Tag: Enbridge

Denial, Disinformation, and Doublespeak: Exposing Enbridge’s Playbook on Line 5

Published on May 23rd, 2024 by - Blog Posts

To fully understand the fossil fuel industry’s playbook, let’s start with some basic definitions. You might call them the 3 Ds: Denial, Disinformation, and Doublespeak.

Denial is the refusal to believe or accept something as the truth.

Disinformation is false information that is intended to mislead, especially propaganda issued by a government organization to a rival power or the media.

Doublespeak is deliberately euphemistic, ambiguous, or obscure language.

On May 1, the U.S. Senate Budget Committee held a full hearing on this very topic: Denial, Disinformation, and Doublespeak: Big Oil’s Evolving Efforts to Avoid Accountability for Climate Change. This hearing was based on an extensive three-year Congressional investigation led by the House Oversight Committee that culminated with an April 2024 report by the same title.

Relying on industry documents obtained by the House Oversight Committee, the House report revealed that “fossil fuel companies routinely mislead the public and investors about their emission reduction targets, their plans to comply with the Paris Agreement, the viability of low-carbon technologies they tout, the alleged safety of natural gas, and their commitments to support various climate policies.” (p. 11). The key findings of this report included:

  1. “Documents demonstrate for the first time that fossil fuel companies internally do not dispute that they have understood since at least the 1960s that burning fossil fuels causes climate change and then worked for decades to undermine public understanding of this fact and to deny the underlying science.
  2. Big Oil’s deception campaign evolved from explicit denial of the basic science underlying climate change to deception, disinformation, and doublespeak.
  3. The fossil fuel industry relies on trade associations to spread confusing and misleading narratives and to lobby against climate action.
  4. The fossil fuel industry strategically partners with universities to lend an aura of credibility to its deception campaigns while also silencing opposition voices.
  5. All six entities—Exxon, Chevron, Shell, BP, API, and the Chamber [of Commerce]—obstructed and delayed the Committees’ investigation.” (i-ii).

Here in the Great Lakes, we see Enbridge applying these same tried and true strategies in its effort to wring every last bit of profit from its fossil fuel infrastructure and its most dangerous pipeline, Line 5, which carries refined tar sands from Canada(1).

This 645-mile pipeline runs through hundreds of waterways in Wisconsin and Michigan, including a nearly 5-mile segment in the open waters of the Straits of Mackinac, where it is vulnerable to anchor strikes that could cause a catastrophic oil spill in the heart of the Great Lakes.

 



Denial and deception have been key tactics for Enbridge. Before the State of Michigan’s 2019 litigation against Enbridge to revoke and terminate the Line 5 easement in the Straits, Enbridge knowingly lied to state and federal regulators for years about the dangerous failing nature of the pipeline and its faulty engineering design that resulted in the pipeline’s cathodic protection against corrosion being scraped off. In fact, Enbridge publicly argued that Line 5 was in good condition.

But, Enbridge knew that it was in a state of constant violation of the State of Michigan’s requirement that the pipeline be supported every 75 feet. Long, unsupported spans of pipeline stress the metal and risk rupture. For decades, Enbridge failed to address unsupported spans of 200, 300, and even 400 feet long (PDF, pg. 10).

Today, Enbridge knows that Line 5 is vulnerable to anchor strikes from ships passing in one of the busiest shipping lanes in the Great Lakes. Enbridge knows that if a Line 5 oil spill happened in the Straits, it would be on a magnitude and scale that would dwarf the company’s 2010 Kalamazoo oil spill disaster–which is to this date one of the largest inland oil spills in U.S. history. Enbridge knows that in the event of an oil spill in the Great Lakes, less than 30 percent of the oil could be recovered, based on the U.S. Coast Guard emergency response rates.

And while Enbridge seeks to build a massive new fossil fuels tunnel through the Straits of Mackinac, it cautions investors  that “Our business, financial condition, results of
operations, cash flows, reputation, access to and cost of capital or insurance, business plans or strategy may all be materially adversely impacted as a result of climate change  and its associated impacts.” (PDF, p. 45) [emphasis added]

It also notes, without irony, that “Climate-related physical risks, resulting from changing and more extreme weather, can damage our assets and affect the safety and reliability of our operations.” Enbridge is complaining about the problem (climate change) that its own business is causing.

 

Disinformation also has been a hallmark of Enbridge’s campaign to keep fossil fuels flowing through Line 5. For years, Enbridge claimed that shutting down Line 5 would result in freezing the grannies in Michigan’s Upper Peninsula. Clearly, this is ridiculous. Line 5 didn’t even carry natural gas liquids (NGLs) for home heating until the 1990s, and yet, somehow, the pre-grunge era grandmothers endured. A 2020 report (PDF) prepared for the Michigan Department of Environment, Great Lakes, and Energy (EGLE) found that the Upper Peninsula has dozens of alternative sources for propane.

