Tag: Enbridge

Decision Time Coming on Line 5 Oil Tunnel

Published on May 28th, 2020 by - Blog Posts, News

enbridges-line-5-under-the-straits-of-mackinac

Thousands urge MPSC to bring Enbridge under rule of law to protect Great Lakes

By Emma Moulton, FLOW Milliken Intern for Communications

By Emma Moulton, FLOW Milliken Intern for Communications

During a three-week comment period that ended in mid-May, the Michigan Public Service Commission (MPSC) received a flood of more than 3,100 public comments, with a strong majority firmly opposed, on Enbridge’s request to bypass the legal review process and plow forward with other permitting required to replace and relocate the decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a new pipeline.

MPSC spokesman Matt Helms called the volume of comments “definitely a high amount” even for an agency whose utility rate-setting cases sometimes draw intense public scrutiny. The submissions poured in from individuals, families, tribes, environmental groups, elected officials, business owners, political groups, and many others opposed to the Canadian company’s attempted legal maneuver.

Many comments, including from FLOW, highlighted deep concerns over due process, the rule of law, and tribal treaty rights in response to Enbridge’s request for a declaratory ruling that no approval from the MPSC is even necessary. The Canadian pipeline company justifies its request by claiming that a new, roughly 4-mile long tunnel through the bedrock and loose soil of the public trust bottomlands should be considered mere “maintenance” on the old Line 5 pipelines in the open waters that the MPSC approved 67 years ago.

It’s 2020, Not 1953, and A Momentous Decision Awaits

An overarching theme of the comments was that this is no longer 1953, when Dwight Eisenhower was president and color TV was new to America. Now climate change, water scarcity, privatization, and oil spills must be taken into account when considering this massive, new fossil-fuel infrastructure. The public comments demand that MPSC’s decision be based on actual necessity in light of societal clean-energy goals and public interest in a sustainable future. Line 5 only grows more dangerous with age, and it is decision time for Michigan’s leaders.

“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”

Groups Point to Risks, Legal Tactics, Lack of Public Necessity

In their comments, many environmental groups spoke to the unacceptable risk a tunnel would pose to natural resources in Michigan. Several submissions cited the major catastrophe that would be unleashed by an oil spill under and gushing into the Great Lakes, including the damage to drinking water supplies, public health, jobs and the economy, public and private property, aquatic life and habitat, current and future generations, and a way of life in the Great Lakes State.

And the groups directly addressed the criteria the MPSC considers in weighing Enbridge’s request for a declaratory ruling. The Sierra Club, for instance, insisted that the MPSC deny Enbridge’s request, as it, “asks the Commission to ignore that its proposal is in fact to replace the dual Line 5 pipelines by building a new single pipeline, of a different size, in a new location”—noting that Sierra Club members from Michigan rely on the Great Lakes for their clean water and their livelihoods.

The citizen-led Straits of Mackinac Alliance questioned the necessity of the tunnel given the economic downturn here and beyond, writing, “Any projection of tunnel use beyond the next decade is highly speculative” due to Michigan’s change in oil demand. “Michigan’s need for oil products in 2020 is totally different than it was in 1953… Current demands for oil have dropped dramatically and industry projections for shale oil sources do not look promising. The shale oil producers may not be in business when the tunnel project is completed.”

On behalf of multiple groups and tribes, including the Michigan Environmental Council, the Grand Traverse Band of Ottawa and Chippewa Indians, Tip Of The Mitt Watershed Council, and National Wildlife Federation, attorney Christopher Bzdok highlighted Enbridge’s thin reasoning in support of its request for a declaratory ruling and noted that the MPSC “reserved jurisdiction and authority over Line 5, and the right to issue subsequent orders as the Commission deemed necessary. That reservation gives the Commission ample authority to require a new approval for the project and a new contested case.”

Tribes Voice Concerns over Treaty Rights and Survival

Throughout the comments, there is a powerful presence of tribal organizations voicing their critical position on the request, most often citing the 1836 Treaty of Washington, which preceded Michigan’s statehood in 1837 reserved the tribes’ rights to hunt, fish, and gather throughout the territory, and asserted the need for an environment in which fish can thrive.

In addressing tribal rights, attorney Bzdok highlights the lack of tribal collaboration in the MPSC’s original 1953 decision on Line 5: “The Tribes – at least two of which will be intervening in this case – were the original occupants of the property that will be occupied by the project. They retain certain reserved rights to natural resources in the project area under the Treaty of Washington.”

On behalf of the Little Traverse Bay Bands of Odawa Indians, Tribal Chairperson Regina Gasco-Bentley states that the reserved treaty rights “remain central to our culture, economy, and physical and spiritual well-being. The Straits of Mackinac are the life blood of our Tribe. An oil spill or geologic mishap from tunneling under the Straits would devastate our Tribe beyond any economic valuation.”

Next Steps from the MPSC on a Line 5 Oil Tunnel

The MPSC through May 27 accepted any replies on the public comment that was submitted by the May 13 deadline. The public body expects to decide on Enbridge’s request for a declaratory ruling at a June or July meeting, or shortly after, according to spokesman Helms.

If the MPSC rightly rejects the request, then, according to FLOW’s Jim Olson, the MPSC in its review of Enbridge’s April 17 tunnel application should “fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties” of Enbridge’s tunnel pipeline proposal under the Straits of Mackinac to replace its existing four-mile Line 5 pipeline on the lakebed.

Courtroom Showdown Coming Friday over Line 5 Shutdown

Published on May 20th, 2020 by - Blog Posts, H2Olson, News

Michigan A.G. Dana Nessel’s team to make arguments in historic public trust case to end threat of Great Lakes oil spill

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

By Jim Olson

Streaming live online this Friday morning, Michigan Attorney General Dana Nessel or members of her staff—attorneys Peter Manning, Bob Reichel, and Dan Bock, steeped in water and natural resources law—will make historic arguments to bring Line 5 in the Straits of Mackinac under the rule of law and lead to its orderly closure. Nessel’s action was taken to protect the public trust of all of Michigan’s citizens, now and in the future, in Attorney General Dana Nessel On Behalf of the People of Michigan v. Enbridge Energy, Limited Partnership, et al., before Ingham County Circuit Court Judge James S. Jamo.

Click here to view FLOW’s amicus brief in the Nessel v. Enbridge case, as well as amici briefs also filed by the Sierra Club and three states in support of Michigan Attorney General’s lawsuit to shut down Enbridge’s Line 5. 

