Tag: Line 5 tunnel

Michigan Court of Appeals Affirms Line 5 Tunnel Permit

Published on February 20th, 2025 by - Blog Posts, Reports & Media Releases

Michigan Court of Appeals Affirms Line 5 Tunnel Permit; FLOW Asserts Michigan’s Public Trust Responsibilities

 

Traverse City, Mich.— For Love of Water (FLOW) participated in consolidated appeals challenging a Michigan Public Service Commission (MPSC) order conditionally approving Enbridge Energy’s application to replace the segment of its Line 5 pipeline under the Straits of Mackinac, constructing a new pipeline within a proposed tunnel. On February 19, the Michigan Court of Appeals affirmed the MPSC’s order.

Background: Following a series of agreements between Enbridge and the State of Michigan, and the creation of the Mackinac Straits Corridor Authority (MSCA) by the state legislature to oversee tunnel construction, Enbridge sought MPSC authorization for the “Replacement Project”. In 2024, MPSC issued a permit.

Appellants’ Arguments: The appellants (environmental groups, tribes, and an individual) argued that the MPSC erred by:

  • Limiting its review to the public need for the replacement segment rather than the entire Line 5 pipeline.
  • Using improper comparisons in its Michigan Environmental Protection Act (MEPA) analysis.
  • Inadequately analyzing greenhouse gas (GHG) emissions.

In addition, FLOW argued that Michigan has sovereign public trust responsibilities that cannot be waived legislatively through the delegation of a public policy decision to an agency.

The Court’s decision held that:

  1. The MPSC properly limited its review to the Replacement Project, as the application concerned only that specific segment. The need for the entire Line 5 had been previously established.
  2. The MPSC’s MEPA analysis was sufficient. While the court noted some inconsistencies in comparisons (e.g., comparing rail alternatives for the entire line but not the existing pipeline), it concluded that the MPSC ultimately considered all presented alternatives and that its decision was supported by the record.
  3. Because the MPSC has only the authority created in it by the Legislature, it has no duty to consider the public trust in its decisions.

FLOW Legal Director Carrie La Seur said, “We stand by our argument that the MPSC failed to make the determinations required under MEPA and improperly excluded critical evidence offered by the intervenors. Michigan’s public trust guardianship is codified in MEPA and the Michigan Constitution, which apply to all agency actions. Just like a tenant has no right to give away a rented house, the Legislature has no right to hand over its public trust responsibilities. The state holds Michigan waters in trust for all Michiganders, in perpetuity. They are not for sale.”

FLOW is likely to appeal this decision.

Risky, costly, and ill-advised: New report and webinar analyzes the Enbridge Line 5 tunnel project

Published on January 7th, 2025 by - Blog Posts

WATCH THE WEBINAR RECORDING

 

Enbridge’s plan to bore a tunnel between Lake Michigan and Lake Huron to replace an underwater segment of Line 5 is costly and ill-advised, according to a new report from the Institute for Energy Economics and Financial Analysis (IEEFA). The report shows that the aging pipeline is servicing a shrinking market and is facing additional challenges that will make it costly to maintain operations. The report also shows that the pipeline tunnel will likely be more costly than project proponents have disclosed publicly to date. IEEFA’s analysis concludes that Enbridge should question whether it makes sense to keep sinking money into an old pipeline when markets for its products are on a declining trajectory. Download the report.

Live Webinar: January 15 at 12:00pm EST

FLOW will host a free, live webinar with IEEFA report co-authors Suzanne Mattei, Energy Policy Analyst; and David Schlissel, Director of Resource Planning Analysis. We’ll talk about the report’s findings and answer your questions. The webinar will be moderated by FLOW Legal Director Carrie La Seur.

About IEEFA

The Institute for Energy Economics and Financial Analysis (IEEFA) examines issues related to energy markets, trends, and policies. The Institute’s mission is to accelerate the transition to a diverse, sustainable and profitable energy economy. IEEFA’s nonpartisan and evidence-based approach provides solid ground on which to base sound investment and policy decisions and to challenge misinformation.

Webinar Guest Speakers

Suzanne Mattei is an attorney with over 30 years of experience in public interest law and policy. She has analyzed the Federal Energy Regulatory Commission’s policies related to interstate pipeline approval. She has also conducted research on blue hydrogen, petrochemical projects, gas flaring and fossil fuel extraction on public lands.

Suzanne is a former regional director for the New York State Department of Environmental Conservation, where she supervised permitting and enforcement in New York City, with an area population of about 8 million.

Previously, in City government oversight positions, her analysis helped spur the City to abandon a risky plan to sell its drinking water supply system to a state-run authority and to reject a costly, ill-advised plan to build garbage incinerators. Her investigation on behalf of Sierra Club exposed the federal government’s failure to curb exposure to pollution from the 9/11 World Trade Center disaster. Her testimony to Congress helped lead to a law that aids 9/11 responders and survivors.

Suzanne helped to establish free legal assistance and secure federal aid for bereaved families after the 9/11 disaster, and for Ground Zero workers suffering from negative health impacts.

She has a juris doctor degree from Yale University and B.A. from Washington State University. She is admitted to practice law in New York.

David Schlissel is an IEEFA analyst with 50 years of experience as an economic and technical consultant on energy and environmental issues.

