canadian government officially invoked a bilateral 1977 Pipeline Transit Treaty that applies to pipelines that cross from one country into the other and back. Governor Whitmer said she was “profoundly disappointed” with the Trudeau government. And she should be, since Ottawa is essentially shilling for a private oil company. 

The status quo is going to end in disaster. Canada is a climate villain, marching itself and the rest of the world to “global weirding.” Backing the likes of Enbridge is not only bad for the planet, it is bad economics. 

In any case, the 1977 treaty is a diplomatic agreement not to interfere with or levy any fees or duties on hydrocarbons that are already flowing—“in transit” to use the treaty language—and should have no applicability on the bigger question of whether a state or province wants a foreign pipeline in their territory. In other words, the intention of this treaty was not to stop a state (or province) from exercising its sovereignty over its own public waters or deciding whether or not to revoke permission for a foreign pipeline crossing its territory; the point was to stop an arbitrary or gouging bait-and-switch where a political jurisdiction acting as the middle man gives consent to a pipeline and then jacks up the price.

Many Canadians have been boisterously loud about stopping new and existing pipelines within Canada. But why are Canadians so seemingly ignorant, or ambivalent, about Line 5? A major reason is certainly that most of the fossil fuels sent through Line 5 ends up in Ontario and Quebec. Of course, Canada is also a type of petro-state, addicted to the profits and efficiencies of fossil fuels; many have a vested interest in maintaining the status quo.

Just imagine how Canadians would react if the situation were reversed, and the U.S. refused to stop a pipeline that a province didn’t want. Moreover, if Canada is serious about reconciliation, it needs to stop pipelines. Many pipelines in Canada threaten the territories of numerous bands and First Nations, often without their consent and in conflict with the spirit of treaties and agreements.

But the status quo is going to end in disaster. Canada is a climate villain, marching itself and the rest of the world to “global weirding.” Backing the likes of Enbridge is not only bad for the planet, it is bad economics. 

A recent report stated that close to 85% of Canada’s fossil fuels need to stay in the ground if the country wants to have a decent chance of meeting the 1.5 degree Celsius goal in the Paris Agreement.  According to another analysis, building the Line 5 tunnel and continuing the pipeline could contribute an additional 27 million metric tons of greenhouse gases to the atmosphere annually, generating $41 billion in climate damages between 2027 and 2070.

Those climate damages are going to haunt Canada as well as the U.S. Moreover, the models show that a Line 5 spill at the Straits of Mackinac would likely flow into the Canadian part of Lake Huron. Enbridge’s track record doesn’t exactly inspire confidence. I live and teach in Kalamazoo, where in 2010 Enbridge’s Line 6B had a catastrophic failure into the eponymous river. A pipeline rupture would be all but impossible to rectify quickly in the Straits when there is ice cover in winter. 

Just imagine how Canadians would react if the situation were reversed, and the U.S. refused to stop a pipeline that a province didn’t want. Moreover, if Canada is serious about reconciliation, it needs to stop pipelines. Many pipelines in Canada threaten the territories of numerous bands and First Nations, often without their consent and in conflict with the spirit of treaties and agreements.

There are alternatives for getting energy to the areas of Canada served by Line 5. These can be used in the short-term. But, make no mistake, the goal here is not to just shift fossil fuels to a different pipeline. The end game is an energy transition, and a just one at that.  In the long run, stopping Line 5, and other pipelines, could actually be doing Canadians a favor: weaning them off of fossil fuels and their infrastructure, and protecting the Great Lakes and the climate.  What could be more neighborly? 

Daniel Macfarlane is an Associate Professor in the Institute of the Environment and Sustainability at Western Michigan University. He is also a senior fellow at the Bill Graham Center for Contemporary International History, University of Toronto, and President of the International Water History Association. His research and teaching focus on the Great Lakes-St. Lawrence basin, and he is the author or co-editor of four books, including Border Flows: A Century of the American-Canadian Water Relationship, and he is completing a book on Canada-U.S. environmental and energy relations.

Line 5 Oil Tunnel: U.S. Army Corps Environmental Study Marks a Return to the Rule of Law

By Jim Olson and Nora Baty

Jim Olson is FLOW’s Founder and Legal Advisor

In recognition of the critical importance of the Great Lakes and the rule of law, the United States Army Corps of Engineers (USACE) announced June 23 that the federal agency will conduct an environmental impact statement (EIS) for Enbridge’s Line 5 oil tunnel proposed for the Straits of Mackinac–handing citizens and communities battling the existential threat of climate change an important victory.

These evaluations delve into critical questions of risks, impacts, and alternatives—particularly a “no action” alternative when it comes to the falling demand for crude oil and the blazing heat waves across North America. Because of the depth of this evaluation and based on past practice, the EIS process will likely take three-and-a-half years to complete. While this may result in no tunnel or delay a tunnel, if it is ever built, the decision points to an even more critical action: It’s time to double-down on an orderly shutdown of the perilous Line 5 Pipelines in the Straits of Mackinac.

“The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs.”

Nora Baty is a Milliken Law and Policy Intern at FLOW.

Governor Whitmer and the Department of Natural Resources, under their solemn public trust duty to exercise prudence to protect the Great Lakes from a massive oil spill that would cost more than $6 billion, had little choice but to revoke the 1953 easement and close the 70-year old hazard. With the falling demand for crude oil, and capacity in other pipelines that criss-cross the continent, adjustments in oil transport can meet Canadian demand and the relatively minor need for crude oil from Line 5 for Michigan.

Finally a Full and Comprehensive Environmental Impact Statement

Under the National Environmental Policy Act (NEPA), an EIS is required for major projects “significantly affecting the quality of the human environment.” The law, as contemplated, established rules to ensure that the federal government considers the health and environmental effects and alternatives to actions proposed by corporations seeking permits. Under the NEPA rollbacks by the Trump Administration, agencies and citizens had little chance to trigger an EIS under NEPA, despite the magnitude of the action and environmental risks.

Now under the Biden Administration, “The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs,” according to a press release. The USACE’s decision to require an environmental impact statement and its commitment to the rule of law are important to ensure there is a robust record examining the impacts of the proposed project, using scientific data and expert opinions, and that alternatives to the project are adequately considered. 

Courts and agency decisions have rejected projects with incomplete scientific data or that fail to assess alternatives to avoid environmental impacts. Earlier this year, Michigan Administrative Law Judge Daniel Pulter denied the Back-Forty permit for a massive mining project in Michigan’s Upper Peninsula because the underlying hydrogeologic information, wetland impacts, and the potential alternatives were not adequately evaluated. 

FLOW’s legal team aided in this effort in December 2020 by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority, Clean Water Action—Michigan, FLOW, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350. The comments demonstrated a serious gap in Enbridge’s incomplete evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that the company at one point characterized as solid bedrock.

This EIS decision marks a return to NEPA’s mandate that the federal government review major projects to the “fullest extent possible.” This is particularly important for Line 5 in light of the decreasing demand for crude oil and the shift in Canada and the U.S. to renewable energy (wind, solar, conservation), and a “no action” alternative to the tunnel is more likely than ever.

Line 5 Is No Longer Necessary

The no action alternative for a proposed project, such as Enbridge’s proposed oil tunnel, looks at the effects of not approving the action under consideration. Here, Enbridge will need to prove, first, that the tunnel and Line 5 are even needed, and second, if there is a need, that there are no other routes or existing lines into Ohio, Michigan, and into Canada. According to FLOW’s experts, available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competition without threatening our public waters, including Enbridge’s Line 78 across southern Michigan.

Unfortunately for Enbridge, and fortunately for the climate, the energy landscape is shifting and renewable energy growth is accelerating. At the same time, the beginning of Line 5 tunnel construction looks farther and farther away. One study found that such federal reviews, known as environmental impact statements, take an average of nearly 3-and-a-half years to complete, and then permits and construction would take years longer after that.

The tunnel may or may not be constructed. While Enbridge continues to operate Line 5 in the Straits, violating the law, and threatening the Great Lakes and the region’s economy, the existing dual pipelines pose an unacceptable risk of massive harm to the Great Lakes, communities, citizens, and businesses. The reality is that we can no longer wait for Line 5 to be shut down. It is time for the court process and the State and citizens of the Great Lakes Basin to bring the State’s revocation of Enbridge’s 68-year old easement and pipeline to a close.

Paddling for Change, from the Mackinac Bridge to Lansing

By Jacob Wheeler

FLOW Communications Coordinator

Childhood friends William Wright and Chris Yahanda wanted to do their part to protect the Great Lakes and, in particular, to urge Michigan Governor Gretchen Whitmer to shut down the Line 5 oil pipelines under the Straits of Mackinac by terminating the easement of Canadian pipeline company Enbridge.

FLOW and other environmental groups have long made the case that the turbulent waters under the Mackinac Bridge, where Lakes Michigan and Huron meet, represent the most dangerous place in the Great Lakes for a catastrophic Line 5 oil spill. Enbridge has a shoddy track record in Michigan. The company’s Line 6B pipeline rupture into the Kalamazoo River in 2010 caused one of the worst inland spills in U.S. history.

FLOW and our partners in the Oil & Water Don’t Mix campaign have long pressured Michigan state government to shut down Line 5. Gov. Whitmer announced on November 13, 2020, that she would revoke and terminate Enbridge’s pipeline easement, effective May 12, 2021. The pipeline company continues to fight the order in court.

“We thought, maybe we can tell a story through a paddle journey in the places that we love and show how we can protect them,” said Wright. “The Line 5 issue spurred our desire to take this journey.”

Watch our interview with William Wright and Chris Yahanda and footage of their journey thus far.

Wright and Yahanda are currently paddling 425 miles over approximately 45 days, from the Straits of Mackinac, down the west coast of Michigan, up the Grand River through Grand Rapids, and ultimately to the State Capitol in Lansing. Their friend Davis Huber, a filmmaker based in Los Angeles, is capturing their journey and plans to make a film about their effort.

On June 9 the paddleboarders left Mackinac Island where the Michigan governor has a guest mansion, and headed for the Mackinac Bridge, itself. Sometime in late July or early August, they will bookend their trip when they arrive at the governor’s office.

“We go in support of her effort to shut down Line 5,” said Wright.

For Yahanda, paddling under the Mackinac Bridge, where Lakes Michigan and Huron meet, inspired awe and respect for nature.

“I’ve been over the Bridge many times, but to see it from underneath, to be so close to the water and really see the magnitude of the convergence of that water, it’s different,” he said. “You can definitely feel the energy of the transfer of water. Even the air feels different. How quickly it could turn on a dime.

“We couldn’t help but think of how important that place is to protect and how disastrous it would be if millions of gallons of oil were poured into it.”

Paddling southwest toward the Leelanau Peninsula, Wright and Yahanda encountered days with headwinds that prevented them from making much distance. But they also experienced calm days that allowed them to paddle for 20 miles or more at a time. On June 17 they paddled 28 miles, from Norwood, just south of Charlevoix, to Leland—their best day yet.

“We learned pretty quickly about the power of the water,” said Wright. “There have been times when we came out of a bay and had the wind direction change on a dime. The weather out there can really impact us on paddleboards since we’re small and catch wind pretty easily. We have learned firsthand the respect we need to have for Mother Nature.”

On June 20 they paddled down the Leelanau coast, past the Sleeping Bear Dunes National Lakeshore’s majestic dunes, and spent the night at Point Betsie in Benzie County.

“We had a perfectly clear day with low wind while seeing the bluff and the sand come straight to the water,” said Wright. “That coastline is so beautiful, from Pyramid Point and down the coast of Sleeping Bear.”

They are currently camping in Ludington State Park.

Wright and Yahanda are collaborating with FLOW, M22, the northern Michigan outdoor apparel brand, Oil & Water Don’t Mix, and Mawby Sparkling Wine—which recently unveiled a “Shut Down Line 5” sparkling wine.

“We are stoked to partner with FLOW. From the very beginning of our project, Liz Kirkwood, FLOW’s executive director, has helped us develop a deeper understanding of the water issues plaguing the Great Lakes,” said Wright.

Learn more about, and support, Wright and Yahanda’s journey by visiting their website, www.TroubledWaterFilm.com or follow them on Instagram.

Remember When Line 5 Shut Down a Year Ago, and None of Enbridge’s Doomsaying Came True?

Dire Straits: A damaged portion of Line 5 in the Straits of Mackinac shown in this June 2020 photo provided to the State of Michigan by Enbridge.

By Nora Baty

Nora Baty is a Milliken Law and Policy Intern at FLOW and a 3rd-year law student at the University of Michigan.

