Tag: Line 5 tunnel

FLOW Appeals MPSC Decision Approving the Line 5 Tunnel

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

“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

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)