Line 5 in Court: Watch Live on Friday, May 22, at 9 a.m. EST

The public can watch this legal effort by the State of Michigan to shut down Line 5, which is supported FLOW and other organizations standing up for the public trust in our Great Lakes. This case is set for oral argument at 9 a.m. on Friday, May 22. According to the Court, you may watch the hearing by tuning in to the livestream on Judge Jamo’s YouTube Channel.

 

After 6 years of stalling and unfulfilled promises by former Governor Rick Snyder’s administration and former Attorney General Bill Schuette, Michigan voters in 2018 ushered in new leaders—Governor Gretchen Whitmer and Attorney General Dana Nessel, who pledged to end Line 5’s threat to the Straits, where Lake Michigan converges and collides with Lake Huron.

Last June, Attorney General Nessel fulfilled her promise to take swift, strong action to bring an end to the unacceptable, massive, catastrophic risk of damage to the Great Lakes posed by Enbridge’s 67-year-old Line 5 the Straits of Mackinac.

Growing Pile of Evidence against Line 5

The State of Michigan’s legal action comes in response to growing evidence of Line 5’s failed design, anchor strikes, strong currents, sloughing and shored-up pipelines operating beyond their life expectancy, admitted inability to clean up a spill, and a conservative, worst-case scenario rupture from an anchor strike (which actually happened on April 1, 2018, narrowly avoiding a spill) forecast to trigger more than $6 billion of measurable damages. Scientific studies show that a spill would smother several hundred miles of shoreline, affect up to 60 percent of Lake Huron’s surface area and a substantial portion of Lake Michigan, close drinking water and sanitation systems of cities like Mackinac Island, shut down fishing, kill fish and fish habitat, halt shipping, and cause irreparable damage and impairment of public uses, private property, businesses, and the ecological diversity of the upper reaches of two Great Lakes.

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.

Historic Public Trust Case the First brought by a Michigan Attorney General for the People in 60 Years

The attorney general’s action is truly historic. Why?

It has been 60 years since an Attorney General of Michigan filed a lawsuit to protect the paramount public trust in the Great Lakes and legal rights of citizens as beneficiaries to enjoy and use our waters for navigation, fishing, boating, drinking water, swimming, historic and biological research, and recreation. That’s right. It’s been 60 years since then Michigan Attorney General, later state Supreme Court Justice, Paul Adams won a landmark victory in 1960 in Obrecht v National Gypsum Co. (361 Mich 399 (1960)), a landmark Michigan Supreme Court case putting a stop to unauthorized industrial encroachment and risk to the public trust and paramount protected uses of our Great Lakes.

Cottage owners and citizens along the shore of Lake Huron filed a lawsuit to stop the encroachment of a large industrial loading dock to reach ships a quarter-mile into Lake Huron. Justice Adams intervened as a party in the case and aligned himself and the People of Michigan with the cottagers and citizens whose use and enjoyment of the trust waters of Lake Huron would be subordinated to the private use of the industrial dock and mining company. After an extensive battle in the lower courts and arguments in the Supreme Court, the Court sided with Justice Adams and the people of Michigan.

Writing for the Court, Justice Black, a lawyer from the shoreline City of Port Huron, foreshadowed the future battles over the Great Lakes:

The last great frontiers of Michigan’s public domain lie submerged between her thousands of miles of shoreline… [T]he courts of these inland coastal states may well brace themselves for a series of new questions having to do with the nature and alienability of sovereign title to such domain and the inevitable collision of riparian rights… with the sovereign responsibility [of the state] as permanent trustee thereof. These cases become a notable forerunner. (Id. 361 Mich at 403)

The defendant National Gypsum Corporation claimed the private riparian right as owner of lake frontage to build a dock into the lake as far as needed to reach deep-draft ships. Justice Adams and his allies argued that the private right was subordinate to the public trust rights of citizens. Reaching back to 100 years of court fights over the St. Clair Flats and Lake Michigan, and relying on the 1892 U.S. Supreme Court Illinois Central case that ruled the Great Lakes were subject to the public trust doctrine, our Michigan Court ruled that a private corporation could not subordinate or alienate the public trust in the Great Lakes:

No part of the beds of the Great Lakes, belonging to Michigan can be alienated or otherwise devoted to private use in the absence of due finding of one of two exceptional reasons for such alienation or devotion to non-public use.

* * *

No one… has the right to construct for private use a permanent deep-water dock or pier on the bottom lands of the Great Lakes… unless and until he has sought and received, from the legislature or its authorized agency, such assent based on the finding as will legally warrant the intended use of such lands. Indeed, and aside from the common law as expounded in Illinois Central, the legislature bids us construe its design and purpose ‘so as to preserve and protect the interests of the general public’ in such submerged lands and as authorizing the sale, lease, exchange or other disposition of such submerged lands when and only when it is ‘determined by the department of conservation that such lands have no substantial public value for hunting, fishing, swimming, pleasure boating or navigation and that the general public interest will not be impaired by such sales, lease or other disposition.’ (Id., at 412-413, citing and adopting Illinois Central R. Co. v. Illinois, 146 U.S. 387, 455-60 (1892)).

The Public Trust Imposes a High, Solemn Duty on the Government

Unlike other natural resource laws, the public trust imposes a high, solemn duty on the government to protect these waters, bottomlands, habitat, shorelines, and paramount public uses from private takeover or impairment (Collins v Gerhardt, 237 Mich 38, 49 (1926). The public trust doctrine imposes on the State as trustee “a high solemn and perpetual trust which it is the duty of the State to forever maintain.”). Justice Black and the Court agreed “with the attorney general that the public title and right is supreme as against National Gypsum’s asserted right of wharfage, and hold that the latter may be exercised by the Company only in accordance with the regulatory assent of the State. No such assent has been given and, for that reason alone, the chancellor erred in decreeing that National Gypsum might proceed with what in law has become, since entry of such decrees, an entry upon and unlawful detention of State property.” (Id., at 413-414)

So, in 2020 once again a collision looms over the right of a corporation to occupy for itself the state-titled trust bottomlands and waters of the Straits of Mackinac, the very heart of the Great Lakes, for its aged dual pipelines to transport crude oil to its private markets. It cannot do so without the assent of the State “in the absence of due findings” that the one or two of the narrow exceptions apply.  In short, public trust law as one would expect does not authorize any deed, occupancy, or alienation of public trust bottomlands and waters except where there are findings that the private use protects and promotes the public trust interests and protected uses—navigation, fishing, boating, drinking water, swimming, and other recreational or ecological purposes—or that these treasured public trust resources have no such public value.

Courtroom Context on May 22

Let’s return to the present, May 2020. Like Paul Adams in 1960, our State Attorney General Dana Nessel and her lawyers Manning, Reichel, and Bock have filed briefs and will argue Friday that the 67-year-old Enbridge Line 5, like National Gypsum’s private industrial dock in 1960, is unlawful under the high, solemn public trust law and duties of government that apply to our Great Lakes.

The facts are undisputed. In 1953, after the legislature delegated authority to grant public utility easements over or under state lands, including our public trust Great Lakes, the Department of Conservation never made any findings that the easement to Enbridge for its dual crude oil pipelines (1) would preserve and protect the public’s public interests and uses, or (2) do not have substantial public value for navigation, fishing, boating, swimming, other accepted public trust uses. Without these findings, Line 5 must be terminated. The only way the Enbridge’s private use can be validated is for the company to apply to the State for findings in 2020 that the known risks of devastating unacceptable harm to the Great Lakes, communities, property owners, businesses and citizens is consistent with and will protect these paramount public trust uses, or that the Straits of Mackinac has no public value for these uses.

A Powerful Mix of Duty, Integrity, Courage on Display

We applaud Attorney General Nessel and her legal staff for their courage to take a stand in fulfillment of their solemn duty to protect and preserve the integrity of the public trust in our bottomlands and waters of or Great Lakes. Yes, this case is about integrity, and it has all the hallmarks to become the next historical milestone in the history and jurisprudence over the great frontier of those lands and waters between our shores.

FLOW Urges MPSC to Deny Enbridge’s Request for a Free Pass on Siting a ‘Line 5’ Oil Tunnel in the Straits of Mackinac

Published on May 15th, 2020 by - Blog Posts, News, Reports & Media Releases

Photo of the Mackinac Bridge and Straits of Mackinac by Kathryn DePauw.

The Michigan Public Service Commission should reject Enbridge’s attempt to dodge the legal review process required to replace and relocate the segment of the Line 5 oil pipeline crossing the Straits of Mackinac into a $500 million proposed tunnel pipeline project, according to formal comments filed Wednesday with the MPSC by FLOW (For Love of Water).

In a convoluted request, Enbridge on April 17 applied to the MPSC to approve a tunnel pipeline project under the Straits of Mackinac to replace the existing four-mile Line 5 pipeline on the lakebed. At the same time, Enbridge filed a request for a declaratory ruling from the MPSC that no approval is actually necessary, claiming the massive tunnel project is just “maintenance” of the 67-year-old dual oil pipelines already approved by the MPSC in a 1953 Order.

“Enbridge wants to circumvent the law by arguing that the 1953 Easement and Order authorized the construction of a tunnel and subterranean pipeline,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “The truth is this proposed pipeline tunnel infrastructure intended to transport oil for another 99 years beneath the Great Lakes, the world’s greatest supply of fresh surface water, despite the plummeting demand for oil and the climate crisis, bears absolutely no resemblance in design or location to the original pipeline project approved in 1953.”

The MPSC on April 22 issued an order putting Enbridge’s application on hold and opened a public comment period that ended May 13 on the request for the declaratory ruling. The MPSC also set May 27 as the deadline for any replies to comments received regarding the declaratory ruling request.

FLOW’s comments cite several reasons why the MPSC should deny Enbridge’s request and go forward with a full and comprehensive review and determinations of the necessity, alternatives, and overarching public interest of Enbridge’s proposed tunnel and tunnel pipeline infrastructure project under the Great Lakes. The reasons for denial include:

  • Not maintenance – Enbridge’s proposal is not maintenance of a previously approved project but, under state law, a “new” oil pipeline to be located in a new tunnel that constitutes a “structure or facility” related to the pipeline in an entirely new horizontal and deep subterranean, vertical location.
  • Bear no resemblance – The location, magnitude, and nature of the proposed tunnel and oil pipeline infrastructure for the Straits bear no resemblance to the specific location and design incorporated into the former Public Utility Commission’s 1953 Order that approved the existing dual Line 5 pipelines 67 years ago. The 1953 Easement from the State of Michigan and the corresponding 1953 MPSC Order authorizes the dual pipeline infrastructure siting limited to the exact location on the lakebed floor, not a deep subsurface tunnel and tunnel pipeline proposed to be sited 60 to 250 feet below the Straits.
  • Not the legal successor – The Enbridge subsidiary Enbridge Energy, Limited Partnership, is not the legal successor in interest to the original 1953 Easement Agreement between Lakehead Pipe Line Company and the State of Michigan and the 1953 MPSC Order, and cannot rely on these legal documents to avoid a certificate of necessity review by the MPSC.
  • Inseparable – The tunnel and tunnel pipeline are inseparable in Enbridge’s own descriptions and assertions in this and other applications, and one cannot be applied for, nor approved, without the other.
  • Not authorized – Enbridge lacks a lawfully authorized property interest to locate or construct the tunnel and oil pipeline under the Straits of Mackinac. Because the bottomlands under the Straits are owned and held by the State in public trust, Enbridge is required to obtain authorization for a public utility easement from the Michigan Department of Natural Resources and then obtain authorization for the conveyance and 99-year lease from the Michigan Department of Environment, Great Lakes, and Energy under the Great Lakes Submerged Lands Act.

“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in  2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”

“We’re talking about water, climate, and the plummeting demand for crude oil,” Olson said. “The MPSC by law should fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties.”

Enbridge’s ‘Line 5’ Oil Tunnel Permit Application is Contrary to the Legal Process

Published on April 9th, 2020 by - Blog Posts, News, Reports & Media Releases

Enbridge Energy’s permit application is out of step with Michigan’s legal process, according to FLOW.

The Canadian energy-transport company has not even sought, let alone obtained, authorization from the State of Michigan for the easement and lease required by law to locate a risky, multibillion-dollar oil pipeline tunnel in the public trust soils and waters of the Great Lakes. Nor has the company sought and obtained a certificate of necessity and approval from the Michigan Public Service Commission to locate the tunnel in the Straits of Mackinac.