But litigation changed everything, when Enbridge finally had to testify under the rule of law. The public finally learned that Line 5 is not critical infrastructure, as Enbridge had touted for years. In fact, Enbridge is using Line 5 primarily to move Canadian tar sands oil back to Canadian refineries–using Michigan and the Great Lakes as a high-risk shortcut.

Enbridge knows that the current operation of Line 5 in the open waters of the Great Lakes is dangerous. That’s why it concocted and drafted special legislation in 2018 under the Snyder Administration to use yet more public lands and waters under the Great Lakes to build a tunnel for Line 5. The disinformation surrounding the tunnel continues to run thick.

What is clear is that no new fossil fuel infrastructure can be built (including Enbridge’s proposed tunnel and the 41-mile pipeline reroute around the Bad River Band reservation in Wisconsin) if we are to achieve international net-zero emission goals by 2050, according to the International Energy Agency (IEA).

The proposed tunnel is a seductive alternative to the status quo of Line 5, but this is not an alternative that will promote energy and water security in the Great Lakes region. Smart alternatives using existing infrastructure are available and should be prioritized.

Moreover, the proposed tunnel will become an albatross around Michigan’s neck. Michiganders will be liable and fiscally responsible for the upkeep of the tunnel to nowhere when Line 5 becomes a stranded asset in less than 20 years. Enbridge has filed a truncated depreciation schedule with the Federal Energy Regulatory Commission (FERC). Enbridge is racing to recoup its costs because it knows the sun is setting on the fossil fuels industry, and the tunnel will have a limited economic life.

In its 2023 annual report, Enbridge recognizes that stakeholder and organized opposition to fossil fuels threatens its operations and financial position, writing “We are also exposed to the risk of higher costs, delays, project cancellations, loss of ability to secure new growth opportunities, new restrictions or the cessation of operations of existing pipelines due to increasing pressure on governments and regulators, and legal action, such as the legal challenges to the operation of Line 5 in Michigan and Wisconsin.” (PDF, pg. 53) [emphasis added]

Where does that “increasing pressure” come from? It comes from all of us: voters, coalition organizations, courts, activists, the business community, and everyone who is speaking out about this dangerous, unnecessary pipeline and climate change.

That’s why Enbridge is ratcheting up its PR campaign in this presidential election year, by blanketing the airwaves and media outlets across Michigan. Here in northern Michigan, Enbridge is running underwriting spots on public broadcasting, ads on Spotify (even on left-leaning podcasts), and “greenwashing” digital ads on LinkedIn.

According to data available from the Meta platforms Ad Library, in January 2024 Enbridge launched an advertising blitz on Facebook and Instagram, spending approximately $128,000 to date on ads targeting Michigan, Wisconsin, and notably, Washington D.C. These ads have been viewed well over 3 million times.

(click to enlarge)

 

Why? Because Enbridge needs Michiganders to accept the tunnel as inevitable. Enbridge needs Wisconsinites and indigenous communities to embrace the pipeline re-route. Enbridge needs legislators and agency staff in D.C. to believe it is fighting the climate change its products cause.

Enbridge is desperate to turn down the pressure.

 

Lastly, we turn to Enbridge’s doublespeak. Enbridge’s playbook takes the cake here. As if causing one of the largest inland oil spills in U.S. history wasn’t bad enough, Enbridge has the gall to take credit for fulfilling your lifelong dreams! Ignoring the fact that you need clean water to kayak and not a catastrophic oil spill, Enbridge now is taking credit for it all because life takes energy. According to Enbridge’s Community Engagement Manager in Northern Michigan, Lauren Brown says: “It’s satisfying to know that in some way, Line 5 can have a role in helping people to achieve their lifelong dreams,” Check it out here. For real.

Like so many of us, Michigan’s Attorney General is also tired of this fossil fuel playbook. In May 2024, Attorney General Dana Nessel announced that her department is seeking proposals from outside lawyers and law firms willing to pursue litigation as special assistant attorneys general working on behalf of the state. In an interview with Bridge Michigan, Nessel said Michigan taxpayers face “billions of dollars of losses” as climate change fuels extreme weather, warms lakes and rivers to the point of crisis for fish species, destroys northern forests and threatens the state’s people and economy. Attorney General Nessel remarked that climate change impacts in Michigan were “caused by these companies that knew exactly what they were doing.”

Enough is enough. It’s high time that we call Enbridge’s bluff and call out this multinational corporation’s intentional and repeated actions to deny and deceive.

(1) The amount of air pollution coming from Canada’s oil sands extraction is between 20 to 64 times higher than industry-reported figures, according to a recent groundbreaking study. Canada’s oil sands are the fourth-largest oil deposit on Earth and among the most energy-intensive to access and process. https://news.mongabay.com/2024/05/canada-oil-sands-air-pollution-20-64-times-worse-than-industry-says-study/ (Visited May 21, 2024).

What Enbridge Really Knows About the Risk of a Line 5 Rupture in the Straits of Mackinac

Published on May 17th, 2024 by - Blog Posts

“Safety. It’s a core value that makes us Enbridge. It’s our way of life.”
Enbridge, Our Commitment

 

Universally considered among the most vulnerable, at-risk pipelines in the world, the 4-mile segment of Line 5 crossing the Straits of Mackinac, where Lake Michigan and Lake Huron meet, is quite literally, an accident waiting to happen.

Line 5: America’s Most Dangerous Pipeline

Owned and operated by Canadian corporation Enbridge, the 71-year-old dual pipelines known as Line 5 no longer rest on the lakebed floor as the original engineers in the early 1950s had planned. Due to massive erosion and lakebed scouring from the strong lake currents, Line 5 is now haphazardly tethered and suspended above the bottom of the Straits of Mackinac by more than 200 supports added over time.

And yet every day, this high-wire act moves 23 million gallons of oil and natural gas liquids through the water. Given the extraordinary currents in the Straits, the structural integrity of the now-elevated pipelines is a continuing concern, second only to the ever-present risk of an anchor strike from a passing ship rupturing one or both of the pipelines.

The chasm between Enbridge’s public statements regarding its pipeline safety measures and Enbridge’s internal understanding of the actual risk of Line 5 failing catastrophically should alarm everyone in the Great Lakes region.

Like the oil industry concealing its long-held understanding of the climate effects of fossil fuel combustion, or the denials of the tobacco companies regarding the cancer risks from smoking, Enbridge has deceived the public by underplaying its internal findings that Line 5 could rupture at any time.

In its public statements, Enbridge assures the public that everything is fine. But Enbridge’s internal assessment of the risk of a catastrophic oil spill from a Line 5 failure is at odds with its PR statements. And its commitment to safety appears as porous as its pipelines.

The Anchor Strike Threat: Immediate, Incontrovertible, and Fully Acknowledged by Enbridge

Shipping on the Great Lakes accounts for nearly 40% of total cross-border trade between the US and Canada, and the Straits of Mackinac are one of the busiest shipping lanes in the region. Each year, hundreds of cargo vessels – some measuring 1,000 feet and carrying as much as 70,000 tons of cargo – pass through the turbulent 5-mile wide strait, and directly over Line 5.

In 2015, Dynamic Risk Assessment Systems, Inc. conducted a comprehensive risk analysis of the Straits pipelines. The analysis found that the risk of a pipeline-anchor incident depends largely on four “vulnerability factors”:

  1. size of the pipeline;
  2. water depth (relative to anchor chain length);
  3. pipeline protection (depth of burial, use of armoring material); and
  4. number and size distribution of ship crossings per unit of time.

The report found that the Line 5 pipelines scored high on all four risk factors:

“[I]t must be noted that with respect to the above vulnerability factors, the Straits Crossing segments cross a busy shipping lane…They are also situated in water that is shallow, relative to the anchor chain lengths of most cargo vessels. Furthermore, a 20-in. diameter pipeline is small enough to fit between the shank and flukes [emphasis added] of a stockless anchor for a large cargo vessel, and thus, is physically capable of being hooked.”


[Illustration of the approximate size of a Great Lakes freighter anchor relative to Line 5. Click to enlarge.]

The Dynamic Risk report concluded that the chance of a pipeline rupture caused by an anchor strike in the Straits within the next 35 years is one in sixty. Those are the same odds that the average person has of being involved in a traffic accident this year.

In a 2018 Enbridge commissioned report, Enbridge acknowledged the threat of an anchor strike in the section titled: Potential Impacts of Anchor Drops and Drags.

“Dragging of an anchor across an unburied pipeline may result in impact, pull-over or, less frequently, a hooking interaction with the pipeline. A large-diameter pipeline could safely resist the pull-over anchor loads of small vessels, but anchor loads of larger vessels could potentially pull the pipeline beyond its bending capacity [emphasis added]. If an anchor is dragging along the lakebed and is not pulled over the pipeline, it could be hooked under the pipeline.” (p. 21)

Predictably, Line 5 has been struck by at least three anchor strikes or cable drags in the last 5 years – even with heightened scrutiny – that have damaged the pipelines or severed nearby transmission cables.

Documented Anchor Strikes on Line 5

In April 2018, the tug Clyde S. Van Enkevort in articulated combination with the barge Erie Trader, dragged an anchor and chain over both Line 5 pipelines. The large anchor, weighing 12,000 pounds, dented the pipelines and easily could have ruptured either the eastern or western pipeline had the anchor’s fluke caught a pipeline. The same incident severed electrical cables in the Straits close to Line 5, releasing approximately 800 gallons of dielectric fluid into the Straits that the Coast Guard never recovered.

Enbridge sued the owner of the tug Van Enkevort. In its complaint, Enbridge’s attorneys asserted that “a reasonable vessel operator would be cognizant of the potential for severe harm to the Great Lakes should any of the pipelines and cables in the Straits of Mackinac be struck by an anchor…” [emphasis added].

In other words, Enbridge is fully aware of the dangers of running fossil fuel pipelines through the open waters of the Straits of Mackinac, and the environmental disaster that could occur.

