The Mackinac Straits Corridor Authority (MSCA) is a three-member panel that is responsible for overseeing Enbridge’s proposed pipeline tunnel project under the busy, environmentally sensitive Straits of Mackinac, pending all applicable permits and approvals.
In June 2023, FLOW submitted public comments to the MSCA, to help further public understanding of the purpose, need, and challenges associated with the present status of the tunnel project. For each question, FLOW has provided background information in order to contextualize the questions and illustrate the importance of providing critical project information so that stakeholders can be better informed.
Editor’s Note: The following is a statement from Jim Olson, Senior Legal Advisor at FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City. The statement is in response to the decision today by the Michigan Public Service Commission (MPSC) at its regular meeting to reopen the record to gather more information on the safety and engineering of a 21-foot-diameter tunnel intended to house a new segment of the Line 5 pipeline, as proposed by Canadian oil-transport giant Enbridge. Enbridge proposes to bore and blast a tunnel through the public bottomlands in the Straits of Mackinac, where Lake Michigan meets Lake Huron at the very heart of the Great Lakes. The MPSC also requested additional information on the safety of the existing Line 5 oil pipelines in the open waters of the Straits, which Enbridge continues to operate in defiance of a shutdown order issued in November 2020 by Gov. Gretchen Whitmer. FLOW also filed a formal comment today with the MPSC.
“Today’s approval by the Michigan Public Service Commission of an order to reopen the record and gather more information on the safety and engineering of the oil pipeline tunnel that Enbridge proposes to construct through the public bottomlands of the Straits of Mackinac before making any final decision is a step toward victory for the public and the Great Lakes.
Jim Olson, FLOW’s Founder and Senior Legal Advisor
“The MPSC also wisely requested more information on the safety of the dangerous, nearly 70-year-old Line 5 oil pipelines in the open waters of the Great Lakes. The MPSC has once more demonstrated its strong sense of responsibility to address Line 5’s inevitable, adverse effects on the Great Lakes, communities, and the rights of the public and environment in the Great Lakes and Straits of Mackinac.
Today’s approval by the Michigan Public Service Commission of an order to reopen the record and gather more information on the safety and engineering of the oil pipeline tunnel that Enbridge proposes… is a step toward victory for the public and the Great Lakes.
“More than two years after Enbridge applied for the MPSC’s approval to construct a massive, 21-foot-diameter oil tunnel under the Great Lakes, it’s clear that Enbridge has failed to demonstrate the safety and feasibility of the $1 billion-plus project and even more questions are being raised about the Line 5 oil pipelines that continue to endanger the Great Lakes, our economy, and way of life.
Screenshot of MPSC commissioners meeting July 7, 2022, in Lansing, Mich. From left: Katherine Peretick, Chairman Dan Scripps, & Tremaine Phillips.
“FLOW and other interested parties have identified critical deficiencies in the tunnel project’s construction permit application, its legal authorization, and the review by state 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 also has deep concerns about the lack of public necessity for the project, which would worsen climate change and related impacts to the Great Lakes.
FLOW has deep concerns about the lack of public necessity for the project, which would worsen climate change and related impacts to the Great Lakes.
Screenshot of Marshall Clabeaux, of Lansing, expresses opposition to the proposed Line 5 oil tunnel during public comment at the July 7, 2022, MPSC meeting in Lansing.
“The MPSC’s decision to seek more safety information upholds its solemn, legal responsibility under Michigan’s constitution and environmental and public trust laws to protect people, communities, the Great Lakes, and the environment from the effects of climate change from this massive project that would facilitate the continued production and consumption of 8.3 billion gallons of oil a year for the next 99 years.
“No one disputes the obligations of the State and MPSC to protect the public rights of citizens in the Great Lakes. Based on Michigan Supreme Court decisions, the MPSC is one of the ‘sworn guardians’ of the Great Lakes and the public trust rights of all citizens in Michigan. The threat of devastating physical impacts to the Straits, the fish habitat, risks to the environment, the rights of citizens for fishing, boating, swimming, drinking water and health, and the tribal culture and fishing rights are real. The effects from climate change to the Great Lakes, infrastructure, communities, health, and environment are devastating and undeniable.
The threat of devastating physical impacts to the Straits, the fish habitat, risks to the environment, the rights of citizens for fishing, boating, swimming, drinking water and health, and the tribal culture and fishing rights are real.
“The MPSC on April 21, 2021 ordered a full and complete hearing record on climate and environmental effects and the rights of citizens under the Michigan Environmental Protection Act (MEPA). Today’s Order is consistent with that decision and the duties of the MPSC under the MEPA and public trust law. Under MEPA, given these likely effects, the Enbridge Line 5 tunnel project was properly remanded for a more thorough investigation of these matters. This includes consideration of reduction of greenhouse gases through alternatives to Line 5 and the Tunnel 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.
“Moreover, the tunnel and tunnel pipeline have never been authorized by the Department of Environment, Great Lakes, and Energy as required by the Great Lakes Submerged Lands Act and public trust law. Under these laws, the company must obtain authorization to use, not just construct, the public trust waters and submerged lands of Michigan. Enbridge has never obtained this authority.
