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“It’s far too risky for residents and the State of Michigan to continue to rely on the dangerous and outdated Line 5 pipelines that cross the open waters of the Straits of Mackinac for their propane supply.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.”
The Upper Peninsula Has Viable Options to Line 5 for Its Propane Supply and Economy — FLOW Fact Sheet. Just 1-2 propane rail cars or 4-5 tanker trucks a day could replace the aging Line 5 pipeline’s P. propane capacity without risking a Great Lakes oil spill, FLOW’s latest research shows. The rail cars or tanker trucks could deliver propane from Superior, Wisc., to the existing propane storage-and-distribution center in Rapid River, Michigan, north of Escanaba on U.S. 2.
Shutting down Line 5 would add just 5 cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study by London Economics International LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
For more information, see FLOW’s Line 5 fact sheets and blogs:
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.
FLOW Executive Director Liz Kirkwood made the following statement during a U.S. Army Corps of Engineers public hearing on Monday, December 7, regarding the environmental impact of Enbridge’s proposed oil tunnel under the Straits of Mackinac.
The National Environmental Policy Act mandates Environmental Impact Statements (EISs) for all major projects that significantly affect the environment.
The proposed tunnel is, categorically, a major project and it will significantly affect and endanger the human environment. The scale, wetlands fill, landscape alternation, nearshore habitat, massive water withdrawal and chemical discharge of wastewater, and spoils represent both a major project and significant effects to the human environment. I want to enumerate eight reasons why a full EIS is required to evaluate this proposed project.
The location of the tunnel is in the heart of the largest and most valuable fresh surface water system in the world.
The proposed project meets all 10 of the “intensity” factors indicating “severity of impact” under 40 C.F.R. § 1508.27. Meeting just one of these intensity factors can necessitate an EIS.
The applicant indicates that the construction of the project will use 5 water treatment additives for slurry conditioning, including bentonite, soda ash, carbon dioxide, sulfuric acid, and a flocculant/coagulant for removing suspended solids. Enbridge notes that “additional polymer-based additives may be needed.” The Corps must determine the composition of these additives and the risk posed by the use of all of these chemicals
The proposed project will fill coastal wetlands – among the most biologically productive areas in the world – over 90 percent of the roughly 200 fish species that occur in the Great Lakes are dependent on coastal wetlands.
Independent experts who studied Enbridge’s proposed tunnel plan concluded that it “raises serious concerns regarding the feasibility, integrity, and planning for the construction of the tunnel.” More than 75 percent of the tunnel boring area is in “very poor” or “poor” quality rock conditions, the experts warned, also citing the potential for explosions because of the presence of methane gas.
The State Historic Preservation Office has given notice that the recently disclosed evidence of potential submerged prehistoric sites requires a full evaluation.
At this point in time, Enbridge has yet to issue a credible estimate of project cost. The original estimate of $500 million was for a tunnel with a 10 ft diameter. The proposed project would have an 18 – 21 ft diameter requiring the excavation and disposition of four times the material compared to the original proposal.
Enbridge is explicit in indicating that the proposed project would extend the life of Line 5 for 99 years. It will transport 23 million gallons of oil and natural gas liquids daily, that when burned, will yield over 57 million metric tons of atmospheric carbon annually – more carbon than is emitted by the nation’s 3 largest coal plants combined. This long-term investment in fossil fuel infrastructure is directly at odds with the broad scientific consensus that immediate steps must be taken to decarbonize the economy to avoid the most catastrophic effects of climate change.
It is difficult to conceive of a project more worthy of a full environmental statement.
Editor’s note: This is an Oil & Water Don’t Mix (O&WDM) media release.
Twelve organizations and Michigan tribal representatives today (Dec. 7, 2020) called on the U.S. Army Corps of Engineers to reject the Enbridge Line 5 Straits of Mackinac oil tunnel project. If not dismissed now, the Army Corps risks a repeat of a July court ruling that threw out a permit in another major federal pipeline case.
In their submission of comments, the groups told the Army Corps that the permit for the tunnel should not be approved without a full review that evaluates the consequences of an oil tunnel for the Great Lakes, coastal wetlands, historic archeological finds, and navigation within the Straits of Mackinac.