“Until Enbridge receives such legal authorization from the State of Michigan, the Canadian company has no business applying for the construction permit, and many other permits and approvals, they would need to locate and build an oil pipeline under the Straits of Mackinac,” said Jim Olson, FLOW founder, president and legal advisor.

“To obtain state authorization, Enbridge has the burden to demonstrate conclusively that a private oil tunnel in public trust soils and waters designed to serve Canadian and overseas markets for the next 99 years is in Michigan’s public interest, which it is not,” Olson added.

Enbridge’s timing amidst the coronavirus pandemic is disturbing, because it fails to respect the public’s right to engage in meaningful public hearings at this time when critical state resources are focused on managing this unprecedented public health crisis.

FLOW joins our allied organizations in calling on Michigan Gov. Gretchen Whitmer to delay full consideration and public review of Enbridge’s oil tunnel applications until the State of Michigan emerges from its coronavirus shutdown.

“It’s important to remember that this proposed oil tunnel fails to solve the greatest threat facing the Great Lakes — the decaying Enbridge Line 5 oil pipelines in the Straits of Mackinac that continue to pump 23 million gallons of oil every day,” said Liz Kirkwood, FLOW’s executive director and an environmental attorney.

“A 10-year tunnel construction project will not prevent an oil spill disaster that grows more likely every day. The State of Michigan has a perpetual and paramount public trust duty to its citizens, not a private Canadian corporation whose uninterrupted oil transport threatens grave consequences for 95 percent of America’s fresh surface water supply,” Kirkwood said.

FLOW to U.P. Energy Task Force: Act Fast to Protect Residents, End Reliance on Risky ‘Line 5’ Oil Pipeline

Published on April 7th, 2020 by - Blog Posts, News, Reports & Media Releases

Photo by Kathryn DePauw for FLOW.

To alleviate the rising threat to the safety and economic security of Upper Peninsula residents, a state energy task force at its April 13 online public meeting should act with urgency to adopt, prioritize, and schedule the implementation of the 14 recommendations in its draft propane supply report.  Swift action is needed in order to end reliance on the risky Line 5 pipeline, dismantle the Canadian energy monopoly over the Upper Peninsula, and secure more diverse and renewable energy choices, said FLOW (For Love of Water) in formal public comments sent Monday to state officials.

FLOW’s letter to the U.P. Energy Task Force, which Michigan Gov. Gretchen Whitmer created last June, comes at the deadline for the public to review the March 20 draft report on propane supply options. FLOW is urging the task force to act immediately on both short-term and long-term recommendations for the State of Michigan to resolve the clear and present danger to public health and the Great Lakes posed by Line 5.

FLOW finds that the most reliable, secure, lowest-cost, and lowest-risk alternative for propane supplies in the short term is a combination of the recommendations on rail and truck, plus an increase in propane inventory in the Upper Peninsula. Highest priority should be given to recommendations with a full range of diverse alternatives that are not dependent on the decaying Enbridge Line 5 pipeline, which crosses the Upper Peninsula and the open waters of the Straits of Mackinac.

FLOW also urges the task force to evaluate all of the environmental and health impacts and risks that each alternative poses to air, water, and land resources. The Great Lakes and other natural resources remain at grave risk with the continued daily operation of Line 5, and impacts to these public trust resources must be fully considered in the final propane report.

FLOW also calls on the task force to expedite its work and complete its renewable energy plan in 2020, well ahead of its March 2021 deadline for reporting to the governor. Michigan and the Great Lakes cannot wait another year for more studies as Line 5 continues to age.

“The U.P. Energy Task Force draft propane report concludes that both short-term and longer-term feasible and prudent alternatives exist to decommission Line 5 and to secure reliable, safe, and affordable energy to U.P. residents based on adjustments within the energy system,” said Liz Kirkwood, Executive Director of FLOW, the Great Lakes law and policy center based in Traverse City.  “Given the current propane monopoly and lack of backup alternatives to Line 5, U.P. residents are exposed to substantial financial and safety risks. Moreover, Line 5 also poses unprecedented and devastating economic, environmental, and public health risks to the Great Lakes.”

With the help of the task force to prioritize recommendations and advance much needed energy planning, the State of Michigan can work as expeditiously as possible to decommission the aging Line 5 pipeline and transition to safe and affordable energy alternatives for U.P. residents.

Background

The U.P. Energy Task Force, formed by Gov. Whitmer’s Executive Order 2019-14, is charged with “considering all available information and make recommendations that ensure the U.P.’s energy needs are met in a manner that is reliable, affordable, and environmentally sound.” The Order also directs the Task Force to examine “alternative means to supply the energy sources currently used by U.P. residents, and alternatives to those energy sources.”

The precipitating force behind this urgent energy analysis is Enbridge’s increasingly risky 67-year-old Line 5 pipeline, which has ruptured or otherwise leaked at least 33 times since 1968, and the failure to date to prioritize and assure a backup alternative for delivering propane in the Upper Peninsula. Line 5 is operating far past its life expectancy and continues to threaten the Great Lakes, public health, and drinking water supplies for thousands of Michiganders. With no backup plan for delivering alternative propane supplies to the U.P. in the event of a catastrophic Line 5 pipeline rupture, including in the dead of winter, the outdated pipeline also endangers the safety, security, and energy independence of Upper Peninsula residents who rely on propane to heat their homes.

Michigan DNR Takes Steps to Hold Enbridge Accountable

Published on January 13th, 2020 by - Blog Posts, News, Reports & Media Releases

Michigan Department of Natural Resources (DNR) Director Daniel Eichinger today set a 30-day deadline for Enbridge to submit key information regarding its ongoing violations of the state-granted easement conditionally allowing the Canadian company’s 66-year-old Line 5 oil pipelines to occupy the Straits of Mackinac.

Eichinger’s letter to Enbridge, which includes 20 questions to be answered by Feb. 12, is an appropriate step to conclude the DNR’s review ordered by Governor Whitmer last June, according to FLOW, the Great Lakes law and policy center based in Traverse City.

“It’s a welcome sign that Director Eichinger and his staff appear to be wrapping up their Line 5 investigation by asking for all other information and documentation that Enbridge has in its possession or control,” said Kelly Thayer, Deputy Director of FLOW (For Love of Water). “At the conclusion of this process, these serious and continuing violations of the easement by Enbridge should trigger the state to shut down the dangerous dual Line 5 oil pipelines in the Great Lakes before it’s too late.”

