Tag: Line 5

Turning the Spotlight on Line 5 in the Great Lakes

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Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

FLOW Founder and Legal Advisor

Last week the Michigan Attorney General’s Office chose not to appeal a lower court ruling upholding the constitutionality of a law that facilitates the framework for an oil tunnel under the Straits of Mackinac—forgoing any further challenge, but, in reality, yielding no strategic legal ground.

Don’t get me wrong. The constitutionality of the Act 359 “tunnel law” under the so-called “Title-Object” clause of article 4, section 24 of Michigan’s Constitution always has been an important question. This clause requires the purpose of a bill be stated in its title. Clearly, the legislature had no business stating the tunnel project was a public project like the Mackinac Bridge, then passing a law that allows a company to build, operate, and control its own private tunnel pipeline. 

But the tunnel law only sets up a framework for a tunnel and new pipeline in the Straits. By forgoing any further appeal of the “Title-Object” question, the spotlight turns on the more central question at hand:  

Can Canada’s Enbridge obtain the required authorizations under the rule of law, for its private gain and control, for a massive tunnel and tunnel pipeline beneath the public trust bottomlands of the Great Lakes?

The lame-duck legislature’s tunnel law and agreements signed by the Snyder Administration in its last days in 2018 sought to tie the hands of the newly elected Governor Gretchen Whitmer and Attorney General Dana Nessel, who took their oaths of office on January 1, 2019. But the 11th-hour maneuvers failed to bind the new leaders. Why? Because Act 359—the tunnel law—and the related tunnel agreements compel Enbridge to obtain the required approvals and permits for the location and construction of the tunnel and tunnel pipeline under all applicable federal and state laws. In other words, constitutional or not, the law simply begs the question.

The tunnel is not a done deal. Under the law, Enbridge is required to obtain a long list of governmental approvals and permits. Notably, it needs authorization under Michigan’s Great Lakes Submerged Lands Act (GLSLA) for easements and leases for location of the tunnel, a construction permit, and authorization to locate the pipeline in the tunnel as a “public utility” under the public trust bottomlands of the Great Lakes. 

Moreover, Enbridge can’t even apply for location of the tunnel pipeline until it obtains certification of the new line as a “public utility” from the Michigan Public Service Commission (MPSC). Thus, in addition to the required authorizations under the GLSLA, Enbridge also must prove and the MPSC must make findings that the tunnel is “necessary” and “in the public trust interest” in the uncertain and tumultuous world of 2020—declining crude oil markets, climate change, and rapid transition to a renewable economy that just may make life livable for our children and grandchildren in this century.

Not only are these findings required, but the MPSC also must find that there are no “likely environmental impacts” and that there are “no feasible and prudent alternatives” to the new tunnel—when there are thousands of miles of crude oil pipelines owned by Enbridge and its competitors crisscrossing North America in every direction. Enbridge’s  super-sized replacement of the ruptured Line 6B pipeline that despoiled the Kalamazoo River in 2010 has enough unused design capacity to nearly equal the average amount of crude oil pumped through Line 5 every day. The proposed oil tunnel is not necessary, clearly not in the public interest at this time in history, and there are alternatives that are both feasible and prudent.

After the tunnel law passed, Enbridge received an assignment of an easement and a 99-year lease-back from the Michigan Department Natural Resources (DNR) to locate, use, and operate the proposed tunnel and tunnel pipeline under the bottomlands of the Great Lakes. But Governor Snyder, the DNR, and Enbridge have not applied for authorization of this conveyance and lease under public trust law and the GLSLA. And, the tunnel and tunnel pipeline have not been certified by the MPSC. Nor has the project been authorized by the United States Army Corps of Engineers.

So, it is not surprising the constitutionality of the tunnel law aside, the central effort at this point must seek a prompt shutdown of the imminently dangerous conditions surrounding the existing dual pipelines in the Straits of Mackinac. And, as for the tunnel, the spotlight must determine whether the massive tunnel project should or can ever be approved under the rule of law of Michigan—the laws that protect the constitutional and public trust interests of our quality of life.

It’s time to navigate what we face in the 21st century, rather than remain stuck in the irons of the 20th century, when the 67-year-old Line 5 was installed in the open waters of the Great Lakes.