Do you remember the last time Line 5 shut down? This week marks the one-year anniversary of Line 5’s closure following significant damage to an anchor support likely caused by an Enbridge-contracted vessel.

Research conducted by former Dow Chemical engineer Gary Street found that in August 2020, after more than 50 days with at least one leg of Line 5 closed due to damage from a cable strike, gasoline prices and supply were unaffected in Michigan and Canada. While gasoline consumption during the pandemic was down from previous years in August 2020, the finding is consistent with a 2018 independent analysis. That study found that shutting down Line 5 was unlikely to significantly impact consumer prices at the pump, with a forecasted increase of less than one cent per gallon, and that Michigan’s energy needs could be met without Line 5. (See also, “Fact Check: When Line 5 Shuts Down, Detroit Jets Will Still Fly and Union Refinery Jobs Will Still Exist”).

Enbridge continues to operate Line 5 in direct violation of Governor Gretchen Whitmer’s lawful shutdown order, with the Canadian pipeline company claiming that “shutting down Line 5 even temporarily, would have immediate and severe consequences on the economies of Michigan, Ohio, Ontario, and elsewhere.” 

Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to FLOW’s experts. As the energy landscape shifts with the slowdown of oil and gas production, the adoption of electric vehicles, and accelerating commitments to cut greenhouse gas emissions, Enbridge continues to operate the 68-year-old Line 5 pipelines in defiance of the law. Operating in the open waters of the Straits of Mackinac since 1953, Line 5 endangers 20% of the planet’s and 84% of North America’s surface fresh water, risks devastation of coastal communities, and threatens to cause billions of dollars of damages to the environment and local and regional economies, while Enbridge continues refusing to provide financial assurances for the consequences of a spill. 

Enbridge Line 6B’s 2010 spill into the Kalamazoo River near Marshall, Michigan

Line 5 is a ticking time bomb in the Straits that threatens more jobs than it sustains. Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. Some 3 miles of the pipeline are elevated off the public bottomlands with supports meant to shore up the decaying infrastructure in fierce currents that scour the lakebed. The change in structural design has exposed the pipeline to strikes by anchors and cables, and poses an extreme navigational hazard in a busy shipping channel. (See also, “Key Facts: Line 5 and the Proposed Oil Tunnel“). 

Pervasive organizational failures at Enbridge” caused one of the nation’s largest inland oil spills in July 2010 when its Line 6B pipeline burst near Marshall, Michigan, and for 17 hours dumped 1.2 million gallons of heavy tar sands oil into the Kalamazoo River watershed. It took four years and over $1.2 billion to clean it up to the extent possible. 

Enbridge Line 6B was 41 years old when it failed; Enbridge Line 5 is 68 years old and counting.

Our Great Lakes – Hostage to the ‘Most Destructive Industrial Project in Human History’

Photo: The Alberta tar sands. Source: Garth Lenz

By Skip Pruss

FLOW Legal Advisor Skip Pruss formerly served as chair of FLOW’s board of directors and as director of the Michigan Department of Energy, Labor, and Economic Growth.

Some 800 miles north of the Montana border, past vast prairie grasslands, clear, untroubled lakes, and pristine boreal forests, lies a place of profound devastation and desolation. Just north of Fort McMurray in Northeast Alberta, Canada, one encounters an abrupt alteration of the landscape—a ravaged wasteland of disturbed lands and metallic lakes of oil-sheened process waste. 

A handful of Canadian tar sands. Source: Suncor.

Welcome to the place where bitumen—a thick, viscous, oil-containing soil having the consistency of coffee grounds—extracted for later upgrading and refining into tar sands oil, is ultimately destined to cross the Great Lakes watershed by pipeline.

This miasma of environmental ruin lies proximate to the confluence of five rivers—the Clearwater, the Christina, the Hangingstone, the Horse, and the Athabasca—the last designated as a Canadian Heritage River for its historical and cultural significance. 

Visible from space, the Alberta tar sands have been labeled “the largest and most destructive industrial project in human history.”  The oil-sheened tailing ponds, unlined and vulnerable to breach in heavy rains, cover 220 square kilometers. The Guardian reports that, “A failure of a single tailings dyke could result in contaminated waterways from Alberta’s Athabasca region through to the Arctic Ocean, that would make even the Exxon Valdez disaster look mild by comparison.” 

Effacing Nature

It is here, in Alberta, where primordial forces endowed the region with vast underground seams of bituminous sands.  The deposits are a mixture of sand, clays, water, and bitumen from which oil can be extracted. Unlike conventional oil wells, where pumps or underground pressure brings oil to the surface, extracting oil from sands and clay requires a series of processing steps and vast amounts of energy.  

The two methods of extracting tar sand oil involve in-situ treatment—a process of heating the bitumen with steam pumped under high pressure underground to extract the oil or strip mining the bitumen when the deposits are closer to the surface. In situ extraction is more energy intensive, yielding more greenhouse gas emissions.  Strip mining uses about 10 times as much water as in situ processing.

Both methods of bitumen extraction are energy intensive, resulting in cumulative greenhouse gas emissions from the extraction, processing, and transportation, 4-5 times greater than emissions attributable to the production of conventional oil. More recent scientific measurement efforts indicate that CO2 emission intensities attributable to tar sands mining are much larger than those previously reported.

Pipelines to the Great Lakes

An elaborate two-way system of pipelines stretching across the continent has been constructed to deliver Alberta’s tar sand oil to refineries for additional processing. After the extraction process, raw bitumen’s high viscosity is resistant to flow. To pump it through pipelines, it must be diluted with a thinning agent—typically natural gas condensates produced from other oil and gas wells that are transported by pipelines to Alberta. The “diluents,” once blended with the bitumen, yield a substance called “dilbit,” which is then upgraded to crude oil and pumped by pipelines for further refining.

Enbridge pumps heavy tar sands oil through Line 6B (recently renamed Line 78) across southern Michigan enroute to Sarnia, Ontario, while Enbridge Line 5 carries light crude oil and light synthetic crude upgraded from dilbit through the Straits of Mackinac and eventually also to Sarnia.

Pipeline failures are routine. In the last two decades alone, the Pipeline and Hazardous Materials Safety Administration (PHMSA) reports more than 12,500 pipeline incidents resulting in $10 billion dollars in damages and almost 1,500 injuries and fatalities. Accidents involving dilbit are particularly problematic.

