Tag: FLOW

Reality Check: Line 5 Threatens More Jobs Than It Sustains

By Maude Barlow and Jim Olson

Jim Olson

Maude Barlow

Editor’s note: This opinion piece appeared originally in Canada’s National Observer.

The United States and Canada are not only close friends and neighbours, but are also committed to resolving their differences with civility and common purpose. The 112-year-old International Joint Commission (IJC), which prevents and resolves disputes over boundary waters, is an example of this special relationship. So is the groundbreaking agreement among Ontario, Quebec and the eight Great Lakes states to ban water diversions from these shared and treasured waters.

The two nations, however, are clashing over energy policy and the effects of Line 5, the Canadian petroleum pipelines in the open waters of the Straits of Mackinac, a major shipping lane and important whitefish spawning ground where Lake Michigan meets Lake Huron. If both Canada and the U.S. take a hard look at these issues together, they will swiftly realize that co-operation, not confrontation, is in the best interests of both — and, significantly, the interests of the planet.

The current discord between the two nations is over the decision in November by Michigan Gov. Gretchen Whitmer to exercise her state’s sovereign constitutional authority to revoke the 68-year-old easement that Enbridge has relied upon to transport petroleum by pipeline from Alberta to Sarnia, Ont., across the public bottomlands of the straits separating Michigan’s upper and lower peninsulas.

The governor took this action in light of the clear and present danger from Enbridge’s appalling track record of easement violations in operating Line 5, including lake-bed erosion undermining support of the dual pipelines in the fierce currents where Lake Michigan meets with Lake Huron. Enbridge also lacks adequate liability insurance and has steadfastly refused to provide any of the financial assurances that Gov. Whitmer has demanded.

Enbridge knew at least 20 years ago that the original design of the Straits of Mackinac pipelines was failing. Year after year, the company quietly sought approval from the state of Michigan to shore up the pipeline, passed off as “repairs,” by installing supports — now 228 of them — in effect lifting about three miles of the dual pipelines into the water column. Government officials, however, never required Enbridge to get approval for such a radical change that poses a whole set of new and serious risks.

Then, as if fate were sounding a warning alarm, a 12,000-pound anchor from a passing vessel struck and dented the twin pipelines on April 1, 2018. Last summer, Enbridge disclosed two more strikes by anchors or cables. These foreseeable accidents could have opened a gash in the pipeline, exposing 700 hundred miles of the Great Lakes shoreline — potentially including those of Georgian Bay — to a catastrophic spill costing $6 billion in economic damages to tourism, drinking water and other interests. Even worse, such a spill could trigger a domino effect of damage disrupting Great Lakes commercial shipping and steel production, slashing jobs and shrinking the U.S.’s gross domestic product by $45 billion after just 15 days. Michigan will lose tens of thousands of jobs if Line 5 ruptures.

Many families, communities, tribes and businesses understandably are skeptical of Enbridge’s safety assurances. Enbridge calls Line 5 “as good as new” and says it can last “forever,” even though Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. In 2010, the company was the culprit in one of the largest petroleum spills in U.S. history. A leak in an Enbridge pipeline in southwest Michigan dumped 1.2 million gallons of heavy tarsands oil into the Kalamazoo River watershed, harming human health and damaging fish and wildlife habitat. The spill cost Enbridge over $1 billion to clean up to the extent possible. The U.S. agency that investigated the spill likened the Enbridge response to the spill to the “Keystone Kops” and cited “pervasive organizational failures at Enbridge.”

Many Canadians are concerned about the possible distortion of their energy supply. They shouldn’t be. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to experts from the Great Lakes protection group FLOW. They argue that when Line 5 shuts down, regional domestic energy needs and supplies for refineries will still be able to be met. The estimated increased cost to consumers would be a fraction of a cent per gallon of gasoline, according to a study commissioned by the National Wildlife Federation.

The threat to the Great Lakes, both U.S. and Canadian waters, is clear. Equally clear is the risk to the planet of another 99 years of transporting carbon-rich petroleum from the Prairies to Sarnia for refining and ultimately releasing massive carbon dioxide emissions. Government promises of a new commitment to action on climate change are hollow if Line 5 continues operation indefinitely.

The law in the U.S. and Canada recognizes the waters of the Great Lakes are held in trust to be managed by the governments as guardians for navigation, fishing and other paramount needs of citizens. Unfortunately, the Canadian and Ontario governments have joined forces with Enbridge to forsake this guardianship by pressuring Gov. Whitmer. As the company spends resources on a slick public relations campaign exaggerating the benefits of Line 5 to the U.S. while neglecting to mention its history of environmental negligence, the governments dispute Michigan’s concerns about a Great Lakes spill.

In 2016, the IJC urged governments in the Great Lakes region to adopt the public trust doctrine as a legal backstop to assure the majesty of the lakes and bottomlands is not impaired. The IJC recommendation makes sense for present and future generations. If Canada and the U.S. do so, they will inevitably support decommissioning of Line 5.

____________________________________________________________________________________________________

About the Authors: Maude Barlow is an activist who served as an adviser on water to the United Nations and is Chancellor of Brescia University College. Her latest book is, “Whose Water Is It Anyway? Taking Water Protection Into Public Hands.” Jim Olson is founder and president of FLOW (For Love of Water) in Traverse City, Mich.

FLOW’s 2020 Annual Report

By Liz Kirkwood, Executive Director, and Mike Vickery, Board Chair

Being in, on, or near water brings us into balance, restores clarity, and grounds us in understanding what matters most. Water is life. These elemental connections to water and nature were profoundly important to all of us in the tumultuous year of 2020, as the coronavirus upended our lives and economy.

In reflection, as we recount in our Annual Report released today, November 2020 marked an extraordinary milestone for the Great Lakes—and for FLOW. After seven long years of advancing public trust law as the legal basis to shut down Line 5, FLOW watched Governor Gretchen Whitmer and DNR Director Daniel Eichinger assert public trust law as the cornerstone of the state’s action to advance critical legal action to protect the Great Lakes from a catastrophic oil spill.

Equitable and affordable access to clean drinking water remained at the forefront of our work in 2020 as we partnered with frontline Detroit and Flint groups to successfully persuade Governor Whitmer, and then the legislature, to extend a moratorium on water shutoffs through March 2021. We also partnered to form Water for All of Michigan to evaluate equitable and just financing and funding strategies to assure safe, affordable water for all communities. FLOW’s model legislation, Public Water, Public Justice, is a key part of this work.

FLOW also worked to spotlight and protect the Sixth Great Lake, Michigan’s groundwater, unveiling a groundwater story map in March and a June webinar to highlight the implications of a preliminary state decision approving Nestlé’s permit to increase withdrawals for commercial bottled water. And we chronicled a baffling decision in November by the State of Michigan to dismiss the citizen-led contested case challenging the Nestlé permit.
In a year dominated by a global pandemic, a reckoning with racial injustice, record-high Great Lakes water levels, an unprecedented national election, and profound challenges to our most important institutions, FLOW stood firm as a fair witness to, and advocate for, the power and value of the public trust in moving forward. Working alongside our partners, allies, supporters, and friends, FLOW planted new seeds from which will grow a more just, diverse, inclusive, equitable, prosperous and resilient water future for generations to come.

Your support and passion for the Great Lakes, groundwater, and drinking water for all inspires us and helps drive us forward. Thank you for our shared successes. We hope you enjoy reading about the fresh waters and public trust rights that we have protected together in our Annual Report 2020.

Reflecting on 2020, Looking forward to 2021—FLOW’s 10th Anniversary Year

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

By Jim Olson

With the New Year upon us, we are taking a moment at FLOW to look back at 2020 and forward to 2021, the start of our 10th year of partnering with you to protect the Great Lakes. This is a really exciting time. FLOW now enjoys a solid foundation built from the work we’ve done to protect the Great Lakes through application of public trust principles, work that cuts through politics and sustains communities with water that is clean, safe, affordable—and public.