 

Line 5 Must Be Closed Before Disaster Strikes

The 67-year-old  dual Line 5 pipelines continue to operate in the Straits of Mackinac, threatening the Great Lakes with a massive oil spill from a leak or rupture in the worst possible place in the country. Hazards include strong currents, underestimated for the “as built” pipes, anchor strikes, and, now, we learn, anchor lines that dragged along the pipes, and tore out a saddle support, installed because the strong currents were scouring and undermining the original as built dual pipelines.

Attorney General Dana Nessel filed suit (Nessel v Enbridge) against Enbridge in Ingham County Circuit Court to decommission Line 5 in an orderly fashion to prevent well over $6 billion in damages and irreparable long-term harm should a spill occur. The existing Line 5 dual lines and this lawsuit must proceed. It is not, and should not be, tied to the proposed tunnel; these dual lines need to be closed down before an inevitable accident or rupture happens. Circuit Judge James Jamo has stopped use of the east leg of Line 5, and is considering the revocation of a 1953 easement that was given conditionally to Enbridge, but without any understanding of the conditions that exist in 2020.

An Enbridge Oil Spill on My Grandparents’ Farm

Photo: The clean up on the Zinn family farm in Marshall, Michigan, after Enbridge’s Line 6B failed a decade ago on July 25, 2010, eventually contaminating nearly 40 miles of the Kalamazoo River and its watershed with a million gallons of tar sands oil, sickening more than 300 people, permanently driving more than 150 people from their homes and properties, and destroying wildlife and habitat.

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By Frank D. Zinn

Ten years ago, my uncle answered an early morning phone call. He lives in Ann Arbor, about 60 miles east of Marshall, the location of the Zinn family farm. The call was from a Marshall neighbor who reported that something was happening on the Zinn property — there was a gas or oil leak, and things looked and smelled really bad.

The Zinn farm in 2008 before the Enbridge Line 6B oil spill.

My aunt and cousin drove to the farm the next day to check things out. Things did indeed look and smell bad — there was a thick layer of oil sludge on the surface of Talmadge Creek, a tributary of the Kalamazoo River, which runs across the north end of the property. At that point it was clear that a pipeline had ruptured — but the extent of the spill and damage was not yet known.

Several days later, I joined my uncle and father to visit the property again. We met with a lawyer who represented Enbridge, the owner-operator of the Line 6B pipeline. We learned that the rupture occurred a few yards from our property line and that Enbridge was starting the process of cleaning it up and would therefore require access to our property. The lawyer told us that things were not as bad as they looked, and that Enbridge had everything under control. He said “a year from now, you won’t even know this happened” and reassured us that Enbridge would restore the land to be better than it was before the spill.

The 6-foot gash on Enbridge Line 6B that gushed more than 1 million gallons of heavy tar sands oil into the Kalamazoo River watershed when it failed on July 25, 2010.

The scene was a difficult one for my family. The farm had been in the family since about 1930 when my great-grandfather bought part of the property. My grandparents moved their young family there in 1947, so it was where my father and his siblings spent much of their childhoods. After my grandfather died in 1996, my aunt and uncle restored the 440-acre property to indigenous prairie to honor the legacy of his environmentally minded parents. During the two years before the spill, my family collaborated with a Chicago-based developer to design an eco-friendly project for the farm — one that combined a vineyard and winery with housing. We had planned to launch the project in the fall.

At the start of the clean-up process, my family gave Enbridge the benefit of the doubt and remained hopeful that we could proceed with our plans. However, after a few weeks it became clear that the extent of the damage was such that the eco-development project would no longer be feasible. We learned, for example, that Enbridge was immediately notified by its pressure sensors that there was a problem, but did not shut the line down for 17 hours, allowing approximately one million gallons of oil to escape (ignoring the company’s much-touted “policy” that a pipeline would be shut down within 10 minutes if the cause of an alarm could not be determined).

Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010

Moreover, the cleanup was not well designed or implemented, and, as a consequence, nine months into the process, Enbridge was ordered by the U.S. Environmental Protection Agency (EPA) to go back and do it again. Enbridge had failed to account for the fact that the heavy, tar sands crude oil broke down to be heavier than water, and therefore could not be simply skimmed off the surface of the water. At the end of the cleanup, the EPA and Enbridge admitted that at least 5% (about 50,000 gallons) would never be recovered.

After many months of getting little or no response from Enbridge to our questions about the extent of contamination and their plans to restore the property, my family felt it had no other option but to file a lawsuit. After a difficult and painful legal process, we finally settled with Enbridge. Enbridge bought the farm. The project we designed to honor my grandparents would not be built.

Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010

When Lakehead Pipeline Co. (Enbridge’s Line 6B predecessor) came to my grandfather in 1969 and offered to purchase an easement under the farm, he refused, citing his concerns about the environmental impact a spill would have. Lakehead took my grandfather to court in order to obtain the easement, and a Lakehead engineer testified under oath to a judge that a significant spill could never occur because three separate monitoring devices would immediately shut down the pumping station in the event of a rupture. Lakehead was awarded the easement on the basis of that testimony.

Enbridge acknowledges that its pipelines had 610 spills that released more than 5.5 million gallons of crude oil into the environment between 1999 and 2008. Enbridge’s inspections of Line 6B identified 140 instances of cracks/corrosion in 2007, and an additional 250 instances in 2009 — only 61 of these were repaired.

On July 15, 2010, just 10 days before Enbridge Line 6B ruptured, Enbridge’s vice president of U.S. operations for Enbridge Liquid Pipelines, Richard Adams, testified before the U.S. House of Representatives Subcommittee on Railroads, Pipelines, and Hazardous Materials. The focus of the hearing was on Enbridge’s Pipeline Integrity Management. In his testimony, Adams lauded the Enbridge Integrity Management Program and, under questioning, testified that the detection of large leaks in Enbridge pipelines were “almost instantaneous” by Enbridge control center personnel and that, if there was any uncertainty, they would shut down the pipeline.

So, the promises made to my family by the Enbridge lawyer a few days after the spill were not kept. The impacts of the spill on the farm are still evident, and the land is not better than it was before the spill. The statement made by the Lakehead engineer in 1969 was not true. Nor was the testimony made to the U.S. House of Representatives by an Enbridge vice president a few days before the spill.

Furthermore, it is clear that the pipeline regulation is not adequate. While the largest fine in history was levied against the company after a blistering accident report was issued by the National Transportation Safety Board (NTSB) in 2012, Enbridge looks to be back to business as usual (here’s a link to the NTSB report).  Many of the claims made by Enbridge about its Line 5 pipeline that runs through the Straits of Mackinac sound eerily similar to the claims it made about Line 6B before the spill a decade ago.

FLOW, Environmental, and Tribal Groups Urge U.S. Army Corps to Reject Enbridge Line 5 Tunnel Permit

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Enbridge’s request for federal approval of a Line 5 replacement oil pipeline in a proposed tunnel in the Straits of Mackinac should be rejected to protect the Great Lakes from the continued risk of a catastrophic oil spill and a pipeline that is no longer needed, 10 leading environmental and tribal groups said Tuesday in comments to the U.S. Army Corps of Engineers.

Citing a federal court order on July 6 involving the Dakota Access pipeline that also involves Enbridge, the groups told the Army Corps it cannot give rubber-stamp permit approval to Enbridge’s massive Great Lakes oil pipeline tunnel construction project without conducting an environmental impact statement (EIS) as required by the National Environmental Protection Act (NEPA).

“The biggest consequence right now of this proposed project is that it distracts the government from its duty to shut down a risky oil pipeline in the Great Lakes. Instead, we are talking about a proposed oil tunnel that may or may not ever be built,” said Liz Kirkwood, executive director of FLOW. “However, if Enbridge insists on this, then a full environmental review of this tunnel proposal is required. That’s what a federal court told the Army Corps, and that’s what we are telling the Army Corps. There’s no shortcut when it comes to potential risks to the Great Lakes.”

In their 22-page comment to the Army Corps, FLOW, Sierra Club, Clean Water Action, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350.org, Straits Area of Concerned Citizens for Peace Justice and the Environment, Chippewa Ottawa Resource Authority (“CORA”), and Michigan League of Conservation Voters (“MLCV”) requested a public hearing on the proposed permit and a thorough review of the tunnel project under the National Environmental Policy Act. So far the Army Corps has failed to set a public hearing or undertake an environmental assessment of the proposal. A federal judge in July ordered the shutdown of the Dakota Access pipeline in Missouri after ruling in March that the Army Corps failed to conduct a full environmental review of the proposed pipeline project.  Enbridge also has an ownership stake in the Dakota Access pipeline

In separate comments filed with the Army Corps, five Michigan tribes with treaty rights to the Straits, said the massive proposed tunnel project is a threat to the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch.