Later inspections in May and June 2020 revealed extensive new damage to the coatings and surface of both east and west pipelines. Enbridge’s internal investigation revealed that a ship under contract to Enbridge likely dragged a cable that became entangled with a pipeline support, damaging both the support and the pipeline.

In June 2020, following the discovery of the damage and Enbridge’s admitted failure to fully notify the State of Michigan as it is required to do, Michigan Circuit Court Judge James Jamo ordered a temporary shutdown of the pipeline, writing that the risk of harm to the Great Lakes would be “not only substantial but also in some respects irreparable.”

In July 2021, another 15,000-pound anchor lost by an Enbridge-contracted vessel was found on the lakebed between the two Line 5 pipelines. Larger than the Van Enkevort anchor, if the flukes had caught either of the pipelines, disaster would have ensued.

Pipeline breaches by anchor strikes are not uncommon. The Associated Press reviewed more than 10,000 reports submitted to federal regulators and found at least 17 pipeline accidents linked to anchor strikes from 1986-2020. Federal agencies report 22 pipeline accidents in the period 1979 through 2021, all of which resulted in the release of oil.

Anchor strikes are, unfortunately, all too frequent–and the Line 5 pipelines are uniquely vulnerable.

Anchor Deployments in the Great Lakes

The Coast Guard’s realization of the apparent danger of anchor strikes and cable drags in the Straits resulted in the promulgation of a rule establishing a Regulated Navigation Area (RNA) that restricts anchoring in the area proximate to the pipelines. The RNA, however, specifically allows anchoring in the event of an emergency. A ship may deploy an anchor to protect the ship and crew in the event of a loss of power or steerage, or in the event of a collision, grounding, explosions, fires, or heavy weather.

The unfortunate reality is that vessels on the Great Lakes can lose propulsion or steerage within areas designated a “no anchor” zone.

A recent review of U.S. Coast Guard records by the Detroit News revealed that freighters on the Great Lakes lost steerage, propulsion, or electrical power more than 200 times between 2012 and 2022. When such an emergency occurs, a ship captain’s first responsibility is to protect the vessel from damage and ensure the safety of the crew by deploying anchorage.

That is precisely why the dual pipelines in the Straits are uniquely vulnerable to anchor strikes and catastrophic rupture – as affirmed by Enbridge itself. The record of the last five years alone is one of repeated anchor strikes, cable drags, and detached anchors discovered lying near the pipelines.

To justify the continued operation of Line 5 in the Straits, Enbridge touts a “suite of extra safety measures at the Line 5 Straits crossing.” They include the establishment of the Enbridge Straits Maritime Operations Center (ESMOC), the “nerve center” of the marine traffic safety system put in place by Enbridge in the Straits that ostensibly warns ships of the danger of anchoring in the Straits.

But the ESMOC has a loophole you could sail a freighter through: it can only operate as intended 1) in daylight, and 2) if weather conditions permit. But even if it operates as intended, a ship will almost certainly throw an anchor in the event of an emergency loss of power or steerage – which happens on average 20 times per year in the Great Lakes.

Only by sheer luck has the Great Lakes region avoided a multibillion-dollar economic and environmental catastrophe.

Enbridge’s calamitous safety record


Enbridge is responsible for the most destructive pipeline rupture in United States history. The July 2010 failure near Marshall, Michigan released more than 1 million gallons of diluted bitumen (known as “dilbit”) into a direct tributary of the Kalamazoo River. The rupture of Line 6B resulted in devastating impacts to human health and the environment. The Michigan Department of Community Health identified 320 individuals experiencing acute adverse health effects.

The NTSB’s accident report documented how malfeasance and mismanagement exacerbated the pipeline failure, resulting in pervasive contamination and massive ecological damage to the waters and surrounding wetlands from the oil that flowed from Marshall Creek and contaminated a 40-mile stretch of the Kalamazoo River.

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The NTSB concluded that “the rupture and prolonged release were made possible by pervasive organizational failures at Enbridge. [emphasis added]” According to then NTSB Chairman Deborah Hersman, “The 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. Despite multiple alarms and a loss of pressure in the pipeline…they failed to follow their own shutdown procedures.”Since the Kalamazoo disaster, Enbridge has claimed a renewed ethic of responsible oversight and commitment, stating that the “safety of the public and the environment, and the operational reliability of our systems will always be our Number One priority.” Sued by the Environmental Protection Agency over the catastrophe, Enbridge entered into a consent decree in 2017 where it agreed to undertake a suite of pipeline monitoring and preventative measures aimed at reducing the likelihood of future pipeline failures. Enbridge paid over $177M in a settlement with the U.S. Department of Justice for the Kalamazoo disaster.

While Enbridge makes much of its new safety-first principles, the record indicates a pattern of systemic noncompliance with the terms and conditions of the 2017 consent decree. Since Enbridge entered the agreement with the federal government, the United States has assessed stipulated penalties for allegedly violating the inspection requirements and other terms of the consent decree, indicating that Enbridge has repeatedly failed to implement required safety measures in a timely manner.