Click above to watch a video of FLOW Founder and President Jim Olson narrating his reflections on FLOW’s progress while standing along the shores of Crystal Lake.

I know we slogged through a lot in 2020. We all feel the pain and disruption of the pandemic, the political unrest, climate disaster, poverty, and endemic racism that dominated last year. Families and friends were separated, schools disrupted, and many lives were lost or left with health challenges.

But 2020 also yielded good things, too. After seven years of work by FLOW and our allies, the public trust doctrine became the legal basis for Michigan Governor Gretchen Whitmer to revoke the 1953 easement and eventually bring an end to Line 5 and the transport of crude oil through the Straits of Mackinac. Line 5 is dangerous, and under the public trust law it shouldn’t exist. Gov. Whitmer had no other lawful choice, and she did the right thing.

We also saw the beginning of the end of water shutoffs and the recognition that people are entitled to have access to drinking water. Thank you Governor Whitmer, for taking charge, thank you to Mayor Mike Duggan for suspending water shutoffs in Detroit through 2022, and thank you to the Michigan Legislature for passing the bipartisan bill to continue the statewide moratorium through March 2021.

We’ve also seen progress in our work on Public Water, Public Justice. There’s a real battle on the planet over the question of who owns the water and whether it can be sold and traded on Wall Street, as if it’s iron ore, oil, or coal. Water is a commons, and the public trust protects it for all of us.

Looking to the future of FLOW’s work, this is a time to build on the successes that we’ve had, and to understand, particularly in this last year, that there are individual rights and there is the commons. The common good comes first. Individual rights have no value at all if you don’t have common good and you don’t have the commons, like water, which everyone shares. There’s no wealth to anything short term if this water is destroyed.

We at FLOW are looking forward to celebrating 2021 with you. We’re moving toward an economy buoyed by clean water and clean energy, and we’re going to make it happen together. We’re asking you to continue supporting our work to protect the Great Lakes, groundwater, and drinking water for all. 

Thank you everyone who has supported FLOW since our founding in 2011. Thank you for our shared successes. Your support continues to drive us forward. 

Happy New Year!

O&WDM: Groups, Tribes Ask U.S. Army Corps to Reject Proposed Enbridge Oil Tunnel

Editor’s note: This is an Oil & Water Don’t Mix (O&WDM) media release.

Twelve organizations and Michigan tribal representatives today (Dec. 7, 2020) called on the U.S. Army Corps of Engineers to reject the Enbridge Line 5 Straits of Mackinac oil tunnel project. If not dismissed now, the Army Corps risks a repeat of a July court ruling that threw out a permit in another major federal pipeline case.

In their submission of comments, the groups told the Army Corps that the permit for the tunnel should not be approved without a full review that evaluates the consequences of an oil tunnel for the Great Lakes, coastal wetlands, historic archeological finds, and navigation within the Straits of Mackinac.

“Enbridge’s proposed tunnel is a major federal action demanding a full environmental impact statement under the National Environmental Policy Act (NEPA),” said Liz Kirkwood, Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City. “A review of Enbridge’s incomplete application reveals a highly controversial project with extraordinary impacts to coastal wetlands, millions of gallons a day of surface wastewater discharges and water treatment additives, underwater archeological sites, incomplete geotechnical studies for tunnel construction, lack of a credible estimate of project cost, and unprecedented climate change impacts to extend the life of Line 5 for the next 99 years.”

Official comments from the organizations come as the Army Corps holds a single public hearing today on Enbridge’s proposal for a federal Clean Water Act permit to construct the oil tunnel.  The Army Corps public comment period ends on Dec. 17.  It comes as the Michigan Public Service Commission and the state Department of Environment, Great Lakes and Energy also evaluate permit applications from Enbridge and follows a decision by Gov. Whitmer to revoke Enbridge’s operating agreement for the existing Line 5, citing the company’s history of failures and ongoing, incurable violations of the agreement.