“Enbridge’s proposed tunnel is a major federal action demanding a full environmental impact statement under the National Environmental Policy Act (NEPA),” said Liz Kirkwood, Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City. “A review of Enbridge’s incomplete application reveals a highly controversial project with extraordinary impacts to coastal wetlands, millions of gallons a day of surface wastewater discharges and water treatment additives, underwater archeological sites, incomplete geotechnical studies for tunnel construction, lack of a credible estimate of project cost, and unprecedented climate change impacts to extend the life of Line 5 for the next 99 years.”
Official comments from the organizations come as the Army Corps holds a single public hearing today on Enbridge’s proposal for a federal Clean Water Act permit to construct the oil tunnel. The Army Corps public comment period ends on Dec. 17. It comes as the Michigan Public Service Commission and the state Department of Environment, Great Lakes and Energy also evaluate permit applications from Enbridge and follows a decision by Gov. Whitmer to revoke Enbridge’s operating agreement for the existing Line 5, citing the company’s history of failures and ongoing, incurable violations of the agreement.
“Line 5 will transport 540,000 barrels of oil that when burned will emit over 57 million metric tons of atmospheric carbon annually – more carbon than is emitted by the nation’s three largest coal plants combined,” said Kirkwood. “Let’s not forget what’s at stake – a proposal to build a mega tunnel in the heart of the largest and most valuable fresh surface water system in the world. It’s difficult to conceive of a project more worthy of a full environmental impact statement under federal law.”
The groups and tribal representatives warn that approving Enbridge’s proposed application would violate the same federal law that prompted the U.S. District Court in July to block a final permit for the Dakota Access pipeline in the Dakotas. In the Dakota Access case, the court said the Army Corps must conduct a full review under the National Environmental Policy Act because it was a major federal project with widespread potential impacts, including threats to drinking water sources for the Standing Rock Sioux tribe.
The Army Corps has yet to decide whether Enbridge’s permit application for the tunnel should be subjected to a full federal review that could include looking at other alternatives, including existing oil pipelines within Enbridge’s massive North America pipeline system.
Concerns with the tunnel proposal cited by the groups and shared with the Army Corps include:
Drinking water threat. Enbridge proposes withdrawing 4 million gallons a day of water and discharging 5 million gallons a day of water and slurry into the Straits of Mackinac. Nearby communities of Charlevoix, Mackinac Island, St. Ignace, Alpena, East Tawas, and Tawas City rely on Lake Michigan and Lake Huron for drinking water.
Geotechnical problems. Independent experts who studied Enbridge’s proposed tunnel plan concluded that it “raises serious concerns regarding the feasibility, integrity, and planning for the construction of the tunnel.” More than 75 percent of the tunnel boring area is in “very poor” or “poor” quality rock conditions, the experts warned, also citing the potential for explosions because of the presence of methane gas.
Sovereign tribal and fishing rights. The Straits of Mackinac are the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch, which could be negatively impacted by the tunnel project and continued operation of Line 5 in the Straits.
Northern Michigan economy. Emmet, Cheboygan, and Mackinac counties would be heavily impacted by the tunnel project, straining police, fire, health emergency services, and rental housing that would typically go to seasonal tourism workers who constitute an annual $153 million payroll. Dust, noise, and intense trucking and machinery activity will also stress local communities.
“Michigan deserves more than a rubber-stamp permit approval from the Army Corps,” said Sean McBrearty, Oil & Water Don’t Mix coordinator. “What we need is for the Army Corps to follow the law and prioritize protecting the Great Lakes, our drinking water, and our climate. A Canadian company’s oil profits shouldn’t be more important than Michigan’s future.”
Those submitting joint comments include For Love of Water (FLOW), League of Women Voters of Michigan, Sierra Club, Clean Water Action, Michigan Environmental Council, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350, the Chippewa Ottawa Resource Authority (CORA), the Michigan League of Conservation Voters, and the Straits Area Concerned Citizens for Peace, Justice, and the Environment.