It was the catastrophic failure of Enbridge’s pipeline 6B that poured more than 1.2 million gallons of dilbit from the Alberta tar sands into into Talmadge Creek, a tributary of the Kalamazoo River, sickening more than 300 people, permanently driving more than 150 people from their homes and properties, and destroying wildlife and habitat. The disaster scarred the landscape and left oily residue to this day.  Following the spill, the volatile hydrocarbon diluents evaporated, leaving the heavier bitumen to sink in the water column, vastly complicating remedial efforts to remove the tar sands crude from the environment. The investigation following the massive spill by the National Transportation Safety Board found “pervasive organizational failures” within Enbridge, including deficient integrity management procedures and inadequately trained personnel.

“This investigation identified a complete breakdown of safety at Enbridge. Their employees performed like ‘Keystone Kops’ and failed to recognize their pipeline had ruptured and continued to pump crude into the environment.”

— Deborah A.P. Hersman, former NTSB Chairman

Crossing the Great Lakes

By any objective measure, the Great Lakes are a magnificent and unique natural endowment—the most valuable freshwater system on earth, harboring 84 percent of all fresh surface water in North America and 95 percent of all fresh water in the United States. The Great Lakes Region, home to 40 million Canadian and U.S. citizens, constitutes the 3rd largest economy in the world with an annual GNP exceeding $6 trillion.

Line 5, Enbridge’s 68-year old pipelines, cross in the open waters of the Straits of Mackinac, the intersection of Lakes Michigan and Huron. Line 5 has a record of recurrent failure, with 33 separate leaks of over 1.1 million gallons of oil reported by PHMSA since 1968—roughly the same amount as Enbridge’s 2010 spill into the Kalamazoo River watershed. Dispersion modeling by the University of Michigan has shown that a Line 5 failure could spread crude oil and irreparably damage more than 700 miles of U.S. and Canadian coastlines, and thousands of square miles of open water and aquatic resources, wreaking billions of dollars of economic and environmental havoc on property owners and coastal communities. 

The vulnerability of Line 5 to a catastrophic accident could not be more clear. Due to strong, alternating currents that flow both east and west under the Straits, the bottomlands have eroded under multiple stretches of the pipelines.

Enbridge has responded to the pervasive lakebed scouring and erosion with a media blitz that glosses over the endangered conditions and patchwork of incremental, remedial actions that have now elevated approximately 3 miles of the pipelines over the lakebed using over 200 saddle anchors as supports. The new configuration has made the pipelines vulnerable to rupture or failure from anchor strikes and cable drags from ships navigating the narrow, busy shipping lane in the Straits.

A Catastrophic Accident Is Inevitable   

Predictably, the pipelines have been repeatedly struck by wayward anchors from passing vessels. An anchor strike in April 2018 gashed and dented the pipelines. The most recent impacts to the pipeline, discovered last year, severely damaged a pipeline support and was likely attributable to vessels under contract to Enbridge that were conducting pipeline maintenance and geophysical work for an ill-conceived, replacement tunnel proposed to house the pipelines.

The reality is that maritime accidents do happen. Great Lakes freighters have been known to lose power, have steerage failures, or drop anchors unexpectedly. In the narrow Straits of Mackinac, high vessel traffic and the proximity of the Mackinac Bridge may require ship captains to drop anchors unexpectedly to avoid collisions with the bridge or other vessels. In such circumstances, the navigation hazard of the now elevated underwater pipelines is an afterthought.

Line 5—An Unacceptable Risk

Enbridge is rolling the dice every day on Line 5 in the Great Lakes. The fact that Enbridge hasn’t already had a catastrophic rupture of the pipeline is sheer, dumb luck. A Line 5 oil spill could deliver a more-than $6 billion blow in economic impacts and natural resource damages to Michigan’s economy and could trigger a domino effect of damage disrupting Great Lakes commercial shipping and steel production, slashing jobs, and shrinking the nation’s Gross Domestic Product by $45 billion after just 15 days, according to a study commissioned by FLOW and conducted by ecological economist Robert Richardson of Michigan State University.

Seven years ago, then Michigan Attorney General Bill Schuette commented that the Enbridge Line 5 underwater pipelines presented an unacceptable risk, stating that you wouldn’t site, and you wouldn’t build and construct, pipelines underneath the straits today.” Yet Enbridge continues to operate the aging  pipelines in direct defiance of an order from Governor Gretchen Whitmer to shut them down.

The bottom line is that the grim and appalling environmental and economic legacy that is the Albertan tar sands now presents the greatest threat to the Great Lakes, the world’s largest and most valuable fresh surface water system. Enbridge is using its considerable economic and political clout to maintain an imminent risk and clear and present danger to coastal communities, the region’s globally unique coastal shorelines, as well as to the health and economic vitality of the entire region.   

Protection of public water for present and future generations is a categorical imperative. Line 5 must be shut down now.

Fact Check: When Line 5 Shuts Down, Detroit Jets Will Still Fly and Union Refinery Jobs Will Still Exist

Mackinac Straits photo by Beth Price.

Story published May 24, 2021. UPDATED June 2, 2021 

Editor’s note: This article has been updated to reflect Enbridge’s 2020 Securities and Exchange Commission (SEC) filings

By FLOW staff

Gov. Gretchen Whitmer and the State of Michigan have taken legal action to shut down Line 5 in the Straits of Mackinac to prevent a catastrophic oil spill in the Great Lakes from the dangerous and decaying, 68-year-old pipeline. Meanwhile, Line 5-owner Enbridge and its enablers continue to engage in a Chicken Little “sky is falling” campaign, with the Canadian company claiming that, “shutting down Line 5 would cause shortages of crude oil for refineries in Michigan, Ohio, Pennsylvania and eastern Canada, as well as propane shortages in northern Michigan. Enbridge also alleges a Line 5 shutdown would boost shipments of oil by rail or trucks, without providing any evidence.

Enbridge’s misinformation campaign has been building for a few years, for example, conspiring with DTE and others in 2020 to oppose electrification, renewable energy, and climate change mitigation measures. 

In fact, none of Enbridge’s predictions of an energy shortage materialized when both legs of the dual Line 5 pipelines in the Straits were shut down for more than a week in June 2020 and one leg remained closed until about mid-September following damage that the U.S. Coast Guard said likely was caused by an Enbridge-contracted vessel. Research conducted by former Dow Chemical engineer Gary Street found that gasoline prices and supply were unaffected in Michigan and Canada after more than 50 days of a court-ordered Line 5 shutdown in the summer of 2020.

