Tag: Line 5

FLOW & GLBN Brief: Michigan has Sovereign Right and Duty to Protect Great Lakes Waters and Bottomlands

Published on October 24th, 2024 by - Blog Posts, Reports & Media Releases

Download the amici brief [filed October 22, 2024]

Traverse City, Mich.—On October 22, FLOW (For Love of Water) and Great Lakes Business Network (GLBN) filed a brief calling on the U.S. Court of Appeals to stop a pipeline company from stripping away Michigan’s power to protect the Great Lakes.

Enbridge Energy, which owns the dual Line 5 pipelines, launched the 2020 federal lawsuit Enbridge v. Gov. Gretchen Whitmer in defiance of Governor Whitmer’s 2020 order revoking an easement for the Line 5 across the Straits of Mackinac bottomlands. FLOW and GLBN’s brief supports the appeal by the State of Michigan to reverse the July 5, 2024 order by Judge Robert J. Jonker of the U.S. District Court for the Western District of Michigan denying Gov. Whitmer’s motion to dismiss on sovereign immunity grounds. The denial, if upheld on appeal, would allow Enbridge to continue its litigation that absurdly asserts that federal law precludes the State of Michigan from enforcing its public trust rights and responsibilities regarding Enbridge’s dangerous operation of Line 5 on State-owned submerged lands at the Straits of Mackinac.

Built in 1953, Line 5 is a 71-year-old dual oil and gas pipeline exposed to fierce currents where Lake Michigan and Lake Huron meet. Ships’ anchors have repeatedly struck the pipelines and cables dragged by passing vessels have damaged the pipelines and their supports. A rupture could irreversibly harm the priceless national treasure of the Great Lakes, and cause billions of dollars of damage to the regional economy.

Not long after Enbridge filed its federal court lawsuit opposing the state’s authority to protect public trust waters, Governor Whitmer moved to dismiss the action, on the grounds that Michigan officials have immunity under the U.S. Constitution’s Eleventh Amendment from federal lawsuits that would encumber the State of Michigan’s ownership of, and jurisdiction over, submerged Great Lakes bottomlands, and interfere with Michigan’s ability to manage those lands in accordance with its public trust responsibilities. Judge Jonker held, we think wrongfully, that an exception applies allowing private parties to sue individual state officials in federal court if they are allegedly violating federal law.

In its amicus brief, FLOW and GLBN argue that Enbridge’s lawsuit against the state impairs state sovereign and public trust powers that are critical to the protection of the Great Lakes. The public trust doctrine, which was encoded in Michigan law over 100 years ago, holds that the waters and bottomlands of the Great Lakes within Michigan’s borders are held in trust by the State for the benefit of the people of Michigan, not for private interests. Long-standing legal principles that balance federal and state sovereign interests weigh in favor of states’ rights and jurisdiction over the public navigable waters and bottomlands of the Great Lakes to protect these precious resources.

As an advocacy organization committed to protecting precious state sovereign water resources, FLOW was granted permission to file a “friend of the court” or “amicus” brief, to provide the Sixth Circuit Court of Appeals with our unique perspective, knowledge, and experience regarding Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine.

The Great Lakes Business Network joins FLOW in this amici brief in support of the State of Michigan, asking the Sixth Circuit Court of Appeals to reverse the District Court and order dismissal of Enbridge’s unsupportable lawsuit.

14 years ago: Enbridge oil spill disaster in Marshall, MI

Published on July 25th, 2024 by - Blog Posts

July 25, 2024 marks the 14th anniversary of one of the largest inland oil spills in U.S. history, which happened just three months after the BP Horizon Gulf Spill. On July 25, 2010, a pipeline operated by Enbridge – the same corporation operating the risky Line 5 in the Straits of Mackinac – burst and released dirty tar sands oil into Talmadge Creek, a tributary of the Kalamazoo River. Nearly forty miles of the Kalamazoo River were closed for cleanup until June 2012. Enbridge paid more than $177 million in penalties and was required to improve safety measures. The estimated cost of the cleanup was more than $1 billion.

Corrosion fatigue – poor maintenance by Enbridge – was cited as the underlying cause of the catastrophic breach by the U.S. National Transportation Safety Board. NTSB Chair Deborah Hersman compared Enbridge’s inept handling of the spill to the Keystone Kops.

“Why didn’t they recognize what was happening, and what took so long?” she asked.

Enbridge recently came under further scrutiny, as in July 2024 the US Department of Justice proposed modifications to its consent decree with Enbridge. The consent decree is a legally-binding settlement agreement that requires Enbridge to improve pipeline repair and maintenance issues. The consent decree resolved the lawsuit United States v. Enbridge Energy, which arose from failures of Enbridge pipelines in Marshall, Michigan and Romeoville, Illinois. The proposed modifications would require Enbridge to reassess previously identified cracks in the Lakehead pipeline system – of which Line 5 is a part.

Fourteen years after Marshall, Enbridge still hasn’t learned its lesson. We shouldn’t need the federal government to compel Enbridge to use the most up-to-date tools and rigorous methods to inspect and maintain its pipelines.

Meanwhile, the people who lived through the oil spill disaster in Marshall continue to live with its ramifications. Enbridge purchased 150 residences near the spill site, uprooting hundreds of people from their homes. Childhoods were disrupted. Generations-old homesteads were sacrificed on the altar of Enbridge’s recklessness. The plans, dreams, and security of a community were ruptured like a weak, faulty pipe. We’ll never know all of their stories. With the purchase of their properties, Enbridge bought their silence — by requiring Non-Disclosure Agreements as part of the terms.

Register for our upcoming webinar on August 20:
Enbridge Line 5: Trouble Under the Surface

WEBINAR // Enbridge Line 5: Trouble Under the Surface

Published on July 2nd, 2024 by - Blog Posts

Enbridge’s Line 5 pipeline is over 71 years old and remains a threat to the waters and people of the Great Lakes region.

On August 20, join FLOW and Oil & Water Don’t Mix for a special live webinar, and learn from a panel of experts and advocates about recent developments in the legal fight to shut down Line 5 and bring an end to Enbridge’s continuous trespass on state and sovereign indigenous lands. We’ll also talk about how coalition partners are working together at the state, local, and federal level, and how you can join the campaign to shut down Line 5, and take audience questions.

Our expert panel includes:

  • Riyaz Kanji, founding member and Directing Attorney of Kanji & Katzen – representing the Bad River Band
  • Mahyar Sorour, Deputy Legislative Director for Beyond Dirty Fuels at the Sierra Club
  • Sean McBrearty, Campaign Coordinator, Oil & Water Don’t Mix and Michigan State Director at Clean Water Action

Hosted by FLOW Executive Director Liz Kirkwood, and moderated by Senior Legal Advisor Skip Pruss.

This online webinar is free, and supported in part by a grant award from the Mackinac Island Community Foundation’s Natural Resources and Preservation Fund. Register online at www.ForLoveOfWater.org/pipeline.

Watch now!

ABOUT THE SPEAKERS

Riyaz Kanji, Founding Member and Directing Attorney, Kanji & Katzen​

Riyaz Kanji is a founding member of Kanji & Katzen, PLLC, a firm whose mission is to advance Tribal sovereignty. A graduate of Harvard College and the Yale Law School, Riyaz served as a law clerk to the late Honorable Betty Fletcher of the United States Court of Appeals for the Ninth Circuit and Justice David Souter of the United States Supreme Court. He is an advisor to and vocal cheerleader for the Tribal Supreme Court Project. Riyaz represents Tribes at all levels of the federal court system, and was part of the team that argued and won the decision in McGirt v. Oklahoma vindicating the continued existence of the Muscogee Creek Reservation.

