My favorite way to challenge myself is by traveling. It is the simplest way of removing every comfortable aspect of my life, and replacing it with new perspectives, people, and customs. The further away from home I travel, the more challenges I encounter, and the more my perspective changes. While international travel can be expensive and difficult to coordinate, I offer one shining exception to this rule. This week’s Friday Favorite is the beautiful city of Toronto.
One of many great views of Lake Ontario
The largest city in Canada, Toronto has so much to offer, and I find myself returning when I am able to revisit my favorites and explore new sites each time. It is recognized as a global destination and one of the most multicultural cities in the world, which is apparent when wandering around its busy streets. This means overhearing many languages, conversing with world travelers, and eating very good food.
I appreciate the pride Toronto takes in its public water. The city stretches 29 miles along Lake Ontario, which supplies the city drinking water supply.
Nayt Boyt, Office Manager
Water is a wonderful centerpiece of many of Toronto’s plentiful public spaces. The Rouge National Urban Park sits just to the east of Toronto, the largest urban park in North America. Nathan Phillips Square is right in the center, an iconic public square and reflective pool in Toronto where people come to skate in the winter. There are also many public places to enjoy along the shore of Lake Ontario, including Harbourfront Centre, which hosts many public events year-round.
Toronto is one of the best places I have ever been, and I strongly recommend a visit to Great Lakes lovers everywhere.
Jim Olson, Founder and President Email: olson@envlaw.com
FLOW (For Love of Water), Traverse City, MI Web: www.FLOWforWater.org
Cell: (231) 499-8831; Office: (231) 944-1568
FLOW Supports Gov. Whitmer’s Request for an Opinion from Attorney General on Legality of Hastily Crafted Law and Side Agreements on ‘Line 5’ Oil Pipelines and Proposed Tunnel in Mackinac Straits
The following statement can be attributed to Jim Olson, environmental attorney, founder, and president of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:
“This first and immediate step by Gov. Gretchen Whitmer in a letter asking Attorney General Dana Nessel for an opinion on Public Act 359 is critical in unpacking the layers of problems with the newly enacted law, any tunnel agreement, and most importantly the massive threat posed by the existing Line 5 in the Straits of Mackinac, a threat that must be ended in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes.”
“In the last three weeks of 2018, then-Gov. Rick Snyder, the Department of Environmental Quality, and Department of Natural Resources signed agreements to enable Enbridge to construct a tunnel that the state would own and lease to Enbridge for 99 years for a new crude oil pipeline under the waters and in the soils of the bottomlands of the Straits of Mackinac. In order to finalize the deal before the end of the year, the Republican-controlled legislature during the lame-duck session rushed through a law—Public Act 359—that set up a Mackinac Straits Corridor Authority to sign the tunnel deal with Enbridge and guarantee the transfer of publicly owned and controlled Great Lakes bottomlands and other financial benefits to Enbridge for private gain, the 99-year privately owned pipeline.
“During this same time, Governor Snyder, the DEQ, DNR, and Enbridge without public review finalized a separate agreement that would give Enbridge the right to continue using its existing dangerous and flawed Line 5 pipelines in the open waters of the Mackinac Straits for another 10 years, or as long as it takes to complete the tunnel and install the new pipeline.
“Everyone agrees that the release of oil to the Great Lakes would cause massive harm to those waters, as well as businesses, communities, property owners, tribal fishing rights, and the public’s paramount rights for fishing, boating, and recreation protected by the public trust doctrine – an ancient principle that prohibits the transfer of public lands and waters without compliance with laws that assure a public purpose and no imprudent risks to health, environment, and property.
“Public Act 359, coupled with the State’s public entanglement with Enbridge, puts private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes. The law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes. Act 359 and these agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.
“Public Act 359 and the agreements are peppered with other serious problems, most of which are covered by the questions the Governor has asked the Attorney General to answer. These include:
Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
Violating provisions of the state constitution that prohibit fostering private or special purposes, the comingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.
“We hope this critical first step by the Governor and Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Mackinac Straits, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the Great Lakes.”