The research results are consistent with these studies forecasting little, if any, change in energy costs after Line 5 shuts down for good:

The shutdown of Line 5 won’t lead to fuel shortfalls because available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors.

  • Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and Pure Michigan economy, according to FLOW’s experts.
  • Shutting down Line 5 is unlikely to significantly impact gasoline prices (an increase of less than once cent per gallon is forecast), according to a 2018 study conducted by London Economics International, LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
  • Shutting down Line 5 would add just five cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study conducted by London Economics International, LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
  • The Upper Peninsula has viable options to Line 5 for its propane supply and economy, according to FLOW’s research.
  • Oil & Water Don’t Mix has a great animated video showing how the Upper Peninsula does not need Line 5’s propane.

Another claim regarding the impact of a Line 5 shutdown emerged last year from management of the PBF refinery in Toledo, Ohio. Likely at Enbridge’s behest, PBF warned of a refinery shutdown and loss of a thousand jobs if the supply provided by Line 5 is no longer available. The Toledo refinery, PBF suggested, has no other source of petroleum.

This assertion immediately raised the question: What kind of refinery management would leave itself vulnerable by receiving crude from only one source? It also directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts. They emphasize that PBF refinery has several sources of supply and can adjust them depending on market conditions.

“The [PBF] refinery only processes light/medium and sweet crude and gets most of its WTI crude through pipeline from Canada, the mid-Continent, the Bakken region and the U.S. Gulf Coast,” an analyst says. Another credits PBF with using “its complex crude processing capacity to source the lowest cost input.” PBF says in its 2020 filing with the Securities and Exchange Commission that crude is delivered to its facility through three primary pipelines, Enbridge from the north, Patoka from the west, and Mid-Valley from the south. Crude is also delivered to a nearby terminal by rail and from local sources by a truck-to-truck unloading facility in the refinery property.

Formerly the PBF refinery was supplied in part by the Capline pipeline. However, the energy market is shifting dramatically and the Capline pipeline is being reversed, demonstrating that the system is flexible and can adapt to changing markets without shutting down the refinery.

The fact is that multiple alternative pipelines, rail, and truck sources are and will be available to enable PBF to continue refining petroleum as it is today. No credible evidence points to job loss in Toledo from a Line 5 shutdown. And PBF itself said in a September 2017 news story challenging EPA regulations because of alleged job losses that the Toledo refinery employed 550, not 1,000, workers.

After Line 5 is shut down, the small percentage of its light crude coming to U.S. refineries could be supplied by other sources currently serving the region, including the Patoka and Mid-Valley pipelines, along with crude from Northern Michigan oil wells.

Fanning the fears of employees and communities with false and inflated claims is the latest in a series of tactics deployed by Enbridge and its enablers. Their goal is to pressure Michigan officials into letting the company continue to occupy the public bottomlands of the Straits of Mackinac with its antiquated Line 5 pipeline, and later, a proposed oil pipeline tunnel under the lakebed.

PBF also claims that a feared Toledo refinery shutdown, which research cited above dispels, would seriously impinge on the supply of jet fuel at Detroit Metropolitan Airport, driving up fares or reducing flights, or both. The claim is that 40% of the jet fuel used at the airport comes from refined Line 5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day, and again alternative pipeline sources can more than make that up.

It is worth noting that prior to PBF’s claims made in 2019, the impacts of a Line 5 shutdown on Metro Airport jet fuel had never before been raised as an issue in the Line 5 debate. Now Canadian officials are singing the same tune to bring political pressure on the Whitmer administration, claiming that Line 5 “is the single largest supply for gasoline, ultimately, in southern Ontario; for aviation fuel out of the Detroit airport; for heating fuel in northern Michigan; for the refineries in northern Ohio that fuel much of the Midwest U.S. economy.”

For its part, Enbridge has a track record of misleading the public and governments about its performance, including failure for 3 years to report bare spots in the protective coating on Line 5 in the Straits, violating for several years the safety conditions of its easement agreement to occupy the public waters and bottomlands of the Straits, and running a dubious advertising campaign claiming to protect Michigan’s water. Enbridge’s and its allies’ recent claims are consistent with the company’s apparent philosophy of avoiding transparency and saying anything to keep Line 5 petroleum and profits flowing.

Key Facts, in a Nutshell

Jobs! Let’s talk jobs! 

If the Great Lakes region were a country, it would have a GDP of US$6 trillion making it the third largest economy in the world. In fact, a new report analysing the 83 coastal counties along the Great Lakes has found that the Great Lakes support more than 1.3 million jobs that generate $82 billion in wages annually. Continuing to operate the decaying Line 5 risks many jobs, while shutting down Line 5 will protect hundreds of thousands of jobs in Michigan’s tourism economy. According to a FLOW-commissioned report in May 2018 conducted by a Michigan State University ecological economist, direct spending by tourists supports approximately 221,420 jobs, and the total tourism economy in 2016, including direct, indirect, and induced impacts, supported 337,490 jobs—approximately 6.1% of total employment in Michigan.

Toledo PBF Refinery 

  • Enbridge and fossil-fuel industry allies have a track record of false and unsubstantiated claims and a lack of transparency.
  • The numbers are inflated:
    • Enbridge and refineries and some politicians are misleading the public. They falsely claim that the two Toledo refineries and one Detroit refinery, and by extension the jobs there, are fully and wholly dependent on Line 5. The refineries supposedly affected are: Marathon-Detroit; BP-Husky-Toledo — which carries no Line 5 feedstock because it’s a tar sands refinery that takes feedstock from Line 78 (formerly Line 6B), and PBF-Toledo. PBF states in its 2020 filing with the Securities and Exchange Commission that it “processes a slate of light, sweet crudes from Canada, the Mid-continent, the Bakken region and the U.S. Gulf Coast.”
    • The Patoka pipeline and the Mid-Valley pipeline supply PBF with oil and the refinery receives oil from rail and truck.
    • The refineries rely on multiple pipelines and suppliers, and they say so in writing.
    • Marathon refinery primarily uses dilbit, which Line 5 doesn’t currently carry.