Sean McBrearty is the Campaign Coordinator for the Oil & Water Don’t Mix campaign and Legislative and Policy Director at Michigan Clean Water Action, where he works on water infrastructure, oil and gas, and drinking water issues. Mr. McBrearty has served as a leader in the campaign to decommission Enbridge’s Line 5 pipeline for the past six years. He learned the importance of protecting drinking water and our environment from a young age, growing up in a community devastated by perennial droughts and poor water and air quality in California’s Central Valley

Mahyar is a Director on the Sierra Club’s Federal Policy Team based in Washington, D.C. She manages the development and implementation of legislative and administrative advocacy efforts with the Sierra Club’s Beyond Dirty Fuels Campaign. She has a background in environmental justice, policy, and grassroots organizing; working on issues related to air and water quality; energy policy; and legislative and advocacy training. 

Watch now!

The event is brought to you by:

FLOW applauds decision sending Nessel v. Enbridge Line 5 case back to state court

Published on June 18th, 2024 by - Blog Posts

FLOW (For Love of Water) applauds the federal Sixth Circuit Court of Appeals’ decision yesterday sending Michigan Attorney General Dana Nessel’s legal action against Enbridge’s Line 5 back to state court where it started. In 2019, AG Nessel sought a court order to shut down Enbridge’s failing Line 5 crude oil and natural gas pipeline. In 2020, Governor Whitmer revoked Enbridge’s easement. As a result, Line 5 now illegally occupies the Lake Michigan lakebed at the Straits of Mackinac, and presents a clear and present danger of a catastrophic spill into the Great Lakes.

Now the Sixth Circuit has held that Enbridge’s removal of AG Nessel’s lawsuit to federal court, more than two years after it was filed, was untimely and unjustified. Enbridge’s attempt to take the lawsuit to federal court came well after the deadline for removal, and the Sixth Circuit ruled that the delay could not be justified on any of the grounds cited by Enbridge or the lower court. Enbridge’s delay tactic of removal is typical of fossil fuel companies being held to account by state authorities, and it failed here.

FLOW has vigorously supported AG Nessel throughout this procedural odyssey, including submitting an amicus curiae (friend of the court) brief to the Sixth Circuit. FLOW is confident that at a trial on the merits, the AG will demonstrate the monstrous and unacceptable threat the 70-year-old Line 5 poses to the precious clean water resources of the Great Lakes, and achieve the shutdown remedy she and Governor Whitmer have so vigilantly pursued. FLOW and its many supporters and allies remain committed to this goal, and we are grateful for the leadership of AG Nessel and Gov. Whitmer in this fight.

###

FLOW is an independent, 501(c)(3) nonprofit that serves as a Great Lakes water law and policy center dedicated to ensuring the waters of the Great Lakes Basin are healthy, public, and protected for all. The enduring idea of the commons and legal principles of the public trust offer unifying adaptive solutions to address basin-wide threats. FLOW’s staff of legal and policy experts, journalists, and community-builders makes FLOW an authoritative resource for Great Lakes advocates. FLOW builds a knowledge base for communities, state agencies, and legislators to inform policy and advocacy for water issues.

Recent Line 5 News

Line 5: A Closer Look

Published on June 4th, 2024 by - News


Last Call: Army Corps on Oct. 6 to Hold Final ‘Scoping Meeting’ on Proposed Oil Tunnel in Great Lakes

Published on June 4th, 2024 by - Blog Posts, News

Editor’s note: Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.

The public will have a last chance on October 6 to comment orally to the leadership and staff of the U.S. Army Corps of Engineers, Detroit District, on the agency’s plans for a study of an oil tunnel proposed under the Great Lakes.

The Army Corps will hold an online meeting from 1-4 p.m. on Thursday to help set the scope of the agency’s environmental impact statement study of a proposal by Enbridge, Inc., of Canada, to build an oil tunnel under the Straits of Mackinac. The tunnel would house Enbridge’s Line 5 oil pipeline, which has leaked dozens of times across Michigan and Wisconsin while carrying oil since 1953 from western Canada primarily to refineries in Sarnia, Ontario. The Army Corps study is expected to continue through at least 2023.