The idea that Lake Huron is an overlooked or forgotten lake has even seeped into our government. A report issued by the Michigan Department of Environmental Quality posed the question whether Huron is a victim of amnesia.
It’s not the biggest Great Lake, the dirtiest, the most populated or the purest. It’s just unlike any other lake on earth.
It’s probably most forgotten because relatively few people surround it and therefore are closely associated with it. If there were such a statistic as person-hours of remembering, Huron would score low.
Even the most spectacular features of Huron can be easy to overlook. Twenty years ago, I spent considerable time with a friend searching for the dwarf lake iris at Thompson’s Harbor State Park. An exquisite miniature, the iris grows in all the world primarily on the shores of northern Lower Michigan and richly deserves its title as the official state wildflower.
Dave Dempsey, Senior Advisor
It benefits from Huron and the cool, moist lakeshore air, and sand or thin soil over limestone-rich gravel or bedrock. Like any plant or animal whose prime habitat is the shoreline, the subtle dwarf lake iris is threatened.
More people should know Lake Huron, enjoy it and respect it. It need not be the best kept secret in the Great Lakes.
Editor’s Note: At FLOW, we couldn’t accomplish our work without support from our partners. Two great examples are The Boardman Review and Katherine Corden, both of whom are donating 5% of their proceeds from The Boardman Review Issue 6 and The Lake Lovers Collection, respectively. Check out both at the Boardman Review Launch party on December 2. Here is an introduction by Katherine’s cousin, Sam Corden, of the Lake Lovers Collection that reflects some of our own admiration and appreciation for our Great Lakes.
Welcome to The Lake Lovers.
This latest series by Katherine is a tribute to our lovely home. A great state. The Great Lakes State.
When she first asked me to be a part of this piece, my fingers itched to write. Much of our childhood was spent along the shores of Lake Michigan, where we grew from little ones crawling in the sand, to now, young adults invested in the place that offered us so much to learn from and love.
For countless northern souls, the landscapes of rolling dunes, soft beneath your feet… the sounds of waves crashing rhythmically… or the October sun peering through golden leaves – that’s who you are. That’s what we are. It’s true that in Michigan you may find yourself in any number of abandoned factory towns, or in the depths of an unsightly salt mine; but if you choose to seek it, Michigan is a place that still offers the natural wonder that much of the world has lost… It’s a place to become a part of nature, all the while, the boundless beauty of Michigan becomes a part of you.
If you’re from Michigan, or even a transplant that it’s grabbed hold of, then you know – it isn’t just where we grew up; it’s a place that raised us. It’s turned me into the environmentalist that I am, and it’s turned Katherine into the painter that you’ve all come to know. Now in our older years, each in our own way, we’re finding paths to begin serving as the new generation of lake protectors – ensuring that same love is passed forward for years to come. Hopefully her new series of beach bums and linens, summer days and friends, will help to remind you that it’s a corner of the planet worth preserving, no matter the effort it may take from us all.
Part of the Lake Lovers Collection by Katherine Corden
The mitten has 3,288 miles of shoreline. Within the U.S., that’s second only to Alaska.
Our state is home to more than 11,000 inland lakes. That means anytime you’re in need of a swim, wherever you may be, you’re never beyond a six-mile stroll with a furry friend.
And most amazingly, we have more than 20% of the worlds accessible fresh water at our feet. That fact alone deserves a humbling sense of appreciation. 20. Percent.
What a rarity that the earth should form itself in a way that lets us swim in not one freshwater ocean, but five. What fortune to have beaches that rival the sandy Mecca’s of Mozambique or California. What fortune to have fish and waterfowl alongside the stags. Pines alongside the dunes. Lovers alongside the lakes.
Michigan is a place unlike anywhere else I’ve found; and though I haven’t been everywhere in the world, my list is long. Nowhere else has ever given me the feeling… the essence, that only Michigan can. The midwestern kindness that welcomes you in; the smell of each season that so brazenly arrives; the soft glow of the 45th parallel that lets you know: You’ve arrived north.