“Whether it is a 67-year-old pipeline aging under pristine freshwater, or a proposed tunnel creating pollution and causing disruption to tribal fishing industries for years, Enbridge should not be allowed to cut corners and bypass a full environmental review, something that Line 5 has never had,” said Bryan Newland, president of the Bay Mills Indian Community. “We’ve seen the exemptions made and lack of thorough pipeline equipment reviews result in surprises of corrosion, dents and the most recent screw anchor damage. With the company’s lack of transparency and poor track record, moving forward with a tunnel is putting pipelines and profits above the safety of Michiganders and the environment, allowing a potential oil spill to continue threatening our Great Lakes.”

In their comments, the environmental groups cited numerous concerns with Enbridge’s tunnel proposal and said oil and propane supplies that are needed can be delivered by other means. Major concerns with the proposal include impacts on drinking water quality from millions of gallons of wastewater discharge and a potential oil spill, significant impacts on the local tourism economy, rental housing, public safety and health systems from a multi-year construction project.  Additional risks include pipeline safety and financial exposure to the state from a tunnel abandonment by Enbridge or collapse, including the potential for an explosion involving hazardous liquids. Tunnel safety was cited in a 2019 letter by the American Transmission Company withdrawing any potential participation in the proposed tunnel project.

“This project tunnel project is a massive undertaking with huge water quality, coastal wetlands, drinking water contamination, and other impacts for the Great Lakes and Michigan,” said Anne Woiwode, Chair of the Sierra Club Michigan Chapter. “This involves a waterbody of international importance that is protected under the Clean Water Act and we expect the Army Corps to follow the law.”

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

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

Jim Olson is FLOW’s Founder and Legal Advisor

 

 

By Jim Olson 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MPSC Chairman Sally A. Talberg

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


FLOW E.D. Liz Kirkwood

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

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

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


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

Shutdown of Damaged Line 5 Must Be Permanent

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Gov. Whitmer, State of Michigan Should Put an End to Enbridge’s Damaged and Decaying Oil Pipeline in the Great Lakes to Protect Drinking Water, Economy, and Way of Life

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:

“In response to Enbridge’s revelation late Thursday that it had to perform an emergency shutdown of its 67-year-old Line 5 oil pipelines in the Straits of Mackinac because the infrastructure “has incurred significant damage,” according to the State of Michigan, FLOW is calling on the administration of Gov. Gretchen Whitmer to make the shutdown permanent to protect the Great Lakes, which is the drinking water source for half of all Michigan residents, the economic engine for the Great Lakes State, and the essence of a way of life here.

We support Gov. Whitmer’s demand for immediate and full disclosure of Line 5’s condition from Enbridge to address this clear and present danger to our lakes. During a global pandemic and a deep economic downturn when fresh water is critical to our survival and comeback, the Whitmer administration must take affirmative action to permanently shut down Line 5 and avoid an inevitable catastrophic oil spill in our Great Lakes.”

Background: The Governor’s demand of Enbridge about Line 5 comes on the heels of disturbing revelations about Canadian-based Enbridge’s safety practices:

  • News broke today that Enbridge has been fined $6.7 million for violating court orders on pipeline safety that put people and our drinking water at risk. 
  • On June 3, the Michigan Attorney General’s office argued in front of the Michigan Court of Appeals that Line 5 in the Straits is an “environmental time bomb.”
  • Enbridge revealed in late May that the protective coating on the Line 5 pipeline had worn away in several spots, leaving bare metal exposed to decay.
  • Since 2013, FLOW has filed legal and technical reports with the State of Michigan, including most recently in November 2019, citing extensive evidence of Enbridge operating illegally and risking the public’s water. 

 

State Points to Fatal Flaw in ‘Line 5’ Tunnel Law

In Enbridge v. Michigan, the Court of Appeals Hears Arguments on Constitutionality of Lame-Duck Legislation Fast-tracked under Former Gov. Snyder

Photo: Robert Reichel, framed in green rectangle, an Assistant Attorney General at the Michigan Department of Attorney General, addresses the Michigan Court of Appeals on June 3, 2020, via Zoom, in the case, Enbridge v. State of Michigan.