In addition to the Oct. 6 meeting, the public can comment on the study of the tunnel proposal by October 14 by mail or the Army Corps project website. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also is collecting and forwarding comments to the Army Corps using an email template that suggests key points to make. FLOW’s preliminary tunnel comment also provides critical elements to convey.

Many Troubling Aspects of the Tunnel Proposal

Enbridge wants to bore and blast a 20-foot-in-diameter tunnel under the Straits of Mackinac, just west of the Mackinac Bridge, to house a new Line 5 pipeline. The Canadian company’s stated goal is to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through Line 5 and State of Michigan public trust bottomlands where Lake Michigan meets Lake Huron, just west of the Mackinac Bridge.

FLOW and our partners have identified critical deficiencies in the project’s construction permit application, its legal authorization, and the review by State of Michigan environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction. FLOW and our allies have expressed continuing concerns about the impact to the Great Lakes and lack of public necessity for the project, which would worsen climate change by adding greenhouse gas emissions each year equivalent to almost seven new coal-fired power plants or nearly 6 million new cars to the road, according to experts.

Enbridge also lacks adequate liability insurance, according to a report released by the Attorney General Dana Nessel’s office revealing that Enbridge’s subsidiaries, not its parent company, hold Line 5’s 1953 easement and signed the proposed tunnel agreement; the assets of the subsidiaries’ parent Enbridge are inadequate to cover the costs and economic damages in the event of a moderate spill.

At Prior Army Corps Hearing, a Strong Majority Rejected the Proposed Oil Tunnel

The Army Corps already has held a Sept. 1 online comment session to help scope its tunnel study and a Sept. 8 in-person hearing in St. Ignace, where more than 4 out of 5 people who spoke, from among a crowd of hundreds, said that an oil pipeline tunnel proposed under the Great Lakes was a dangerous idea that would rob future generations by threatening the most precious thing on earth—fresh water—and worsening the climate crisis. 

Hundreds of people attend a public comment session held by the U.S. Army Corps of Engineers on the oil pipeline tunnel proposed by Enbridge under the Straits of Mackinac, on Sept. 8, 2022, at Little Bear East Arena in St. Ignace, Michigan. Photo by Kelly Thayer.

Most commenters at the seven-hour, St. Ignace hearing expressed deep concern for the harm that construction or a potential explosion or spill from the operation of an oil pipeline tunnel could have on their children and grandchildren’s future, local residents, the Great Lakes, drinking water, tourist economy, and jobs—as well as tribal rights, tribal member survival, cultural heritage, the fishery, ecology of the Straits of Mackinac, and the climate. (Read FLOW’s coverage here).

FLOW’s Position on the Scope of the Army Corps Tunnel Study

FLOW’s position, as expressed at the hearing in St. Ignace, is that the Army Corps’ environmental study of the tunnel proposal and alternatives must under the law include, at a minimum:

  1. A “no action” alternative that would use existing capacity in other pipelines and, if necessary, other transportations solutions—such as rail and truck transport of natural gas liquids—in lieu of building new pipeline infrastructure.
  2. An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes. (See FLOW’s fact sheet on alternatives).
  3. A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits in the event of an explosion or similar event.

Army Corps Process to Continue through at Least 2023

Enbridge has applied for a Army Corps permit under the Rivers and Harbors Act of 1899 and the Clean Water Act, seeking federal approval to discharge dredged or fill materials into waters of the United States, as well as the construction of structures or work that may affect navigable waters. The Army Corps also will conduct an ethnographic/traditional cultural landscape study as part of the environmental impact statement under the National Historic Preservation Act. After considering public comment and issuing the draft EIS likely by fall 2023, the Army Corps will seek additional public feedback, release a final study, and then issue a “record of decision” regarding whether to issue, issue with modification, or deny the Department of the Army permit altogether—consistent with the National Environmental Policy Act.

The Army Corps, Detroit District, to date has identified general concerns in the following categories:

  • Potential direct effects to waters of the United States including wetlands; water and sediment quality; aquatic species and fisheries; threatened and endangered species;
  • Archaeological and cultural resources, including the Straits as a Traditional Cultural Landscape; Tribal treaty rights and interests;
  • Recreation and recreational resources; waste management; aesthetics; noise; air quality; climate change, including greenhouse gas emissions and the social cost of greenhouse gasses;
  • Public health and safety during construction and operations; navigation; erosion; invasive species; energy needs; environmental justice; needs and welfare of the people; and cumulative effects.

FLOW’s Legal Team and Allies Helped Spur the Army Corps’ Full Environmental Study

FLOW continues to be deeply engaged in every step of the Army Corps study and committed to shutting down Line 5 and stopping the oil tunnel. FLOW’s legal team and allies helped spur the Army Corps’ full Environmental Study through our legal research, analysis, and comment, including FLOW’s formal legal comments submitted to the agency in July 2020. The legal team challenged the proposed tunnel in December 2020 by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority, Clean Water Action—Michigan, FLOW, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350. The comments demonstrated a serious gap in Enbridge’s evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that Enbridge has characterized as solid bedrock.

FLOW to Army Corps: Threat to Great Lakes and Lack of Public Need Should Sink Proposed Oil Tunnel

Published on June 4th, 2024 by - Blog Posts, Reports & Media Releases

Editor’s note: Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.

By Zach Welcker, FLOW Legal Director

For Love of Water (“FLOW”) submitted legal and technical comments before today’s deadline in response to the U.S. Army Corps of Engineers’ Notice of Intent to Prepare a Draft Environmental Impact Statement for Enbridge’s proposal to bore and blast a 20-foot-in-diameter tunnel under the Straits of Mackinac, just west of the Mackinac Bridge, to house a new Line 5 oil pipeline for another 99 years.

Zack Welcker, FLOW Legal Director

The public can still comment on the proposed oil tunnel in the Great Lakes by 11:59 p.m. EDT today (Oct. 14, 2022) on the Army Corps’ project website.

The public can still comment on the proposed oil tunnel in the Great Lakes by 11:59 p.m. EDT today (Oct. 14, 2022) on the Army Corps’ project website. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also is collecting and forwarding comments to the Army Corps using an email template that suggests key points to make. FLOW’s tunnel comment also provides critical elements to convey.

FLOW urged the Army Corps to broaden the scope of its analysis to ensure that all regional alternatives are fully considered in an effort to meet regional fossil-fuel energy demands, which are forecasted to dwindle in the ongoing transition to clean energy, while maximizing protection of the Great Lakes and combating climate change.

Enbridge’s proposed Line 5 oil tunnel is not a viable alternative given the forecasted dwindling demand for fossil fuels and the need to maximize protection of the Great Lakes and combat climate change.

In FLOW’s view, Enbridge’s proposed Line 5 oil tunnel is not a viable alternative to meet these regional objectives when viewed in light of all relevant facts. FLOW anticipates that the manifold risks of the tunnel proposal will continue to grow as Enbridge begins to fill data gaps related to geologic conditions, construction challenges, and worker safety.

FLOW Raises Concerns about Risk to Great Lakes, Lack of Public Need, and Information Gaps

FLOW’s comments to the Army Corps include an emphasis on the:

  • Line 5 Pipeline Risk—FLOW opposes tethering the shutdown of the existing dual Line 5 pipelines to a tunnel project that will not resolve underlying the environmental and cultural concerns about siting a major oil pipeline in the middle of America’s greatest surface freshwater resource.

    enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60

    A diver points to broken straps along an encrusted segment of Line 5 on the bottom of the Straits of Mackinac.

  • Lack of Information—The public is deeply concerned about the risk of a catastrophic tunnel explosion, the economic feasibility and environmental impacts of constructing the tunnel, and the long-term climate impacts of the tunnel proposal. The public needs more information than Enbridge has provided to understand the risks and benefits.