FLOW commended the DNR for taking this step to restore the rule of law on Line 5, the oil pipelines running through the open waters of the Straits of Mackinac, which researchers have called the worst possible place for a Great Lakes oil spill due to the powerful underwater currents, strong waves, seasonal ice cover, and extreme difficulty in responding to an oil pipeline failure.

“It’s clear that Line 5’s original design in the Straits is failing, as the powerful currents scour the public bottomlands and undermine the pipelines placed there in 1953,” said Jim Olson, FLOW’s President and legal advisor. “Enbridge’s continuing addition of more than 200 pipeline supports constitutes a risky redesign that never has been evaluated or authorized under the Great Lakes Submerged Lands Act and public trust law.”

The State of Michigan already has documented evidence on Line 5 of anchor strikes, exposed metal surfaces, and deep scouring of bottomlands that undermine the pipelines and even bend some of the newly installed supports. There also has been evidence of bending of Line 5 beyond curvature limits, Enbridge has failed to provide proof of liability insurance and other financial assurances, and missing protective pipeline coating and delamination.

FLOW filed formal comments in mid-November 2019 to assist the State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge and rising risk to the Great Lakes, jobs, and drinking water. In those Nov. 13 comments, FLOW called on the state to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shutdown of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane in the Upper Peninsula (which a state task force is studying).

FLOW’s request followed recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders.

Until Enbridge has applied for and obtains authorization under the rule of law or Line 5 is shut down, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit of 300,000 barrels per day (1 barrel = 42 U.S. gallons of oil). Enbridge currently pumps 540,000 barrels a day through Line 5 in the Straits, which is 80% more than the original design approved by the State of Michigan.

Pending such authorization or shutdown, state officials also should implement more stringent requirements for a mandatory emergency shutdown, including when there is a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of at least $5 billion, based on a study commissioned by FLOW that found that a Line 5 oil spill could deliver a multibillion-dollar blow to natural resource and Michigan’s economy.

Chronicling FLOW’s Accomplishments in 2019

Published on December 27th, 2019 by - Blog Posts, News

Powered by our supporters, FLOW had quite a year in 2019.

Our legal advocacy work to restore the rule of law made a big impact at the state level. Michigan’s new Attorney General Dana Nessel filed a public trust lawsuit on June 27 to revoke the 1953 easement that conditionally authorizes Enbridge to operate its 66-year-old Line 5 oil pipelines in the Straits of Mackinac.

“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood about Nessel’s bold legal action.

On December 3, the Michigan Court of Appeals nullified a lower court order that would have allowed the bottled water giant Nestlé to build an industrial booster pump facility to remove millions of gallons of groundwater per year from Osceola Township. The court affirmed that bottled water is neither an “essential public service” nor a “public water supply”.

“Bottled water diversion and export operations can no longer be paraded as public,” said FLOW founder and president Jim Olson. “The purpose of the bottled water industry has only one purpose—maximum profit off the sale of packaged public water.”

Meanwhile, a bill has been introduced in Lansing by Rep. Yousef Rabhi that extends public trust protection to groundwater and mandates that the state protect that water.

Our work has had a national impact as well. In February, the United States Supreme Court reaffirmed that we have a public trust right to walk the Great Lakes shorelines below the natural high water mark of private property, when it declined to hear an Indiana case filed by riparian land owners. Jim Olson was involved in the original case.

 

Education and protective policy

FLOW launched several education campaigns in 2019 including a Groundwater Awareness Week, what it is and why it matters; the Michigan Septic Summit on Nov. 6 that convened parties from public health officials to realtors to watershed nonprofits to generate new partnerships and build political will to pass a statewide septic code; an environmental economics project and four policy briefs by former FLOW board chair Skip Pruss about the benefits of government regulation to protect the environment and public health; and a Public Trust month in July that included a “Great Lakes Passport” and a month-long series of videos that featured the public answering the question: “Who owns the Great Lakes?”.

We advocated for several protective policies in 2019, including a two-pronged proposal to the International Joint Commission (IJC) for an emergency pilot study and urgent action to address the effects of climate change on the Great Lakes, the inclusion of funding for clean water in Michigan Governor Gretchen Whitmer’s budget, and the need for statewide requirements for septic system inspection, particularly given that Michigan is the only state in the nation without any statewide septic code.

The International Joint Commission, which held a public hearing in Traverse City on July 24, also appointed FLOW executive director Liz Kirkwood to its Great Lakes Water Quality Board.

“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said. “Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound.”

FLOW senior policy advisor Dave Dempsey was also invited to present at the Great Lakes Funders Conference in Cleveland in late October.

 

Celebrating water

FLOW held several events in 2019 to recognize the importance of inspiring citizens viscerally and emotionally (as well as cerebrally) to protect the Great Lakes. We launched our “Art Meets Water” webpage to highlight examples of the heartfelt creativity that inspires us to fight for our public waters. “We all know that water is the source of the future,” says Leelanau County writer Anne-Marie Oomen. “But it’s also a part of our souls and our spirits.”

On June 28, cellist Crispin Campbell and “Mad Angler” poet Mike Delp performed at our “In Praise of Water” benefit for FLOW at the Cathedral Barn at Historic Barns Park in Traverse City. “The Mad Angler finds himself upset about the state of affairs that Michigan rivers find themselves in,” said Delp. “When you hear that deep sound coming out of the cello, that’s the heart of where this comes from… I’m right down inside that cello.”

On July 24, Oomen and the Beach Bards storytellers’ troupe presented, “Love Letters to the Lakes” (which she had solicited from writers across Michigan) in a live reading to the International Joint Commission, in hopes that deeply personal prose would impact public policy to protect the Great Lakes. And on October 11, Higher Art Gallery in Traverse City held “Artists for FLOW,” inviting local artists to share water-inspired works for a show that benefits our fight to protect that water.

After all, protecting the Great Lakes is “A Matter of the Heart” writes FLOW supporter Jerry Beasley:

“What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love, there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.”

FLOW Cites New Evidence of Enbridge Operating Illegally, Calls for Orderly Shutdown of ‘Line 5’ Oil Pipelines in Straits of Mackinac

Published on November 13th, 2019 by - Blog Posts, News, Reports & Media Releases

enbridges-line-5-under-the-straits-of-mackinac

Formal comments filed today to assist State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge, rising risk to the Great Lakes, jobs, and drinking water

FLOW today called on the State of Michigan to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shut down of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane.

