Over three years ago, on July 15, 2015, the State of Michigan’s Petroleum Pipeline Task Force released its recommendations for the state to conduct an independent risk analysis and independent alternatives analysis on the Line 5 pipelines located in the open waters of the Great Lakes. The Governor’s Advisory Board, created by executive order, promised the public these two separate reports by the summer of 2017.
But just before the risk report’s release in June 2017, the state scrapped the report due to a conflict of interest involving Enbridge and the independent contractor who has simultaneously worked on Enbridge’s Line 6B pipeline. Now, three years after the initial study recommendation, we finally have the risk report estimating Enbridge’s liability at $1.8 billion for a worst-case-scenario (WCS) oil pipeline spill in the heart of the Great Lakes.
FLOW’s 2018 commissioned economic impact report (released in May 2018) — conducted by a nationally respected ecological economist and based on conservative assumptions — estimates $697.5 million in costs for natural resource damages and restoration and more than $5.6 billion in total economic impacts, including:
$4.8 billion in economic impacts to the tourism economy;
$61 million in economic impacts to commercial fishing;
$233 million in economic impacts to municipal water systems;
over $485 million in economic impacts to coastal property values.
Our FLOW team attended and testified at the state’s presentation this past Monday, on August 13, 2018, held at Boyne Highlands, and it was the first honest conversation between the state and citizens in a public forum about the real risk Line 5 poses to our waters and our way of life.
A team led by Dr. Guy Meadows of Michigan Technological University presented this independent risk analysis on its 58,000-barrel WCS disaster that would potentially affect 441 miles of Lakes Michigan and Huron shoreline in Wisconsin, Michigan, and Ontario. The Risk Analysis examined impacts to public health, drinking water, cultural resources, tourism, property values, natural resources, and economy. The report’s final section analyzed perceived risk and the social license to operate based on public opinion. To do this, the report reviewed the 45,000 comments submitted in December 2017 on Dynamic Risk’s Alternative Report, and found an overwhelming 80 percent of commentators opposed to Line 5. The reasons articulated by the opposition were grounded in sound science and law, according to Dr. Meadow’s team.
Although the dollar figures are different due to methodologies and assumptions, what the FLOW-commissioned MSU economic impact report and the state’s report demonstrate is this: Line 5 poses an unacceptable risk to the Great Lakes and the State of Michigan. Period.
The risk and potential harm unfairly burdens the citizens, businesses, and tribes of Michigan, and the freshwaters of the Great Lakes. A spill from Enbridge’s Line 5 could contaminate nearby municipal drinking water intakes, devastate some of the commercial, recreational, and tribal fisheries of the Great Lakes, kill aquatic and terrestrial wildlife, impair critical ecosystem services, diminish coastal property values, and tarnish the image of the state of Michigan and perceptions of its high levels of ecological integrity. Even bigger impacts would damage Michigan’s critical tourism industry.
The state’s risk analysis is yet another compelling reason for the state to take swift action to shut down Line 5.
In an end-run around the public participation process they established, Governor Rick Snyder and Enbridge, Inc., the owner and operator of Line 5, are exploring the possibility of building a $500 million tunnel to replace the stretch of 65 year-old Line 5 pipeline that runs under the Straits of Mackinac.
While a tunnel, properly designed and engineered, may be able to prevent harm in the event of a pipeline breach under Lake Michigan, there are compelling reasons why a tunnel should not be built.
First, the five-mile segment of a tunnel running under the Straits of Mackinac represents less than 1 percent of Line 5’s total length of 645 miles. Long segments of this aging infrastructure run parallel to the Lake Michigan coast in the Upper Peninsula, crossing 400 rivers and streams that are tributary to Lake Michigan and numerous other water bodies. Records from the Pipeline Hazardous Materials Safety Administration indicate that in the last 50 years, there have been at least 29 spills along the length of Line 5 outside of the Straits, resulting in the release of over 1 million gallons of oil and natural gas liquids.
