Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan, in response to a federal district court’s certification on Tuesday of questions for interlocutory review by the U.S. Court of Appeals for the Sixth Circuit. The decision comes in the case of Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019, in the Michigan Circuit Court for the County of Ingham, to shut down the Line 5 oil pipelines in the Great Lakes. Members of the media can reach Zach Welcker, FLOW Legal Director, atZach@flowforwater.orgor by cell at 231.620.7911.
“This is a welcome development in Attorney General Dana Nessel’s effort to return to state court her state-law claims seeking the shutdown of Enbridge’s dual oil pipelines on state-owned bottomlands in the Straits of Mackinac. FLOW credits her petition for mandamus—filed just two business days before the certification order—for prompting the federal district court to finally take action on a motion that the Attorney General filed more than five months ago.
“Although the district court’s order does not guarantee that the Sixth Circuit will agree to resolve the certified questions, we are hopeful that the Court will recognize that interlocutory review is necessary to protect the fundamental state rights that are undermined by the district court’s erroneous procedural and jurisdictional rulings.
“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster,” said FLOW Legal Director Zach Welcker
“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster.”
Above: A burst of sunshine and Lake Michigan’s power at the shore in Frankfort, Michigan. (Photo/Kelly Thayer)
Michigan’s water bounty is vast—touching four of the five Great Lakes, more than 10,000 inland lakes, 36,000 river miles, 6 million acres of wetlands, and groundwater that is the drinking water source for more than 4 million Michiganders.
At FLOW, we envision a future where healthy waters sustain healthy communities in the Great Lakes Basin, and together with our supporters and partners, we are bringing that vision to life.
Such an abundant heritage requires protection from a host of threats, and creative thinking about opportunities to keep water public and protected. These, in turn, require vision. At FLOW, we envision a future where healthy waters sustain healthy communities in the Great Lakes Basin, and together with our supporters and partners in 2022, we are bringing that vision to life.
The clear waters of Great Sand Bay on Lake Superior north of Eagle River, Michigan, on the Keweenaw Peninsula. (Photo/Kelly Thayer)
The view Michiganders enjoy of expansive, seemingly infinite Great Lakes waters is mirrored in our work, which spans all of Michigan’s public waters and includes all beings who depend on them. FLOW protects the Great Lakes—and our public trust rights to access, swim, drink, fish, and navigate these magnificent fresh waters—from threats that include climate change and the Line 5 oil pipelines in the Straits of Mackinac, while strengthening protection of our vital groundwater and securing clean water for all.
FLOW protects the Great Lakes and our public trust rights, while strengthening protection of our vital groundwater and securing clean water for all.
In 2022, FLOW’s sustained efforts to ensure safe, clean, affordable, and public water for all resulted in measurable, immediate achievements, as well as in steps toward long-term goals. Here’s a summary of the impact, as well as hope for an even better 2023 in the fight to protect 20 percent of the planet’s fresh surface water and a way of life for all of us who depend on it for our well being.
Line 5: Preventing a Petroleum Disaster in the Great Lakes
The continued presence of Enbridge’s nearly 70-year-old Line 5 petroleum pipelines crossing in the Straits of Mackinac is a navigational hazard and a clear danger to the Great Lakes, communities, tribes, and businesses. The dented and decaying pipeline is owned and operated by Enbridge, the same Canadian corporation responsible for the 2010 spill of more than 1.2 million gallons of heavy tar sands oil into the Kalamazoo River watershed near Marshall, Michigan.
Line 5 shown in red runs from Superior, Wisc., to Sarnia, Ont., as part of Enbridge’s larger pipeline network in yellow running the Alberta, Canada, tar sands to Montreal.
The nearly 70-year-old Line 5 petroleum pipeline crossing in the Straits of Mackinac is a navigational hazard and a clear danger to the Great Lakes, communities, tribes, and businesses.
Acting on the public trust doctrine legal principles articulated by FLOW, Attorney General Nessel filed a lawsuit to shut down LIne 5 in 2019. In 2020, Governor Whitmer revoked and terminated the 1953 easement Enbridge relied upon to operate Line 5, while recognizing that alternatives to Line 5 exist for supplying oil and propane.
The State of Michigan and the public, however, must remain vigilant until the oil stops flowing for good because Enbridge is defying the shutdown order, and Line 5 remains exposed to exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion. At the same time, Enbridge is seeking permission to locate a tunnel to carry the petroleum under the Straits, posing another set of unacceptable risks.
In 2022, to shut down Line 5 and stop the ill-advised oil tunnel, FLOW:
Spurred Public Engagement & Comment—Spurred, as a founding steering committee member of Oil & Water Don’t Mix, vigorous public engagement and public comment last fall as part of the U.S. Army Corps of Engineers review of the proposed oil tunnel; and FLOW also prepared final comments submitted to the federal agency on October 14.
Hosted a Line 5 Livestream—Co-hosted, in partnership with Oil & Water Don’t Mix and the Bay Mills Indian Community, a July livestream event on the status of the Line 5 struggle that drew nearly 600 registrants and reached thousands more people through social media and our e-newsletter.
Groundwater: Strengthening Protection of Our Sixth Great Lake
FLOW’s 2022 report—Building Consensus: Securing Protection of Michigan’s Groundwater.
The volume of groundwater in the Great Lakes Basin is comparable to the volume of Lake Huron—in essence, it’s the sixth Great Lake. Groundwater supports industry and agriculture, recharges our streams and the Great Lakes, and provides drinking water to millions of people.
But because it is out of sight, and therefore often out of mind, groundwater is the least protected arc of that cycle. Limited protections and underinvestment in monitoring have allowed contamination to plague groundwater in tens of thousands of locations in Michigan. Since 2018, FLOW has advanced groundwater as a top priority, bringing new attention and momentum to its stewardship.
One of the biggest threats to Michigan’s groundwater is 130,000 failing septic systems. They pollute groundwater with pathogens and household toxic materials, yet Michigan is the only state lacking statewide requirements for inspection, maintenance, and replacement of failing septic systems. FLOW and our partners are striving to remedy that unacceptable fact.
In 2022, to protect groundwater, FLOW helped lead the way with these actions:
Helped Pass a Countywide Septic Ordinance—Helped in August to persuade the Leelanau County Board of Commissioners, in northwest Michigan, to enact a countywide ordinance preventing and defending against septic system pollution of groundwater.
Published a New Groundwater Report—Released in June, as the culmination of 15 months of work, our report, Building Consensus: Securing Protection of Michigan’s Groundwater, and accompanying story map. The report expresses the consensus of multiple stakeholders critical to the state policy process that the state must do more to gather and analyze data fostering an understanding of the condition of groundwater. Key recommendations from the report have helped to form FLOW’s 2023 groundwater policy agenda.
Hosted a Groundwater Livestream—Hosted a livestreamin March featuring FLOW staff and five partners, including State Rep. Padma Kuppa and experts on groundwater from academia, the scientific community, and the state. In all, 180 people registered for the event, which offered perspectives on the critical importance of our groundwater resources and the work of the Michigan Groundwater Table convened by FLOW.
Collaborated on a World Water Day Resolution—Worked with Rep. Kuppa on a World Water Day resolution that was adopted by Michigan’s State House of Representatives.
Guided Water Infrastructure Funding—Engaged last spring with national, regional, state, and local partners, to determine the most impactful policy interventions to ensure the equitable distribution of state and federal funds for water infrastructure, including a $35 million appropriation to help address failing septic systems.
Clean Water for All: Keeping Water Public and Protected
Access to clean water for all is a human right and even more vital during emergencies including the COVID-19 pandemic, climate crisis, household water shutoffs in Detroit and elsewhere, and the Flint lead-tainted water crisis. The cost of inaction and the failure to fund public water infrastructure continues to result in water insecurity, flooding, pollution, and costly patchwork repair.
Access to clean water for all is a human right and even more vital during emergencies including the COVID-19 pandemic, climate crisis, household water shutoffs in Detroit and elsewhere, and the Flint lead-tainted water crisis.
In 2022, to ensure equitable funding for public water systems and to prioritize water access and affordability, FLOW:
Helped Advance Public Water, Public Justice in New York—Worked with New York State lawmakers in support of the newly introduced Public Water Justice Act, based on FLOW’s groundbreaking 2018 model legislation to extend public trust protection to groundwater, establish a royalty and public justice trust fund from bottled water companies, and pay for water infrastructure priorities.
Supported Equity in Water Infrastructure Funding—Engaged statewide with Michigan lawmakers and the Whitmer administration on legislative and other proposals to equitably distribute an historic, short-term increase in federal funds for water infrastructure.
Participated in an Environmental Justice Livestream—Presented at an Environmental Justice livestream event hosted by the Great Lakes and St. Lawrence Cities Initiative in March.
Celebrated the 50th Anniversary of the Clean Water Act—Published original insights and perspectives throughout the year about keeping water protected and in public hands, including a series of articles in October on the 50th anniversary of the Clean Water Act and its importance, and asked in November, What Do the Election Results Mean for the Great Lakes State?
Hosted a Livestream with Maude Barlow—Hosted a livestream event in June with lifelong and world-renowned champion of water, Maude Barlow, who has written a memoir built on her career of activism. Its title, appropriately, is Still Hopeful: Lessons from a Lifetime of Activism. In the book, Barlow vividly details her work on many issues, perhaps most importantly her successful advocacy of water as a human right.
In March, FLOW supported the introduction of three related public trust bills on groundwater, bottled water, and natural resources.
Supported Public Trust Bills in Michigan—Supported in March the introduction of three related public trust bills to expand public trust protections to groundwater, end the bottled water loophole of the Great Lakes Compact in Michigan, and direct the Michigan Department of Natural Resources to be strong public trustee stewards.
Collaborated on a Public Trust Resolution—Worked with state lawmakers to declare water as a public trust in a World Water Day resolution.
Upheld the Human Right to Water & Sanitation—Continued our efforts to build upon the successful passage of the Human Right to Water and Sanitation Resolution in Traverse City. Promoted statewide and regional engagement on this resolution work with We the People, Michigan Municipal League (MML), Southeast Michigan Council of Governments (SEMCOG), and the Great Lakes and St. Lawrence Cities Initiative.
Drafted a Model Ordinance on Green Infrastructure—Drafted a model green infrastructure ordinance that would require municipalities to evaluate the economic and environmental effectiveness of green infrastructure alternatives—assisted by MML, SEMCOG, and City of Grand Rapids.
Advanced Green Infrastructure in Communities—Continued to work with Traverse City and Marquette on advancing green infrastructure as part of their new master plans to benefit the environment and save taxpayer dollars.
FLOW’s Commitment: Lifting Up Young Leaders on Water Protection
FLOW Executive Director Liz Kirkwood
Too often we hear that members of Generation Z, those born between 1997-2012, mistrust government, worry about the future of democracies, and feel overwhelmed by the weighty burden of climate change they are inheriting. But from the depths rise the leaders of tomorrow—our beacon of hope.
“Protecting our precious waters is a multigenerational mission,” said FLOW Executive Director Liz Kirkwood.
“Protecting our precious waters is a multigenerational mission,” said FLOW Executive Director Liz Kirkwood. “We put that mission into practice not only by pursuing solutions to water problems that will pay off for generations to come, but also by engaging young people who will carry forward the work as part of a rising generation.”
In 2022, to lift up the youth water movement, FLOW was proud to engage with:
Lucy Jones enjoys a Lake Michigan sunset.
Water&—Bebe Schaefer and Rachel Roberts, two students at American University in Washington, D.C., recently launched the nonprofit organization Water&, on a “constant journey of collective action.” We at FLOW were thrilled to join hands with Water& and other young adult-led organizations in the Great Lakes Basin, and in our nation’s capital, to expand hope and leadership in the protection of our public waters.
Mackenzie Joseph—Our highly productive summer 2022 Milliken Intern for Communications was Mackenzie Joseph, a native of Johnstown, Ohio, and rising senior at Ohio University in Athens, who is majoring in Communication Studies with minors in History, English, Writing, and Political Communication.
Mary Basso and Irene Namae—Our ambitious and talented summer 2022 Milliken Interns for Law and Policy were Mary Basso and Irene Namae. Irene was born in Uganda; after finishing a Bachelor of Law there from Makerere University, she served as a magistrate judge. She currently is pursuing her PhD in law at the University of Arizona, focusing on Indigenous Peoples Law and Policy. Mary Basso is from Owosso, Michigan. After finishing a bachelor’s degree, Mary moved to Nashville, Tennessee, to study law at Vanderbilt University Law School.
Lucy Jones—When FLOW first wrote about Lucy Jones—the inspiring Traverse City teen who creates and sells jewelry to benefit the Great Lakes—last February, our supporters were moved by her environmental ethic and enterprising spirit. So we thought it was fitting to catch up with Lucy at year’s end with her holiday sales in full swing. FLOW thrives on these creative collaborations with teens and young adults—the Next Generation—who take action and lead the way to protect fresh water.
Looking to 2023: Abundant Opportunity to Protect Fresh Water for All
Now comes the next phase of the work that we all must do together: Hold our elected officials accountable to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all. As the Great Lakes State, Michigan must lead on every imaginable freshwater policy to protect this fragile, water-rich ecosystem and to secure safe, affordable drinking water for all.
“Big, bold ideas for a vibrant future vision are necessary to generate public engagement and support. So if there ever was a moment, this would be it,” said FLOW Executive Director Liz Kirkwood.
“Michigan must seize this window of opportunity to think about systemic changes needed and make the greatest gains we can to protect fresh water, the environment, Pure Michigan economy, and our way of life in the face of impacts from unrelenting climate change and a water-scarce world,” said Kirkwood. “Big, bold ideas for a vibrant future vision are necessary to generate public engagement and support. So if there ever was a moment, this would be it.”
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.
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.
An alternative to connect Enbridge’s Superior and Sarnia terminals without crossing the Great Lakes.
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.
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.
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.
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’senvironmental 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’sLine 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 Corpsproject website. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also iscollecting 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 identifiedcritical 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 wouldworsen 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 alsolacks adequate liability insurance, according to areport released by the Attorney General Dana Nessel’s office revealing that Enbridge’s subsidiaries, not its parent company, hold Line 5’s1953 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 potentialexplosion 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’sposition, 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:
A “no action” alternative that would use existing capacity in other pipelines and, if necessary, other transportations solutions—such asrail and truck transport of natural gas liquids—in lieu of building new pipeline infrastructure.
An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes. (See FLOW’sfact sheet on alternatives).
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.
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.
Above: 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. Photos by Kelly Thayer.
By Kelly Thayer, FLOW Deputy Director
Katie Otanez, Regulatory Project Manager for the U.S. Army Corps of Engineers, Detroit District, delivers a presentation on Sept. 8, 2022, in St. Ignace, Mich., while Army Corps staff look on.
Five-and-half hours into a marathon federal hearing that lasted seven hours on Thursday, September 8, in St. Ignace, Michigan, more than 4 out of 5 people who spoke 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.
The U.S. Army Corps of Engineers held the public comment session to help set the scope of its environmental impact statement study of a proposal by Enbridge, Inc., of Canada, to build an oil tunnel under the Straits of Mackinac to house its Line 5 oil pipeline, which carries oil from western Canada primarily to refineries in Sarnia, Ontario. The Army Corps study is expected to continue through at least 2023.
U.S. Army Corps welcome sign on Sept. 8, 2022, in St. Ignace, Mich.
Hundreds of people attended the meeting at Little Bear East Arena, a local hockey facility just north of the Mackinac Bridge in the eastern Upper Peninsula, with each commenter taking up to three minutes to address the Army Corps staff seated up front. Most people 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.
