Photo: The clean up on the Zinn family farm in Marshall, Michigan, after Enbridge’s Line 6B failed a decade ago on July 25, 2010, eventually contaminating nearly 40 miles of the Kalamazoo River and its watershed with a million gallons of tar sands oil, sickening more than 300 people, permanently driving more than 150 people from their homes and properties, and destroying wildlife and habitat.
Ten years ago, my uncle answered an early morning phone call. He lives in Ann Arbor, about 60 miles east of Marshall, the location of the Zinn family farm. The call was from a Marshall neighbor who reported that something was happening on the Zinn property — there was a gas or oil leak, and things looked and smelled really bad.
The Zinn farm in 2008 before the Enbridge Line 6B oil spill.
My aunt and cousin drove to the farm the next day to check things out. Things did indeed look and smell bad — there was a thick layer of oil sludge on the surface of Talmadge Creek, a tributary of the Kalamazoo River, which runs across the north end of the property. At that point it was clear that a pipeline had ruptured — but the extent of the spill and damage was not yet known.
Several days later, I joined my uncle and father to visit the property again. We met with a lawyer who represented Enbridge, the owner-operator of the Line 6B pipeline. We learned that the rupture occurred a few yards from our property line and that Enbridge was starting the process of cleaning it up and would therefore require access to our property. The lawyer told us that things were not as bad as they looked, and that Enbridge had everything under control. He said “a year from now, you won’t even know this happened” and reassured us that Enbridge would restore the land to be better than it was before the spill.
The 6-foot gash on Enbridge Line 6B that gushed more than 1 million gallons of heavy tar sands oil into the Kalamazoo River watershed when it failed on July 25, 2010.
The scene was a difficult one for my family. The farm had been in the family since about 1930 when my great-grandfather bought part of the property. My grandparents moved their young family there in 1947, so it was where my father and his siblings spent much of their childhoods. After my grandfather died in 1996, my aunt and uncle restored the 440-acre property to indigenous prairie to honor the legacy of his environmentally minded parents. During the two years before the spill, my family collaborated with a Chicago-based developer to design an eco-friendly project for the farm — one that combined a vineyard and winery with housing. We had planned to launch the project in the fall.
At the start of the clean-up process, my family gave Enbridge the benefit of the doubt and remained hopeful that we could proceed with our plans. However, after a few weeks it became clear that the extent of the damage was such that the eco-development project would no longer be feasible. We learned, for example, that Enbridge was immediately notified by its pressure sensors that there was a problem, but did not shut the line down for 17 hours, allowing approximately one million gallons of oil to escape (ignoring the company’s much-touted “policy” that a pipeline would be shut down within 10 minutes if the cause of an alarm could not be determined).
Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010
After many months of getting little or no response from Enbridge to our questions about the extent of contamination and their plans to restore the property, my family felt it had no other option but to file a lawsuit. After a difficult and painful legal process, we finally settled with Enbridge. Enbridge bought the farm. The project we designed to honor my grandparents would not be built.
Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010
When Lakehead Pipeline Co. (Enbridge’s Line 6B predecessor) came to my grandfather in 1969 and offered to purchase an easement under the farm, he refused, citing his concerns about the environmental impact a spill would have. Lakehead took my grandfather to court in order to obtain the easement, and a Lakehead engineer testified under oath to a judge that a significant spill could never occur because three separate monitoring devices would immediately shut down the pumping station in the event of a rupture. Lakehead was awarded the easement on the basis of that testimony.
Enbridge acknowledges that its pipelines had 610 spills that released more than 5.5 million gallons of crude oil into the environment between 1999 and 2008. Enbridge’s inspections of Line 6B identified 140 instances of cracks/corrosion in 2007, and an additional 250 instances in 2009 — only 61 of these were repaired.
On July 15, 2010, just 10 days before Enbridge Line 6B ruptured, Enbridge’s vice president of U.S. operations for Enbridge Liquid Pipelines, Richard Adams, testified before the U.S. House of Representatives Subcommittee on Railroads, Pipelines, and Hazardous Materials. The focus of the hearing was on Enbridge’s Pipeline Integrity Management. In his testimony, Adams lauded the Enbridge Integrity Management Program and, under questioning, testified that the detection of large leaks in Enbridge pipelines were “almost instantaneous” by Enbridge control center personnel and that, if there was any uncertainty, they would shut down the pipeline.
So, the promises made to my family by the Enbridge lawyer a few days after the spill were not kept. The impacts of the spill on the farm are still evident, and the land is not better than it was before the spill. The statement made by the Lakehead engineer in 1969 was not true. Nor was the testimony made to the U.S. House of Representatives by an Enbridge vice president a few days before the spill.
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.