However romantic our home may be, it’s important to remember that beyond the sheer beauty that The Lake Lovers revels in, it’s up to all of us to cherish what we’ve been so generously gifted, and to ensure that we share it responsibly. Every Michigander isn’t lucky in the same way. Some may never get close to its pristine shorelines, nor even drink clean water from their tap. Native children can no longer access the waterways that their ancestors once fished; and urban children may never know the sounds of the woods around them. These are issues that an Instagram post will never fix, but throughout this series, Katherine and I will be trying our best to shed a little light where we can, how we can. Whether it’s voting for environmental candidates on the 6th, or simply remembering to make some alone time with nature while you collect a bag of litter, what you choose to do with the inspiration that stems from her colors or my words, is entirely up to you.
Just remember: Even if you’re not lucky enough to be loving the lake today… love those near and far; love the crisp autumn air with no distraction but the sound of your feet; love the sun and the rain and all that you can; because, at the end of the day, it’s all that we’ve got, and loving it is all up to you.
See you again soon.
Signed,
The Lake Lovers
Essay by: Sam Corden
Journalist. Photographer. Environmentalist.
Sam is a Michigan native based in New Haven, CT, pursuing a Masters of Environmental Management with the Yale School of Forestry and Environmental Studies.
Katherine is also a Michigan native currently based in Madison, Wisconsin with her husband Dave. Sam is Katherine’s first cousin and first best friend, more like a brother really. She’s thankful to have someone she is close with be able to articulate what her artwork represents. She is excited to bring more purpose to her painting by giving back 5% of her “Lake Lovers” series proceeds to FLOW and looks forward to seeing her contribution grow along with her art business.
When Michigan voters cast ballots November 6, they did not express support for attacks on the state’s water resources. But that’s what they may be getting from Lansing between now and the end of 2018.
In politics, lame ducks are officeholders whose successors have been elected but whose terms haven’t expired. “Lame” may imply powerlessness, but in fact lame duck officials possess a dangerous power. They can enact or repeal laws without accountability. Michigan’s lame duck Governor Rick Snyder and dozens of legislators who won’t return next year are plotting several attacks on the environment. To put these attacks in a legal framework, Article 4, Section 52 of our state’s constitution declares that the public’s concern for air, water, and natural resources is “paramount,” and mandates that the legislature “shall enact laws that protect the air, water, and natural resources from pollution, impairment, or destruction.” These lame duck officeholders are determined to do the opposite.
The most prominent of these is Senate Bill 1197, concerning Line 5 and the Mackinac Bridge, sponsored by lame duck Senator Tom Casperson, a Republican from Escanaba. It would grant Enbridge Energy a blessing to operate its risky 65-year-old petroleum pipelines under the Straits of Mackinac for another decade. It would do so by diluting the mission of the state’s Mackinac Bridge Authority to include acquisition of lands for, and ownership of, an oil tunnel beneath the Straits. The tunnel, if ever built, would expose the Authority and the taxpayers of Michigan to liability if it ever results in a spill or other accident.
Coupled with a proposed agreement between the state and Enbridge, the bill seeks to lock the state into a 99-year lease for the Canadian company to use the Straits as a shortcut for routing Canadian crude oil to the Canadian refinery center of Sarnia, Ontario. Why the haste to finalize a nearly century-long deal in a five-week lame duck session, especially when the new governor and attorney general have expressed opposition to the decaying pipelines and the replacement tunnel?
Concerned citizens from across Michigan are converging on the Capitol Tuesday, November 27 for a Lame Duck Lobby Day against Senate Bill 1197 and the bad Enbridge deal.
This ill-conceived legislation is not the only attack on environmental protections that could become law in the lame duck session. Others include:
Weakening the state’s wetland law to exclude many important, sensitive waters from protection. The proposal would essentially dumb down Michigan’s wetlands law to meet weak definitions being pursued by the Trump Administration and expose over half a million acres of wetlands to destruction.
Weakening the state’s approach to cleanup of chemical contamination, making it harder to set binding cleanup standards and to protect the most sensitive populations, women of child-bearing age and children.