In total, the United States has assessed Enbridge with penalties of $16,462,000 for failing to live up to its commitments and responsibilities under the 2017 consent decree.

Even after the most consequential pipeline disaster in U.S. history that, according to Enbridge, led to sweeping safety reforms throughout the company, Enbridge was penalized six times by the United States for failing to live up to its commitments on safety.

Line 5 must be shut down now

The incident history of the Enbridge pipeline system reveals a pattern and practice of negligence and willful indifference to the strict requirements of federal pipeline safety regulations. Enbridge’s safety record speaks for itself. Data from the Pipeline and Hazardous Materials Safety Administration (PHMSA) indicate that the U.S. segments of Enbridge’s pipeline network experienced 215 hazardous liquids “incidents” from 2002 to August 2018 – an average of one every twenty-eight days. Line 5 alone has experienced at least thirty-three reportable leaks and spills since its installation.

There is overwhelming evidence that the dual underwater pipelines crossing the Straits of Mackinac are particularly vulnerable to catastrophic ruptures and could fail at any time – a possibility acknowledged and affirmed by Enbridge itself. As Enbridge has asserted in its pleadings in the Van Enkevort litigation, the elevated pipelines are clearly vulnerable to anchor strikes and cable drags that could result in the catastrophic failure of the pipelines at the center of the most sensitive and valuable fresh surface water system in the world.

Enbridge knows that anchor drags and strikes have occurred in the Straits of Mackinac.

Enbridge knows that Line 5 is uniquely vulnerable to anchor strikes.

Enbridge knows its warning system is half-baked.

Enbridge knows that an oil spill in the Straits would be catastrophic.

Enbridge knows that today could be the day.

And Enbridge knows it makes a whole lot of money sending fossil fuels through pipes – and through our Great Lakes.

Enbridge continues to violate inspection and monitoring agreements, safety standards, and regulations. It has breached the terms of easement granted by the State of Michigan for the operation of Line 5, defied a lawful Notice of Revocation and Termination of the easement from the Governor of the State of Michigan to cease operation of the pipelines crossing the Straits of Mackinac. And it benefits from a continuing trespass on the sovereign lands of the Bad River Band in northern Wisconsin.

Enbridge’s defiance is a lethal combination of greed, arrogance, and a breach of corporate and civic responsibility. The continued operation of Line 5 must end now.

Take Action:

Email your Michigan representatives in Lansing

FLOW Appeals MPSC Decision Approving the Line 5 Tunnel

Published on April 15th, 2024 by - Blog Posts, Reports & Media Releases

Download FLOW Appellate Brief  (PDF)

Traverse City, Mich.— On April 11, 2024, FLOW filed a brief before the Michigan Court of Appeals aimed at reversing the Michigan Public Services Commission’s (MPSC) approval of the proposed Line 5 tunnel project.

Enbridge’s proposed tunnel received a green light from the MPSC on December 1, 2023. FLOW is challenging the approval arguing that the MPSC’s action violated the Michigan Environmental Protection Act by failing to determine whether feasible and prudent alternatives were available that would render the estimated $2 billion project unnecessary. FLOW also contends that the MPSC failed to undertake any analysis of whether there was a “public need” for the project, given growing concerns over greenhouse gas emissions and projected reductions in the use of transportation fuels.

“Enbridge has admitted that growing U.S. and Canadian concerns over climate change will significantly reduce the serviceable lifetime of Line 5 and the tunnel,” stated FLOW’s Executive Director Liz Kirkwood. “The project is demonstrably an environmental and economic albatross.”

FLOW has joined numerous Native American tribes and other advocacy organizations in formally opposing the tunnel project.

Nessel v. Enbridge: Oral arguments in the U.S. Court of Appeals for the Sixth Circuit

Published on March 21st, 2024 by - Blog Posts, Reports & Media Releases

Download as PDF

Listen to audio recording of the oral arguments

Traverse City, Mich.— Today, March 21, the U.S. Court of Appeals for the Sixth Circuit heard oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.

Both before and after Nessel’s suit, the Straits pipelines have been repeatedly struck by anchors or cables dragged by passing vessels, and two anchors have been found lying on the lakebed near the pipelines. “The threat of rupturing the aging pipeline and causing a catastrophic oil spill in the Great Lakes is a clear and ever-present danger,” stated FLOW Executive Director Liz Kirkwood. “The largest fresh surface water system in the world is at great risk.”

The Attorney General filed her lawsuit in Michigan state court in 2019 to force shutdown of Line 5. Since then, Enbridge, following Big Oil’s playbook of delay, has thrown up numerous procedural roadblocks to try to derail the lawsuit, including removal of the case to federal court. The Attorney General challenged that removal on the grounds that Enbridge’s tactic came way too late, and the federal courts lacked jurisdiction over the state law-based claims in the complaint originally filed in state court.

