“Public spaces, infrastructure, and Great Lakes beaches are underwater,” says FLOW founder and president Jim Olson. “We see the effects of rising Great Lake water levels everywhere, from Chicago’s treasured waterfront, to Sleeping Bear Dunes National Lakeshore, to Clinch Park here in Traverse City.”
“The question becomes: What does this mean, and what might citizens do about it?”
Legally, the Public Trust Doctrine protects the rights of citizens to walk along the beach or shore in the area below the Natural or Ordinary High Water Mark (OHWM) along the Great Lakes, along with the rights of fishing, boating, and swimming, explains Olson. But what happens when the water rises above the Natural High Water level or mark?
The Public Trust Doctrine assures walking the beach along the shore above the Natural High Water Mark as long as people walk within the so-called “swosh” or wet zone. This is why the doctrine relies on the definition of “natural”—the beach defined by wave action and other natural forces. Generally, this means that if you stay within the wet, compacted sand or stones you are safe and not trespassing on the property of riparian landowners.
So when the water is high, that means that walking the Great Lakes shoreline along private property is allowed. Plopping down with your beach towels, cooler, or firewood is not.
Climate Change Infringes on Public Trust
“The public is also right to wonder: what happens when the water rises to the toe or up a bluff, completely shutting off public access along the shore?” Olson said.
Legally, the Public Trust Doctrine prohibits any interference or impairment of the public’s right to access and walk along the shore. Members of the public can insist, by court action if necessary, that the interference or impairment must be prevented or minimized by those who are responsible.
In the case of the current extremely high water levels, the most recent United Nations International Panel on Climate Change pins the cause of unprecedented high water levels in the Great Lakes on the effects on climate, evaporation, precipitation caused by greenhouse gases.
So, legally, citizens have a right to demand—through lawsuits if necessary—that government and industries causing higher and higher levels of global warming reduce their greenhouse gases. Why? Because their action or inaction is impairing one of the public’s valuable protected rights—access to walk along the shore–in violation of the Public Trust Doctrine.
Danger at Sleeping Bear Dunes
The Glen Arbor Sun reports that with the “Ordinary High Water Mark” on Sleeping Bear Bay currently under water and cliffs marking the Natural High Water Mark, the question of where one can walk the beach becomes more than a question of trespassing or the Public Trust. Now the issue is safety.
That has prompted staff at Sleeping Bear Dunes National Lakeshore, in northwest lower Michigan to discourage the public from running down popular water-facing dunes or cliffs like the overlook from Pierce Stocking Scenic Drive.
The issue is serious—and potentially dangerous. National Lakeshore Deputy Superintendent Tom Ulrich said that Lakeshore staff recently had a meeting to figure out how to help climbers stuck on the dune below the Pierce Stocking overlook. They used to help those not in need of immediate life support walk back down to the shoreline and then south to North Bar Lake (sometimes with the help of their ATV, if needed).
“No more!” Ulrich said. “That route is impossible now. You cannot walk to North Bar Lake.” The only alternative is calling a boat out of Leland, which will take an additional 30-60 minutes to arrive.
“That’s why, this year, we’re going to try to let people know this is a really bad choice … to descend that slope, because our rescue is so limited.”
The problem exists up and down the Lake Michigan shoreline. One beach at the Indiana Dunes National Park is temporarily closed because wave action has created a cliff-enclosed beach. Walkers are also warned not to walk out on piers when waves break over them for fear they will be washed away.
On May 20, ABC Channel 57 in Indiana reported that last year was the deadliest ever for Lake Michigan with 42 deaths. This year has already seen seven fatalities, according to the Great Lakes Surf Rescue Project.
FLOW Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline
Traverse City, Mich. –FLOW (For Love of Water) issued the following statement on the disclosure that Gov. Gretchen Whitmer and Enbridge Energy will discuss expediting construction of an oil tunnel beneath the Straits of Mackinac while the company’s troubled Line 5 pipelines continue operation in the Straits:
“We are concerned about this development. Every day that the Line 5 pipelines continue to operate is a risk to our precious Great Lakes,” said FLOW executive director Liz Kirkwood. “State government’s efforts should first and foremost be devoted to shutting the pipeline down, not negotiating its continued operation while a tunnel is explored and possibly built.
“Now that the Governor has chosen to engage in this process, we hope and trust it will be a transparent one. It is unfortunate that her predecessor engaged in secret talks on agreements with Enbridge, and the lame-duck Legislature was so eager to benefit Enbridge that it passed a sloppy statute that the Attorney General ruled unconstitutional. We are confident this Governor will operate differently,” Kirkwood said.
“We are also hopeful that the Governor will restore and apply the rule of law to Enbridge’s operations in the Straits. Any easement or lease of Great Lakes bottomlands and any private control for a 99-year tunnel by a private company like Enbridge for a private operation must be authorized under the Great Lakes Submerged Lands Act (GLSLA),” said Jim Olson, President of FLOW.