Detroit Metropolitan Airport

  • In a letter to Michigan Gov. Gretchen Whitmer, Ohio Gov. Mike DeWine claimed, “our refineries supply the majority of aviation fuels to Detroit Metro Airport” and asserted that the shutdown of Line 5 would lead to airline schedule disruptions.
  • But 2020 jet fuel consumption at Detroit Metro will total 1,658,000 gallons per day, according to a 2010 estimate by the airport. Based on numbers published by PBF, BP Husky and Marathon Refineries, Line 5 appears to supply only about 10% of the jet fuel at Detroit Metro Airport, not 40% as claimed by Ohio Gov. DeWine. Both Marathon and PBF have other crude oil sources, and therefore other pipelines could provide feedstock to satisfy regional jet fuel needs. Alternatively, other nearby refineries in Illinois, Indiana, and Ohio could make up this shortfall.

Bottom line: Shutting down Line 5 will protect hundreds of thousands of jobs. A Line 5 shutdown would not significantly impact jobs at Toledo, Ohio, refineries. There is absolutely no evidence that a shutdown would impair operations at Detroit Metropolitan Airport.

Sources:

Eviction Day for Enbridge Line 5

Photo (from left): Winona LaDuke, Holly Bird, and FLOW’s Liz Kirkwood on May 13 at the Straits of Mackinac. Photo by Beth Price.

By Liz Kirkwood, FLOW Executive Director

May 13 marked an inflection point in FLOW’s water and climate work to shut down Line 5. It was a day of action and a show of force to evict Enbridge as an occupier—a rogue Canadian pipeline company pumping oil through our public waters and lands of the Great Lakes. It was a day highlighting the power of community and solidarity, and the power of indigenous leadership in protecting the source of all life: water.  

Just the day before, Enbridge blatantly defied and violated Michigan Governor Gretchen Whitmer’s deadline ordering the shutdown of the Line 5 pipelines. Defending our waters in her usual bold style, Governor Whitmer warned that Enbridge’s failure to obey would result in intentional trespass and disgorgement of 100 percent of Enbridge’s oil profits gained every day from illegally operating Line 5 in the Straits of Mackinac. (Read Gov. Whitmer’s reasons for shutting down Line 5 in her own words).

Organized by the first peoples of North America and the Oil & Water Don’t Mix campaign, this day-long event drew over 400 allies to deliver an eviction notice to Enbridge, to participate in a water walk and ceremony, and to hear from leaders about the urgent need to tackle climate change and shift to a clean energy economy. As water protectors, women tribal members led the group in traditional water ceremonies and told stories of our relationship to water. Tribal President Whitney Gravelle from the Bay Mills Indian Community conveyed that her tribe had voted to formally banished Enbridge and its pipeline from their legally recognized treaty waters. (Read coverage here of tribal protests that began the day prior at the Straits and continued into May 13). 

Nationally recognized indigenous voice, author, and anti-pipeline organizer Winona LaDuke, who directs Honor the Earth in Minnesota, spoke passionately about the danger posed by Line 5 to the Straits, which have played a key role in both tribal and non-tribal heritage and culture for centuries.

“This rogue Canadian corporation is basically holding the Great Lakes hostage,” LaDuke told FLOW in an interview after her speech. “In state after state, they are scaring officials. But here in Michigan, your governor, your attorney general have stood up for the people and for the water. We don’t need a Canadian multinational holding us all hostage. And that’s right now what they’re doing.”

“The question I would ask is, ‘Who gets the honor of being the last Tar Sands pipeline? Who gets that honor?’ It’s kind of like being the last guy to die in Vietnam, isn’t it? Who wants to tell that soldier he’s the last man to die for an unjust war? Who wants to tell some Ojibwe that they’re the last people to have their water contaminated so that Enbridge can make a buck?” 

Demonstrating the deep commitment and solidarity among indigenous nations, tribal members from Minnesota, where they are fighting another Enbridge pipeline—Line 3, actively participated in the May 13 event.

I joined the event on behalf of FLOW, representing our eight years of effort making the case that public trust principles and law give the State of Michigan the authority—and the duty—to expel Line 5 from the Straits in order to protect the world’s greatest freshwater system. Enbridge’s track record of pipeline mismanagement and deception—leading to the largest and most devastating oil spill in Michigan’s history in the Kalamazoo River watershed in 2010—bodes ill for the Straits, their ecology and the jobs that depend on them.

I am proud that it was FLOW that first identified the public trust doctrine as the basis for protecting these waters from the pipeline.  Now Governor Whitmer and Attorney General Dana Nessel have explicitly invoked that doctrine in seeking to shut down the pipeline.

Photos by Beth Price Photography

 

 

Reckless and Defiant, Enbridge Won’t Defuse Its ‘Ticking Time Bomb’ in the Great Lakes at Today’s Deadline to Shut Down Line 5

Mackinac Bridge photo by Nancy May

By Liz Kirkwood and Nora Baty

Every hour, Enbridge’s Line 5 pipelines pump nearly a million gallons of oil through the heart of the Great Lakes at the Straits of Mackinac, which connect Lakes Michigan and Huron. This location with its powerful currents is “the worst possible place for an oil spill in the Great Lakes,” threatening over 700 miles of Lakes Michigan and Huron coastline, according to the University of Michigan. Governor Whitmer calls Line 5 “a ticking time bomb” that Enbridge has refused to defuse.

This morning along East Grand Traverse Bay, the drinking water source for Traverse City, Liz Kirkwood explains why Enbridge’s decision to ignore the law amounts to privatizing the Great Lakes and the Public Trust.

Sixty-eight years ago, Enbridge’s predecessor, Lakehead Pipeline Company, chose this vulnerable location as the shortest distance to transport Canadian oil back to Canada. In 1953, the public, political leaders, and pipeline operators had not yet experienced catastrophic oil spills like the Exxon Valdez in Alaska, BP Deepwater Horizon in the Gulf of Mexico, or Enbridge’s own Line 6B Kalamazoo River disaster in southern Michigan. 

Now, despite the well-documented and lasting economic and ecological harm of oil pipeline disasters across the globe, we are witnessing intense, orchestrated opposition from Canada’s Enbridge and its allies to shutting down a clear-and-present danger to Michigan’s waters and way of life. A Line 5 oil spill would be an unprecedented ecological and economic disaster in the Great Lakes, threatening 84% of North America’s surface fresh water and some 20 percent of the planet’s fresh surface water, devastating coastal communities, and causing billions of dollars of damages to the environment and local and regional economy.  