In 2023, the federal district court sitting in Grand Rapids sided with Enbridge, and the Attorney General appealed. Today, Assistant Attorney General Dan Bock argued to the Sixth Circuit that by waiting more than two years to remove the case to federal court, Enbridge’s removal was untimely and must be rejected. Mr. Bock also argued that, timing issues aside, the federal court misapplied the law when it ruled that the case belongs in federal court rather than state court. The Attorney General argued that yanking the case out of state court simply because Enbridge prefers a federal forum violates the State’s right to have state claims resolved in state court.

Enbridge’s attorney Alice Loughran argued that the removal to federal court was timely, and should remain in federal court because federal issues dominate the case. Those issues include the effect of the 1977 U.S. – Canada transnational pipelines treaty, the federal Submerged Lands Act, and the extensive federal regulation of oil pipelines. Enbridge essentially argued that Michigan’s sovereign rights and responsibility to protect the clean waters of the Great Lakes from another Enbridge oil pipeline disaster are not enforceable in state court and must yield to the need for continuous crude oil delivery through Line 5. In short, the protection of commerce and Enbridge’s Line 5 profits (roughly $2 million per day) are federal issues that must take precedence.

The arguments were presented to a three-judge panel of the Sixth Circuit Court of Appeal: Judges Griffin, Thapar and Nalbandian. The questioning by the judges reflected deep skepticism of Enbridge’s argument that the district court was correct when it excused the company from compliance with the time requirements for removal of the case from state court to federal court. On the question of jurisdiction, the judges seemed divided on whether the federal Submerged Lands Act or the pipelines treaty with Canada provide a sufficient basis for the exercise of federal court jurisdiction. At the conclusion of the arguments the case was taken under advisement. While no timeline was given, we expect the court to issue its ruling this spring.

FLOW filed an amicus curiae (friend of the court) brief in support of the Attorney General. In its brief, FLOW argued that removal of the case to federal court upset the traditional balance of responsibilities between the federal and state judiciaries. In particular, an affirmance of removal would deprive the State of Michigan and the Attorney General of well-established rights under Michigan law and U.S. Supreme Court precedent to assert the public trust doctrine to prevent the use of state-owned Lake Michigan bottomlands for private, commercial gain. FLOW also argued that Enbridge’s reliance upon the so-called “foreign affairs doctrine” to shield it from state remedies for violation of the public trust, nuisance law, and enforcement of the Michigan Environmental Protection Act is a gross distortion of federal-state relations under our federal system of government guaranteed by the U.S. Constitution. Mr. Bock acknowledged FLOW’s arguments during his presentation to the court.

FLOW strongly supports Attorney Nessel’s effort to return this case to state court and proceed to a trial on the merits of her claim that Line 5 is unreasonably dangerous, and that the threat of an enormous environmental disaster must be terminated without further delay.

Federal Court Hears Arguments from Bad River Band and Enbridge in Appeal of Line 5 Pipeline Shutdown Order

Published on February 8th, 2024 by - Blog Posts

Traverse City, Mich.— On February 7, 2024, the U.S. Court of Appeals for the Seventh Circuit in Chicago heard oral arguments in the Line 5 case involving northern Wisconsin’s Bad River Band of Lake Superior Chippewa and Enbridge, Inc., a Canadian multinational pipeline and energy company headquartered in Calgary, Alberta, Canada. The panel of Appellate Judges was Frank H. Easterbrook, Michael Y. Scudder, Jr., and Amy J. St. Eve. Line 5 is a 71-year-old pipeline, threatening the Great Lakes with a catastrophic spill to deliver oil and gas to Canada.

In 2019, the Bad River Band initiated this litigation to evict Enbridge’s 12-mile stretch of Line 5 oil pipeline from their territory based on claims of trespass, nuisance, unjust enrichment, and injunctive. The band then filed for emergency injunctive relief in May 2023, following massive spring flooding events that caused alarming rates of erosion along the Medicine River and threatened to destabilize and rupture the pipeline. On June 16, 2023, U.S. Western District Court of Wisconsin Judge Conley issued a remarkable decision, finding Enbridge in “conscious and willful trespass” and ordering shut down by June 2026 of a Line 5 section running through the tribe’s sovereign territory, and pay the tribe $5.1 million. This is the first time a date has been set to shut down Line 5. 

On appeal, Enbridge’s attorney Alice Loughran argued the Seventh Circuit should vacate Judge Conley’s order, relying on two key arguments: (1) the Bad River Band was not acting pursuant to the “best efforts” clause of the 1992 easement agreement; and (2) Judge Conley’s order violated the 1977 Pipeline Treaty between the U.S. and Canada, which limits the authority of each country to impede the flow of oil and natural gas through pipelines between the nations. 

In response, the Bad River Band’s lawyer, Paul Clement, urged the appellate court to affirm the lower court’s order requiring Enbridge to stop trespassing, and require immediate compliance, not three more years on top of ten years of trespass. Clement also argued that Enbridge must turn over the Line 5 profits realized since its reservation easements expired in 2013. Three additional years of ongoing trespass is unreasonable, Clement said, particularly given the upcoming spring flooding threat, like last year’s, which eroded the land to within 11 feet of the pipeline.