“Line 5 will transport 540,000 barrels of oil that when burned will emit over 57 million metric tons of atmospheric carbon annually – more carbon than is emitted by the nation’s three largest coal plants combined,” said Kirkwood.  “Let’s not forget what’s at stake – a proposal to build a mega tunnel in the heart of the largest and most valuable fresh surface water system in the world.  It’s difficult to conceive of a project more worthy of a full environmental impact statement under federal law.”

The groups and tribal representatives warn that approving Enbridge’s proposed application would violate the same federal law that prompted the U.S. District Court in July to block a final permit for the Dakota Access pipeline in the Dakotas.  In the Dakota Access case, the court said the Army Corps must conduct a full review under the National Environmental Policy Act because it was a major federal project with widespread potential impacts, including threats to drinking water sources for the Standing Rock Sioux tribe.

The Army Corps has yet to decide whether Enbridge’s permit application for the tunnel should be subjected to a full federal review that could include looking at other alternatives, including existing oil pipelines within Enbridge’s massive North America pipeline system.

Concerns with the tunnel proposal cited by the groups and shared with the Army Corps include:

  • Drinking water threat. Enbridge proposes withdrawing 4 million gallons a day of water and discharging 5 million gallons a day of water and slurry into the Straits of Mackinac. Nearby communities of Charlevoix, Mackinac Island, St. Ignace, Alpena, East Tawas, and Tawas City rely on Lake Michigan and Lake Huron for drinking water.
  • Geotechnical problems. Independent experts who studied Enbridge’s proposed tunnel plan concluded that it “raises serious concerns regarding the feasibility, integrity, and planning for the construction of the tunnel.”  More than 75 percent of the tunnel boring area is in “very poor” or “poor” quality rock conditions, the experts warned, also citing the potential for explosions because of the presence of methane gas.
  • Sovereign tribal and fishing rights. The Straits of Mackinac are the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch, which could be negatively impacted by the tunnel project and continued operation of Line 5 in the Straits.
  • Northern Michigan economy. Emmet, Cheboygan, and Mackinac counties would be heavily impacted by the tunnel project, straining police, fire, health emergency services, and rental housing that would typically go to seasonal tourism workers who constitute an annual $153 million payroll. Dust, noise, and intense trucking and machinery activity will also stress local communities.

    “Michigan deserves more than a rubber-stamp permit approval from the Army Corps,” said Sean McBrearty, Oil & Water Don’t Mix coordinator.  “What we need is for the Army Corps to follow the law and prioritize protecting the Great Lakes, our drinking water, and our climate. A Canadian company’s oil profits shouldn’t be more important than Michigan’s future.”

    Those submitting joint comments include For Love of Water (FLOW), League of Women Voters of Michigan, Sierra Club, Clean Water Action, Michigan Environmental Council, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350, the Chippewa Ottawa Resource Authority (CORA), the Michigan League of Conservation Voters, and the Straits Area Concerned Citizens for Peace, Justice, and the Environment.

    Oil & Water Don’t Mix is a citizens’ movement committed to protecting the Great Lakes and decommissioning Enbridge’s dangerous Line 5 oil pipelines in the Straits of Mackinac. More information: https://www.oilandwaterdontmix.org/about.

    Comment by Oct. 19 on Permits for Risky Line 5 Oil Tunnel

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

    On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

    It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life. 

    Below is guidance from FLOW on what to include in your written comments and how to submit them online by Monday’s deadline. EGLE expects to issue its final decision on the oil tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December.

    Points to Make in Public Comments by Oct. 19

    FLOW is providing this content for you to draw from and supplement with your own information and perspective in your comment to EGLE on the proposed Line 5 tunnel permits:

    • Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
    • Not good for the climate or Gov. Whitmer’s goals  — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with  the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
    • Not good for public health, safety, and welfare — EGLE is required to determine whether extending the life of an oil pipeline that will emit approximately tens of  million tons of greenhouse gases annually for the next 99 years, under the state Natural Resources and Environmental Protection Act, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
    • Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.

    How to Submit Your Comments to EGLE by Oct. 19

    Be sure to submit your comments on Enbridge’s proposed Line 5 oil tunnel by the Monday, Oct. 19 deadline. The public can submit comments either by email to EGLE-Enbridge-Comments@Michigan.gov — referencing Application Number HNY-NHX4-FSR2Q — or via two EGLE web pages for commenting separately on each of the permits. Click on each link below and follow the instructions provided by the state:  

    • EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
    • EGLE public comment page for National Pollutant Discharge Elimination System (NPDES) wastewater impacts.

    How to Learn More about Line 5 and the Risky Oil Tunnel

    To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:

    Thank you for speaking up for the Great Lakes, drinking water, and a way of life here in the Great Lakes State!

    FLOW Welcomes New Board Members Barbara Brown and Benjamin Muth

    FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, is excited to announce the growth of our board of directors as we welcome Barbara Brown and Benjamin Muth.

    Brown, an attorney based in St. Ignace just north of the Mackinac Bridge, was an Assistant Attorney General for the State of Michigan from 1987-2003 and 2008-2011, where she served in the Attorney General’s Finance, Executive, Transportation and Municipal Affairs Divisions.  She was the recipient of the Attorney General’s 2010 Excellence in Opinion Draftsmanship Award and co-author of the chapter “Power to Formulate Local Policy,” Michigan Municipal Law, published by the Institute of Continuing Legal Education, 2012. Brown also worked as an Administrative Law Judge and, by appointment of former Governor Granholm, a former 92nd District Court Judge. Brown served 14 years on the Mackinac Bridge Authority and is currently a member of the St. Ignace Downtown Development Authority Board. She received her Bachelor of Arts from the University of Vermont and a Juris Doctor from Cooley Law School.

    “While the waters of the Great Lakes provide livelihoods and recreation opportunities, these waters do not belong to any one person, group, or corporation,” said Brown. “Above all, the waters of the Great Lakes are the very source of life for millions of people. We each have a moral obligation to protect our natural resources not only for those of us with temporal interests in them, but for all living beings in times to come. I am honored to have the opportunity and am looking forward to working with the remarkable people at FLOW to protect our most precious and life-giving resource—the waters of the Great Lakes.”

    Muth, an attorney based in Ann Arbor, teamed up with the National Wildlife Federation as the lead organizer of the “Oil and Water” film tour in Charlevoix, Kalamazoo, Ann Arbor, and Chicago in 2015-2016, which advocated for a shutdown of the Line 5 pipelines in the Straits of Mackinac. Muth also assisted the implementation of the Line 5 Michigan Business Coalition. And he conducted voter outreach and a candidate education campaign in Ohio surrounding harmful algal blooms.

    Muth graduated from Vermont Law School in 2012, where he was web editor of the Vermont Journal of Environmental Law. He also authored An Urban Agriculture Permit System for Detroit’s Vacant Land and researched public trust doctrine history for FLOW founder Jim Olson’s law review article, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine.

    “FLOW is the only organization in Michigan exclusively dedicated to upholding the public trust doctrine, which protects Michigan’s waters and beaches from privatization,” said Muth. “As a lifelong Michigander and lover of our lakes, supporting FLOW is not a decision, it’s a mandate. Our grandchildren deserve the same pristine lakes that I enjoyed as a child, and FLOW brings that mission to life.”

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

    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.

    FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

    FOR IMMEDIATE RELEASE:                                                                                                   March 5, 2020

    Jim Olson, Founder and President                                                             Email: Jim@FLOWforWater.org
    FLOW (For Love of Water), Traverse City, MI                                                     Web: ForLoveofWater.org
    Cell: (231) 499-8831                                                                                             FLOW Office: (231) 944-1568


    FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

    Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law


    FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.