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

What may seem like dry legal arguments over the interpretation of a few words sometimes can have ripple effects on people, health, safety, and the environment.

Such is the case with arguments heard June 3 before the Michigan Court of Appeals over the fate of the proposed Enbridge oil pipeline tunnel under the Straits of Mackinac, which promises to leave a lasting mark on the future of the Straits and the people of the Upper Great Lakes. (Click here to watch a video-recording of the Court of Appeals hearing).

In December 2018, the Legislature passed Act 359 as the Snyder Administration prepared to leave office. The goal of the Act was to help Canada’s Enbridge build, lease-back, use, and operate tax-free a tunnel to house a new pipeline to replace its decaying Line 5 crude oil pipeline snaking across the bottom of the Straits of Mackinac. In March 2019, Attorney General Dana Nessel, in a carefully written opinion, ruled that the tunnel law was unconstitutional because it violated article 4, section 24 of the Michigan Constitution.

As a result, state agencies could not process matters based on the proposed tunnel law because the Attorney General’s opinion was binding on those agencies.  A few months later, Enbridge filed a lawsuit against the State to nullify the Attorney General’s opinion and rule Act 359 constitutional and its tunnel pipeline deal valid, prevailing in the Court of Claims in October. The State appealed to the Court of Appeals for the arguments heard Wednesday and a decision.

State: Title of Tunnel Law Says One Thing, Does Something Else

The State of Michigan focused its argument in front of the Appeals Court on article 4, section 24 of the Michigan’s Constitution, popularly labeled the “title-object” clause, which prohibits the legislature from saying a law’s purpose is one thing, when the text of the law is about something else or when adding other things that are not incidental to implementing the law’s purpose.

Let’s give this some context. For example, the legislature cannot state in legislation that it is acquiring state land to establish and operate a public state park, then convey the land to a private corporation to build and operate the park. Or, given the same example, the state law cannot expressly say the project is a public park, then provide in the law for also using the land for a race-track, which is not incidental to implementing a public park, the law’s purpose.

So, there’s good reason for this provision of the state constitution, because it prohibits the legislature from duping others, including the public, into thinking the law is about one thing, when in fact it is about another or multiple things. In short, as our Supreme Court has said, the purpose of the “title-object” limitation is to provide “fair notice” to legislators and the public and to prevent “subterfuge” or deceit on affected persons and the public.

Enter the COVID-19 “Zoom” Courtroom of the Michigan Court of Appeals

On June 3, Judges Cameron, Boonstra, and Letica heard arguments from Robert Reichel, a senior, career lawyer for Michigan’s Attorney General Dana Nessel, and John Bursch, a lawyer for Enbridge, over the constitutionality of Act 359 under the “title-object” clause of the Michigan Constitution.  There were no fireworks. Bob Reichel meticulously laid out the State’s two-fold arguments: 

  1. The title clause of Act 359 authorized the Mackinac Bridge Authority (“MBA”) to acquire and operate, or a new Mackinac Straits Corridor Authority (“MSCA”) to acquire and operate a state corridor utility tunnel for Enbridge’s oil pipeline and supposedly other utility electrical or natural gas lines under the Straits of Mackinac. But the provisions of the law itself authorized Enbridge, a private corporation, to acquire the bottomlands of the Straits, construct, transfer to the MSCA the title, but leaseback to Enbridge to control, occupy, and use the public trust bottomlands for 99 years, with little oversight.
  2. The title clause of Act 359 has a single object, the acquisition and operation of a public bridge by the authority for public vehicles. The body of the law has multiple purposes or objects, including transferring authority for the tunnel and pipeline to MSCA, assigning easements, entering into the 99-year lease, requiring the MSCA to review and sign a tunnel agreement, third agreement, authorizing Enbridge to sublease and manage the tunnel space, and requiring the Attorney General of Michigan to pay Enbridge’s legal costs if the Attorney General on behalf of the people of Michigan objects to the lawfulness of the tunnel and pipeline [Emphasis added].