He has testified as an expert witness before regulatory commissions in more than 35 states and before the U.S. Federal Energy Regulatory Commission and the Nuclear Regulatory Commission.

Schlissel’s work has included researching, writing and testifying about the U.S. nuclear industry and the cost overruns, construction delays and other challenges associated with many nuclear projects. He has engineering degrees from MIT and Stanford University as well as a Juris Doctor from Stanford Law School. He also has studied nuclear engineering at MIT in a non-degree program.

FLOW Appeals MPSC Decision Approving the Line 5 Tunnel

Published on April 15th, 2024 by - Blog Posts, Reports & Media Releases

Download FLOW Appellate Brief  (PDF)

Traverse City, Mich.— On April 11, 2024, FLOW filed a brief before the Michigan Court of Appeals aimed at reversing the Michigan Public Services Commission’s (MPSC) approval of the proposed Line 5 tunnel project.

Enbridge’s proposed tunnel received a green light from the MPSC on December 1, 2023. FLOW is challenging the approval arguing that the MPSC’s action violated the Michigan Environmental Protection Act by failing to determine whether feasible and prudent alternatives were available that would render the estimated $2 billion project unnecessary. FLOW also contends that the MPSC failed to undertake any analysis of whether there was a “public need” for the project, given growing concerns over greenhouse gas emissions and projected reductions in the use of transportation fuels.

“Enbridge has admitted that growing U.S. and Canadian concerns over climate change will significantly reduce the serviceable lifetime of Line 5 and the tunnel,” stated FLOW’s Executive Director Liz Kirkwood. “The project is demonstrably an environmental and economic albatross.”

FLOW has joined numerous Native American tribes and other advocacy organizations in formally opposing the tunnel project.

U.S. Army Corps to Limit Line 5 Tunnel Review

Published on July 27th, 2023 by - Blog Posts

“The US Army Corps of Engineers decision to exclude the cumulative impacts of the fossil fuels Line 5 will transport, climate concerns, and, remarkably, engineering concerns raised by experts as to the integrity of the tunnel, flies in the face of the Corps’ purpose and mission, the Biden Administration’s goals and policy, and public concern for the protection of Great Lakes waters.” – Liz Kirkwood, FLOW Executive Director

FLOW to Mackinac Straits Corridor Authority: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Published on September 20th, 2021 by - Blog Posts, H2Olson, News, Reports & Media Releases

FLOW Founder and Senior Legal Advisor Jim Olson submitted the following statement to the Mackinac Straits Corridor Authority as part of a September 20, 2021, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac and the Line 5 Easement, Assignment, Tunnel Agreement, and 99-year lease.

Dear Honorable Members of the Mackinac Straits Corridor Authority:

Thank you for setting up the public information session today. The importance of the issues surrounding the decisions you face as members of the Authority cannot be overstated. This is particularly the case, because while the information regarding the details of construction, geotechnical, risk, health, environmental, and tribal and cultural issues remain crucial, the patently lack of authorization under the State’s public trust laws, statutes, and duties lays bare a fundamental question that must be answered and complied with before further investments of time, money, and resources by the State and Enbridge. In the absence of such authorizations for the tunnel easement, our assignment to Enbridge, the 99-year lease, and the purported right of continued occupancy under paragraph 4.2 of the Third Agreement, the continued movement forward continues to put the State and Enbridge, and the State’s citizens at risk.

FLOW and many organizations, appeared and testified before this Authority on Friday, March 6, 2020. At that time, FLOW submitted a legal analysis and comment, dated March 5, 2020, and on March 6, 2020 made an oral presentation to the Mackinac Straits Corridor Authority (”MSCA” or “Authority”) that is part of the record in this matter. FLOW reiterated these comments in a statement to the Authority on February 3, 2021.

I realize that there are new members of the Authority, so, I have attached the above link to this analysis and incorporate the above comments and statements into the comments below. Without waiving the several points contained in FLOW’s analysis and comments, today, I want to underscore the fact and law that the DNR Easement, the Assignment from you to Enbridge, and the Tunnel Agreement provisions calling for a 99-year lease have not been authorized under the rule of law of the public trust doctrine:

  1. These documents are subject to the GLSLA, 324.32502-32508 and rules, but to date the agreements and conveyance documents have not been authorized under the GLSLA;

  2. The DNR Tunnel right of way or Easement purports to be authorized under Act 10, now MCL 324.2129, for a public utility easement. However, the DNR has never authorized it based on the required findings under the public trust doctrine, an absolute necessity based on the position of the State, AG Nessel, and DNR in the Ingham County cases: Nessel v Enbridge; and State Governor and DNR Director v Enbridge.

Until this authority is obtained by Enbridge, no contracts should be signed, no monies spent, and no construction commenced; to do so, would be at MSCA’s and Enbridge’s own risk. For this reason, you, the members of MSCA, are requested, respectfully, to ask for an Opinion of Attorney General Dana Nessel, on the serious question of the lack of required authorization of the 2018 Easement, the Assignment of Easement, and the Tunnel Agreement/99-Year Lease Agreement for occupancy and use of the State’s sovereign public trust bottomlands and waters of the Great Lakes.

Thank you. Should you have any questions, or your AG staff have questions, we remain available to discuss the same.

Sincerely yours,

James Olson

Founder and Sr. Legal Advisor

For Love of Water (FLOW)