The threats to our freshwater lakes and streams will escalate over time as the other 640 miles of Line 5 age and degrade.
Second, aside from the fact that Line 5 crosses Michigan largely to serve markets outside our state, a tunnel for Line 5 is a fundamentally unsound investment – one that is unneeded, economically imprudent, and may soon be functionally obsolete.
Major new pipeline infrastructure investments assume the continued demand for transportation fuels. But our fossil fuel-based economy is in transition and will be completely transformed within the coming decades.
Recent petroleum sector forecasts by firms specializing in energy trends like Bloomberg, Navigant, and Goldman Sachs, predict that the transition to electric vehicles will accelerate quickly with a corresponding, precipitous drop in the demand for transportation fuels.
The world’s major auto manufacturers are validating these predictions. General Motors, VW, Volvo, and others are making clear that petroleum-free electric drivetrains will dominate their future manufacturing investments and that future product offerings will not use transportation fuels.
At the same time, sovereign nations are intent on extinguishing demand for petroleum. England, France, Norway, Netherlands, Slovenia, India and China have announced their intentions to ban future sales and, in some cases, the use of vehicles with internal combustion engines. Ireland has gone even further, announcing that it will divest its sovereign interest in all oil, gas and coal.
And while Enbridge boasts that it transports 63 percent of all Canadian oil to the United States, Big Oil sees the writing on the wall. Seven international oil companies – Exxon Mobil, Conoco Phillips, Statoil, Koch Industries, Marathon, Imperial Oil and Royal Dutch Shell – will not need Enbridge’s future pipeline services as they have announced that they are writing off tar sand assets in Alberta.
The confluence of these trends will result in demand for transportation fuels declining precipitously, rendering a Line 5 tunnel project a costly albatross.
Third, climate change is the elephant in the room. Continued investment in fossil fuel infrastructure is fundamentally at odds with the global consensus on the urgent need to reduce greenhouse gas emissions. The findings of our National Climate Assessment are unambiguous – decarbonization of the global economy is an imperative, entailing a “fundamental transformation of the global energy system” to one that is no longer dependent on fossil fuels. As the need to address climate change becomes more acute, new pipelines proposals will be met with the scrutiny they deserve.
Finally, we should all be able to agree that there are exceptional places and natural features that are deserving of special protections. Just as we would not allow a foreign corporation to build a tunnel under the Grand Canyon, the Great Lakes should be off limits to fossil fuel infrastructure.
Our Great Lakes are a globally-unique natural resource, the largest interconnected freshwater system in the world, containing 84 percent of all surface water in North America. Recognizing that certain natural resource endowments are invaluable and irreplaceable gifts of nature, both state and federal law already prohibit all oil and gas development, even if done laterally from inland areas.
Skip Pruss, FLOW Chair
Building a tunnel to perpetuate Line 5 makes little economic or environmental sense. The decisions we make about how to use and protect our freshwater seas will ultimately be judged on whether they do or do not protect the ecological, social, cultural, and economic interests of future generations.
Simply put, our Great Lakes merit extraordinary protection, and their bottomlands must be off limits to oil and gas pipelines.
Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago.”
The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.
But Sellek’s comment obscures the more important issue: Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5. What is more, there is legal precedent for such action.
The Precedent
In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America. The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.
The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.
Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.
The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine. These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.
In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5. The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people. And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.
Bill Schuette has that duty, and he has acknowledged that Line 5 presents an unacceptable risk stating that “you wouldn’t site, and you wouldn’t build and construct pipelines underneath the Straits today.” Schuette’s assessment implies that a state-of-the-art, 21st Century pipeline presents an unacceptable risk, yet he has not initiated any legal proceedings despite the growing evidence that the integrity of Line 5 may be dangerously compromised.
Line 5 is showing a number of red flags. Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims:
Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
Anchor strikes that have dented the pipeline in three locations.
These facts support a finding that Line 5 poses an imminent risk. Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm. A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron. And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.