Enbridge Downplays the “Who” and Expands the “What” in Tunnel Law

John Bursch for Enbridge avec bowtie, argued that the title clause of Act 359 covered infrastructure connecting the Upper Peninsula to the Lower Peninsula, so the tunnel and pipeline are surely part of the purpose and object. He also argued that it doesn’t matter “who” does the project, as long as it’s a government agency doing it, so the MSCA has full authority to sign agreements and to satisfy the project described in Act 359. As to multiple purposes not squarely within the title, he argued they were germane to carrying out the project.

Robert Reichel exercised his right to rebuttal and pointed out that both the “who” and “what” mattered.  In the “title” clause of Act 359, both the new Mackinac Straits Corridor Authority and older Mackinac Bridge Authority are authorized to acquire, establish, and operate a public project. But unlike the “title” clause, the body or provisions of Act 359 itself actually authorize Enbridge, a private entity, to control and operate the tunnel. After listening to arguments, none of the three judges asked any questions.

A Private Tunnel Project Paraded as a Publicly Operated One Is Subterranean Subterfuge

The way I see it, the scales of justice in this case tip precipitously in favor of the people of the State of Michigan and the integrity of the state constitution. The law should mean what it says, not what a lame-duck legislature concocts in the last weeks of 2018 to satisfy the desires embodied in self-serving agreements between Enbridge and the Governor’s executive office. Ironically, these agreements themselves offer up the violation of the title-object clause.  

The 1952 law creating the Mackinac Bridge Authority provided for the establishment and operation of a public project, financed by the public, and managed and operated by the public through the MBA and Michigan Department of Transportation. The title clause of the 2018 tunnel law, Act 359, represents the same thing, a public utility tunnel, owned and operated by the MSCA, a state governmental body.  In fact, the body of the law provides for a complex set of agreements, rights, and duties that hands the tunnel and pipeline control, and control of other utilities, and operation entirely to Enbridge with relatively little paper-shuffling control by the MSCA. Paragraph G of the Second Agreement, signed by Snyder and Enbridge in October 2018, contains this glaring admission: 

The State and Enbridge agree to initiate discussions, as soon as practicable, to negotiate a public-private partnership agreement with the Mackinac Bridge Authority (“Authority”) with respect to the Straits Tunnel for the purpose of locating the Line 5 Straits Replacement Segment and, to the extent practicable, Utilities in that Tunnel (hereinafter “Tunnel Project Agreement”)… [T]he Authority would execute a lease or other agreements to: (a) authorize Enbridge’s use of the Straits Tunnel for the purpose of locating the Line 5 Straits Replacement Segment for as long as the Line 5 Straits Replacement Segment shall be in operation by Enbridge; (b) provide that Enbridge will operate and maintain the Straits Tunnel during the term of the lease on terms to be agreed; and (c) specify the conditions under which Utilities may gain access to the Straits Tunnel.

Nowhere in the “title” clause of Act 359 calling on the MSCA to establish and operate a tunnel does the law state that Enbridge will build, control, use, and operate a tunnel for as long as the tunnel is in operation. In the words of the Michigan Supreme Court, this does not provide fair notice to the log-rolling that took place in the last days of 2018. Worse, it constitutes a subterfuge and deceit on the people of Michigan that our constitution and courts prohibit.  

Attorney General Nessel was right when she issued her opinion in 2019; Act 359 is unconstitutional. If Enbridge wants to build and operate a tunnel, let it choose to design and apply for the authorization and permits to build a tunnel for its private crude oil pipeline under the laws of Michigan that apply to and protect the waters and bottomlands of the Straits of Mackinac and the Great Lakes.

FLOW & Straits of Mackinac Alliance Urge State of Michigan to Suspend Review of Enbridge’s Application for a ‘Line 5’ Oil Tunnel

The State of Michigan was right this week to suspend consideration of Enbridge’s April 7, 2020, application for construction permits to dig an oil tunnel under the Straits of Mackinac and place a pipeline in it until the Canadian energy-transport giant corrects deficiencies, including the failure to consider viable alternatives to the risky project and to acknowledge pending litigation to void the 1953 pipeline easement.

Now state environmental officials should take the next step and advise Enbridge that it will continue to suspend consideration of the application until the company has applied for the required authorization for an easement to occupy state-owned bottomlands with a tunnel along with any construction permitting, according to formal legal comments submitted jointly on May 1 to the state Department of Environment, Great Lakes, and Energy (EGLE) by FLOW and the Straits of Mackinac Alliance.