“The GLSLA ensures a public review, analysis, participation, and a determination under standards that protect the public trust in the waters of the Great Lakes and the soils beneath them from privatization and impairment. It also ensures a thorough evaluation of feasible and prudent alternatives, including ones that do not involve use or control of the Great Lakes. No agreement between the executive branch and a private company can override this fundamental law,” Olson said.
Now that Michigan’s governor and attorney general have sunk the oil tunnel scheme hatched by the last administration, I’m asked nearly every day: What can citizens and state leaders do to shut down the propped-up, banged-up Line 5 oil pipelines in the Straits of Mackinac for good?
Here’s my answer, as succinctly as I can distill it, accompanied by a summary of the law and political history in play.
So what should Governor Whitmer and Attorney General Nessel do?
Governor Gretchen Whitmer and Attorney General Dana Nessel must take swift and comprehensive actions to review and reverse the improper failure of the former Snyder administration to bring Line 5-owner Enbridge under the rule of law. Enbridge has had its way with Michigan’s prior elected officials, and it is time to call a halt to this nonsense. Here are the steps to getting Enbridge out of the Great Lakes for good:
Proposed Oil Tunnel:
Send a Letter: Tunnel Deal Is Dead– Governor Whitmer and Attorney General Nessel should send a formal letter to Enbridge advising the company that its agreements calling for a transfer or occupancy of the Straits of Mackinac public trust bottomlands, the new state-granted easement, and 99-year lease for the proposed oil tunnel that would house a new Line 5 are unenforceable unless Enbridge has obtained authorization under state law – the Great Lakes Submerged Lands Act (GLSLA).
Line 5 in the Straits:
Send another Letter: No Life Support for Line 5 – Governor Whitmer and the Michigan Department of Environmental Quality (DEQ), along with Attorney General Nessel, should send a letter to Enbridge advising it that the agreements purporting to grant Enbridge occupancy and use of waters and bottomlands the existing Line 5 for 10 years or more are unenforceable, because the former administration and Enbridge failed to obtain the required authorization under the GLSLA.
Apply the Law to the Redesign of the Ailing Pipelines – Governor Whitmer and the DEQ, along with Attorney General Nessel, should investigate and correct the lack of review and showings required by the GLSLA and public trust law for the substantial change in design implemented for the 3 miles of pipeline elevated above the lakebed under the guise of “repair.”Enbridge should be instructed that it must show the risks and magnitude of harm are minimal and that there exist no other alternative than the existing line in the Straits or Great Lakes.
How Did We Get Here on Line 5? Tracing the Law and the Politics
The plotting of former Governor Snyder’s administration and Enbridge to hand over the public trust soils and bedrock under the Straits of Mackinac for the company to build and operate a new crude oil pipeline in a tunnel for 99 years has been put on hold.
On her first full day in office, Governor Gretchen Whitmer asked Attorney General Dana Nessel for a formal opinion on whether the Snyder-Enbridge agreement and legislature’s stamp of approval through a lame-duck law known as “Act 359” to hand over the Straits for Enbridge’s tunnel to Enbridge was constitutional.In late March, Attorney General Nessel found it was not constitutional because the legislature tried to graft a private tunnel-pipeline project onto a public infrastructure law that governs a public icon—the Mackinac Bridge.
Revoke the Easement – Attorney General Nessel along with the Department of Natural Resources (DNR), along with the above actions, revoke the 1953 easement because under the current circumstances the existing Line 5 is no longer in compliance with the common law standards of the paramount interests of the Great Lakes protected by public trust law; if Enbridge desires to continue using the existing line in the Straits, the company must submit an application for authorization of such use and occupancy along with the authorizations identified in this list.
Increase Insurance Requirement and Verify It – Governor Whitmer, the DEQ, and the DNR, with the Attorney General, should require Enbridge to submit financial assurances that cover the worst case economic and natural resources damages of at least $6 billion (significantly more than the current cap of $1.8 billion), retain qualified experts to determine the adequacy of those assurances, and require Enbridge to name the State of Michigan as an “additional insured” and/or “named insured” on its insurance coverage for Line 5. Inadequate insurance is another cause for revoking the easement.
Once the Governor and Attorney General do these things, they will have taken action consistent with their pledge in being elected to lead the State and protect the Great Lakes, by nullifying the improper actions and agreements of their predecessors and bringing Enbridge, finally, under the rule of law. Regardless of the outcome, the interested parties, communities, and persons in this controversy and the government will be required to make determinations concerning the fate of Line 5 in an open forum based on facts, science, and law.We are ruled by law, not by self-serving agreements that were plotted to avoid it.
Given President Trump’s executive orders this week to water-down or smooth over federal laws and regulations affecting water, the Great Lakes, and pipelines, it is more critical than ever that Governor Whitmer and Attorney General Nessel exercise the full jurisdiction and authority they and the State of Michigan under its exclusive power over use of the waters and bottomlands of the Great Lakes, its lakes and streams, public lands, and the public trust in the Great Lakes and navigable waters and public common property of Michigan. This trust imposes a duty on our leaders to protect the interests of citizens, the legal beneficiaries of this trust. Not the President, not Congress, not federal agencies, or state government can repeal, limit, or narrow the state’s duties and citizens’ individual and common rights under this public trust.