Whitney Gravelle, president of the Bay Mills Indian Community, was the first to speak at the Army Corps meeting against the tunnel proposal and sought to change the narrative promoted by Enbridge in its multimillion-dollar advertising campaign. “Line 5 is not about Enbridge. It is not about jobs. It is not about profit. It is about the continued existence of my people here in the State of Michigan.”
Whitney Gravelle, President of the Bay Mills Indian Community
“Line 5 is not about Enbridge. It is not about jobs. It is not about profit. It is about the continued existence of my people here in the State of Michigan.” — Whitney Gravelle, president of the Bay Mills Indian Community
“We rely on all of those natural resources to be able to live, to be able to support our families and just exist as Anishinaabe people,” said President Gravelle, emphasizing that more than half of Bay Mills tribe members depend on their treaty rights to hunt, fish, and gather for subsistence.
Ian Bund, venture capitalist
Ian Bund, a venture capital investor who attended the hearing on his birthday to oppose the tunnel project, said, “There’s no evidence that Enbridge’s board of directors has approved the tunnel. Is it a PR stunt? Enbridge is largely uninsured, uninsurable, and un-bondable…. There’s no evidence how Enbridge would finance the tunnel project. One wonders if they might look to taxpayers.”
Enbridge, in fact, 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.
Many Troubling Aspects of the Tunnel Proposal
Enbridge wants to blast and bore an oil tunnel under the Straits of Mackinac just west of the Mackinac Bridge. Credit: Flickr
Enbridge is proposing to bore and blast a 20-foot-in-diameter tunnel under the Straits of Mackinac to house a new Line 5 pipeline. The Canadian company’s 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 has 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.
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 include, at a minimum:
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.
An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes. (See FLOW’s fact sheet on alternatives).
A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits in the event of an explosion or similar event.
Tribal Nations, agencies, communities, organizations, citizens, and other stakeholders can comment on the tunnel proposal through Oct. 14, 2022, via mail, through the Army Corps project website, or at the Army Corps’ Oct. 6, 2022, online meeting. 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.
Oil & Water Don’t Mix Campaign Mobilizes Great Lakes Advocates
The Oil & Water Don’t Mix campaign chartered two buses that gathered people in Ann Arbor, East Lansing, and Traverse City to attend the Army Corps’ September 8 meeting, with FLOW, the Sierra Club Michigan Chapter, and several other allied groups helping organize the effort. Many riders wore the campaign’s black t-shirts with white letters proclaiming “No Line 5 Oil Tunnel.” At the session, Enbridge and some allied trade unions also wore bright blue or orange shirts expressing support for the proposed tunnel or labor to show their solidarity.
Kim Gribi of Traverse City
Lana Pollack, former U.S. Chair of the International Joint Commission
Several people, including Lana Pollack, former U.S. chair of the International Joint Commission, called Enbridge a “bad actor” with a long history of oil spills from Line 5, which runs through the Straits, and Line 6B in southern Michigan that burst in 2010 into the Kalamazoo River watershed.
Kim Gribi, a concerned citizen from Traverse City, also pointed to Enbridge’s “bad track record.” Gribi said that with her professional background in human resources and evaluating applicants for jobs, when it comes to the tunnel project and Enbridge, “I wouldn’t hire them.”
Barbara Stamiris of the Northern MI Environmental Action Council
Barbara Stamiris of the Northern Michigan Environmental Action Counciland others questioned whether the tunnel proposal was a delay tactic by Enbridge to allow the Canadian energy-transport giant to keep running its Line 5 oil pipelines indefinitely in the open waters of the Straits of Mackinac, despite a standing order issued in November 2020 by Gov. Gretchen Whitmer to shut down the risky 69-year-old pipeline segment.
A number of people in their public remarks in St. Ignace requested that the Army Corps extend the 60-day comment period on the proposed tunnel and hold additional in-person meetings downstate to reach more people on such a critical matter as the future of the Great Lakes and the drinking water supply.
FLOW: There’s No Alternative to Fresh Water
FLOW Board member Barbara Brown, a St. Ignace resident who served for 14 years on the Mackinac Bridge Authority, pointed to what the region must protect above all else: our freshwater heritage. “We are rapidly moving toward alternative forms of energy. Enbridge already has, in Line 78 [in southern Michigan], an alternative route of delivery… What we do not have is an alternative to water.”