“We agree with EGLE that Enbridge’s permit application for an oil tunnel under the Great Lakes falls far short of complying with legal requirements,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “But the bigger picture is that Enbridge is putting the cart before the horse by applying to build through state-owned public trust lands under the Straits.”

“Enbridge asking EGLE to consider a construction permit before it has the required authorization for the easement for the private takeover of the public’s bottomlands under the Straits of Mackinac does not comply with the public purpose and interests protected by the law that protects the Great Lakes. The company’s haphazard rush during the pandemic is alarming,” Kirkwood said.

Enbridge laid out its oil tunnel scheme in agreements reached with the former Snyder administration to replace the company’s 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

Enbridge, however, has not sought, nor received, the state of Michigan’s authorization under public trust law and the Great Lakes Submerged Lands Act for the easement, assignment, and lease required by law to locate a risky, multibillion-dollar oil pipeline tunnel in the public trust soils and waters of the Great Lakes.

Enbridge also lacks authorization for these conveyances, lease, and agreements from the State Administrative Board, and failed to consider and determine the effect on and potential impairment to the substantial tribal property rights of the 1836 Treaty Tribes in fishing, fishery habitat, and other protected activities.

“Will the State of Michigan allow Canadian-owned Enbridge without authorization to claim and exercise a private right to control in perpetuity these bottomlands, soil, and the Great Lakes that must be held in perpetual trust for the benefit of the public? It’s unfathomable,” said Jim Olson, FLOW founder and legal advisor. 

Public trust law also requires Enbridge to demonstrate its private oil tunnel, serving as a shortcut primarily to move oil from western Canada to refineries in Ontario would serve a public purpose in Michigan, and the Michigan Environmental Policy Act mandates consideration of oil tunnel’s potential impacts (including climate and greenhouse gas emissions) and feasible and prudent alternatives to the proposed project. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the tunnel is a bad idea that poses an explosion risk.

“We don’t think there is any way that Enbridge could conclusively demonstrate that a private oil tunnel in public bottomlands and waters designed to serve Canadian and overseas markets for the next 99 years would serve a public purpose in Michigan,” said Leonard Page, vice president of the Straits of Mackinac Alliance, a citizen group based in Cheboygan with members living on waterways that would be impacted by an oil spill from Enbridge’s decaying Line 5. “And a 10-year tunnel construction project does nothing to protect our members, local communities and businesses, and a way of life from the devastation of an oil spill that grows more likely every day that Line 5 keeps pumping 23 million gallons of oil through the Straits of Mackinac.”

FLOW, the Straits of Mackinac Alliance, Tribes, and many other organizations have called for the shutdown of the existing Line 5 based on the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the existing Line 5 or a crude oil tunnel that would continue to risk 20 percent of the world’s fresh surface water.

Enbridge’s ‘Line 5’ Oil Tunnel Permit Application is Contrary to the Legal Process

Enbridge Energy’s permit application is out of step with Michigan’s legal process, according to FLOW.

The Canadian energy-transport company has not even sought, let alone obtained, authorization from the State of Michigan for the easement and lease required by law to locate a risky, multibillion-dollar oil pipeline tunnel in the public trust soils and waters of the Great Lakes. Nor has the company sought and obtained a certificate of necessity and approval from the Michigan Public Service Commission to locate the tunnel in the Straits of Mackinac.

“Until Enbridge receives such legal authorization from the State of Michigan, the Canadian company has no business applying for the construction permit, and many other permits and approvals, they would need to locate and build an oil pipeline under the Straits of Mackinac,” said Jim Olson, FLOW founder, president and legal advisor.

“To obtain state authorization, Enbridge has the burden to demonstrate conclusively that a private oil tunnel in public trust soils and waters designed to serve Canadian and overseas markets for the next 99 years is in Michigan’s public interest, which it is not,” Olson added.

Enbridge’s timing amidst the coronavirus pandemic is disturbing, because it fails to respect the public’s right to engage in meaningful public hearings at this time when critical state resources are focused on managing this unprecedented public health crisis.

FLOW joins our allied organizations in calling on Michigan Gov. Gretchen Whitmer to delay full consideration and public review of Enbridge’s oil tunnel applications until the State of Michigan emerges from its coronavirus shutdown.