What Should Citizens Do?
It is quite simple: Citizens should do what they always do best. Continue to stay involved, increase communications to Governor Whitmer, Attorney General Nessel, and the Director of the DEQ, and the DNR.These communications should do the following:
In the wake of an opinion by Attorney General Dana Nessel invalidating a law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, Governor Gretchen Whitmer has now ordered state agencies to pause permitting on Line 5, an action hailed by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.
“We welcome the Governor’s swift, prudent action to halt the legal effect of the law and tunnel and side agreements,” said Jim Olson, founder and president of FLOW. “Now, it’s time to bring the existing perilous Line 5 in the Straits under rule of law and decommission it as quickly as possible.”
“The backroom deals creating Enbridge’s proposed oil tunnel couldn’t survive public scrutiny, and now we know they can’t survive the rule of law,” said Liz Kirkwood, Executive Director of FLOW. “It’s time to focus on Michigan’s true energy future and protect Michigan’s Great Lakes and our economy from a Line 5 pipeline rupture. The path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac.”
A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.
As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.
Holy Toledo! The Frustration!
So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie?
In a word—frustration!
Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.
In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.
The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.
Well, not exactly no action.
Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.
Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.
What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.
Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.
Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.
Symbolism, Standing, and Redress
While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do.
I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.
Recognizing Rights, and Ourselves, in Nature
Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.
Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action.
When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.
The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.
Michigan, Ohio, and the Public Trust
In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.
Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.
How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.
A Flag to Rally Around
In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.
Jim Olson, President and Founder
It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.
After last year’s election, newly chosen leaders and the old guard with a few weeks left in Lansing rushed in opposite directions. The Snyder administration and legislators intensified their unprecedented, legally questionable attacks on water, the environment, and public health during a lame-duck feeding frenzy.
The new guard, Governor Gretchen Whitmer and Attorney General Dana Nessel, meanwhile formed transition teams and appointed cabinet members, new department heads, and staff to reestablish Michigan’s constitutional mandate that the state shall protect the paramount public concern in the Great Lakes, groundwater, and public health from pollution and harm arising out of water crises like statewide PFAS surface and well water contamination, Detroit drinking water shutoffs, lead and Legionnaire’s Disease in Flint water, and the Enbridge Line 5 oil pipelines in the Straits of Mackinac.
The combination of these crises manifests a far deeper crisis in state government—a breach of trust in the oath of office of state officials to uphold the constitution and rule of law. State leaders under the Snyder Administration and many elected officials deliberately ignored the constitutional and legal mandates and instead chose to serve special private interests.
FLOW’s Commitment: Protecting Public Waters from Pollution and Private Control
Here at FLOW, we are increasing our efforts and projects to protect the paramount public trust concern in water, the environment, and public health through our Campaign for Fresh Water launched last fall. One of these projects is to bring an end to the high risk of extreme damage to the Great Lakes, tribal fishing, drinking water, property, businesses, citizens, and Michigan’s economy from the continued operation of the decaying, 66-year-old Line 5 oil pipelines in the Straits of Mackinac.
FLOW has redoubled our efforts in concert with a large public outcry and movement to decommission or end Line 5, collaborating with Oil & Water Don’t Mix and many local and statewide environmental groups, like National Wildlife Federation and Groundwork Center, individuals, families, businesses, communities, elected officials, and the leadership and legal challenges brought by Michigan’s Indian tribes with treaty rights in the Straits, Straits of Mackinac Alliance, and the City of Mackinac Island.
The former Snyder Administration and state environmental and natural resource agencies, former Attorney General Schuette, and a core of pro-Enbridge legislators in a flurry of agreements, laws, and actions, suspended the state Constitution and rule of law to convey and appropriate public trust lands and waters for Enbridge to build a private oil tunnel for a new Line 5 in the Straits of Mackinac for another 99 years. Worse, these state officials and leaders purported to guarantee Enbridge to keep operating and using Great Lakes bottomlands for its dangerous existing Line 5 for another 10 years—without the required authorization and occupancy or use agreements required by the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law. The administration and legislature signed off on a covert deal that would let Enbridge Energy continue pumping 540,000 barrels of oil a day (bbl/day; 1 barrel equals 42 U.S. gallons) through the dual lines laid in 1953 in the Straits and Great Lakes with a catastrophic worse-case damage scenario in the tens of billions of dollars. Unaccountably, the administration and legislature did so despite Great Lakes law in Michigan that prohibits the transfer or occupancy of the state-owned waters and the soils beneath them for private purposes.
Reward for Failure: After Enbridge’s 2010 Kalamazoo Pipeline Disaster, Michigan Officials Doubled Enbridge’s Oil Pumping across Michigan, and then Locked in an Oil Tunnel Deal for 99 Years
How is it that the State ended up rewarding Enbridge for a spill from Line 6B of a million gallons of crude oil and billions of dollars of damage to the Kalamazoo River system? While the State worked with Enbridge to address the damage from its unprecedented 2010 spill, it granted Enbridge a gigantic windfall by incrementally approving, from 2012 to the present, the doubling of Enbridge’s pipeline capacity and oil transport through the Great Lakes. In effect, while Canadians continued to block pipeline projects to transport crude oil to the country’s coasts, and citizens in the U.S. derailed the Keystone XL in the West, the Snyder Administration and former Attorney General Schuette orchestrated a “Great Lakes XL” that is even larger.
And then in 2018, Snyder, in his term’s waning months, and the lame-duck legislature gave away and endangered the Great Lakes to Enbridge, by locking in a 99-year sweetheart deal for Enbridge to build an oil tunnel to convey Line 5 under the Straits and granting Enbridge the cover to keep operating the existing failing Line 5 that threatens tens of billions in damages. On top of this deal, the Administration totally failed to even consider climate change impacts and risks and the rapid shift toward the new renewable energy economy that will leave the state with a billion-dollar dinosaur.
Here’s how the calculated actions of Snyder, Schuette, and their cohorts bypassed legal requirements in seven sweeping steps, along with some advice from FLOW to Michigan’s new leadership at the start of their journey to reestablish the rule of law and rollback the mess:
Bit by Bit, Doubling the Oil Flow on Line 6b after Enbridge’s Kalamazoo River Disaster
First, from approximately 2011 to 2014, the Michigan Public Service Commission (MPSC) approved a series of Enbridge applications to replace short segments, rather than a single application to replace the whole portion, that had the effect of doubling the design capacity of most of Line 6b pipeline from 400,000 to 800,000 barrels (bbl)/day. Allowing the MPSC to review shorter pipeline segments avoided the alternative analysis on the entire Line 6b from Indiana to Sarnia, Canada.
MPSC rules and decisions, and Michigan’s environmental laws, require a review of likely impacts and alternatives to the entire length of the pipeline. Had this rule been followed, the MPSC would have been required to look at all of the Enbridge lines in Michigan, and determine the overall needs of the public necessity and needs of the company, short and long term, and the alternative or best route or location that would best meet that need with the least impact and risk to water, environment, and communities. That would have included a review of the need for Line 5, including the risks to the Straits of Mackinac and Great Lakes. It also would have required a consideration of the future need for crude oil through Enbridge’s system in Michigan in light of falling crude oil demands caused by the rapid and imminent shift to renewable energy to reduce the effects of climate change.
Increasing Line 5’s Oil Flow in the Straits by 80 Percent
Second, during the same time frame, the MPSC approved the location and installation of new and changed pump stations and anti-friction fluid injection facilities for Line 5, including the Straits segment, so Enbridge could implement its final increment to result in the increase the oil transport capacity of Line 5 from 300,000 to 540,0000 bbl/day. Again, the MPSC did not evaluate the need, impacts, risks, or alternatives to this overall 80-percent increase in flow volume of crude oil. Once more, the State allowed Enbridge to avoid the law that required a full evaluation of the purpose. Had the rule of law been followed in the doubled Line 6B and expanded flow volume in Line 5, the State through proper notice, public input, and evidence would have been required to look at overall impacts, risks, and alternatives and need for the Enbridge system, and Line 5 could have been decommissioned in an orderly manner in exchange for the doubling of Line 6B.
Saddling, Elevating, and Damaging Line 5 in the Straits
Third, although not disclosed by Enbridge until 2016, Enbridge installed saddle supports screwed into the lakebed to support a failing design of Line 5 in the Straits. The original design specified in the 1953 easement and built in the Straits called for the heavy steel dual lines in the Straits segment to be laid on the bottom on the lakebed. If wave action and currents scoured more than 75 feet of soils beneath a segment of the pipes, the company was required to stabilize the line by closing the existence of the spans.
While not disclosed until 15 years later, when filling or grout bags failed, Enbridge in 2001 started installing saddle supports screwed into the lakebed to elevate the heavy dual pipes above the lakebed. Initially, there were 16 supports, more and more were added, and between 2016 and 2018, the Michigan Department of Environmental Quality (DEQ) permitted Enbridge to install more than 70 saddle supports, bringing the total to 200 supports, which has resulted in a suspension of three miles of an aged line above the lakebed.
The DEQ shrouded Enbridge’s failing Line 5 risks and redesign by characterizing the supports as a “repair” and “maintenance.” This not only covered up the redesign but confined the legally required impact and alternative analysis to a 50-foot radius of lakebed around each support. As a result, the DEQ ignored and allowed Enbridge to escape the comprehensive review of potential impacts and alternatives to the failing condition of the outdated line required by the Great Lakes Submerged Lands Act.
In addition, Enbridge’s installation of the saddles has damaged Line 5’s anti-corrosion protective coating, a fact that the company hid from Michigan officials for three years during its negotiations to install additional anchor supports.