    The Corridor Authority, which is housed in the Michigan Department of Transportation, will meet Friday, March 6, at 10 a.m. in St. Ignace to discuss past and ongoing planning for the location and construction of the oil tunnel and new pipeline in the state public trust soils beneath the waters of the Great Lakes—the Straits of Mackinac.

    The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

    “The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” said FLOW Founder and President Jim Olson.

    “The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”

    The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.

    The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.

    FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.

    For more information, see FLOW’s:


    Great Lakes Histories: from Ruin to Recovery, Led by Citizen Leaders

    Photo: Dave Dempsey (right) appears at the Michigan Union together with (l-r): moderator Jen Read, UM Water Center; Clare Lyster, University of Illinois at Chicago; and Margaret Noodin, University of Wisconsin-Milwaukee. Photo by Diane Dupuis.

    Dave Dempsey, Senior Advisor

    Excerpted from a presentation by FLOW senior policy advisor Dave Dempsey delivered on Monday, February 24, at the Michigan Union in Ann Arbor as part of the University of Michigan’s Great Lakes Theme Semester panel series: Great Lakes Histories—Indigenous Cultures through Common Futures.

    Since the beginning of Michigan as a state in 1837—the starting point of my book, Ruin and Recovery: Michigan’s Rise as a Conservation Leader (University of Michigan Press, 2001)—we’ve had several resource binges. First, we took a heavily timbered state and consumed over 90% of the resource in less than 50 years, leaving behind what commentators have called “a burned-over, cutover wasteland.” Then we fouled the waters, first with mill waste and raw sewage, then with persistent toxic chemicals. Then we consumed the land, building unsustainable communities crawling across the landscape.

    How could these things happen? Didn’t people care about their own children and grandchildren? I think most did. But they believed in something I call “the myth of inexhaustibility.” The myth holds that despite our great numbers, the world is so plentiful in resource riches that humans cannot exhaust them.

    This played out in Michigan as elsewhere. In the late 1860s, timber interests estimated there was so much white pine in our state that it would last 500 years. Most of it was gone in two generations.

    Later, the experts said our waters, including the Great Lakes, were so plentiful they would absorb and “purify” the wastes. Before long, Michiganians were dying of typhoid and cholera because their drinking water supply intakes were downstream of cities discharging raw sewage.

    When Michigan awoke with hangovers from the first two binges, public-spirited women and men, volunteer conservationists and environmentalists, fought successfully for societal healing. Citizens pressured public officials to take over the cutover lands, plant trees and initiate mostly sustainable forestry, and build the largest state forest system east of the Mississippi. Similar events occurred in the Great Lakes states most like Michigan—Minnesota and Wisconsin.

    Citizens pressured public officials to attack raw sewage and industrial wastes, including the early persistent toxins like DDT and PCBs. Over a period of 50 years, Michigan displayed national leadership. For example, Michigan was the first state to cancel the registration for DDT after it showed up in alarmingly high levels in Great Lakes fish.

    Whether we’re going to have a similar healing cycle for our use and misuse of land is an open question. There are hopeful signs, but our “Tale of Two Cities”—central cities and all the other cities—still reeks of institutional racism, flawed economic thinking, and personal prejudices.

    And don’t get me started on climate change.

    I’ve had a front-row seat in the environmental policy theater for 30 years as Michigan and Wisconsin have denied, delayed and degraded serious answers to the climate crisis. Like the public officials who facilitated the gluttonous consumption of our forests and waters, we’ve been misrepresented for those three decades by officials eager to please short-sighted interest groups for today’s gain. Two lost generations.

    So we continue to suffer these periods of ruin and recovery, degradation followed by healing. And we need recovery now. Will we have it?

    Yes, if we learn.

    If we heed the lessons of the past, there is abundant hope.

    It starts with those who envision the future, who see where our patterns of resource exploitation will take us if unchecked. In both the forest and water ruins of our history, individuals saw early what was happening and fought to prevent it, or at least to cure it.