“It’s important to remember that this proposed oil tunnel fails to solve the greatest threat facing the Great Lakes — the decaying Enbridge Line 5 oil pipelines in the Straits of Mackinac that continue to pump 23 million gallons of oil every day,” said Liz Kirkwood, FLOW’s executive director and an environmental attorney.

“A 10-year tunnel construction project will not prevent an oil spill disaster that grows more likely every day. The State of Michigan has a perpetual and paramount public trust duty to its citizens, not a private Canadian corporation whose uninterrupted oil transport threatens grave consequences for 95 percent of America’s fresh surface water supply,” Kirkwood said.

FLOW to U.P. Energy Task Force: Act Fast to Protect Residents, End Reliance on Risky ‘Line 5’ Oil Pipeline

Photo by Kathryn DePauw for FLOW.


To alleviate the rising threat to the safety and economic security of Upper Peninsula residents, a state energy task force at its April 13 online public meeting should act with urgency to adopt, prioritize, and schedule the implementation of the 14 recommendations in its draft propane supply report.  Swift action is needed in order to end reliance on the risky Line 5 pipeline, dismantle the Canadian energy monopoly over the Upper Peninsula, and secure more diverse and renewable energy choices, said FLOW (For Love of Water) in formal public comments sent Monday to state officials.

FLOW’s letter to the U.P. Energy Task Force, which Michigan Gov. Gretchen Whitmer created last June, comes at the deadline for the public to review the March 20 draft report on propane supply options. FLOW is urging the task force to act immediately on both short-term and long-term recommendations for the State of Michigan to resolve the clear and present danger to public health and the Great Lakes posed by Line 5.

FLOW finds that the most reliable, secure, lowest-cost, and lowest-risk alternative for propane supplies in the short term is a combination of the recommendations on rail and truck, plus an increase in propane inventory in the Upper Peninsula. Highest priority should be given to recommendations with a full range of diverse alternatives that are not dependent on the decaying Enbridge Line 5 pipeline, which crosses the Upper Peninsula and the open waters of the Straits of Mackinac.

FLOW also urges the task force to evaluate all of the environmental and health impacts and risks that each alternative poses to air, water, and land resources. The Great Lakes and other natural resources remain at grave risk with the continued daily operation of Line 5, and impacts to these public trust resources must be fully considered in the final propane report.

FLOW also calls on the task force to expedite its work and complete its renewable energy plan in 2020, well ahead of its March 2021 deadline for reporting to the governor. Michigan and the Great Lakes cannot wait another year for more studies as Line 5 continues to age.

“The U.P. Energy Task Force draft propane report concludes that both short-term and longer-term feasible and prudent alternatives exist to decommission Line 5 and to secure reliable, safe, and affordable energy to U.P. residents based on adjustments within the energy system,” said Liz Kirkwood, Executive Director of FLOW, the Great Lakes law and policy center based in Traverse City.  “Given the current propane monopoly and lack of backup alternatives to Line 5, U.P. residents are exposed to substantial financial and safety risks. Moreover, Line 5 also poses unprecedented and devastating economic, environmental, and public health risks to the Great Lakes.”

With the help of the task force to prioritize recommendations and advance much needed energy planning, the State of Michigan can work as expeditiously as possible to decommission the aging Line 5 pipeline and transition to safe and affordable energy alternatives for U.P. residents.

Background

The U.P. Energy Task Force, formed by Gov. Whitmer’s Executive Order 2019-14, is charged with “considering all available information and make recommendations that ensure the U.P.’s energy needs are met in a manner that is reliable, affordable, and environmentally sound.” The Order also directs the Task Force to examine “alternative means to supply the energy sources currently used by U.P. residents, and alternatives to those energy sources.”

The precipitating force behind this urgent energy analysis is Enbridge’s increasingly risky 67-year-old Line 5 pipeline, which has ruptured or otherwise leaked at least 33 times since 1968, and the failure to date to prioritize and assure a backup alternative for delivering propane in the Upper Peninsula. Line 5 is operating far past its life expectancy and continues to threaten the Great Lakes, public health, and drinking water supplies for thousands of Michiganders. With no backup plan for delivering alternative propane supplies to the U.P. in the event of a catastrophic Line 5 pipeline rupture, including in the dead of winter, the outdated pipeline also endangers the safety, security, and energy independence of Upper Peninsula residents who rely on propane to heat their homes.