The judges probed why federal agencies were not working faster to approve Enbridge’s proposed 41-mile pipeline re-route around the Bad River reservation. They also questioned why the tribe has not taken precautionary measures like using sandbags to mitigate the risk created by Enbridge. Clement countered that it is unreasonable and unfair to expect the tribe to take affirmative steps that sanction and reinforce the trespasser’s illegal and intentional occupation of the tribe’s land. 

The hearing concluded with Judge Easterbrook announcing that the court would not decide this case until at least next month, after the court receives a briefing on the federal government’s position. 

Next month on March 21, the U.S. Court of Appeals for the Sixth Circuit will hear oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Multiple anchor strikes have occurred, threatening to rupture the line and causing a catastrophic oil spill in the Great Lakes. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.

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FLOW is an independent, 501(c)(3) nonprofit that serves as a Great Lakes water law and policy center dedicated to ensuring the waters of the Great Lakes Basin are healthy, public, and protected for all. The enduring idea of the commons and legal principles of the public trust offer unifying adaptive solutions to address basin-wide threats. FLOW’s staff of legal and policy experts, journalists, and community-builders makes FLOW an authoritative resource for Great Lakes advocates. FLOW builds a knowledge base for communities, state agencies, and legislators to inform policy and advocacy for water issues. Learn more at www.ForLoveOfWater.org.

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Disgraceful: MPSC Approves Permit for Enbridge Tunnel in the Straits of Mackinac; Breaches Legal Duty to Protect Michigan’s Natural Resources

Published on December 1st, 2023 by - Blog Posts, Reports & Media Releases

Traverse City, Mich. — FLOW is shocked that the collective efforts of thousands of Michiganders and treaty-protected tribes to protect our waters from the catastrophic risks of Line 5 have been ignored in today’s decision by the Michigan Public Service Commission (MPSC) to grant authorization for a Line 5 tunnel. The Straits are no safer while an unprecedented tunnel perpetuates the threat of an explosion spilling oil and gas into these ecologically fragile and economically vital waters.

In the same week that Governor Whitmer signed into law a nationally significant climate bill to decarbonize 100% of Michigan’s electricity production by 2040, today’s ruling is a black mark on the administration’s climate record and a disgrace to all of Michigan. A Line 5 tunnel with a 99-year lease will be an embarrassing albatross, hobbling future efforts to transition the region off fossil fuels and imprudently burdening taxpayers.

The Commission’s approval of a tunnel and 99-year new crude oil and natural gas liquids pipeline betrays its perpetual and solemn public trust responsibility as the sworn guardians of the public rights of citizens in the Great Lakes. This is not a “just transition” but a craven capitulation to fossil fuel profits.

Three years ago, FLOW intervened as a party before the MPSC in Enbridge’s proceeding seeking approval of a pipeline tunnel under the Straits. FLOW legal advisors Jim Olson and Skip Pruss have represented the public’s interest in the Great Lakes and Michigan’s priceless ecosystem. Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960).

The authorization breaches the MPSC’s legal duty to prevent likely degradation of Michigan’s air, water, natural resources, and public health—including drinking water, fishing, sanitation, boating and recreation—under Michigan’s environmental protection laws and the mandates under article 4, section 52 of Michigan’s Constitution.

Michigan environmental law prohibits the Commission from authorizing a pipeline when, according to the recent PLG Consulting report, reasonable, practical, feasible, and prudent, and affordable alternatives exist, and environmental damage is likely. The Michigan Environmental Protection Act expressly states that under these circumstances, a permit or approval “shall not be authorized.”

FLOW Founder and veteran Michigan environmental lawyer Jim Olson said: “There is no justification, morally or legally, for a new crude oil pipeline and tunnel that will last into the days of our great-great-grandchildren. When they look back at us, what kind of ancestors will they see?”

This fight is not over, and FLOW will be there.

FLOW files amicus brief; urges Sixth Circuit Court of Appeals to remand Line 5 lawsuit back to state court

Published on September 25th, 2023 by - Blog Posts, Reports & Media Releases

Read FLOW’s summary of the PLG Consulting report, Likely Market Responses to a Line 5 Shutdown

[PRESS RELEASE: DOWNLOAD PDF]

[AMICUS BRIEF: DOWNLOAD PDF]

Traverse City, Mich.—Today, September 25, 2023, FLOW (For Love of Water) filed a motion with the Sixth Circuit Court of Appeals in the 2019 state lawsuit Attorney General Dana Nessel v. Enbridge, requesting the federal appeals court to accept an amicus brief that articulates why this case should be remanded back to state court where it belongs.

Built in 1953, Line 5 is a 70-year-old oil pipeline operating in fierce currents on the bottomlands of the Straits of Mackinac, where Lake Michigan and Lake Huron meet. The underwater pipeline has been repeatedly struck by ship’s anchors, and cables dragged by passing vessels have damaged the pipeline and its supports. Line 5 is uniquely vulnerable to multiple impacts that could result in irreversible environmental harm and billions of dollars of damage to the Great Lakes regional economy.