Line 5, if it continues to operate, will fail eventually. It is unscientific and reckless to suggest that it can function indefinitely. While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.
The Result
So, what was the result of Attorney General Kelley’s action in 1986?
The Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources” but denied the state’s request to void the lease for state bottomlands. Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.
Skip Pruss, FLOW Chair
The result: A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF.
As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands. It is time for Schuette to act on Line 5, not make excuses.
FOR IMMEDIATE RELEASE June 29, 2018 Contact: Liz Kirkwood Email: Liz@FLOWforWater.org
Executive Director Office: (231) 944-1568 FLOW (For Love of Water) Cell: (570) 872-4956
Latest Enbridge Reports Underscore Line 5’s Vulnerability to 400 Michigan Waterways and Ongoing Unacceptable Risk to the Straits
TRAVERSE CITY, MI – Enbridge today released three reports required as part of the November 2017 agreement with the Governor concerning Line 5. The reports examine possible methodologies to mitigate potential leaks from Line 5 in the Straits of Mackinac and at nearly 400 water crossings throughout Michigan.
“These reports from Enbridge provide a stack of evidence supporting the public’s call for Gov. Snyder and Attorney General Schuette to shut down Line 5 right now before there is a catastrophic oil spill in the Mackinac Straits,” said For Love of Water (FLOW) Executive Director Liz Kirkwood, an environmental attorney and a co-leader of the Oil & Water Don’t Mix campaign. “Enbridge acknowledges that Line 5 lacks the latest safety technology, remains at risk of more anchor strikes, and threatens not only the Mackinac Straits but also many Great Lakes tributaries, wetlands, and other aquatic resources along its 554-mile-long route in Michigan.
“The governor and attorney general need to stop promoting their long-term dream of a Canadian oil pipeline tunnel under the Straits and across nearly 400 waterbodies in Michigan alone, and finally confront this danger to the Great Lakes, our drinking water, and our jobs tied to the Pure Michigan economy.”
Of particular concern, information in the three reports released Friday by Line 5-owner Enbridge reveals that:
Water Crossings Report: This report reveals that Line 5 crosses nearly 400 Michigan waterways, almost double the number of lakes, rivers, streams and wetlands Line 5 was thought to cross. This should shine a light on the fact that not only are the Straits of Mackinac at risk to a potential catastrophic oil spill, but so are 400 waterbodies in our state. According to NWF’s FOIA review, since 1968, Enbridge’s Line 5 has ruptured at least 29 times on land, rupturing over 1.1 million gallons of oil into Michigan’s environment.
Technology Reports: (1) Underwater Leak Detection Report: This report examined three external leak detection technologies and concluded that not one of them could provide continuous real-time monitoring that was practical, cost-effective, or operationally proven. With costs ranging between $4 and $40 million, the report used a net present cost assuming a 20-year operating and maintenance period. Both of the optical camera options would require 1,800 cameras on the dual pipelines. (2) Coating Technologies Report: As a part of the leak detection report, the coating technology report ignored the fact that Enbridge’s screw-anchor engineering efforts caused coating pipeline loss in over 80 locations, and does not address how Enbridge will attempt to remedy this major design defect as they work this summer to install another 22 anchors and then possibly 48 more. These anchor permits are currently being challenged at the administrative level by a citizens’ group (Straits of Mackinac Alliance) and the tribes (Grand Traverse Band of Chippewa and Odawa Indians).
Anchor Strike Mitigation Report: This report noted that the probability of a failure of an anchor strike to the existing dual pipeline is two to three times higher than the values provided in the November 2017 Dynamic Risk alternative analysis report. Enbridge’s report concludes that the most effective option to mitigate anchor strikes to the dual Line 5 pipelines in the Straits is to cover both lines with a protective barrier consisting of approximately 360,000 cubic yards of gravel and rock. However, this protective barrier would not allow for visual inspection of the pipeline and would impede any external maintenance to Line 5 within the Straits. The protective barrier option also poses environmental risks including disturbance to fish habitat, disturbance to lake vegetation, impacts to water clarity, and potential exposure to toxins during its estimated 2-3 year construction timeline. Notably, this report omitted any mention or analysis of the recent anchor strike that caused an estimated 600 gallons of dielectric fluid to enter the waters of Lake Michigan and dented Line 5 underwater pipelines in three locations.
Fundamentally, the question remains: Why didn’t the State of Michigan require a comprehensive engineering study evaluating the anchor hooking risks as well as the currents, gravitational and thermal stresses of the new elevated pipeline with its 128 screw anchors as compared to the original lakebed support design?
Almost three years ago, with the release of Michigan Petroleum Pipeline Task Force’s report on July 14, 2015, Attorney General Bill Schuette announced that the days of Line 5 were numbered. The public also believed that the State of Michigan planned to seek two independent studies on Line 5 to evaluate risk and alternatives.
It’s been over 1,000 days and despite plenty of distracting PR, Attorney General Schuette, the Governor, and the State of Michigan have done virtually nothing to make Line 5 in the Straits of Mackinac safer from a catastrophic oil spill.
Over these 1,000-plus days, while the debate has raged on with an incomplete alternatives study and a back door deal between the Governor and Enbridge, Line 5 has:
lost its protective pipeline coating in over 80 locations;
suffered more cracking and corrosion, and even dents from an anchor strike in three locations; and
continued to violate its legal occupancy agreement with the State of Michigan because it is shifting dangerously on the bottomlands.
Designed to last for only 50 years, Line 5 is now 65 years old and continues to pump 23 million gallons of oil every day from Canada and back into Canada using the Great Lakes as a high-risk shortcut. And there is no end in sight.
On April 1 of this year, the unthinkable happened; a tugboat anchor struck and dented Line 5 in three locations. Miraculously, Line 5 did not rupture, but the emergency response to transmission cables ruptured by the anchor underscored how difficult if not impossible cleaning up toxic oils and fluids can be in the wild currents of the Straits.
Enbridge is delighted that the conversation has now shifted to the option of a tunnel to replace the failing pipeline. It is the perfect distraction. It drags public attention into the weeds of whether or not constructing a tunnel is feasible from a highly technical perspective. And it steers the public, Michigan lawmakers and leaders, and candidates away from asking the right questions:
What is the State of Michigan as a trustee of the public interest doing right now to protect and defend the Great Lakes against the most dangerous pipeline in American?
How does Line 5 actually benefit Michigan’s current and future energy needs?
What are the feasible and most prudent alternatives to transporting oil that do not threaten the Straits of Mackinac and the 245 other water crossings in Michigan also protected by the state’s public trust duty?
Why is Enbridge in charge of investigating the feasibility of a tunnel when the state demanded an independent review?
Make no mistake: a conversation about a tunnel is folly and it fails to meet our state government’s legal obligation to put the public interest ahead of Enbridge’s pure profit. Dutch water expert Henk Ovink observed “If we only respond to the past, we will only get answers that fit the past.” This is exactly where we are as Enbridge tries to hijack the Line 5 conversation and bring the tunnel option center stage.
Liz Kirkwood, Executive Director
We must demand that our leaders ask the right questions and seek truthful answers. Right now, the State of Michigan can revoke the Line 5 public trust easement and ensure protection of our drinking water, economy, fishing, and way of life.
Line 5 is a Great Lakes issue, a Michigan issue that affects us all. This is not about which side of the aisle you stand on. Rather, Line 5 is about our future and our children’s future, and they will never forgive our elected leaders if Line 5 ruptures on our watch.
Water unites us. Let’s let the decommissioning of Line 5 do the same.