Weakening protection of the environment from toxic coal ash by creating a state coal ash landfill program with minimal standards that could allow arsenic and lead in groundwater.
Setting weak standards for protection of groundwater and surface water from failing septic systems. Only Michigan of the 50 states lacks a statewide code for regulation of septic systems, but the bills on which the lame duck Legislature may act fall well short of what is needed.
A few proposals good for Michigan’s environment may get a hearing, too. Bills to create a sustainable funding source for replacing aging water infrastructure, water quality monitoring, recycling, and contaminated site cleanup may be considered, as well as a measure providing fair tax treatment for small-scale solar generation.
But the bad far outweighs the good in this lame duck Legislature. FLOW will work to keep you informed of these threats and what you can do about them during the remainder of 2018.
Since I was a kid, I have been taking advantage of the beauty of Michigan. You could say I am a veteran of taking advantage of it at this point. My parents would take my siblings and me on picturesque hikes and to spectacular lookout points, and I would stare out onto the blue horizon.
The first time I went to Pyramid Point, my sister was a napping infant. My mother watched her, while my father took my brother and me up the half mile trail to the lookout, and then down the 300 feet to Lake Michigan. By the time we climbed back up and made it back to the parking lot, my mother and little sister had all but left us for dead. We were quickly forgiven, as the beauty of the water can captivate anyone for hours.
The view from that day is one of my most vivid memories, and the hikes in that area are still some of my favorite.
Two summers ago, I was in Hawaii, helping a woman on her farm. After initial conversation, it came up that I was from Traverse City. Her response was, “I have traveled all over the world, and that is the most beautiful place I have been.” Not to mention, you don’t often hear people talking about other beautiful places while being in Hawaii.
But she was right. Our Great Lakes are a globally significant resource, for function and beauty. I love hiking along Lake Michigan’s shores and being amazed every single time.
During this week including Thanksgiving, FLOW staff are reflecting on their thankfulness for water. Whether it’s the vast and variable nature of Lake Huron or the water running from a household tap, water is at the center of our lives and our gratitude. We hope our writings inspire your reflection as well. Happy Thanksgiving from FLOW!
I am thankful for Lake Huron, sometimes called the forgotten Great Lake. It’s not the biggest, the most popular or the most celebrated Great Lake. But during the three years I lived on its shore, I came to know and appreciate its subtleties and charms.
Lake Huron was patient in winter. Ice clotted the creeks and drains that ordinarily contribute to it, but they would soon resume their flow; of course, they were already flowing under winter’s glassy surface.
Lake Huron was resilient. A storm would thrash it, but a day or two later, the lake would rest contentedly, a match for any tempest.
Lake Huron was a changeling. One day the blue of a child’s lake drawing, one morning silver; one day muddy brown, one evening gold.
Lake Huron was vast. Gazing out over its open waters, I felt a connection to the thousands of years it has endured, the 23,000 square miles it occupies, its 3,827 miles of shoreline.
Living next to Lake Huron was like living next to a mountain. The lake was always in my consciousness. Often that was because of the beat of the waves. The repetition was comfort, the way a rocking cradle is to a baby.
The second largest of the Great Lakes, Huron is the fifth largest lake in the world. It doesn’t boast. It just is. I am thankful that it is. I highly recommend it to others.
Tuesday’s election of a new governor who stressed clean water issues offers opportunities that did not exist before the vote. A chief executive who champions water not only can persuade legislators to act, but also has the ability to act on her own by appointing water protectors to run state agencies and to serve on boards and commissions. And by directing them to take the steps needed to protect our water and our environment generally.
Gretchen Whitmer’s election also provides an opportunity for the state at last to take decisive action to protect the Great Lakes and the Pure Michigan economy from Enbridge’s Line 5 pipelines. She and the new attorney general of her own party will have several legal options for doing so.