FLOW Board Member Barbara Brown, a resident of St. Ignace, Mich., addresses the Army Corps staff.
“We are rapidly moving toward alternative forms of energy. Enbridge already has an alternative route of delivery… What we do not have is an alternative to water,” said Barbara Brown, FLOW Board Member and St. Ignace resident
In fact, the North American energy pipeline system operated by Enbridge and its competitors has available capacity and flexibility to meet energy demand in the Great Lakes region without threatening public waters and the economy, according to multiple studies. One of Enbridge’s own experts has concluded gasoline prices will rise by about only half a penny in Michigan if the Line 5 oil pipeline shuts down.
“We are sitting today at the very heart of 20% of the world’s fresh surface water,” Brown said. “With much of humanity and the animal world on the brink of death for want of water, and we being at the center of the largest body of fresh surface water on the planet, it is bordering on the immoral to even entertain the unnecessary, continued operation of Line 5 through the Great Lakes whether by pipe or tunnel.”
As FLOW’s Deputy Director, I (the author of this article) helped coordinate the bus from Traverse City and in my comments, said, “The Straits of Mackinac is the worst possible place to build and operate an oil pipeline tunnel. Any rupture, explosion, or other event resulting in a major oil spill in the Straits would contaminate the very heart of the Great Lakes, which hold 95% of the fresh surface water in the United States.”
As a result, “the Army Corps’ Environmental Impact Statement or ‘EIS’ review of the project should be scoped to eliminate the risk of a pipeline-related oil spill into the Great Lakes.” (Click to read Kelly Thayer’s full comment delivered on behalf of FLOW).
Regional and Binational Perspectives
Beth Wallace of the National Wildlife Federation
Michelle Woodhouse of Environmental Defence in Canada
Michelle Woodhouse, representing Environmental Defence Canada, came from Toronto to convey that many Canadians want to move rapidly away from oil extraction as a key driver of the economy in order to cope with the “climate emergency.” Woodhouse also pointed to indigenous cultural artifacts in the Straits of Mackinac that could be damaged by the tunnel proposal and said “clear alternatives exists” that would not harm the Great Lakes.
Maya Ponton Aronoff pointed to better ways for Enbridge and trade workers to aid the residents of Michigan than building an oil pipeline tunnel under the Great Lakes.
“[Enbridge] could be replacing every lead-lined water pipe in Michigan that’s poisoning our children and our communities. They could be investing in renewable energy, creating jobs in solar and wind. They could be doing anything with their billions of dollars. But they’re making us believe this lie that we have to choose between jobs and our future,” said Maya Ponton Aronoff
“[Enbridge] could be replacing every lead-lined water pipe in Michigan that’s poisoning our children and our communities,” Ponton Aronoff said. “They could be investing in renewable energy, creating jobs in solar and wind. They could be doing anything with their billions of dollars. But they’re making us believe this lie that we have to choose between jobs and our future.”
Army Corps Process to Continue through at Least 2023
Enbridge’s 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.
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 gases;
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 aided in this effort 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.
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.
Editor’s note: The following are comments made by FLOW Deputy Director Kelly Thayer on September 8, 2022, in St. Ignace, Michigan, at a public meeting of the U.S. Army Corps of Engineers (Army Corps). The Army Corps, Detroit District, held the session to help set the scope of its environmental impact statement (EIS) study of a proposal by Enbridge, Inc., of Canada, to build an oil tunnel under the Straits of Mackinac to house its Line 5 oil pipeline, which carries oil from western Canada primarily to refineries in Sarnia, Ontario.
Tribal Nations, agencies, communities, organizations, citizens, and other stakeholders can comment on the tunnel proposal through Oct. 14, 2022, via mail, through the Army Corps project website, or at the Army Corps’ Oct. 6, 2022, online meeting. 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.
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.
Good evening. My name is Kelly Thayer. I am Deputy Director of the nonprofit organization For Love of Water or “FLOW”, the Great Lakes law and policy center located in Traverse City, Michigan.
Kelly Thayer, FLOW Deputy Director
Thank you to Commander Boyle and the U.S. Army Corps of Engineers, Detroit District, for this opportunity to comment. FLOW has supporters throughout the Great Lakes Basin, including right here in St. Ignace. They rely on us to ensure that the Great Lakes remain healthy, public, and protected for all.
Simply put, the Straits of Mackinac is the worst possible place to build and operate an oil pipeline tunnel. Any rupture, explosion, or other event resulting in a major oil spill in the Straits would contaminate the very heart of the Great Lakes, which hold 95% of the fresh surface water in the United States.
Simply put, the Straits of Mackinac is the worst possible place to build and operate an oil pipeline tunnel. Any rupture, explosion, or other event resulting in a major oil spill in the Straits would contaminate the very heart of the Great Lakes, which hold 95% of the fresh surface water in the United States.
In the best case scenario, Enbridge-contracted, oil spill response teams would be able to remove no more than 30% of the oil from such a spill.
With this in mind, the Army Corps’ Environmental Impact Statement or “EIS” review of the project should be scoped to eliminate the risk of a pipeline-related oil spill into the Great Lakes.
Unfortunately, the draft purpose and need statement limits the range of risk-elimination options by focusing only on connecting Enbridge’s existing North Straits Facility and Mackinaw City pump station. The purpose and need statement should be revised to eliminate these geographic constraints and focus more generally on liquid-petroleum product transportation solutions to approximate the existing capacity of Line 5.
The draft purpose and need statement’s language regarding the minimization of environmental risks is not specific enough in the context of project-related oil spills. The statement should be revised to include both minimizing environmental risks and avoiding any risk of a pipeline-related oil spill into the Great Lakes.
The environmental study’s focus “should be revised to include both minimizing environmental risks and avoiding any risk of a pipeline-related oil spill into the Great Lakes.”
The alternatives analysis must include, at a minimum:
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.
An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes.
A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits in the event of an explosion or similar event.
The relative risks of the proposed oil tunnel project don’t matter when Enbridge is unlawfully operating the existing oil pipelines in the Straits.
In performing this alternatives analysis, the EIS must evaluate the environmental risks of the proposed project independently of Enbridge’s existing oil pipeline infrastructure in the Straits.
Nearly two years ago, the State of Michigan revoked and terminated the 1953 Easement that allegedly authorizes Enbridge to occupy state bottomlands. The relative risks of the proposed oil tunnel project don’t matter when Enbridge is unlawfully operating the existing oil pipelines in the Straits.
FLOW looks forward to submitting written comments by the October 14, 2022, deadline, in addition to these preliminary, verbal comments.
In short, we recommend that the Army Corps scope its EIS review of the oil tunnel project to eliminate the risk of a pipeline-related oil spill into the Great Lakes, which provide drinking water for millions of people in the United States and Canada, drive our economy, and define our way of life. Thank you.
Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based, in response to U.S. District Judge Janet Neff’s 13-page decision today to deny the motion to remand the case to state court in Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019. Members of the media can reach Zach Welcker, FLOW Legal Director, atZach@flowforwater.org or by cell at 231.620.7911.
“The U.S. District Court’s decision today to exercise federal jurisdiction over the State of Michigan’s Line 5 oil pipeline lawsuit, which Line 5-owner Enbridge had previously chosen to litigate in state court for more than 2 years, is bad for the State of Michigan, bad for state courts, and bad for plaintiffs.
“State-court defendants who have a plausible basis for federal jurisdiction are no longer obligated to seek removal within the statutory timelines established by Congress, but can now play their removal card at the time of their choosing. This gives defendants nearly unfettered discretion to seek refuge in federal court when things are not going their way in state court.
“The effect is that the State of Michigan now will have to expend precious resources relitigating matters it has already litigated in state court for more than two years and, more generally, that federal courts are free to pull the rug out from under state-court proceedings at the whim of opportunistic defendants like Enbridge.”
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.”