Oil & Water Don’t Mix is a citizens’ movement committed to protecting the Great Lakes and decommissioning Enbridge’s dangerous Line 5 oil pipelines in the Straits of Mackinac. More information: https://www.oilandwaterdontmix.org/about.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
The federal lawsuit Enbridge filed Tuesday is an attack on the State of Michigan’s sovereign title and authority to protect the public trust in the Straits and Great Lakes from Line 5. The federal government can regulate safety, but it can never control the location and use of the State of Michigan’s own public trust waters and bottomlands of the Great Lakes, except as it relates to navigation.
Michigan has never surrendered and could never surrender its public trust authority and responsibility to protect the waters of the Great Lakes from the clear and present danger presented by Enbridge’s old and failing Line 5 oil pipeline system. The public rights in navigable waters, according to Michigan’s Supreme Court, “are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain.”
State of Michigan Conducted an Exhaustive Review of Enbridge’s Line 5 Easement Violations
After a comprehensive, 15-month review of Line 5’s operations and potential for catastrophic harm from a rupture or leak in the heart of the Great Lakes, the State of Michigan determined on November 13 that Enbridge’s easement to use the bottomlands of Lake Michigan must be revoked and terminated because of “longstanding, persistent, and incurable violations of the Easement’s conditions and standard of due care.” The action represents a major milestone in Michigan’s environmental history.
The state’s title and public trust interest and duty in the Great Lakes have been established by the Michigan and United States Supreme Courts for more than 125 years. Every state received title to the lands and waters that were navigable at the time of statehood—for Michigan, 1837, including all of the Great Lakes and its inland lakes, rivers, and streams. The state’s public trust title in navigable waters and lands beneath them is a matter of federal constitutional principle. Once the state has title, it is absolute, cannot be alienated or transferred away, and the state as trustee determines the extent and nature of any activity or use of the public trust waters and lands of the Great Lakes.
The public rights under the Public Trust Doctrine are protected, according to the Michigan Supreme Court, by a “high, solemn and perpetual trust which it is the duty of the state to forever maintain.” The state’s interest and its public trust responsibilities are held forever. Thus, any authorization, like the Enbridge Line 5 easement granted by the Department of Conservation in 1953 remains subject to the state’s duty to protect the state’s title as well as Michigan citizens’ paramount rights that are protected by public trust law. The United States Supreme Court explicitly acknowledged a state’s paramount rights in the landmark case, Illinois Central Railroad Co v Illinois, finding that a grant of property rights in public trust resources “is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time.”
Catastrophe Does Not Have to Occur Before the State Acts to Protect the Public Trust
When Enbridge received its easement for its dual lines in 1953, it did so subject to the state’s authority and duty to protect its sovereign public trust title and rights of citizens in the waters and bottomlands of the Straits of Mackinac. No private interest can be granted permission to use these public trust waters and bottomlands for any private or public use without the express authorization by law, and only if the state finds at the time the public’s uses and the public trust will be improved or not impaired.
Enbridge’s easement is basically a license to use these public trust lands and waters subject to revocation if there are dangers that would violate the public trust. If later it is discovered that conditions exist that were not initially understood or new information comes to light indicating public trust resources are at risk or threaten the public’s rights in fishing, navigation, boating, and drinking water, or recreation, the state has the inherent right to revoke the use. No state nor its citizens has to wait until a catastrophe occurs before the state can revoke a use to protect this perpetual trust.
Only the State of Michigan, through its Governor and Department of Natural Resources Director and the Attorney General as trustees and “sworn guardians” of this public trust, has the authority over who, where, and when another person or corporation can use the Straits of Mackinac, such as Enbridge’s use for the dual lines in 1953 and in 2020. Because the circumstances, conditions, and events—anchor strikes, cable strikes, scoured spans under the pipes, and stronger currents—violate the terms of the 1953 easement and endanger the Straits and hundreds of miles of Lake Michigan and Lake Huron, the state has every right to revoke the Enbridge easement. Enbridge’s use of Lake Michigan bottomlands has always been limited by the Public Trust Doctrine and the state’s perpetual authority to revoke the use when the public trust is endangered.
State of Michigan, not a Federal Agency, Controls the Public Trust Lands and Waters of the Great Lakes
Enbridge falsely claims that the safety code requirements under the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) supersede the state’s authority and public trust duty to protect the Great Lakes. The claim confuses the federal power to regulate a pipeline’s safety once it is built with the state’s sovereign authority to decide if a corporation or Enbridge can use the public trust lands and waters of the Great Lakes in the first place.
There is nothing in PHMSA regulations or any federal law that remotely attempts to assert control over the use of a state’s public trust lands and waters, nor could the federal government do so. The authority for use of these public trust lands and waters falls entirely within the authority and duties of the State of Michigan, and there is nothing the federal government, Canadian government, or Enbridge can do to impinge on this paramount public trust title and the rights of the citizens of Michigan in the Great Lakes.
The bottom line is that the Great Lakes belong to all of us, and the State of Michigan is doing its duty as trustee to protect our public trust resources so that, now and in the future, we are assured the right to drink from, bathe, fish, and swim in, and boat upon oil-free waters. Alternatives exist for supplying oil and propane without spikes in fuel prices, but our magnificent fresh waters are irreplaceable. Please join FLOW in thanking Gov. Whitmer for standing up to Enbridge and standing up for our Great Lakes.
The State of Michigan’s decision last Friday to revoke and terminate the 67-year-old easement across the Straits of Mackinac granted to Enbridge for the Line 5 petroleum product pipelines was more than that day’s news—it was an event that will be remembered in the state’s environmental history.
Governor Gretchen Whitmer, Department of Natural Resources (DNR) Director Dan Eichinger, and Attorney General Dana Nessel announced the decision based on Enbridge’s consistent track record of deception, subterfuge, and poor stewardship, which put at risk a large area of the Great Lakes and the people, industries, aesthetics, and public uses dependent on them. Legally, it was a sound decision under the Public Trust Doctrine, but politically it was difficult. The same is true of most of the milestones in our environmental past. Dedicating Northern Michigan lands to building a public forest out of ravaged land in the early 1900s, standing up to developers who wanted to despoil the Porcupine Mountains in the 1950s and 1960s, and laying down the law on flagrant polluters in the 1960s and 1970s all took political guts, supported by law.
The Line 5 shutdown announcement brought to mind the epic fight over protection of the Pigeon River Country State Forest in the 1970s and early 1980s. This northern Lower Peninsula gem had fed the imagination of a young Ernest Hemingway and had been cobbled together by P.S. Lovejoy, considered Michigan’s equivalent of Aldo Leopold. Lovejoy dubbed the preserve “The Big Wild” and said it “should be left plenty bumpy and bushy and some so you go in on foot—or don’t go at all.”
The discovery of petroleum reserves under the Pigeon River Country State Forest in 1970 fueled an unwise decision by the DNR to offer drilling leases to petroleum companies. Determined to fight for the Big Wild, a legion of individuals, conservation and environmental groups, and editorial writers turned the battle into a test of state priorities. Specifically, weren’t there some publicly owned areas of the state that should be off limits to resource exploitation because of their beauty and significance, and the risk of a catastrophic accident? Governor William Milliken, urged on by First Lady Helen Milliken, took the side of the protectors.
The contest rose all the way to the Michigan Supreme Court, which ruled in 1979, under the Michigan Environmental Protection Act, that drilling could result in unacceptable destruction of the Forest’s herd of 255 elk. Coupled with another Supreme Court decision the same month on a separate drilling appeal in the Forest, the decision effectively barred drilling there.
It was a monumental victory for the forest protectors, but it also sowed the seeds of a partial defeat. Michigan’s economy was struggling and oil companies wooed lawmakers with visions of riches from petroleum development. Rather than lose everything, some members of the coalition of forest guardians compromised on a limited, phased development plan. And out of the controversy rose the idea of dedicating revenues from petroleum development on state lands to public land acquisition. That idea grew into the constitutionally protected Michigan Natural Resources Trust Fund, which has now spent more than $1 billion to give the public access to state and local parks, Great Lakes shoreline, scenic wonders, hunting and fishing recreation, public forestland, and more.
The parallel to Line 5 is not exact except in its lesson that a persistent, well-organized, and well-informed citizen coalition is critical to protecting the best of Michigan. And it shows that public officials who look beyond the moment can take action with significance for decades to come.
Last week’s announcement was one of the finest hours in Michigan’s conservation history. The battle is far from over, but it is headed toward protection of our Great Lakes. I am proud that FLOW and its public trust law and advocacy were a big part of it.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action.
The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.
Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.
Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case.
That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person.
Line 5 passed that threshold many years ago.
To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.
Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries.
There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.
A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.
This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount.
Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.
Gov. Gretchen Whitmer and the State of Michigan have taken legal action to shut down Line 5 in the Straits of Mackinac by next May to prevent a catastrophic oil spill in the Great Lakes from the 67-year-old pipeline. Meanwhile, Line 5-owner Enbridge and its allies continue to engage in a Chicken Little “sky is falling” campaign, with the Canadian company claiming in recent days 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. It also would boost shipments of oil by rail or trucks, Enbridge said, without providing any evidence.
Enbridge’s drumbeat of fear has been building for a few years, for example, with a full-page advertisement in 2019 in the Traverse City Record-Eagle, alleging that “Shutting down Line 5, even temporarily, would mean lost union jobs, refinery closures, gas price spikes and greater harm to the regional economy every year.”
In fact, none of those predictions materialized when both legs of the dual Line 5 pipelines in the Straits were shut down for more than a week last June 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 during the partial shutdown by former Dow Chemical engineer Gary Street found that in August after more than 50 days with at least one leg of Line 5 closed, gasoline prices and supply were unaffected in Michigan and Canada.
The research results are consistent with these studies forecasting little if any change in energy costs after Line 5 shuts down for good:
Upon the shutdown of Line 5, 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.
A Line 5 shutdown could increase the cost of gasoline in metro Detroit by only about 2 cents a gallon, according to a 2017 study commissioned by the former Snyder administration.
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 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.
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 the 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 2016 filing with the Securities and Exchange Commission that crude is delivered to its facility through three primary pipelines, Line 5 from the north, Capline from the south, 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.
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 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 the U.S. could be supplied by other sources currently serving the region, including the Capline and Mid-Valley pipelines, along with crude from Northern Michigan oil wells.
Fanning employee and community fears with inflated claims is the latest in a series of tactics deployed by Enbridge and its allies to pressure Michigan officials into letting the company continue to occupy 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 this week 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 protecting 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 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!
Continuing to operate the decaying Line 5 risks jobs. Many jobs. 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 an 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’s 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, including a large number of jobs at these refineries.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 2018 annual report for stockholders that it “processes a slate of light crude oils from Canada, the Mid-continent and the U.S. Gulf Coast.”
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 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 refineries. There is absolutely no evidence that a shutdown would impair operations at Detroit Metro Airport.
Today’s announcement by Governor Whitmer and Department of Natural Resources (DNR) Director Eichinger that the State of Michigan, under the public trust doctrine, is revoking and terminating the 1953 easement allowing Enbridge to operate dual pipelines in the Straits of Mackinac—due to repeated violations of the easement—represents a clear victory for the Great Lakes and the citizens and tribes of Michigan, said FLOW executive director Liz Kirkwood today.
“As public trustees of our waters, the State of Michigan is affirmatively upholding the rule of law and protecting the public’s treasured Great Lakes from the clear and present danger of an oil spill catastrophe from Enbridge’s Line 5 pipeline.”
“This is an historic day of state leadership by the Whitmer administration brought about by many years of dedicated action by environmental groups, Indian tribes, communities, businesses, faith communities, families, and individuals. People of diverse backgrounds have come together to work tirelessly on a common purpose—protecting the Great Lakes, drinking water, fishing rights, the economy, coastal communities, and a way of life from the most dangerous oil pipeline in America.
“While this is a moment to celebrate, we must remain vigilant until the oil stops flowing for good in May 2021 because Line 5 remains exposed to uncontrollable and powerful forces, including exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion. These forces dramatically increase the risk of this elevated, outdated pipeline collapsing and causing the unthinkable: a catastrophic oil spill in the heart of the Great Lakes.”
Since 2013, FLOW has filed extensive legal and technical reports with the State of Michigan, including most recently in November 2019, citing extensive evidence of Enbridge operating Line 5 illegally and risking the public’s water. For more information, see FLOW’s original news archive.