FLOW’s request came in formal comments to the state following recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders. 

FLOW’s comments are directed to the Michigan Department of Natural Resources (“DNR”) and Michigan Department of Environment, Great Lakes, and Energy (“EGLE”), and intended specifically to aid in the DNR’s “comprehensive review of Enbridge’s compliance with the 1953 easement and other factors affecting its validity,” as ordered by Governor Gretchen Whitmer on June 27.

“It’s time for the State of Michigan to restore the rule of law on Line 5. We call on the Whitmer administration to commence the shutdown of the dual oil pipelines and direct Enbridge, if it wishes to continue operating its 66-year-old pipelines in the Straits, to apply for permission under public trust law and the Great Lakes Submerged Lands Act,” said FLOW executive director Liz Kirkwood. “Enbridge must prove that its use and operation, including the substantial change in design with hundreds of elevated spans and significant other matters, complies with and is entitled to authorization.”

Until the shutdown is complete, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit, a reduction of 40% from current flow. State officials also should implement more stringent requirements for a mandatory emergency shutdown, including a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of $5 billion.

FLOW’s comprehensive review of eight violations of the state-granted easement — related to design, operation, and maintenance — demonstrates convincingly that Enbridge has committed, and continues to commit through its conduct, omissions, and breaches of the 1953 easement that are beyond correction. It is also clear that there are major “other factors affecting the validity” of the 1953 easement and Enbridge’s continued use and operation of the cracked-and-dented Line 5 dual oil pipelines in the open waters and on the bottomlands of the Great Lakes in the Straits of Mackinac, including the failure of Enbridge to obtain from previous directors of the DNR (and its predecessor Department of Conservation) the authorizations required by the common law of public trust and/or the Great Lakes Submerged Lands Act (“GLSLA”).  

Enbridge’s ongoing violations related to anchors and pipeline design threaten the very safety and health of the Great Lakes, and thus trigger the state’s duty to enforce its conditional occupancy agreement with Enbridge. The State continues to have substantial legal and factual cause to terminate the agreement with Enbridge to stop the oil flow.

In support of these comments, FLOW also submitted the multiple reports and comments that FLOW and others have previously submitted to the DNR, DEQ (now “EGLE”), the Attorney General’s office, and Governor’s office over the past six years. It is clear that the Director of the DNR and executive team, as trustees of the Great Lakes and soils beneath them, have the authority and duty to invalidate, direct compliance with, terminate, and/or revoke the 1953 Easement.

The 200-plus anchor supports (constituting 3 miles of elevated pipelines in the water column) represent a substantial change in design from the dual pipelines designed and built pursuant to the specifications of the 1953 easement. Although DEQ (now “EGLE”) approved anchor supports of the elevated lines over the past 18 years, the anchors have been issued only as permits to “place other materials on bottomlands,” and not as a conveyance or agreement for occupancy or use of the bottomlands and waters for the substantial change in the dual pipelines themselves. The Affidavit of Dr. Edwin Timm filed in the consolidated contested cases against the State of Michigan demonstrates seriously increased risks, a total lack of review of applicable risk standards for elevated multiple-span pipelines, and new or substantially changed pipeline that has not been assessed by the state.

“The only real solution now is to apply the law and shut down the 66-year-old Line 5 pipelines permanently to protect the Straits, and nearly 400 other water crossings in Michigan, from the next Enbridge oil spill,” said Kirkwood. “The Canadian oil, which Enbridge does not own, can be sent through other pipelines operated by Enbridge and its competitors. Michigan has no obligation to guarantee Enbridge a shortcut to Ontario oil refineries and the overseas export market.”

FLOW, City of Mackinac Island Join Legal Fight on Invalidity of Existing Line 5 and Proposed Oil Tunnel under Great Lakes

Published on October 9th, 2019 by - Blog Posts, News

Court accepts amicus briefs supporting enforcement of State of Michigan public trust duties in Enbridge’s lawsuit

Jim Olson, President and Founder

By Jim Olson

The Michigan Court of Claims has issued orders accepting FLOW’s and the City of Mackinac Island’s amicus briefs advancing key legal arguments in Enbridge’s Line 5 oil tunnel lawsuit against the State, rejecting opposing arguments by the Canadian oil pipeline company.

The ruling in Lansing by Judge Michael Kelly in late September means that vital issues raised by FLOW’s brief and the city’s brief will be considered by the Michigan Court of Claims, including the public trust rights of citizens to draw drinking water from and otherwise use the Great Lakes, and the soils and bottomlands beneath them, unimpaired by private interests.

FLOW’s Amicus Curiae Brief was prepared and submitted by Great Lakes environmental and public trust law experts Jeff Hyman, senior staff attorney at the Conservation Law Center in Bloomington, Indiana, and FLOW’s president and legal advisor Jim Olson. The brief traces the history of the public trust doctrine in Michigan and demonstrates the failure of Enbridge and the State to make the determinations required for authorization of the occupancy and use of waters and soils beneath the Great Lake by a private corporation under public trust law and the Michigan’s Great Lakes Submerged Lands Act (GLSLA).

“This is an important step in restoring the rule of law on Line 5,” said FLOW executive director Liz Kirkwood. “The Great Lakes belong to all of us and cannot simply be handed over to a private corporation through a hurried backroom deal by a lame-duck legislature. If Enbridge really wants a tunnel, it will have to apply under state law and demonstrate no potential risk of adverse impacts and no other alternative pipelines to transport crude oil that avoid the Great Lakes.”

Background on Amicus Briefs

On Sept. 10, FLOW filed a motion to submit an amicus brief before the Court of Claims in Enbridge v. Michigan on important questions involving violations of the public trust doctrine. FLOW noted that the future of the public trust rights of citizens and communities in the Great Lakes were violated by the 2018 “lame duck” agreements that would have contracted away the legally required review of impacts of a tunnel pipeline to the Great Lakes, fishing, drinking water, health, and the economy imposed by the constitution and law of Michigan.

In Michigan, people, organizations, and communities have a right as beneficiaries of the public trust in the Great Lakes to demand that government apply the rule of law. Where this interest would be seriously affected by the questions presented in a pending lawsuit, citizens and local governments may motion the court to file an amicus curiae brief—“friend of the court” written arguments submitted to aid the court regarding the questions and how the law should be applied.

The City of Mackinac Island, meanwhile, filed a motion and amicus brief submitted by Traverse City environmental attorneys Scott Howard and Rebecca Millican. The arguments in the city’s brief pinpointed for the Court the grave consequences to the city’s drinking water source, emergency and health services, ferry services, and tourist economy, in addition to the wellbeing of guests and residents from the continued operation of the decaying Line 5 oil pipelines in the Straits. The city’s amicus brief focuses on the invalidity of the 2018 agreements between the State and Enbridge, which purported to grant Enbridge the right to continue using and occupying the waters and soils of the Great Lakes without any authorization under the public trust or GLSLA requirements.

FLOW’s position remains that the attempt by the Snyder administration to allow Enbridge to continue operating the existing perilous Line 5 in the Straits while Enbridge spends 5 to 10 years or more designing, obtaining required authorizations under public trust law and constructing a tunnel is not a solution. An oil pipeline tunnel 10 years or more down the road does not address Line 5’s immediate threat of massive harm to the Great Lakes nor address the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. In addition, Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel poses an explosion risk. Oral arguments in the case have not been scheduled, so stay tuned to FLOW’s website and Facebook for periodic updates. At stake are the integrity of the State of Michigan constitution, state law, public trust doctrine, and protection of the Great Lakes, public health, and the rights of its citizen to use their public waters.

Lame-Duck Disaster and Side Deals

In December 2018, at the 11th hour of his term, then-Governor Rick Snyder and his department heads of the Department of Natural Resources (DNR) and Department of Environmental Quality (DEQ)—now Department of Environment, Great Lakes, and Energy (EGLE)—signed tunnel agreements by-passing the public trust doctrine  and Great Lakes submerged lands law that expressly control agreements for private occupancy and use of the waters and bottomlands of the Great Lakes.

To expedite the tunnel deal before the end of the year, the Governor and Enbridge solicited the help of the lame duck legislature to push through Act 359. That tunnel law amended the Mackinac Bridge Authority’s enabling legislation and created a new authority called the Mackinac Straits Corridor Authority to cede the state’s public trust bottomlands and waters to Canada’s Enbridge.

In late December, the state DNR and DEQ, along with the Corridor Authority signed a series of agreements, including an easement, that illegally assigned the use of the public trust soils under the Great Lakes to Enbridge to locate, build, and operate a new oil tunnel for Line 5 under the Straits.

Separately, but related, Governor Snyder, DNR, and DEQ entered into a “third agreement” that sought to assure Enbridge the right to continue indefinitely the use of the bottomlands of the Straits for the existing 66-year-old Line 5 oil pipelines. Polls and public testimony show that much of public agrees the cracked and sagging pipelines must be removed as soon as possible. With its failing design, Line 5 poses an unacceptable risk of catastrophic harm to fishing, navigation, drinking water, swimming, boating, health and emergency services, Tribal rights, the ecosystem, property values, municipal infrastructure, tourism, and even the steel industry. The attempt to assure Enbridge continued use of the existing Line 5 was unlawful and grossly serious breach of the State’s duty to protect the Great Lakes.

New Leaders Apply the Rule of Law to Line 5

In early January 2019, newly elected Governor Gretchen Whitmer exercised her executive authority under the state constitution, and requested Attorney General Dana Nessel to issue a formal legal opinion on the constitutionality of Act 359 and the validity of the series of the 2018 agreements purporting to turn over the Straits of Mackinac to Enbridge for its tunnel and to continue using the dangerous Line 5. On March 27, Attorney General Nessel ruled that Act 359 and these agreements were unconstitutional, invalid, and unenforceable.

In June, Enbridge filed suit in the Court of Claims in Lansing against the State of Michigan and its departments to resuscitate the oil tunnel deal by seeking a Court order that Act 359 and all of these agreements are constitutional and otherwise valid and enforceable. A.G. Nessel and her staff responded with a motion to dismiss Enbridge’s claim because the law and related agreements are unconstitutional and violate the public trust in the waters of the Great Lakes and the soils beneath them. Enbridge responded that the law was within the powers of the legislature, and that the agreements complied with the public trust doctrine.

Underlying Legal Framework

Under the public trust doctrine, the state owns the bottomlands and waters of the Great Lakes in a trust for the protection of these waters, bottomlands, fish, habitat, and for fishing, navigation, drinking water and sanitation, boating, swimming, and other recreational pursuits. The doctrine prohibits the disposition or agreement for occupancy and use of public trust bottomlands by a private person or corporation without an express determination that the disposition falls within one of two narrow exceptions:

  1. The purpose will improve a public trust interest or use—the water, habitat, fish, or one of the protected public uses (such as a public harbor for boating, or public drinking water works, or swimming beach); or
  2. There is no unacceptable risk of impairment to the waters, ecosystem, or these protected public trust uses.

In 1955, Michigan passed the Great Lakes Submerged Lands Act (GLSLA) to protect the public waters and lands beneath the Great Lakes. Under the GLSLA, no one can use, alter, occupy or control the soils and waters of the Great Lakes, unless authorized by the DEQ (now EGLE) after due findings that the public trust interests (e.g. navigation, fishing, drinking water) would be improved or would not be impaired.

When Governor Snyder and his department heads cut the tunnel deal with Enbridge, they contracted away these legal requirements, basically suspending the rule of law in Michigan.

You might say our leaders suspended the law and granted Enbridge an “open season” license to do what it wanted with the public’s paramount trust interests in the Straits of Mackinac. The Governor, DNR, and then-DEQ failed to require Enbridge to apply for legal authorization to continue using the existing Line or the proposed Tunnel under public trust law or the GLSLA.

As of this writing, there has been no such authorization from the State of Michigan allowing Enbridge to own, control, use, or occupy the public soils and waters of the Straits. And FLOW, the city of Mackinac Island, tribes, and citizens of Michigan  aim to keep it that way.

Line 5 Poses On-land Explosion Risk for Michigan Residents

Published on August 28th, 2019 by - Blog Posts, News

On August 1, a natural gas pipeline operated by an Enbridge subsidiary exploded in Kentucky. The blast killed one person, injured six others, and blew 30 feet of pipeline out of the ground, resulting in a crater that is 50 feet long, 35 feet wide and 13 feet deep. About 66 million cubic feet of natural gas was released by the explosion, with the resulting fire destroying multiple structures and burning vegetation over approximately 30 acres of land.

Although public attention has rightly focused on the risk of a catastrophic oil spill from Enbridge’s Line 5 pipelines at the Straits of Mackinac, FLOW board member Rick Kane points out that the risk of a similar explosion is also possible because of the natural gas liquids (NGLs) running the length of Line 5’s 645-mile transit through Wisconsin and Michigan. Here is Kane’s analysis.

 

Enbridge’s Line 5, a legacy hazardous liquids pipeline, poses a major explosion and fire safety risk to citizens and property along its entire length while it transports natural gas liquids (NGLs). This risk is particularly high for the Line 5 segments north and south of the Straits of Mackinac. Why is this issue not being investigated as part of the proposed tunnel project so that citizens and first responders living along the Line 5 hazard zone know the current risk and likelihood that permitting and replacing the pipeline will pose in the future?

The severe consequences of a Line 5 failure and crude oil release into the Straits have been widely publicized. Construction of a tunnel with a new pipeline is now being pursued as a risk reduction approach against a major crude oil spill disaster. However, a tunnel does not reduce the risks posed by Line 5 across the Upper Peninsula and Lower Peninsula where a rupture could release crude oil into hundreds of lakes, rivers and streams, some even leading to the Great Lakes. Nearly absent from the studies and debate are the threats and catastrophic consequences to human safety and property posed by Line 5 while it transports NGLs.

FLOW highlighted the NGL risks in 2018. The risk was on display on August 1 when a large legacy natural gas pipeline in Kentucky exploded, causing one death and sending five residents to the hospital. Unfortunately, the Kentucky incident is only one of many in recent history.

Pipelines are the safest transportation mode for crude oil, NGLs and especially natural gas. However, there are a wide range of pipeline design specifications, materials transported, pipeline ages, physical conditions and operating environments. Line 5 is a legacy pipeline, well past its designed retirement age, operating in an extremely sensitive environment and transiting through several populated areas. Unlike wine, a vintage pipeline does not get better with age; government and industry statistics show that failure rates increase dramatically for legacy-class pipelines. Several major incidents in recent years call into question the reliability of pipeline industry failure prevention programs to justify the continued operation of these pipelines.

A Line 5 failure during the transport of NGLs could have consequences beyond the Kentucky failure and other too-typical natural gas pipeline failures:

  • Natural gas (methane) is transported as a compressed gas. The NGLs in Line 5 are mostly propane with some ethane and butane that are gases compressed to a liquid state when transported by pipeline.
  • When a natural gas pipeline failure occurs, a rapidly, vertically expanding gas cloud ignites, creating a huge flaming torch. Many people reported that the fire from the Kentucky explosion reached 300 feet high.
  • When an NGLs pipeline fails, liquid is expelled quickly, forming a large vapor cloud that moves with the wind until it finds an ignition source. Then the vapor cloud ignites, and an explosion and fireball occur with a shock wave, flame front and radiative heat wave moving out from the explosion area.
  • The potential energy (explosion and heat) from an NGLs explosion can be much greater than from a natural gas break as NGLs have a higher caloric value and the quantity of energy released can be much higher.
  • The risk study developed by Dynamic Risk Systems, Inc. for the State of Michigan in 2017 contained an NGLs deep water release scenario in the Straits that would result in a flame front of almost one mile. Contrast this with a ground level release upstream or downstream of the Straits where the release quantity could be much higher as the distance between pumping stations and shutoff valves is greater at ground level and near populated areas and valuable property. Computer modeling of potential release scenarios near populated areas would provide estimates of fatalities, property damage and important evacuation zones for law enforcement and first responders.

The Kentucky pipeline explosion is still being investigated but preliminary information indicates that the pipeline is similar in size, age and construction to Line 5. Corrosion is believed to be the cause of the failure, and as in other similar incidents, Enbridge is trumpeting the touted pipeline loss prevention program and the reliability of inspections with “smart pigs” to justify continued operation of legacy pipelines.

 

Issues and Questions   

  • The entirety of Line 5 will need to be replaced at some point if the tunnel project proceeds. Does the State of Michigan understand the risks for transporting NGLs in legacy hazardous liquid pipelines, and have assessments been conducted and verified by third-party experts? Are citizens living in the potential impact zone aware of the risk they face?
  • Do property owners and citizens know that a flurry of permit requests for Line 5 “maintenance replacement” will be issued if the tunnel project is given the green light, as was done with Line 6B/78 after the Kalamazoo River disaster in 2010? A similar piecemeal, preventative maintenance and capacity expansion approach is currently being used on Line 3 in Minnesota—a pipeline with an increasing number of failures that Enbridge says needs to be replaced and is 10 years younger than Line 5.
  • Importantly, emergency response organizations along the Line 5 route should complete pre-modeling of NGLs release scenarios to understand potential explosion overpressure and flame envelops and have evacuation scenarios ready to use. The modeling required is more complex than typically done by first responders for hazardous materials spills; they could underestimate the size of an evacuation zone.
  • The State of Michigan regulates gas pipelines but not hazardous liquid pipelines such as Line 5. Why not? Cost is not the answer: other states have taken on the task after disasters occurred; the cost is covered by inspection and audit fees charged to the pipeline companies. State inspections can supplement and provide local control rather than depending on the overwhelmed federal regulators from Pipeline and Hazardous Materials Safety Administration (PHMSA).
  • What about a “National Emphasis Program” focused on pipeline safety starting with the largest operator, Enbridge? After a spate of major refinery and chemical facility accidents several years ago, the Occupational Safety and Health Administration (OSHA) implemented a National Emphasis Program (NEP) that focused on certain segments of the industry based on risk and accident history. Comprehensive inspections and audits addressed not only regulatory requirements but a company’s adherence to industry standards and requirements applicable through the General Duty Clause.

Accidents will continue as long as the pipeline industry uses its own standards for acceptable levels of pipeline failures and relies on current loss prevention and inspection programs for legacy pipelines. The industry is currently deciding the risk tolerance for citizens. A large NGLs pipeline rupture near a local city or village could happen again, just as Line 6B/78 dumped crude oil into the Kalamazoo River nine years ago.

Rick Kane, FLOW Board Member

Rick is the former Director of Security, Environment, Transportation Safety and Emergency Services for Rhodia, North America.  He is certified in environmental, hazardous materials, and security management, and is a graduate of the University of Michigan and University of Dallas.