    Citizen Leaders

    In 1900, Charles Garfield, one of our first citizen forestry advocates, said, “Some time it may be, our state shall be so ruled by men of vision and men of taste—sometime, it may be fondly hoped, our legislature shall have the leisure from the petty politics and the strident voice of the lobbyist and the crank to turn its attention to the State of Michigan—to renew its waste places with forest life—to make this peninsula, which is bound to shelter 10,000,000 of people, as beautiful as God intended it to be.” Garfield was instrumental in making it happen.

    In 1878, Robert Kedzie of the state health board warned, “A systematic pollution of our rivers has already begun in our State … any one can easily see that these evils will come in with an increase in our population, unless they are excluded by timely precaution on the part of the public authorities. The evil can be successfully resisted or averted only by combined opposition.” Kedzie called for development of sewer systems designed to prevent stream pollution. His advice was ultimately heeded—after much damage was done.

    These men and women educated, they battled and lost, they persisted and ultimately, they prevailed. I can scarcely convey how moved I was when, pawing through papers in the State Archives, I came across a citizen petition to the Governor of Michigan urging action to conserve forests and fish—in the 1870s. These were people looking ahead, a few voices compared to the loud societal chorus demanding consumption now.

    Probably the most important lesson to take from that history is the one I didn’t learn in political science, but learned the hard way: our so-called leaders don’t lead, they follow. We are the leaders, if we choose to be.

    Today we have many voices urging a better way that meets today’s needs without sacrificing those of tomorrow. At least at the state level in Minnesota, Wisconsin and Michigan, they are making gradual progress.

    Another big step toward forging a sustainable future is to behold a history larger than those that I’ve described in my books. The place now called Michigan did not really begin in 1837. The ecosystem known as the Great Lakes did not really begin in the 17th Century, when the first Europeans arrived. I wrote only about those histories because they were all that I felt qualified to discuss. But in the context of history as a whole, they are a tiny fraction of time—although an overwhelming majority of the resource consumption.

    I’ve been happy to see a steady growth in public consciousness about the Great Lakes. We no longer take them for granted. Each year, we care a little more, and do a little more. Most importantly, we no longer subscribe to the myth of inexhaustibility. We are understanding that despite their size, the Great Lakes are fragile, vulnerable; that we need to take care of them. We are making changes.

    Drunk on Development

    As the governments of Canada and the U.S. were negotiating a new Great Lakes Water Quality Agreement in 1978, a group of scientists from both nations urged them to build the new pact around the concept of ecosystems. Instead of looking at the Great Lakes as separate holding ponds, aquatic highways, or waste receptacles, the governments should pledge to regard them as an interconnected system of water, land and all life forms. In that way, we would base policy on the idea of looking at effects systemwide instead of in isolation.

    To make the point, a Canadian scientist named Jack Vallentyne presented to the members of the International Joint Commission (IJC). Jack, who in retirement became “Johnny Biosphere,” teaching kids about ecosystem concepts, had something special in mind for the commissioners.

    Standing in front of the commissioners and onlookers, he produced a bottle of whisky and four glasses from under a table that served as a bar. He poured a shot of whisky into the first glass, two into the second, four into the third, and eight into the fourth glass.

    “Commissioners,” he said, “you and our leaders of government and industry believe that constant growth is a good thing. I am going to drink this whisky the way you say our society should grow.” He promised to drink one glass each ten minutes, and began making his formal presentation. It discussed growth as an exponential function – constant growth meaning a doubling of the initial quantity over constant intervals of time. Just like his body, Vallentyne said, the Great Lakes Basin had limits of adaptability to the stresses of population growth and technology.

    Vallentyne took a second drink, blinked and cleared his throat. He explained the ecosystem approach, citing acid rain, road salt and toxic chemicals as examples of problems affecting water quality that couldn’t be addressed by considering only water.