To view the State of Michigan documents relating to today’s announcement, click the links below:
Photo: Jim Olson, FLOW’s Founder and Legal Advisor, makes arguments in a Sept. 30, 2020, court hearing conducted online. The hearing considered motions made by Enbridge regarding the proper scope of the Michigan Public Service Commission’s review of the proposed Line 5 oil tunnel.
There was good news and bad news in a state administrative law judge’s October 23 ruling that addressed legal arguments over what the Michigan Public Service Commission (MPSC) can and cannot evaluate when deciding whether to permit the siting of Enbridge’s proposed oil pipeline tunnel project under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
First, the good news: Judge Dennis Mack rejected Enbridge’s attempt to escape accountability by restricting the MPSC’s review to the impacts associated with the mere installation of a new Line 5 oil pipeline into the tunnel after it is built. The MPSC must consider the impacts from construction to nearby surface waters, wetlands, and the overall safety of the location and construction of both the pipeline and the tunnel that would house it.
Now, the bad news: The judge granted the Canadian energy pipeline giant’s bid to exclude evidence from the MPSC’s review that the oil pipeline tunnel would worsen the climate crisis and cause other environmental harm. The judge also excluded from the MPSC’s consideration of the public necessity to transport up to 8 billion gallons of oil a year for 99 more years in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy.
Absent a successful appeal by FLOW or other intervening parties in the case to the three-member MPSC to overturn the ruling, as Julius Caesar said when he crossed the Rubicon, Alea iacta est—the die is cast.
Clockwise from top-left: Dennis Mack (Administrative Law Judge); Spencer Sattler representing MPSC staff; Assistant Attorney General Robert Reichel representing the Michigan Department of the Attorney General; Chris Bzdok, representing Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians; Christopher Clark representing Bay Mills Indian Community; Margrethe Kearney, ELPC attorney representing the Environmental Law & Policy Center and Michigan Climate Action Network.
September Court-Zoom Drama
Judge Mack’s ruling on the scope of evidence the MPSC can consider followed sharply divided legal arguments on September 23 in a Zoom call from lawyers for Enbridge, the Michigan Public Service Commission, the Michigan Department of Attorney General, Native American tribes, FLOW, and several other public interest organizations. The judge heard a wide range of legal arguments over the scope of the MPSC’s review of impacts, necessity, and alternatives to Enbridge’s proposed utility tunnel and tunnel pipeline. The tunnel would extend the life of Line 5 and facilitate the transport of as much in total as 800 billion gallons of crude oil through Michigan and under the bottomlands and waters of the Straits of Mackinac for almost another century. Nothing less than the authority of the MPSC to protect the people of Michigan, the environment, the climate, and the future public interest of the citizens of Michigan is at stake, according to arguments made orally and also filed by FLOW and others.
Lawyers for Enbridge, in court and in their filing, pushed to strip the MPSC of its authority to review anything but a simple replacement of old plumbing with new plumbing for Line 5 in the Straits. In short, Enbridge argued that the MPSC could not evaluate any impacts from the massive tunnel, the need for the tunnel in a rapidly declining market for crude oil, or the billions of dollars in damage and cost from rising Great Lakes water levels, flooding, and collapsing of infrastructure in Michigan tied directly to the burning of fossil fuels and climate change. Rather, lawyers for Enbridge argued the MPSC could look at only the physical impacts of removing old dual pipelines and replacing them with a new pipeline put in a new tunnel in the bedrock and mixture of rock and soil under the lakebed.
In contrast, the lawyers for intervening parties in the case—including on behalf of Michigan Attorney General Dana Nessel, Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, FLOW, Environmental Law and Policy Center, Michigan Climate Action Network, Michigan Environmental Council, National Wildlife Federation, Tip of the Mitt Watershed Council—argued for a broader scope of review concomitant with the magnitude of the proposed 99-year $500 million+ tunnel and new pipeline. They argued that the tunnel and pipeline are inseparable, and that it is a single project that would commit the state of Michigan to the environmental and public health impacts of the transport of up to 8 billion barrels of crude oil a year, carried from Canada under the Straits of Mackinac and back into Canada to Sarnia’s Chemical Valley cluster of refineries and chemical plants.