The public is deeply concerned about the risk of a catastrophic tunnel explosion, the economic feasibility and environmental impacts of constructing the tunnel, and the long-term climate impacts of the tunnel proposal.

  • Lack of Public Need—As Enbridge implicitly concedes, there is no long-term public need for the proposed tunnel from an energy standpoint, and it would undermine federal greenhouse-gas reduction policies. Enbridge’s own expert has determined that a Line 5 shutdown would have a de minimis impact on fuel prices.
  • Overly Narrow Focus—Regionalizing the Purpose and Need Statement in the Army Corps study is warranted because Enbridge’s 645-mile Line 5 pipeline is almost 70 years old and past the end of its projected operational life. As Line 5 would need a systemic makeover to keep operating for another 99 years, Enbridge’s proposed tunnel should not be segmented and evaluated in isolation from the entire operation.

Line 5 shown in red runs from Superior, Wisc., to Sarnia, Ont., as part of Enbridge’s larger pipeline network in yellow running from the Alberta, Canada, tar sands to Montreal.

Line 5 pipeline is almost 70 years old and past the end of its projected operational life.

  • Strong Public Interest in Great Lakes Protection—The Army Corps’ Purpose and Need Statement in the Notice of Intent is also deficient for lack of recognition of the public interest in protecting the Great Lakes in the face of global water shortages, chronic drought in the United States, and other costly impacts from climate change. Protection of the largest and most valuable surface freshwater system in the world is an economic and environmental imperative. The Great Lakes contain 84% of North America’s fresh surface water and are the cultural backbone for eight states, two provinces, and multiple tribes and First Nations.

FLOW cited lack of recognition of the public interest in protecting the Great Lakes in the face of global water shortages, chronic drought in the United States, and other costly impacts from climate change.

Army Corps Should Consider a Range of Reasonable Alternatives

In order to meet the objectives of a Purpose and Need Statement that focuses on the connection between Enbridge’s Superior, Wisconsin, and Sarnia, Ontario, terminals and gives primacy to the public’s interest in maximizing protection of the Great Lakes, the Army Corps should, at a minimum, consider the following alternatives:

Tar sand oil production, Fort McMurray, Alberta, Canada. Photo by Environmental Defence Canada.

  1. An alternative to connect Enbridge’s Superior and Sarnia terminals without crossing the Great Lakes.
  2. An alternative to use existing capacity in other pipelines and, if necessary, other transportations solutions–such as rail and truck transport of natural gas liquids–in lieu of building new pipeline infrastructure.
  3. A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits of Mackinac in the event of an explosion or similar event.
  4. A “no action” alternative.

Protection of the largest and most valuable surface freshwater system in the world is an economic and environmental imperative. The Great Lakes contain 84% of North America’s fresh surface water and are the cultural backbone for eight states, two provinces, and multiple tribes and First Nations.

The Army Corps’ analysis of “energy need” should result in a determination that Enbridge’s proposed tunnel is contrary to the public interest. The confluence of future demand-side constraints, including the electrification of transportation, disinvestment in Albertan oil production, North American and global prohibitions on the sale and use of internal combustion engine vehicles, and governmental efforts aimed at reducing greenhouse gas emissions are accelerating the transition to a global clean energy economy. These forces driving change are being embraced by public and private interests and represent future trends that will bring measurable economic, environmental, and social benefits. The confluence of these market forces militates against future large-scale investment in fossil fuel infrastructure.

Editor’s note: Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.

State should end discussion, take action on Line 5

Published on June 4th, 2024 by - Blog Posts

When the police pulls a resident over for going 100 mph in a 55-mph zone, they don’t cluck their tongues — they click their ticket books.

But when Michigan’s state government catches Enbridge Energy putting the Great Lakes at risk by failing again to disclose dangerous conditions on its Line 5 oil pipelines in the Mackinac Straits, the response is paralysis. The state has again caught Enbridge ignoring its legal obligation to be a proper steward of the submerged land that the state allows the company to occupy with its pipeline.