Three years after the Attorney General filed the 2019 state lawsuit, Enbridge in a procedural tactic removed the case to the federal district court in Grand Rapids, Michigan. The federal district court refused to remand the case back to state court. The Sixth Circuit Court of Appeals accepted Attorney General Nessel’s request to appeal the district court’s ruling in July, and has directed the Attorney General and Enbridge to submit legal arguments on whether to remand the case back to state court in Michigan.

The waters and bottomlands are sovereign public trust resources held by the State of Michigan in trust for the benefit of the citizens of Michigan and the Great Lakes region. Long-standing legal principles that balance federal and state interests weigh in favor states’ rights and jurisdiction over public navigable waters and bottomlands.

As an advocacy organization committed to protection of the precious state sovereign water resources, FLOW has requested permission to file a “friend of the court” brief, technically called an amicus brief, to provide the Sixth Circuit Court of Appeals our unique perspective regarding its knowledge and experience of Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine. State courts are the sworn guardians with a responsibility to protect the public’s rights in and uses of navigable waters and submerged lands throughout the Great Lakes region. Our shared waters are a public trust, and it is the duty of our state governments to act as stewards of this trust, ensuring that the interests of current and future generations are safeguarded.

But for the State of Michigan’s conditional authorization under public trust law, Line 5 could not have been built on the bottomlands of Lake Michigan in the Straits of Mackinac. When the state granted an easement to Enbridge’s predecessor 70 years ago, it was subject to the perpetual duty and right of the state to assure the public trust in the Great Lakes is never impaired. The easement was never properly authorized, and in any event, is subject to revocation and termination when the public trust waters and natural resources are threatened with risks of devastating harm. In the absence of that authorization and in the face of this extraordinary risk, Line 5 can not continue to operate.

The Great Lakes Business Network (GLBN) alongside 60 Tribes and First Nations have filed two additional amici briefs supporting the Attorney General’s request to remand the Line 5 public trust case back to state court.

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Get the Facts on Line 5 with FLOW’s New, Updated Fact Sheet

Published on August 3rd, 2023 by - Blog Posts

Every day, Enbridge’s Line 5 pipeline carries nearly 23 million gallons of oil and natural gas liquids (NGLs) from the oil sand fields in western Canada to refineries in Ontario, using the Straits of Mackinac as a high-risk shortcut. In FLOW’s new, updated Line 5 Fact Sheet, you’ll learn the latest on the pipeline, why the tunnel is a dangerous proposition, and what you can do to help get oil out of the Great Lakes.

Download the PDF

On this day in 2010: Enbridge Oil Spill in Kalamazoo River

Published on July 25th, 2023 by - Blog Posts

This week marks the unlucky 13th anniversary of one of the largest inland oil spills in U.S. history. On July 25, 2010, a pipeline operated by Enbridge – the same corporation operating the risky Line 5 in the Strait of Mackinac – burst and released dirty tar sands oil into Talmadge Creek, a tributary of the Kalamazoo River. Nearly forty miles of the Kalamazoo River were closed for cleanup until June 2012. Enbridge paid more than $177 million in penalties and was required to improve safety measures. The estimated cost of the cleanup was more than $1 billion.

Corrosion fatigue – poor maintenance by Enbridge – was cited as the underlying cause of the catastrophic breach by the U.S. National Transportation Safety Board. NTSB Chair Deborah Hersman compared Enbridge’s inept handling of the spill to the Keystone Kops.

“Why didn’t they recognize what was happening, and what took so long?” she asked.

 

 

 

FLOW Welcomes Court Order in Michigan Attorney General’s Case to Shut Down Line 5

Published on February 22nd, 2023 by - Blog Posts, News, Reports & Media Releases

Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan, in response to a federal district court’s certification on Tuesday of questions for interlocutory review by the U.S. Court of Appeals for the Sixth Circuit. The decision comes in the case of Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019, in the Michigan Circuit Court for the County of Ingham, to shut down the Line 5 oil pipelines in the Great Lakes. Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or by cell at 231.620.7911.

“This is a welcome development in Attorney General Dana Nessel’s effort to return to state court her state-law claims seeking the shutdown of Enbridge’s dual oil pipelines on state-owned bottomlands in the Straits of Mackinac. FLOW credits her petition for mandamus—filed just two business days before the certification order—for prompting the federal district court to finally take action on a motion that the Attorney General filed more than five months ago.

“Although the district court’s order does not guarantee that the Sixth Circuit will agree to resolve the certified questions, we are hopeful that the Court will recognize that interlocutory review is necessary to protect the fundamental state rights that are undermined by the district court’s erroneous procedural and jurisdictional rulings. 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster,” said FLOW Legal Director Zach Welcker 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster.” 

Additional Resources:

Petition for Writ of Mandamus in Nessel v. Enbridge-2023-2-17 

Opinion and Order Granting Motion to Certify-Nessel v. Enbridge-2023-2-21

FLOW’s Line 5 Program

FLOW’s Line 5 News