Signing Side Deals for Another 99 Years of Line 5 in the Straits
Fourth, Governor Snyder, DEQ and the Department of Natural Resources (DNR) signed two agreements with Enbridge between October and the end of December 2018 that purported to transfer state public trust bottomlands and soils of the Straits so Enbridge can build a tunnel for a new 99-year pipeline. The tunnel and new line will take 10 years or more to construct. Until the new line is operating, Enbridge is authorized to continue operating the failing design of the existing aged line.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses. The two agreements that commit leasing, easements, or use of waters and soils beneath the Straits do not require Enbridge to obtain authorization or findings under the GLSLA. In other words, the Governor and his agencies agreed to transfer state public trust lands for the tunnel and the private 99-year new line, and at the same time allow the continued use of public bottomlands for the existing line, without obtaining the authorization required by law.
Ramming through a New Law to Transfer State Public Lands to Canada’s Enbridge without Proper Authorization
Fifth, when the Legislature ram-rodded the passage of Public Act 359 and Governor Snyder signed it into law in late December, they created a corridor authority to sign the tunnel agreement, easements, leases and other commitments for Canadian-based Enbridge to take over the public’s state-owned waters and soils and build the tunnel and its new pipeline. On its face, Act 359 transfers or commits to the authority these state public trust bottomlands without requiring authorization of the conveyance under the GLSLA. Under U.S. Supreme Court and Michigan Supreme Court decisions, any disposition, occupancy, or use must obtain authorization based on findings of no private purpose and no impairment of waters, soils, fishing, navigation or other public rights. Otherwise, it is prohibited.
Bypassing State Law and Alternatives to Risking the Great Lakes
Sixth, the easement for a public utility, after approval by the MPSC, such as the tunnel or the 99-year lease, or the continued operation of the existing Line 5 in the Straits, must be obtained from the state DNR in addition to the authorization under the Great Lakes Submerged Lands Act. Because the easements involve public trust bottomlands, they cannot be granted unless authorized by the GLSLA or unless based on the standards of the common law of public trust, which requires the comprehensive review of potential impacts and alternatives to the total or substantial change of the outdated dual lines in the soils and open waters of the Great Lakes.
Appropriating Public Property for Enbridge’s Private Purpose
Seventh, the Michigan Constitution, Art IV, Sec. 30, prohibits the appropriation of public property of the State for private or local purposes. An appropriation occurs where the disposition or transfer of state property, like the public trust waters and soils of the Great Lakes, is granted without findings or full and fair compensation—that is, where the transfer is for free, little consideration, or less than the full public trust value of these waters and soils.
In short, our former Governor, DEQ and DNR Directors, the MPSC, and former Attorney General suspended wholesale the rule of law for the benefit of Enbridge’s massive increase in the volume of crude oil through our Great Lakes State for private gain.
Restoring the Rule of Law and the Paramount Place of the Water and the Great Lakes in Michigan’s Future Prosperity
The first order of business for our new leaders—Governor Whitmer and Attorney General Nessel—is to restore the rule of law on Line 5 in Michigan, and they are off to a good start. The high risks and more than $6 billion catastrophe from a release of crude oil in the Great Lakes and an estimated additional $45 billion in damage to shipping, steel production, and jobs are unacceptable by any sane measure.
The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Governor Whitmer should direct her new directors of the DEQ and DNR and Attorney General Nessel should direct her lead attorneys on Line 5 and the Great Lakes to conduct a thorough and careful review and reevaluation of the Snyder Administration’s and former Attorney General Schuette’s failure to follow the public trust, GLSLA, and Michigan Constitution in the handling of the entire Enbridge Line 5 controversy.
Buoyed by the work of so many organizations, tribes, communities, individuals and families, and the majority of citizens who elected them, the Governor and Attorney General Nessel and their administrations have a mandate and opportunity to restore water, environment, and public health as paramount in Michigan. The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Jim Olson, President and Founder
Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.
FLOW President Jim Olson addresses the board of the Mackinac Bridge Authority at its Nov. 8, 2018, meeting in St. Ignace.
FLOW is urging supporters to contact your Michigan lawmakers today using our guidance below and to plan to join FLOW and other leaders of the Oil & Water Don’t Mix campaign who are hosting a Line 5 lawmaker lobby day for Tuesday, November 27, in Lansing, to fight for the Great Lakes and the Mackinac Bridge by opposing Governor Snyder’s Enbridge oil tunnel scheme and shutting down Line 5 in the Mackinac Straits.
In coordination with the Snyder administration, departing State Sen. Tom Casperson, a Republican from Escanaba, on November 8 introduced Senate Bill 1197 to amend the Mackinac Bridge Authority Act to allow it to own and operate a “utility tunnel,” with the Enbridge Line 5 oil pipeline as the intended occupant. There’s also the uncertain prospect of adding gas or electric lines, which could rent space in the tunnel by paying Enbridge, not the bridge authority that is proposed to own it. In fact, if the fiber optic lines that currently cross the Mackinac Bridge were moved to the proposed tunnel, Enbridge could gain more than $500,000 a year in lease revenue currently going to operate and maintain the bridge.