But all we’re hearing out of Lansing, and particularly Attorney General Bill Schuette is an expression of disappointment.

The difference between strict enforcement of laws against individuals and giving an oil transport giant chance after chance to meet its fundamental responsibility not to harm public waters is as stark as the difference between a single speeding motorist and a catastrophic oil spill fouling the drinking water source for millions.

The accumulation of studies, evidence of pipeline delamination and bends in June, and now exposed metal with likely corrosion, signals a dangerously flawed and ultimately incurable pair of sunken pipelines.

It’s time for our state government to stop treating the 1963 Constitution, statutes, and common law that protect our lakes as nice but meaningless environmental policy statements and start treating them as the duty the people through the Constitution and our courts have mandated. More than ever, it’s time to shut down Line 5.

FLOW’s senior advisor, Dave Dempsey, has 35 years experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission.  He has also provided policy support to the Michigan Environmental Council and Clean Water Action.  He has authored several books on the Great Lakes and water protection.

MPSC: Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac Must Undergo Full and Vigorous Public Review

Published on June 4th, 2024 by - Blog Posts, News, Reports & Media Releases

MPSC Chairman Sally A. Talberg

Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.

FLOW E.D. Liz Kirkwood

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.

“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”

See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:

Two Virtual Hearings, Two Real Steps Closer to Shutting Down Line 5 in the Great Lakes

Published on June 4th, 2024 by - Blog Posts, H2Olson, News

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

Take Action: Click Here to Urge Michigan’s Leaders to Shut Down the “Significantly Damaged” Line 5 Right Now

Jim Olson is FLOW’s Founder and Legal Advisor

 

 

By Jim Olson 

For the past 6 years, Canada’s Enbridge has maneuvered the State of Michigan into rounds of back-and-forth letters, meetings, and agreements that have done nothing but delay any enforcement action to shut down Line 5 in the Straits of Mackinac, where Lake Michigan meets Lake Huron. After two pivotal hearings on Tuesday, June 30, however, Enbridge has begun to lose its grip on the fate of its dangerous twin Line 5 crude oil pipelines in the public waters of the Straits. Two hearings, and the State and its citizens are two steps closer to shutting down the unstable twin crude oil pipelines once and for all without replacement.

1st Hearing: The Michigan Public Service Commission on Enbridge’s Proposed Oil Pipeline Tunnel

On the morning of June 30, in a virtual public hearing with hundreds of participants, the Michigan Public Service Commission (MPSC) approved 3-to-0 an Order that rejected Enbridge’s bid to avoid its obligation to prove it is entitled to locate and construct its proposed tunnel pipeline “in the public interest” and that it is necessary at this time in history. (See FLOW E.D. Liz Kirkwood’s reaction here).

The company argued that it didn’t need the MPSC’s approval of the pipeline tunnel because the State’s utility commission approved the necessity of the existing line in 1953. In an Order more than 70 pages long, the MPSC described the complexity and importance of the public interest and necessity for a crude oil pipeline in the Great Lakes in 2020, not 67 years ago. The Order included an outline of the depth of the issues posed by the tunnel proposal before the public panel, relying on extensive comments submitted by the Michigan Environmental Council and National Wildlife Federation, Michigan tribal governments, For Love of water (FLOW), Michigan’s Attorney General Dana Nessel, and many other organizations and citizens.

The submitted comments pointed to the overarching public interest and public trust in the Great Lakes, demand for crude oil, alternative routes, threats to the environment, and risks to the Great Lakes from climate change, such as high-water levels and damaged infrastructure. The Order requires Enbridge to prove under the scrutiny of the MPSC in a formal, trial-like proceeding that the pipeline tunnel proposal is in the public interest, necessary, and that there are no reasonable alternatives to shipping oil through its and North America’s massive pipeline system.