    After the third drink, a reporter in the front row of the audience gasped loudly, “My God, it really is whisky!” Growing more theatrical with his ingestion of the liquid, Vallentyne demonstrated that there is no “away” in nature by crumpling a piece of paper and throwing it to the floor in front of the commissioners.

    “After the fourth drink my hands instinctively went to my chest as the whisky burned down my throat. After regaining my breath, I spent the better part of a minute looking unsuccessfully for the summary sheet of my text.” Knocking himself on the head, Vallentyne realized the summary sheet was the one he had wadded up and hurled to the floor. He read it “cool and collected” to the commissioners.

    The commissioners verified the validity of Vallentyne’s stunt by sniffing the bottle—which did contain whisky, though diluted by tea. The chair of the Canadian section of the IJC told a Canadian Broadcasting Company reporter that Vallentyne’s presentation had been “a simply staggering performance.”

    That was Jack Vallentyne—a brilliant scientist willing to drink too much in public to prove a vital point. He and his scientific colleagues prevailed, and the 1978 Great Lakes Water Quality Agreement ushered in a new ecosystem approach for these magnificent waters. It’s significant that he told this story, again, in a paper he authored for the Great Lakes Fishery Commission, “Managing the Great Lakes Basin as Home.”

    I hope we won’t have to get drunk to chart a new course for the histories we’re going to make. I don’t think we will. People ask me, “Do you think we are going to be able to turn things around in time?”

    And I say “yes, because we have to.”

    I believe human beings are resourceful, and can choose life over extinction if they are determined to.

    And I believe the histories future speakers talk about in the year 2120—100 years from now—will be ones that talk about how we came to our senses, and learned to live sustainably in Michigan, in the Great Lakes region, and globally.

    FLOW’s Work is a Matter of the Heart

    By Mike Vickery, FLOW Board Chair, and Liz Kirkwood, FLOW Executive Director 

    As we reflect on FLOW’s work, it seems appropriate to quote FLOW supporter, and author, Jerry Beasley. “What is fundamental about our relationship with water is a matter of the heart, ” writes Beasley. “If the heart is not engaged, the waters will not be saved.”

    FLOW’s 2019 annual report, which you can view here, highlights what we have accomplished during the past fiscal year.

    All of FLOW’s programs are designed to protect our Great Lakes, surface water, and groundwater for all of us to enjoy and sustain ourselves. Together we are helping to restore the rule of law on Line 5 and in legal cases involving Nestlé’s insatiable thirst for Michigan’s groundwater. We are developing protective policies and environmental education campaigns and collaborating on water infrastructure solutions that are fair to all. In this age of climate change and high water in the Great Lakes Basin, we need to make sure that no one treats our water as a high-risk shortcut or a commodity.

    Thanks to your generous support, FLOW in 2019 made significant strides in our policy work while celebrating our shared love of water. Our report details these key accomplishments.

    We remain inspired by the legacy of environmental stewardship of a beloved and influential Great Lakes luminary, former Michigan Governor William G. Milliken, who passed away in October 2019. We include a memorial tribute to the Governor in this report.

    “In Michigan,” Gov. Milliken said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”

    Developing a deep sense of stewardship for our Great Lakes also means celebrating the creativity sparked by these magnificent freshwater resources. In the annual report you’ll learn about several special moments in FLOW’s ongoing initiative to honor the space where Art Meets Water.

    As we pause to reflect on our 2019 accomplishments, we are deeply grateful to the community of supporters who fuel our work. Thank you for your generosity, your passion for our waters, and your dedicated stewardship.

    We look forward to increasing the momentum in 2020 and the new decade. Together, we’re moving forward with solutions to Great Lakes water issues based on science and law—solutions that inspire real hope for our water in all who love it.

    We enter this consequential new decade heartened by your support and your confidence in FLOW’s ability to meet the significant challenges that lie ahead. Our mantra in 2020, no matter what it brings, is to “just do the next right thing” for the love of water.