Public Need, Public Interest, Public Trust, and a Private Tunnel
Lawyers challenging Enbridge pointed out that Act 16, the law that defines the MPSC’s scope of review, imposes three standards and findings before a utility project like this can be legally approved: (1) the demonstration of need to realize a true public need; (2) safety and consistency with the public interest; and (3) the project is a reasonable alternative. Lawyers for FLOW and the other groups and tribes also pointed out that the MPSC has a duty under the Michigan Environmental Protection Act (MEPA) to prevent and minimize likely impairment to the air, water, and natural resources, and the public trust in those resources, and to find there is no feasible and prudent alternative to the project.
The question of a public need for the project faces the reality of rapidly falling demand for oil and a sea change in investment toward renewable energy and a conservation economy. There are alternatives to continuing to risk the Great Lakes and our water-based economy, including the obvious use of excess capacity in Enbridge’s greatly expanded oil pipeline across southern Michigan to Sarnia that replaced the corporation’s aged line that ruptured and caused the devastating 2010 Kalamazoo River oil spill disaster. Lawyers for the tribes made clear that the environmental impacts of the proposed oil tunnel pose serious threats to tribal fishing and sovereignty over their treaty waters. Feasible and prudent alternatives clearly exist that are more consistent with the public interest of the citizens of Michigan, and the Michigan Supreme Court has made it abundantly clear that the state has a duty to comprehensively consider the likely effects and range of alternatives in deciding the necessity of a project like the century-spanning tunnel and pipeline. [Highway Comm’n v Vanderkloot, 392 Mich 159 (1974)]
The public interest in this proceeding includes our environment, protected by the MEPA, but it is also defined by what the public trust in the air, water, and environment of our Great Lakes—an ancient, irrevocable legal principle that protects the overarching rights of the public to enjoy the Great Lakes for navigation, fishing, drinking water, sustenance, boating, and swimming. [Obrecht v National Gypsum Co., 361 Mich 399 (1960); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892)] This public trust imposes an affirmative and perpetual duty on governmental agencies, like the MPSC, to protect these legal-beneficiary rights of citizens.
Enbridge’s Narrow View of Public Oversight
Enbridge tried unsuccessfully to avoid or narrow the MPSC’s review of the crude oil tunnel project last April, when it asked the MPSC to rule that the tunnel proposed today was covered by its ruling existing 67 years ago on the existing Line 5 pipelines in the Straits. Agreeing with FLOW and others, the MPSC rejected the attempt, and issued an order on June 30, as FLOW chronicled, that concluded, “the Commission finds that the Enbridge’s Line 5 Project involves significant factual and policy questions and complex legal determinations that can only be resolved with the benefit of discovery, comprehensive testimony and evidence, and a well-developed record.” [MPSC Order, June 30, 2020, Case No. U-20763]
The October 23 ruling by Administrative Law Judge Mack rejected Enbridge’s argument that the authority of the MPSC was restricted to replacing the old dual lines with a new single line in a tunnel. The judge ruled definitively, as argued by the organizations and tribes, that the tunnel is inseparable from the pipeline, and the impacts and operation of both must be considered. On the other hand, the judge interpreted more narrowly the MPSC’s June 30 order that signaled a desire for a “well-developed record” on all of the complex issues involved in the oil pipeline tunnel project. The judge’s decision rejected arguments by the Attorney General, organizations, and tribes that the MPSC must undertake a comprehensive evaluation of the need, safety, impacts, and alternatives, including the inherent commitment by the state to permit the transport of nearly a trillion gallons of oil over the next 99 years, the lack of need for this oil, and the devastating effects of climate change.
Context is King: Construction Project or Climate Change Nightmare?
All of the parties in the case will be evaluating the effect of the judge’s decision to allow consideration of the impacts of the tunnel and pipeline construction, but exclude consideration of overall necessity, impacts, and alternatives of the century-spanning tunnel and pipeline project. Any party has a right to request a full review and decision by the three members of the MPSC itself. The parties, conversely, could choose to proceed in a hearing set for February 12, 2021, with testimony and evidence limited by the judge to just the impacts of building the tunnel and moving the pipeline. If the latter course is taken, then indeed Michigan will have crossed the Rubicon on the climate crisis and protecting the Great Lakes and ourselves from the worst of it.
Clockwise from top-left: 