Enbridge has continually failed to adequately maintain the pipeline, committing repeated and ongoing legal violations that are both pervasive and well-documented. They include at least three known anchor strikes against the underwater pipelines, a vulnerable engineering structure never designed to withstand the powerful lakebed currents and erosion, a lack of adequate liability insurance to hold the state and its people harmless, 33 known Line 5 oil spills in Michigan and Wisconsin, and much more. Now, despite Governor Whitmer’s revocation and termination of the easement, Enbridge continues to operate Line 5 in violation of state law. 

Line 5’s original design intended the dual pipelines to lie upon the lakebed and was subject to a detailed and comprehensive engineering evaluation of 20 specific areas, including written determinations of fitness that were certified by consulting engineers. Now, after decades of patchwork repairs to shore up the decaying infrastructure, as much as 3 miles of pipelines are elevated above the lakebed floor and prone to physical hazards such as anchor strikes in the busy shipping channel of the Straits of Mackinac.

After extensive legal review of Enbridge’s incurable violations in public trust waters, the governor and the Department of Natural Resources took decisive legal action to defend the Great Lakes from a catastrophic oil spill under the state’s sovereign public trust law. Leaders in 16 states and the District of Columbia and four tribes have taken Michigan’s side in its fight to have a state court, not a federal judge, decide whether the state has the authority to shutter Enbridge’s Line 5 oil pipeline in the Straits of Mackinac.

In refusing to shut down Line 5 per the Governor’s order, Enbridge’s flagrant disregard for the law exposes a deep-rooted and reckless corporate culture of exceptionalism that includes the following: 

Gov. Whitmer on Tuesday pledged in a letter to seize any profits that Enbridge makes from operating Line 5 after today’s midnight shutdown deadline, alleging it would constitute trespass and unjust enrichment. Also on Tuesday, several federally recognized tribes in Michigan took legal steps under tribal law to limit Enbridge and the threat from Line 5. Bay Mills Indian Community in the Upper Peninsula, as well as a five-tribe organization including Bay Mills that manages the fishery in the Straits of Mackinac, voted to banish Enbridge’s Line 5 from its territory. Banishment is a legal action that is considered a punishment of last resort in tribal law.

“This was the first, necessary step in banishing Enbridge from these waters,” said Bay Mills chairperson Whitney Gravelle, who said the move applies to the reservation and treaty-ceded waters. “We’re calling on the state and the United States to enforce this banishment.”

Michiganders have not forgotten Enbridge’s epic failure and legacy of the million-gallon, Line 6B oil spill disaster into the Kalamazoo River in 2010 that drove dozens of families permanently from their homes and cost an estimated $1.2 billion in cleanup costs, damages, and restoration. 

“The Enbridge Kalamazoo River spill of 2010 was a real thing — people remember it,” said David Holtz, spokesman for the Oil & Water Don’t Mix campaign. “They understand that oil still lies at the bottom of that river, and that a million gallons were spilled. They understand that could happen again times 10 in the Straits of Mackinac — no matter what Enbridge says in its million-dollar ad buys.”

After causing one of the largest inland oil spills in U.S. history, Enbridge rebuilt the Line 6B pipeline and gained approval to double its capacity. The economic and environmental costs of a Line 5 oil spill would be much worse to Michigan and the Great Lakes.

As part of “a sophisticated public affairs strategy,” Enbridge and its ally Consumer Energy Alliance—a national oil industry front group—continue to claim that shutting down Line 5 could lead to propane and oil shortages and increased prices harming Michigan consumers. However, the vast majority of the liquids shipped via Line 5 do not supply Michigan, and an independent analysis found that shutting down Line 5 was unlikely to significantly impact consumer prices at the pump (less than one cent per gallon) and that Michigan’s energy needs could be met without Line 5. Research conducted by former Dow Chemical engineer Gary Street found that in August 2020, after more than 50 days with at least one leg of Line 5 closed due to damage from an cable strike, gasoline prices and supply were unaffected in Michigan and Canada.

At the same time, the energy landscape is rapidly changing with the adoption of electric vehicles, accelerating commitments to cut greenhouse gas emissions, and the slowdown of oil and gas production. Enbridge has been on notice for several years that the State of Michigan was seriously considering the shut down of Line 5. 

But not everyone is waiting around. In fact, several oil companies seeking alternatives to Line 5 have contingency plans put in place. Suncor Energy purchased a stake in the Portland-Montreal pipeline to import oil from Maine to Montreal if Line 5 is shut down. Toronto’s Pearson Airport has stated that its fuel sources are “diversified and consequently not at risk.

Line 5 also threatens our climate and water security in an increasingly hot and thirsty world. Each year, Line 5 pumps out more than 57 million metric tons of greenhouse gas emissions, which is equivalent to the combined operation of the nation’s three largest coal plants. Dismissing the climate emergency, Enbridge and its political allies in the U.S. and Canada promote energy security alone and insist that “the operation of Line 5 is non-negotiable.” 

This strident reaction from Canadian politicians stems in part from the fact that Canadians have rejected building any new pipelines in the last decade in their own country going east or west to the coasts for export. In this pipeline battle, the Anishinabek Nation says the Canadian government is putting the oil and gas industry ahead of the Great Lakes with its support for the Line 5 pipeline. The Great Lakes are international water bodies, and Canadians should be just as concerned for their protection as the United States.

The Great Lakes support over 1.3 million jobs that generate $82 billion in U.S. wages annually, with 350,000 of those jobs in Michigan alone. More than 48 million Americans and Canadians draw their drinking water from the Great Lakes. Line 5 represents an unacceptable risk to the jobs and economy of the Great Lakes region, drinking water, and tribal treaty and fishing rights. While Enbridge might refuse for now to stop Line 5’s oil flow or collaborate in the global energy transition, for the future prosperity of Michigan, the Great Lakes, and the planet, we all must transition away from Enbridge.

About the authors:

Liz Kirkwood is FLOW’s executive director. Nora Baty is a third-year law student at the University of Michigan Law School and currently serving as FLOW’s Milliken Law and Policy Intern.

“MI Propane Security Plan” Is the Right Plan at the Right Time for Michigan’s Energy Independence and Prosperity

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, in reaction to the Whitmer administration’s release today of a five-point propane security plan to aid Michigan residents after the dangerous Enbridge Line 5 pipeline is shut down.