Every year, a million visitors reach the shores of Mackinac Island, also known as Turtle Island to the Anishinaabe peoples who first settled here in the Great Lakes. Unlike most visitors, every May I make an annual pilgrimage to the island to argue the case to decommission Line 5 to our top state and federal leaders at the Policy Conference. Against the spectacular backdrop of the Straits of Mackinac, thousands of attendees gather on this tiny island to discuss the state’s most pressing economic issues. But every year without fail, Line 5 is not even mentioned on the agenda. And the irony could not be greater.
Let’s talk economics for a moment: Michigan will suffer an estimated $6.3 billion blow from damage to tourism, natural resources, coastal property values, commercial fishing, and municipal water systems, according to a new study by a Michigan State University economist commissioned by FLOW. Mackinac Island and St. Ignace will immediately lose their Great Lakes drinking water supply, and the oil spill could threaten shoreline communities and their water source from Traverse City to Alpena and beyond.
Legislators often ask about the U.P. propane issue, which continues to be a red herring and barrier to clear decisive state action. Research by engineers working with FLOW reveals that just 1-2 rail cars or a few tanker trucks a day from Superior, Wisconsin, could replace Line 5’s U.P. propane supply. A state-sponsored study in October found that installing a 4-inch-diameter propane pipeline from Superior to Rapid River would meet demand. State leaders should urgently pursue these options.
And where does all the Line 5 oil go? It turns out that 90-95 percent of Line 5’s oil comes and goes back to Canada. What this means is that the 5-10 percent of the crude oil in Line 5 headed to the Detroit and Toledo refineries could be replaced by oil from the Capline and Mid-Valley pipelines from the south that serve the same refineries, along with crude from Northern Michigan oil fields. Alternative pipelines exist that do not threaten our globally unique Great Lakes that contain 20 percent of the world’s fresh surface water.
The catastrophic nature of a potential spill became clear last month when a tugboat anchor slammed into Line 5 in the Mackinac Straits and dented and gouged the Line 5 pipelines, while also severing two submerged electric cables and spilling their toxic dielectric fluid into the water. It was at least the second significant strike of Line 5 in the Straits, according to Enbridge’s inspection data.
So here we are, another year later with little progress towards decommissioning Line 5. Rather, Governor Snyder had high hopes of wrapping things up with his November 2017 back-room deal with Enbridge to authorize a tunnel under both the Straits and the St. Clair River. Significant legal questions and challenges loom, not to mention engineering trials and staggering public work costs that make this a hazardous path to walk. Bottom line, a tunnel (even if feasible) could take 7-10 years to build and utterly fails to address the ongoing and growing imminent threat as the pipelines continue to bend and age every day.
Liz Kirkwood, Executive Director
According to the Detroit Free Press, Line 5 is one of the “thorniest issues being grappled with by state leaders, including Gov. Rick Snyder and Attorney General Bill Schuette.” This, however, should not be the case. Our state leaders, in fact, have the legal power now to decommission Line 5 by revoking the easement it granted Enbridge in 1953 to build Line 5 and occupy our waters of the Great Lakes under public trust law. Heightened state scrutiny and enforcement are warranted given that Enbridge continues to violate its legal easement agreement with the state and the express engineering requirements designed to prevent catastrophic rupture. For example, in 2017, it was revealed that Enbridge for three years hid the fact that Line 5 had lost its anti-rust outer pipeline coating in more than 60 places in the Straits of Mackinac.
Enough is enough. It’s time to decommission Line 5.
Photo: Nancy May – work available at numerous shops on Mackinac Island
FLOW reminds state leaders they have the power to defend the Great Lakes from Enbridge.
Governor Snyder and Attorney General Schuette have the legal authority to protect the Great Lakes from the major risk posed by the antiquated and poorly maintained Line 5 pipelines at the Straits of Mackinac, FLOW reminded them in a letter Thursday.
Responding to the latest comment by a state government official questioning the state’s authority to shut down the pipelines, FLOW wrote that the public trust doctrine and state statutes make that authority clear. And the same state officials have acknowledged that authority in the past.
“In the 1953 Easement authorizing the pipelines, Enbridge (then the Lakehead Pipe Line Company) and the State of Michigan acknowledged the state’s jurisdiction and property power and police power control over the Straits of Mackinac, because of the Great Lakes,” FLOW wrote. “It is undisputed that there can be no pipelines in the Straits or elsewhere in or under the Great Lakes or its connecting waters without a lease, occupancy agreement, or other written consent and a permit under the Great Lakes Submerged Lands Act from the State of Michigan.”
Despite such legal footing, DEQ Director Heidi Grether told reporters earlier this month, “People keep saying shut them down, shut them down; part of the question is, under what authority?”
But the state has already recognized its authority by requiring Enbridge at least since 2001 to obtain state permits for modifications of pipeline supports and a task force appointed by the governor concluded the state has jurisdiction. The state therefore has legal control of the use of the lakebed for a pipeline crossing, FLOW said.
“Years into state task force and advisory board review, state officials are trying to fall back on their alleged powerlessness to protect the Straits,” said Liz Kirkwood, FLOW’s executive director. “It’s merely an attempt to pass the buck. By entering into an agreement with Enbridge negotiated behind closed doors last November, the Governor was acknowledging that the state has a regulatory role in pipeline location.”
“The state’s authority is obvious and so is the correct course of action. The state must move to revoke the easement and shut the pipelines down before they rupture and do immense damage to the Great Lakes and Michigan’s economy.”
Yesterday, May 22, 2018, marks the day that our state’s citizens, threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac, took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to start applying state law that is supposed to protect the Great Lakes, and stop the flow of oil through Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair, a shift that will finally bring state officials and Enbridge under the rule of law. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.
A Brief History
In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?
Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “Sure it’s days are numbered, but that number could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that establishes a framework for the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. If not contested under rule of law that protects the public trust in the lakebeds and waters of the Great Lakes, the investment in replacement could all but seal the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan has become the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain. Why does the governor and not the law of the Great Lakes and the citizens of Michigan through our elected officials or under rule of law decide the fate of crude oil in and out of the Great Lakes basin?
But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General unwittingly if not unlawfully cooperated with Enbridge to keep the oil flowing through pipelines in the Straits, pipelines whose design is failing. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet suspended in the water column above the lakebed and exposing the lines to powerful currents that could whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the for the company fastened 16 saddles to the pipelines, supporting the saddles and lines by leg supports crewed into the lakebed. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended in the water like a bridge over the lakebed.
A New or Changed in Design
The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures. Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!
How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General staff stonewalled the tribe’s and citizens groups’ patently obvious charge that miles of suspended pipelines were a new or substantial change in design, not “repair” or “maintenance,” subject to required comprehensive review under the GLSLA and public trust in the lakebed and waters of the Straits.
This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed. If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will snag anchors dragging over them from a passing ship.
So what does the GLSLA say about these permits for “repair” or “maintenance?” Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and permit for the new pipeline design and structures. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations also require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.
Taking Matters Into Their Own Hands
In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines that have been substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, and if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is unlawful. For three years, government officials could have taken charge.
But they haven’t. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.
Jim Olson, President and Founder
I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention. I urge our Governor, Director of DEQ, and Attorney General to join the side of citizens and tribes and invoke the available rule of law under the GLSLA to protect the Great Lakes.
In comments submitted to state officials Friday, FLOW is urging state regulators to deny a bid by Enbridge Energy to install 48 new anchor supports on dangerous Line 5 at the Straits of Mackinac while evading scrutiny of alternatives that would protect the environment.
Enbridge’s latest request, if approved, would bring the number of anchor brackets to 198 that the governments have allowed the company to install since the early 2000s — completely changing the pipelines’ design.
Structurally, this means that approximately 3 miles of pipeline are elevated in public trust waters above the bottomlands. But the design approved by the state in the 1950s had the pipeline resting in a trench on the lake bottom.
“The fact that the Michigan Department of Environmental Quality and the U.S. Army Corps of Engineers continue to approve Enbridge’s anchor supports on the lakebed of the Lake Michigan as ‘repair’ and ‘maintenance’ is simply untenable,” FLOW says in its comments. “The highly increased risks of and alternatives to a completely modified design under both state and federal permitting laws requires a new agreement of occupancy and permits” under several laws.
“And given the recent anchor dents in the twin lines and rupture of the electrical line and release of toxic fluids, the risks to the Great Lakes are totally unacceptable,” FLOW said.
FLOW called on the state and federal governments to require that Enbridge:
file a full and comprehensive application including a study of potential effects and feasible and prudent alternatives to Line 5 in the Straits in its entirety;
suspend the flow of oil in Line 5 unless and until Enbridge files such application and evidence and obtains proper occupancy agreements, permits, or other approvals for this new or completely modified pipeline design; and
consolidate into one application and examine the risks, impacts, and alternative analyses of the entire 645 miles of Line 5.
Five years ago this spring, when I first learned about Line 5, I could only imagine what a catastrophic oil spill would look like here in the heart of the Great Lakes. Two weeks ago, we dodged a bullet as we watched a hazardous liquid spill from two neighboring transmission cables unfold. What we witnessed was an anatomy of a spill — and how truly devastating an oil spill would be.
Here’s what we know from the April 1st spill in the Straits.
A release of at least 600 gallons of toxic coolant and insulating fluid from electric cables owned by American Transmission Company (ATC) occurred sometime Sunday afternoon in the Straits of Mackinac. The dielectric fluid is a mineral oil that contains a benzene compound. ATC, however, did not report the release to the Coast Guard for 24 hours. By Monday, ATC officials were blaming “extraordinary circumstances” like ice in the water and near the shore that hindered the emergency response.
No cause was initially identified until days later. The cause? Vessel anchor strike. News media coverage revealed the chaotic nature of responding to this hazardous liquid spill with Coast Guard helicopters looking for oil sheens and a multi-agency unified command assembling from federal, state, tribal, and local agencies and units. Reports attempted to allay public fears, indicating that the product was so diluted that it would not pose a threat to drinking water supply intakes. The greatest threat posed was to wildlife and shore birds swimming in possible oil floating on the water’s surface.
On April 3, Enbridge – owner and operator of Line 5 – temporarily shut down the flow of oil in the pipelines to evaluate the leak detection systems. Ten days after the ATC accident, on April 10, Enbridge notified state and federal officials that their pipelines had suffered three dents, likely due to the same vessel activity that may have caused the damage to the ATC lines.
Hold on. Vessel anchor strike hitting Line 5? This was the number one threat that Dynamic Risk identified in their November 2017 alternative report to the Governor-created Michigan Pipeline Safety Advisory Board. Ironically, the original Bechtel engineers believed that a vessel anchor strike was only “one chance in a million.”
Well, two weeks ago that one chance in a million struck.
And finally, a growing chorus of federal and state leaders from both sides of the aisle are demanding that Line 5 be shut down until a full visual inspection has taken place. Tribal leaders like Aaron Payment from the Sault Tribe call for more comprehensive investigation and analysis: “These old pipes need to be shut off, at least until proper investigations and the full analyses are finished.” . . . “Governor Snyder should not be using this accident as an excuse to fast-track a tunnel.”
Liz Kirkwood, Executive Director
So what can we learn from this? First, we don’t need to imagine anymore. We know that it might take up to 24 hours before the spill is even reported. We know exactly how difficult it would be to deploy emergency responders to contain oil in the open waters. We know how extreme the conditions are in the Straits, even in spring. We know about the challenges of ice. We know that we can never be 100% prepared in such a dynamic, chaotic, and extreme environment as the open waters of the Great Lakes. Second, and most important, we can’t take a second chance because of the magnitude of harm and risk that Enbridge is asking citizens of Michigan to shoulder.
Let’s do the right thing. Michigan leaders – it’s time to be proactive and shut down this 65-year-old oil pipeline before it’s really too late.