Background: See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here: https://forloveofwater.org/?s=MPSC.
Editor’s Note: FLOW submitted the following comments today to the Michigan Public Service Commission in advance of the MPSC’s March 17, 2022, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac. See the MPSC’s March 17 meeting agenda, and learn about the opportunity to comment in person or online. Members of the media, please contact FLOW Legal Director Zach Welcker at (231) 620-7911 or Zach@FLOWforWater.org with any questions.
Dear Honorable Members of the Michigan Public Service Commission (“MPSC”):
Thank you for the opportunity to comment.
FLOW urges the MPSC to suspend further consideration of this ill-conceived oil tunnel project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies.
We have previously provided the MPSC with detailed analyses of this issue. Suffice it to say, Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960). Thus, it would be a waste of time and resources for the MPSC to continue considering Enbridge’s proposal at this time.
If the MPSC decides, to the peril of Michiganders, to disregard Enbridge’s lack of authorization for this project, it must contend with the fact that Enbridge’s proposal to build a new oil pipeline inside a new tunnel underneath the Straits of Mackinac has ballooned into a supersized infrastructure project. In comparison to the original project, the diameter of the tunnel will now require a tunnel boring machine four times the size initially proposed. Correspondingly, the amount of excavated material that must be transported and disposed of has quadrupled.
Testimony from Enbridge’s geotechnical expert, Michael Mooney, before the MPSC indicates that the tunnel must also be bored deeper than the original design, stating: “The depth to rock was determined to be deeper than assumed during the Alternative study and the resulting vertical profile takes the tunnel deeper in order to remain fully within rock. The geotechnical investigation also revealed highly fractured rock in places that would yield high groundwater pressures during construction.” On file with the MPSC, pp. 19-20.
Yet Enbridge’s initial $500 million estimate of the cost of the tunnel has not been revised. Experts have raised a host of related geotechnical and safety concerns. Significantly, Enbridge has also recently informed the Federal Energy Regulatory Commission that climate concerns may limit the expected service life of the proposed tunnel to twenty years. The MPSC must accordingly reevaluate the prudence of moving forward with this project in light of these significant developments.
Editor’s Note: The following isa media release issued by FLOW on November 30, 2021; please contact Executive Director Liz Kirkwood at (570) 872-4956 orLiz@FLOWforWater.orgor Legal Director Zach Welcker at (231) 620-7911 or Zach@FLOWforWater.org.
“The State of Michigan took a strategic step today in the race to prevent a catastrophic Line 5 oil spill in the Straits of Mackinac by concentrating its legal efforts in state, not federal, court,” said FLOW Executive Director Liz Kirkwood. “The state’s legal fight and the citizen-led movement to protect the Great Lakes, jobs, and a way of life continue full speed ahead.”
In response to Judge Neff’s November 16, 2021 decision to assume federal jurisdiction over the state’s 2020 case to shut down Line 5, the state has chosen to voluntarily dismiss that case and rely instead on Attorney General Dana Nessel’s 2019 lawsuit against Line 5-owner Enbridge in state circuit court in Ingham County.
This procedural maneuver will shift consideration of the State of Michigan’s legal efforts to shut down Line 5 back to a state-court forum where the matter belongs. The State of Michigan has paramount sovereignty over the Great Lakes that cannot be severed.
While the timing of a decision on the merits is still uncertain, dropping the 2020 case will almost certainly expedite resolution of the State Michigan’s claims because it avoids protracted litigation in federal court, which would be necessary to guarantee the State’s right to appeal Judge Neff’s legally deficient remand decision in the 2020 case.
“It’s vitally important to recognize that the action by Governor Whitmer and Department of Natural Resources Director Daniel Eichinger in November 2020 to revoke and terminate Line 5’s 1953 easement remains valid,” said FLOW Legal Director Zach Welcker. “While Enbridge continues to trespass in state waters and on state bottomlands, the State of Michigan can now move forward on Attorney General Nessel’s case filed on behalf of the citizens of Michigan in 2019 to shutdown the dual pipelines in the Straits.”
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.
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
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.