Just as important, the new governor can promote water justice. Along with decommissioning Line 5, this is a top priority for FLOW. She can take the lead on legislation that will prevent water privatization by companies like Nestlé and help hard-pressed citizens of urban and rural areas access clean, affordable drinking water. FLOW has drafted model legislation that will serve as a template.
At the same time, the opposing party retains control of both houses of the state Legislature. This sometimes leads to gridlock, but water and health should not be partisan issues. Michigan government has served the people best when protecting the environment was a value shared regardless of party — as in the 1970s, when Republican Governor William Milliken and a Democratic Legislature enacted our landmark environmental laws.
Our new Governor and Legislature are guided by the same state constitution, which says: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
If the governor-elect and new Legislature operate together in accordance with that mandate, our water will be well protected.
By Paul Hendricks, Manager of Environmental Responsibility, Patagonia, Inc.
All photos courtesy of Paul Hendricks.
Every fall, strong north winds bring in a steady flow of storms that rip across the Great Lakes. You’ve probably witnessed one of these storms, where waves crash over pier heads and howling winds cut through your parka, chilling you straight to the bone. Over the years, these storms have tormented sailors, bringing thousands of ships to the icy lake bottoms. These days, they beckon surfers to brave the chilling waters in search of “unsalted” swell. From any perspective, there is something powerful about this time of year on the Lakes. It is raw, unharnessed nature that is both beautiful and prideful for those who call these waters home.
Right now, there is a different kind of storm brewing on the Great Lakes. For 65 years, a decaying pipeline known as “Line 5” has been pumping 23 million gallons of oil each day through the heart of the Great Lakes. Operated by Enbridge Energy – who was responsible for a 1.1 million gallon oil spill in the Kalamazoo River in 2010 – this pipeline is 15 years past its expected life. And it’s showing: Researchers have documented cracks, dents, bends, gouges, and failed supports on the pipeline’s path through the Straits of Mackinac, putting our freshwater and over 700 miles of our coastline at risk.
Concerned citizens have been fighting for the decommissioning of this line for years, believing that the Great Lakes – our public waters – are not worth risking for the short-term economic gains of a private company. These lakes provide the basis of this region’s identity and economy – 1.5 million jobs and over $62 billion in wages every year.
Yet, Enbridge Energy has been fighting to keep the oil flowing – touting the pipeline’s “as good as new” condition and importance on the region’s economy. Photo evidence of the decrepit pipeline and documentation of only 102 Enbridge employees in Michigan prove these claims don’t hold to the wind. To add insult to injury, Enbridge struck a deal with Governor Snyder to “explore” digging a tunnel to house Line 5 through the Straits, a billion-dollar deal that doesn’t stop an oil spill from happening.
I work for Patagonia, Inc., a company that makes apparel for outdoor recreation – skiing, hiking, climbing, fishing, surfing. We are a successful business, with growth that has far eclipsed our industry’s average – success which we attribute to our obsessive dedication to minimizing our impact and maximizing our influence to protect our most treasured natural resources.
Our company’s mission statement reads, “Build the best product, cause no unnecessary harm, use business to inspire and implement solutions to the environmental crises.” In that statement, we acknowledge that our business will always cause some amount of harm, but we are mandated to not cause unnecessary harm – through claiming responsibility for our impacts and reducing them wherever we can.
Paul Hendricks, Manager of Environmental Responsibility, Patagonia, Inc.
Line 5 is the epitome of unnecessary harm. It has been proven that the oil flowing through Line 5 can be redirected through existing infrastructure that doesn’t put the Great Lakes at risk. By asking to decommission Line 5, nobody is asking Enbridge to go out of business, but to act responsibly, and respect this region’s greatest resources.
This month, the Line 5 storm is coming to a head as our politicians are making decisions that will last for the next 100 years. As Michiganders head to the polls on Election Day, I urge you to think through the multi-generational impact your vote will have on this region. Vote for policy makers that value the lasting protection of this region’s backbone. Vote for Water.
When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.
The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.
Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.
This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the [1953] Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the [1953] Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.
Jim Olson, President and Legal Advisor
So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.
Essay by: Sam Corden 
Artwork by: Katherine Corden 