Please use our updated Line 5 oil tunnel fact sheet to get informed and share it with your lawmakers and others who can help stand up for the Great Lakes and the Mighty Mac. Here are the three key points to make when contacting your lawmaker (You can look up your state representative here and state senator here).
Senate Bill 1197:
Fails to address the imminent risk of the decaying Line 5 pipelines lying on the bottom of the Great Lakes for 10 years or more. The deal struck by Gov. Snyder and Enbridge would lock in, by right, the operation of the 65-year old, gouged, damaged, and deteriorating Line 5 dual pipelines across the Straits of Mackinac for at least the 10-year period it is expected that tunnel construction would take. At any future time, if the Enbridge decides not to build the tunnel, the agreement would obligate future governors to keep Line 5 in the waters of the Mackinac Straits indefinitely!
Compromises the mission of the Mackinac Bridge Authority (MBA) and the Mighty Mac itself. For more than 60 years, the Mackinac Bridge Authority has overseen and managed Michigan’s most iconic asset with no hint of controversy and with impeccable performance. This proposed legislation would draw the MBA into the middle of a major controversy with no other purpose than to allow a private, Canadian oil company to continue using a short cut across Michigan and through the Great Lakes to transport oil from western Canadian oil fields to eastern Canadian refineries, with some of that oil being shipped overseas.
Exposes the Mackinac Bridge Authority, toll payers, and taxpayers to financial peril. Since its beginning, the Mackinac Bridge was designed to be funded through the tolls collected by those crossing the bridge. The proposed legislation, which is designed to authorize the backroom deal struck by Gov. Snyder and Enbridge, opens up numerous areas of financial risk for the MBA and the public, including the potential liability in the event of an explosion or other catastrophe associated with the proposed tunnel or if Enbridge fails to keep its commitments to build and maintain the tunnel during the 99-year lease.
The Michigan Senate could quickly approve the bill in the lame duck session after Thanksgiving, and send it to the House. Gov. Snyder is seeking to sign and tie the hands of the incoming administration of Governor-elect Gretchen Whitmer and Attorney General-elect Dana Nessel, who both campaigned for shutting down Line 5, not replacing it with a tunnel. Gov. Snyder also released a draft of a third oil tunnel agreement with Enbridge, which Senate Bill 1197 seeks to enact.
Click here for FLOW’s summary of recent action at the November 8 meeting of the Mackinac Bridge Authority. Stay tuned to the FLOW’s website for additional updates, legal analyses, and more steps that citizens, communities, and businesses can take to protect the Great Lakes and the Mighty Mac.
Protect our greatest treasures — the Great Lakes and the Mackinac Bridge. Stop Gov. Rick Snyder’s rush to lock in a 99-year deal for a private oil tunnel in the Mackinac Straits. Never stop fighting for clean water and democracy.
Those were the messages loud and clear from a big crowd of residents, business owners, tribal leaders, environmental and social justice groups, and many others who spoke out Thursday in St. Ignace in favor of protecting the Great Lakes and Pure Michigan economy and against rushing to make the Mackinac Bridge Authority the owner of an oil tunnel for at least 99 years.
Snyder administration officials pushed their deal with Enbridge to keep the decaying Line 5 oil pipelines in the Straits of Mackinac running at least through 2028 while exploring a possible tunnel. The authority board — recently packed by Snyder with pro-tunnel appointees — asked few questions.
But the public had many pointed questions for the Mackinac Bridge Authority. What’s the rush on a decision with century-long consequences? Why partner with deceptive and spill-prone Enbridge? Why try to exempt Enbridge from laws protecting our public health, private property, land, and water? Why give away our public lands and waters to benefit a private foreign corporation? Why ignore tribal treaty rights in the Straits that pre-date the state of Michigan?
The questions kept coming as nearly 40 people took turns. Why lock in this Great Lakes shortcut for Canadian oil for another century when our changing climate demands clean energy solutions in the immediate future? How will our tourist-based businesses survive a Great Lakes oil spill catastrophe? Why politicize and dilute the single-purpose mission of the authority to operate and protect the Mackinac Bridge? Why tie the hands of the incoming governor and attorney general, who campaigned on shutting down Line 5 before it blows?
Bill Gnodtke, immediate past MBA chair
Immediate past chair of the Mackinac Bridge Authority Bill Gnodtke drew a standing ovation after questioning the lack of transparency and attempt to weaken the single-purpose mission of the authority board. He submitted a letter from himself and seven other former members of the authority board with a collective 88 years of service to the Mackinac Bridge. The letter notes that the endorsers, including Mackinac Island Grand Hotel owner Dan Musser III, were appointed under Democratic and Republican Governors Blanchard, Engler, Granholm, and Snyder.
The only voice in support of the oil tunnel deal came from a woman identifying herself as an Enbridge employee, although it appeared that dozens of Enbridge employees arrived in company trucks, and sat silently in rows of seats, wearing pro-tunnel buttons on their shirts.
The authority board had no answers, then left without discussion or voting. The board set its next meeting for Feb. 12-13 in Lansing, but retains the option to schedule an ad hoc meeting before year’s end to further consider or approve the bridge-tunnel scheme.
Shortly after the meeting and in coordination with the Snyder administration, departing State Sen. Tom Casperson, a Republican from Escanaba, introduced Senate Bill 1197 to amend the Mackinac Bridge Authority Act to allow it to own and operate a “utility tunnel,” with the Enbridge Line 5 oil pipeline as the intended occupant. There’s also the uncertain prospect of adding gas or electric lines, which could rent space in the tunnel by paying Enbridge, not the bridge authority that is proposed to own it. The Michigan Senate could quickly approve the bill in the lame duck session after Thanksgiving, and send it to the house. Gov. Snyder is seeking to sign and tie the hands of the incoming administration of Gretchen Whitmer and Attorney General Dana Nessel, who both campaigned for shutting down Line 5, not replacing it with a tunnel. Gov. Snyder also released a draft of a third oil tunnel agreement with Enbridge, which Senate Bill 1197 seeks to enact.
FLOW and other leaders of the Oil & Water Don’t Mix campaign are planning a Line 5 lawmaker education day for November 27 to fight for the Great Lakes and the Mackinac Bridge. Stay tuned to the FLOW website for deeper analysis of Senate Bill 1197 and the third oil tunnel agreement, and steps that citizens, communities, and businesses can take to protect the Great Lakes and the Mighty Mac.
FLOW’s Jim Olson speaks about Line 5, a proposed private oil tunnel, and the law on behalf of the Oil & Water Don’t Mix campaign at the November 8, 2018 meeting of the Mackinac Bridge Authority.
Liz Kirkwood speaks at the November 8, 2018 Mackinac Bridge Authority Meeting on risk and due diligence
Kelly Thayer speaks at the November 8, 2018 Mackinac Bridge Authority Meeting on not partnering with Enbridge.
Links to presentations by officials working for the Snyder administration on the proposed oil tunnel, the governor’s letter to the Mackinac Bridge Authority, and the governor’s draft third tunnel agreement with Enbridge: https://mipetroleumpipelines.com/resources-reports
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  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  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.
Today marks the beginning of a campaign to protect groundwater in Michigan and our surrounding states as the “Sixth Great Lake,” a lightning-bolt phrase promoted by Dave Dempsey, FLOW’s senior policy advisor and author of a sentinel groundwater report released by FLOW this week. In this second of a trilogy of reports published by FLOW as part of its “Campaign for Freshwater,” Mr. Dempsey, a highly regarded sage in Great Lakes and international water policy circles, has summoned citizens, leaders, communities: Now is time to reverse the course of an abysmal history of our state government’s deliberate collaboration with polluters to put private interests above the paramount public interest in water and public health.
Our Great Lakes and the tributary lakes, streams, and groundwater, are owned by each state as sovereign, in public trust our laws exclaim. Our waters of the state are public and held in trust to prevent diminishment and pollution of water and protect public health. This same legal principle is embodied in Michigan’s state constitution and water laws. In Article 4, Section 52, the constitution declares that the public interest in water and natural resources is paramount and that the “legislature shall provide” for their protection from pollution or impairment. In Article 4, Section 51, the constitution declared that the directly related public interest in health is paramount and directed that the “legislature shall provide” for the protection of public health. In 1970, our legislature responded to this constitutional mandate by passing the Michigan Environmental Protection Act, a law that imposes a legal duty on government and all of us alike to prevent the likely degradation of our water, air, and natural resources and the public trust duty to protect the public’s use and dependence on these resources.
After the tragic exposure and horrible health effects from toxic chemicals underneath “Love Canal”– Hooker Chemical’s sale of a bulldozed, covered-over hazardous waste dump for a residential subdivision, Michigan like the country and other states acted to halt the poisoning of our water, land, and citizens. In 1980, Congress passed the federal Superfund law that imposed strict liability on those who owned or controlled land on which hazardous chemicals had been or were being released. Michigan passed the Michigan Environmental Response Act (so called “Act 307″ or “MERA”) in 1982. Act 307 declared that all persons or companies who were “owners” of the land or “operators” in control of the land on which a release of toxic chemicals had to report and enter into consent orders to remediate the pollution of groundwater contaminated by the release.
This historic and remedial action by our country’s elected leaders established a legal principle and rallying-cry to stop the poisoning of the United States and our environment, and the tragic loss of life and health of our citizens. In Michigan and other Greet Lakes states also passed “polluters’ pay” laws that imposed strict liability for control or ownership of a facility from which a release of chemicals had been released. This was the mainstay of Michigan’s efforts to clean up hazardous substances from our lands and groundwater, that is until Michigan’s legislature passed and Governor Engler signed Act 451 (“Part 201) in 1994. Act 451 punctured holes in the law, and from 1994 until now our elected leaders and appointed officials have insidiously commandeered the dismantling of polluters’ pay law and dried up the budget to enforce what little of the law remained. Today, it should be called “Polluters Play.”