Liz Kirkwood, Executive Director

“The MI Propane Security Plan is the right plan at the right time for Michigan’s energy independence and future prosperity. With state leadership, the propane supply and distribution system can continue to adjust to meet demand, particularly in the Upper Peninsula where about 18 percent of households heat with propane.

“It’s far too risky for residents and the State of Michigan to continue to rely on the dangerous and outdated Line 5 pipelines that cross the open waters of the Straits of Mackinac for their propane supply. Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. Line 5 is owned and operated by Enbridge, which caused the Kalamazoo River oil spill disaster in 2010—after providing reassurances to Congress just 10 days earlier of ‘almost instantaneous’ response to leaks in the Canadian company’s sprawling North American pipeline system.

“We cannot trust Enbridge to keep running Line 5 through the Great Lakes, 20% of the world’s supply of fresh surface water and the drinking water source relied on by 48 million Americans and Canadians, including about half of all Michigan residents.

“According to the State of Michigan, the MI Propane Security Plan addresses potential price gouging, invests in renewable energy, energy efficiency and electrification, encourages investments in alternatives to Line 5, ramps up propane storage infrastructure, and calls for more actions to avert any disruption of energy supply.”

Background on propane:

For more information, see FLOW’s Line 5 fact sheets and blogs:

Enbridge Defies Ancient Public Trust Rule of Law, Undermines Great Lakes and Citizens’ Protected Rights

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

Enbridge has launched yet another attack on the rule of law in Michigan, a habit that underscores its arrogance and looks more like the disregard for rule of law exhibited by the mob that attacked the constitution, the Capitol, and rule of law of the Nation on January 6. It’s not surprising that Enbridge, a foreign corporation operating in the United States for its own advantage, has a history of disdain for the rule of law. (Enbridge said on January 12 that it won’t comply with Michigan Governor Gretchen Whitmer’s Line 5 easement revocation, and plans to continue operating the pipelines.)

Look at the slippery manipulation of rules by the same corporation that caused the Line 6b disaster along the Kalamazoo River in 2010. Look at Enbridge’s repeated resistance to turning over information to the Attorney General of Michigan from 2014 until today. The corporation sat on information it had about the strong currents scouring under the existing dual pipelines in the Straits of Mackinac and the addition of band-aid support structures over the past 15 years. The corporation dragged its feet on reporting the first anchor strike in 2018, and claimed it would never happen — and then it became public knowledge that it happened again when early last summer Ingham County Circuit Court Judge James Jamo ordered Enbridge to turn over information and reports that confirmed that fact that two more dangerous anchor strikes and a cable dragged along the Line 5 pipelines.

No responsible official would wait for the next strike or next band-aid to prop up a sagging pipeline. Under the state’s solemn duty to protect the Great Lakes and its citizens before serious harm occurs, Governor Whitmer and DNR Director Dan Eichinger, after a thorough 15-month review of information—including strong currents, failing pipelines from scouring and support structures that suspend the pipeline four feet into the water column, sitting in wait —had no choice but to issue the Notice of Revocation and Termination of the 1953 Easement for the existing pipelines. 

Similarly, Attorney General Nessel had no choice but to file a lawsuit in Ingham County Circuit Court to enforce the revocation and terminate Enbridge’s gamble that it can extract over $1 million a day at the risk of a major rupture or leak that according to experts would cause over $6 billion in damages and devastate the State’s economy for many years. Our southern Gulf states still have not recovered from the 2010 Deep Water Horizon blowout.

Under the U.S. Constitution and law of the U.S. Supreme Court and our own Supreme Court, Michigan took absolute title and sovereign control of the waters and bottomlands of the Great Lakes into a legally enforceable public trust on admission to statehood in 1837. Under public trust law, the state and its officials are trustees, just like trustees at a bank, and are charged with a solemn duty to prevent impairment, alienation, and subordination of this public trust, including attempts by private corporations to control it. This public trust protects the rights of citizens, communities, and property owners along the Great Lakes and our inland waters for fishing, boating, navigation, drinking water, sustenance, health, swimming, and other recreation. These rights and these public trust lands and waters are paramount to any private rights.

When Michigan took title in trust, all the United States government reserved for the nation was a navigational servitude —meaning, it could pass laws allowing shipping and improve related dock and port infrastructure under its police power to protect navigation. But the United States and Congress did not reserve the power to pass laws that erase, interfere with, or subordinate the State’s public trust duties and the rights of citizens as legal beneficiaries. If the federal government can’t interfere with the State’s paramount public trust, certainly no foreign corporation can do so.

Yet, Enbridge sent a 7-page letter this week to Governor Whitmer and our state officials falsely stating that the State has no legal authority over the existing pipeline, and that the corporation and its officials refuse to comply with the Notice of Revocation and, presumably, any state court order that would enforce the revocation and shutdown this dangerous line. Enbridge also claimed that its lame-duck agreement with the Snyder Administration in late 2018 gives it the right to locate a tunnel and new tunnel pipeline under the Straits in these public trust bottomlands and waters and the right to continue the existing line until it gets its tunnel.

As it turns out, the easements and 99-year lease for the tunnel deal haven’t been authorized under public trust law either. When the 2018 tunnel deal is examined closely, it reveals that Enbridge thumbed its nose at the rule of law and never obtained approval for these conveyances and use agreements under the Great Lakes Submerged Lands Act and the law that authorizes utility easements on public trust bottomlands.

When will Enbridge stop flaunting the law and stop trying to use its big buck advertising, political, and legal muscle?  Since when did Enbridge become the trustee for Michigan’s Great Lakes? The public trust doctrine is perpetual, and  when a use like the Enbridge 1953 dual lines in the Straits is no longer compatible with the protection of the public trust and rights of citizens, the state can revoke the use. Enbridge’s attempt to remove the State’s necessary and prudent actions to protect the public trust in the waters and bottomlands of the Great Lakes that it holds for citizens doesn’t float because it’s full of holes.

If the U.S. Congress can’t pass laws that take over or interfere with the absolute public trust rights and title of the Great Lakes in the States, surely a foreign corporation cannot expect to, no matter how much money and power it uses to back up such defiance. And those of us who live in the Great Lakes Basin—40 million of us—won’t let this defiance destroy the rule of law of our State.  Thankfully, Governor Whitmer, Director Eichinger, and Attorney General Nessel know this, and rather than look the other way, have the courage to stop it under the rule of law.