By Jim Olson
FLOW Founder and Legal Advisor
Last week the Michigan Attorney General’s Office chose not to appeal a lower court ruling upholding the constitutionality of a law that facilitates the framework for an oil tunnel under the Straits of Mackinac—forgoing any further challenge, but, in reality, yielding no strategic legal ground.
Don’t get me wrong. The constitutionality of the Act 359 “tunnel law” under the so-called “Title-Object” clause of article 4, section 24 of Michigan’s Constitution always has been an important question. This clause requires the purpose of a bill be stated in its title. Clearly, the legislature had no business stating the tunnel project was a public project like the Mackinac Bridge, then passing a law that allows a company to build, operate, and control its own private tunnel pipeline.
But the tunnel law only sets up a framework for a tunnel and new pipeline in the Straits. By forgoing any further appeal of the “Title-Object” question, the spotlight turns on the more central question at hand:
Can Canada’s Enbridge obtain the required authorizations under the rule of law, for its private gain and control, for a massive tunnel and tunnel pipeline beneath the public trust bottomlands of the Great Lakes?
The lame-duck legislature’s tunnel law and agreements signed by the Snyder Administration in its last days in 2018 sought to tie the hands of the newly elected Governor Gretchen Whitmer and Attorney General Dana Nessel, who took their oaths of office on January 1, 2019. But the 11th-hour maneuvers failed to bind the new leaders. Why? Because Act 359—the tunnel law—and the related tunnel agreements compel Enbridge to obtain the required approvals and permits for the location and construction of the tunnel and tunnel pipeline under all applicable federal and state laws. In other words, constitutional or not, the law simply begs the question.
The tunnel is not a done deal. Under the law, Enbridge is required to obtain a long list of governmental approvals and permits. Notably, it needs authorization under Michigan’s Great Lakes Submerged Lands Act (GLSLA) for easements and leases for location of the tunnel, a construction permit, and authorization to locate the pipeline in the tunnel as a “public utility” under the public trust bottomlands of the Great Lakes.
Moreover, Enbridge can’t even apply for location of the tunnel pipeline until it obtains certification of the new line as a “public utility” from the Michigan Public Service Commission (MPSC). Thus, in addition to the required authorizations under the GLSLA, Enbridge also must prove and the MPSC must make findings that the tunnel is “necessary” and “in the public trust interest” in the uncertain and tumultuous world of 2020—declining crude oil markets, climate change, and rapid transition to a renewable economy that just may make life livable for our children and grandchildren in this century.
Not only are these findings required, but the MPSC also must find that there are no “likely environmental impacts” and that there are “no feasible and prudent alternatives” to the new tunnel—when there are thousands of miles of crude oil pipelines owned by Enbridge and its competitors crisscrossing North America in every direction. Enbridge’s super-sized replacement of the ruptured Line 6B pipeline that despoiled the Kalamazoo River in 2010 has enough unused design capacity to nearly equal the average amount of crude oil pumped through Line 5 every day. The proposed oil tunnel is not necessary, clearly not in the public interest at this time in history, and there are alternatives that are both feasible and prudent.
After the tunnel law passed, Enbridge received an assignment of an easement and a 99-year lease-back from the Michigan Department Natural Resources (DNR) to locate, use, and operate the proposed tunnel and tunnel pipeline under the bottomlands of the Great Lakes. But Governor Snyder, the DNR, and Enbridge have not applied for authorization of this conveyance and lease under public trust law and the GLSLA. And, the tunnel and tunnel pipeline have not been certified by the MPSC. Nor has the project been authorized by the United States Army Corps of Engineers.
So, it is not surprising the constitutionality of the tunnel law aside, the central effort at this point must seek a prompt shutdown of the imminently dangerous conditions surrounding the existing dual pipelines in the Straits of Mackinac. And, as for the tunnel, the spotlight must determine whether the massive tunnel project should or can ever be approved under the rule of law of Michigan—the laws that protect the constitutional and public trust interests of our quality of life.
It’s time to navigate what we face in the 21st century, rather than remain stuck in the irons of the 20th century, when the 67-year-old Line 5 was installed in the open waters of the Great Lakes.
Line 5 Must Be Closed Before Disaster Strikes
The 67-year-old dual Line 5 pipelines continue to operate in the Straits of Mackinac, threatening the Great Lakes with a massive oil spill from a leak or rupture in the worst possible place in the country. Hazards include strong currents, underestimated for the “as built” pipes, anchor strikes, and, now, we learn, anchor lines that dragged along the pipes, and tore out a saddle support, installed because the strong currents were scouring and undermining the original as built dual pipelines.
Attorney General Dana Nessel filed suit (Nessel v Enbridge) against Enbridge in Ingham County Circuit Court to decommission Line 5 in an orderly fashion to prevent well over $6 billion in damages and irreparable long-term harm should a spill occur. The existing Line 5 dual lines and this lawsuit must proceed. It is not, and should not be, tied to the proposed tunnel; these dual lines need to be closed down before an inevitable accident or rupture happens. Circuit Judge James Jamo has stopped use of the east leg of Line 5, and is considering the revocation of a 1953 easement that was given conditionally to Enbridge, but without any understanding of the conditions that exist in 2020.