In 1995, under the watch of Governor Engler, the legislature revamped Act 307 to narrow liability of “owners or operators” from strict liability for owning or controlling a contaminated property to “owners or operators” who “at the time of the release” are shown to be “responsible for causing the release.” The state ended up with the burden of proof to showing causation, not those who own or are in control of the property, and cleanup standards were relaxed from a 1 in 100,000,000 cancer risk to a 1 in 100,000 risk. Pollution from pesticides and fertilizers in the production of food, crops, and concentrated farms were exempted as long as they managed runoff and groundwater discharges based on generally accepted farming practices.
From 1999 to 2014, cleanup standards were relaxed even more, where owners and operators obtained an approved plan to manage the contamination in place under “no-further action” plans and post-closure management monitoring, and land and water use restrictions that limited exposure of people to the hazardous substances in soil or groundwater. In short, polluters can isolate a land area and groundwater plume and monitor contaminant levels as they spread, adding more restrictions as necessary: This means groundwater use by the public or other landowners is lost until levels drop below clean up or unrestricted residential use standards. Then on top of this, cleanup standards were relaxed where the use of land or underlying contaminated groundwater were in an industrial or commercial zone where there was little chance of human exposure. At first these changes were supposed to help the redevelopment of “brownfield sites” (polluted property or groundwater) throughout the state to increase property tax revenues. But these standards were extended across the board to all polluters, tax revenues remained depressed while developers were reimbursed cleanup costs from tax incremental financing– as redevelopment occurs, value goes up so tax revenues go up, minus the tens of thousands or sometimes millions of cleanup costs to the developer until paid.
In the past few years under Governor Snyder’s watch, things have turned even darker. Owners of land or facilities with groundwater levels in excess of legal contaminant standards or cleanup standards are allowed to “vent” to nearby surface water streams. This means, high levels of contaminants can remain in the groundwater until migration enters a stream without violating water quality standards. Because of the larger volume of flow moving quickly downstream, “dilution is the solution.”
For many citizens in Michigan, this legacy to our water and public health is and will continue to be shocking as we discover more and more toxic sites, like the growing PFAs crisis first discovered in Parchment, Michigan that shut down a town’s drinking water supply. Shamefully, it is not and won’t be shocking to the majority of our legislators and leaders who commandeered these changes to let polluters off the hook or narrow the range or amount of costs they would have had to pay to clean up groundwater so that it was no longer polluted. As pointed out by Mr. Dempsey in FLOW’s report, Michigan still has over 6,000 unfunded sites that exceed cleanup standards and more than 8,000 sites from leaking underground tanks. Thousands of so-called post-closure hazardous sites are managed by agreements and land or water use restrictions to reduce human exposure. This means this toxic groundwater legacy continues to spread and displace these waters from available for public or private use. Worse, this legacy endangers the health and well-being of tens of thousands of citizens and hundreds of communities.
There is a disturbing sidebar in FLOW’s report, captioned as a “Spreading Stain.” The sidebar captures both the magnitude and gravity of our current groundwater crisis– a legacy of pollution, nitrates, and now PFAs–in Michigan and the Great Lakes Basin. In the town of Mancelona, up slope from Antrim County’s Chain-o-Lakes, the Jordan River Valley and Schuss Mountain Ski Resort, from the 1940s through the 1960s, an auto parts manufacturer used a solvent known as TCE (trichloroethylene) to degrease its stamping machinery. The used solvent was dumped on the ground or discharged into lagoons. By the time, the company was out of business and the EPA and Michigan’s Department of Environmental Quality discovered the contamination, the plume had spread out 6 miles long and 1.5 miles wide. It endangers streams and the drinking water of the residents of the town and resort. But what is often lost on our leaders and the public is the fact that 13 trillion gallons of groundwater are no longer available for use by the town, the resort, businesses, and property owners. To put this in perspective, Dempsey notes this is ten times the loss of the 2 billion gallons a day from the Chicago diversion of Lake Michigan to the Mississippi.
Multiply this by the thousands of contaminated groundwater sites in Michigan, and the picture is clear: The public waters of the state and Great Lakes basin have been sacrificed and subordinated by private interests. This massive loss of water is even memorialized by the state’s requirement that private polluters and towns zone or restrict use of use of groundwater within the area of a toxic plume, rather than clean it up. Water quality and quantity issues are inseparable. How is the state has joined the Great Lakes Compact that bans diversion of millions of gallons of water, but has been complicit in allowing the loss of trillions of gallons of groundwater by aiding the spread of toxic pollution?
How ironic. Our courts have declared water as sovereign and public, but the state allows large volumes and areas of groundwater to be placed off limits to benefit private polluters. Could the state have designated 1,000 acres of our public forests and state parks as a toxic waste dump for private use? Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Jim Olson, President and Founder
Maybe we should start by restoring the “polluters’ pay” law, but this time call it “polluters and politicians pay.” The law would read, “the owners or operators or legislators who voted for the laws that violated the constitutional legislative mandates to protect water and public health are strictly liable for the cost of cleanup and damage from the release of toxic pollutants.” Let’s restore the paramount (“above all”) protection of water and health required by the common law of public trust and the state constitution.