2nd Hearing: Ingham County Circuit Court on a Preliminary Injunction to Shut Down Existing Line 5 in Attorney General Dana Nessel for the People of Michigan versus Enbridge Energy

On the afternoon of June 30, after a 5-hour virtual hearing in Ingham County Circuit Court in Lansing, Circuit Court Judge James Jamo continued the temporary restraining order (“TRO”) he issued on June 22, shutting down the flow of oil through Line 5 in the Straits of Mackinac. Enbridge argued that historical in-line inspections and video footage of scrapes to the exterior of the pipes and a twisted support structure designed to minimize damage from strong currents demonstrated the steel pipelines themselves were safe. Enbridge introduced a letter from the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) that stated the agency did “not object” to restarting the pipelines “based on the assurances of Enbridge.” Lawyers for Enbridge told the Court that if PHMSA says it’s safe, then the State and Court have no jurisdiction or power to interfere with restarting the lines, and that Enbridge should be able to reopen the lines. 

The Attorney General’s lead attorney told the Court that Enbridge hadn’t turned over all of the information related to Enbridge’s “assurances” to PHMSA and that the cause of the damage to the structure and lines remained unknown. He argued that without more information and independent review of what happened, there was no way Enbridge or the State could comply with the stringent due care and prudence obligations under public trust law to insure that the pipelines are not a danger to the waters, bottomlands, and people of Michigan. The public trust in the waters and bottomlands of the Great Lakes is derived from the State’s title granted to it when it joined the United States in 1837, and it can’t be impaired, endangered, or controlled by primarily private interests.

Judge Jamo probed Enbridge’s lawyers on whether PHMSA’s “non-objection” could deprive the State of its public trust jurisdiction by a letter based on only the assurances of Enbridge. The lawyers couldn’t give a clear answer, and by the end of the hearing it was clear that what PHMSA said was evidence of safety, was not conclusive of the broader duty of the State and the Court to determine whether there was a violation of the due care requirement to protect the public trust in the Straits.

At the end of the hearing, the Court continued the TRO issued June 22. On Wednesday morning, July 1, the Court issued an amended TRO, keeping the suspension of use of the lines in force, but allowing Enbridge to inspect the west leg of the dual lines in the Straits to see if it could be used in the near future “subject to any future order of the Court.”

Clearly, Judge Jamo has taken control of the risks associated with the location of crude oil pipelines in the Straits. The condition of the two lines has totally changed from 1953. Approximately 150 saddle supports (with 50 some more on the way) have been added since 2001 to stabilize the failure of the original lines because of powerful currents in the Straits. Two recent events damaged the coating on the west line and broke an anchor support on the east line. Enbridge inspectors were not sure what caused the damage, but they thought it appeared to be anchor strikes or other objects dragged by passing ships. This is alarming because this brings the total number of known strikes to dual lines to three in the last 18 months. It appears Judge Jamo is exercising due care in continuing the shutdown of the lines. He took the request for preliminary injunction under advisement. In the near future, he is expected to decide on a previous motion to rule that the 1953 easement allowing Enbridge to place the two lines in the Straits in the first place is no longer valid under the public trust laws that protect the Straits and all of the Great Lakes.

Ultimately, this case and the fate of Line 5 will turn on the reality that in 2020 the conditions and circumstances are not the same as 1953. The Line 5 twin pipelines in the water and across the lakebed are in the wrong place because of certain serious conditions that will continue to exist and cannot be controlled. Under public trust law, these lines and the easement that allowed them are no longer lawful. Attorney General Nessel did the right thing in filing this lawsuit—the lines in this location violate the public trust and constitute a public nuisance in the form of an “environmental ticking time bomb,” as the State has argued, that could go off at any time. How strong a current, how many near-disaster anchor-strikes or other errors will it take before the inevitable catastrophe happens? Now is the time to prosecute these claims to the right conclusion, a permanent and orderly shutdown.

In the meantime, Circuit Court Judge Jamo was correct in keeping this matter under his control and advisement, and to continue the temporary order suspending the use of these pipelines pending further proceedings. For the moment, the pumps and twin lines remain silent.