“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.”
Jim Olson, environmental attorney and senior legal advisor to FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, reacts to a narrow ruling released today by an administrative law judge on Enbridge’s oil tunnel proposed for the Straits of Mackinac:
“Today’s ruling by Administrative Law Judge (ALJ) Dennis W. Mack ignores the declining public need for oil as the U.S. and world finally reckon with the climate emergency, and it is blind to the fact that Gov. Whitmer has ordered the permanent shutdown of the Line 5 pipeline that the tunnel would contain this May.
“The State of Michigan will never reach a just and lawful decision on the proposed oil tunnel by agreeing with Enbridge to ignore critical evidence and treat a proposed oil tunnel meant to last 99 years as simply a maintenance-and-replacement project. The tunnel is a Trojan Horse designed to push billions of gallons of oil through the world’s largest system of freshwater lakes in an era of water crises hastened by climate change.
“The Michigan Environmental Protection Act (MEPA) enacted in 1970 was created to compel agencies like the MPSC to evaluate the cumulative environmental impacts and to examine alternatives to proposed projects. In the case at hand, MEPA requires the MPSC to examine the environmental, health, and climatic risks of the proposed tunnel and Line 5 pipeline. The greenhouse gas emissions from Line 5’s oil and natural gas liquids, at more than 57 million metric tons a year, is greater than the annual yield from the combined operation on the nation’s three largest coal plants.
“The law does not keep the MPSC frozen in time such that they can ignore these paramount issues.
“The State of Michigan has a perpetual duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them, which led to the Governor’s and DNR’s November 13 order and lawsuit to revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac. The ALJ rejected the argument that the Governor’s notice and revocation of the 1953 easement is a basis to evaluate the environmental effects of Line 5 or the consumption of the oil transported on the system under MEPA.”
Background: See FLOW’s ongoing coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel proposed for the Straits of Mackinac here:
Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), reacts to news today that the State of Michigan has granted environmental permit approval for Enbridge’s proposed Line 5 oil tunnel in the Straits of Mackinac:
“We are deeply disappointed by the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) decision today to approve permits for Enbridge’s proposed oil tunnel in the Straits of Mackinac.
“EGLE’s permits ignore direct adverse evidence of the tunnel’s risk to surface waters, wetlands, public trust bottomlands, cultural resources, endangered species, treaty fishing rights, climate change impacts, local economic impacts, tourism, and public and private property. In addition, EGLE’s permits ignore feasible and prudent alternatives to the proposed tunnel.
“EGLE’s action is directly at odds with the legal process underpinning the Governor Whitmer’s revocation and termination on November 13 of the easement allowing Line 5 to operate in the public waters and bottomlands of the Great Lakes. The governor’s November decision was based on determinations required under the Public Trust Doctrine. Those same findings, required by law, were never made for the proposed tunnel.”
Many years and legal and regulatory hurdles remain in the state and federal permitting process for Enbridge’s proposed oil tunnel, which might never be built, but continues to distract from the clear and present danger posed by the decaying Line 5 pipelines in the open waters of the Straits of Mackinac.
Final approval of Enbridge’s proposed oil tunnel remains in doubt as permitting reviews continue by the U.S. Army Corps of Engineers, which is assessing environmental impacts and alternatives, and the Michigan Public Service Commission, which is considering the project’s public need, climate impacts, and location.
The proposed tunnel, at roughly 20-feet in diameter and 4 miles long, would house a new Line 5 pipeline. Enbrige’s goal is for Line 5 to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
Enbridge has a terrible track record of oil spills across Michigan from Line 5 and from Line 6b, which in 2010 dumped more than a million gallons of oil into the Kalamazoo River.
On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life.
Below is guidance from FLOW on what to include in your written comments and how to submit them online by Monday’s deadline. EGLE expects to issue its final decision on the oil tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December.
Points to Make in Public Comments by Oct. 19
FLOW is providing this content for you to draw from and supplement with your own information and perspective in your comment to EGLE on the proposed Line 5 tunnel permits:
Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
Not good for the climate or Gov. Whitmer’s goals — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
Not good for public health, safety, and welfare — EGLE is required to determine whether extending the life of an oil pipeline that will emit approximately tens of million tons of greenhouse gases annually for the next 99 years, under the state Natural Resources and Environmental Protection Act, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.
How to Submit Your Comments to EGLE by Oct. 19
Be sure to submit your comments on Enbridge’s proposed Line 5 oil tunnel by the Monday, Oct. 19 deadline. The public can submit comments either by email to EGLE-Enbridge-Comments@Michigan.gov — referencing Application Number HNY-NHX4-FSR2Q — or via two EGLE web pages for commenting separately on each of the permits. Click on each link below and follow the instructions provided by the state:
EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
EGLE public comment page for National Pollutant Discharge Elimination System (NPDES) wastewater impacts.
How to Learn More about Line 5 and the Risky Oil Tunnel
To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:
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: