Tag: Line 5

The Line 5 Shutdown Order: A Major Milestone in Michigan’s Environmental History

Dave Dempsey, Senior Advisor

By Dave Dempsey

The State of Michigan’s decision last Friday to revoke and terminate the 67-year-old easement across the Straits of Mackinac granted to Enbridge for the Line 5 petroleum product pipelines was more than that day’s news—it was an event that will be remembered in the state’s environmental history.

Governor Gretchen Whitmer, Department of Natural Resources (DNR) Director Dan Eichinger, and Attorney General Dana Nessel announced the decision based on Enbridge’s consistent track record of deception, subterfuge, and poor stewardship, which put at risk a large area of the Great Lakes and the people, industries, aesthetics, and public uses dependent on them. Legally, it was a sound decision under the Public Trust Doctrine, but politically it was difficult. The same is true of most of the milestones in our environmental past. Dedicating Northern Michigan lands to building a public forest out of ravaged land in the early 1900s, standing up to developers who wanted to despoil the Porcupine Mountains in the 1950s and 1960s, and laying down the law on flagrant polluters in the 1960s and 1970s all took political guts, supported by law.

The Line 5 shutdown announcement brought to mind the epic fight over protection of the Pigeon River Country State Forest in the 1970s and early 1980s. This northern Lower Peninsula gem had fed the imagination of a young Ernest Hemingway and had been cobbled together by P.S. Lovejoy, considered Michigan’s equivalent of Aldo Leopold. Lovejoy dubbed the preserve “The Big Wild” and said it “should be left plenty bumpy and bushy and some so you go in on foot—or don’t go at all.”

The discovery of petroleum reserves under the Pigeon River Country State Forest in 1970 fueled an unwise decision by the DNR to offer drilling leases to petroleum companies. Determined to fight for the Big Wild, a legion of individuals, conservation and environmental groups, and editorial writers turned the battle into a test of state priorities. Specifically, weren’t there some publicly owned areas of the state that should be off limits to resource exploitation because of their beauty and significance, and the risk of a catastrophic accident? Governor William Milliken, urged on by First Lady Helen Milliken, took the side of the protectors.

The contest rose all the way to the Michigan Supreme Court, which ruled in 1979, under the Michigan Environmental Protection Act, that drilling could result in unacceptable destruction of the Forest’s herd of 255 elk. Coupled with another Supreme Court decision the same month on a separate drilling appeal in the Forest, the decision effectively barred drilling there.

It was a monumental victory for the forest protectors, but it also sowed the seeds of a partial defeat. Michigan’s economy was struggling and oil companies wooed lawmakers with visions of riches from petroleum development. Rather than lose everything, some members of the coalition of forest guardians compromised on a limited, phased development plan. And out of the controversy rose the idea of dedicating revenues from petroleum development on state lands to public land acquisition. That idea grew into the constitutionally protected Michigan Natural Resources Trust Fund, which has now spent more than $1 billion to give the public access to state and local parks, Great Lakes shoreline, scenic wonders, hunting and fishing recreation, public forestland, and more.

The parallel to Line 5 is not exact except in its lesson that a persistent, well-organized, and well-informed citizen coalition is critical to protecting the best of Michigan. And it shows that public officials who look beyond the moment can take action with significance for decades to come.

Last week’s announcement was one of the finest hours in Michigan’s conservation history. The battle is far from over, but it is headed toward protection of our Great Lakes. I am proud that FLOW and its public trust law and advocacy were a big part of it.

Oil & Water Don’t Mix with the Public Trust in the Great Lakes

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

By Jim Olson

In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action. 

The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.

Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.

Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case

That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person. 

Line 5 passed that threshold many years ago. 

To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.

Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries. 

There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.  

A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.

This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount. 

Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.

Fact Check: When Line 5 Shuts Down, Detroit Jets Will Still Fly and Union Refinery Jobs Will Still Exist

Photo credit: Kathryn DePauw

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By FLOW Staff

Gov. Gretchen Whitmer and the State of Michigan have taken legal action to shut down Line 5 in the Straits of Mackinac by next May to prevent a catastrophic oil spill in the Great Lakes from the 67-year-old pipeline. Meanwhile, Line 5-owner Enbridge and its allies continue to engage in a Chicken Little “sky is falling” campaign, with the Canadian company claiming in recent days that, “shutting down Line 5 would cause shortages of crude oil for refineries in Michigan, Ohio, Pennsylvania and eastern Canada, as well as propane shortages in northern Michigan. It also would boost shipments of oil by rail or trucks, Enbridge said, without providing any evidence.

Enbridge’s drumbeat of fear has been building for a few years, for example, with a full-page advertisement in 2019 in the Traverse City Record-Eagle, alleging that “Shutting down Line 5, even temporarily, would mean lost union jobs, refinery closures, gas price spikes and greater harm to the regional economy every year.”

In fact, none of those predictions materialized when both legs of the dual Line 5 pipelines in the Straits were shut down for more than a week last June and one leg remained closed until about mid-September following damage that the U.S. Coast Guard said likely was caused by an Enbridge-contracted vessel. Research conducted during the partial shutdown by former Dow Chemical engineer Gary Street found that in August after more than 50 days with at least one leg of Line 5 closed, gasoline prices and supply were unaffected in Michigan and Canada.

The research results are consistent with these studies forecasting little if any change in energy costs after Line 5 shuts down for good:

Upon the shutdown of Line 5, available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors.

  • Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and Pure Michigan economy, according to FLOW’s experts.
  • A Line 5 shutdown could increase the cost of gasoline in metro Detroit by only about 2 cents a gallon, according to a 2017 study commissioned by the former Snyder administration.
  • Shutting down Line 5 would add just five cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study by London Economics International LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
  • The Upper Peninsula has viable options to Line 5 for its propane supply and economy, according to FLOW’s research.
  • Oil & Water Don’t Mix has a great animated video showing how the Upper Peninsula does not need Line 5’s propane.

Another claim regarding the impact of a Line 5 shutdown emerged last year from management of the PBF refinery in Toledo, Ohio. Likely at Enbridge’s behest, PBF warned of a refinery shutdown and loss of a thousand jobs if the supply provided by Line 5 is no longer available. The Toledo refinery, PBF suggested, has no other source of petroleum.

This assertion immediately raised the question: What kind of refinery management would leave itself vulnerable by receiving crude from only one source? It also directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts. They emphasize the PBF refinery has several sources of supply and can adjust them depending on market conditions.

“The [PBF] refinery only processes light/medium and sweet crude and gets most of its WTI crude through pipeline from Canada, the mid-Continent, the Bakken region and the U.S. Gulf Coast,” an analyst says.  Another credits PBF with using “its complex crude processing capacity to source the lowest cost input.” PBF says in its 2016 filing with the Securities and Exchange Commission that crude is delivered to its facility through three primary pipelines, Line 5 from the north, Capline from the south, and Mid-Valley from the south. Crude is also delivered to a nearby terminal by rail and from local sources by a truck to truck unloading facility in the refinery property.

The fact is that multiple alternative pipelines, rail, and truck sources are and will be available to enable PBF to continue refining petroleum as it is today. No evidence points to job loss in Toledo from a Line 5 shutdown. And PBF itself said in a September 2017 news story challenging EPA regulations because of alleged job losses that the Toledo refinery employed 550, not 1,000 workers.

After Line 5 is shut down, the small percentage of its light crude coming to the U.S. could be supplied by other sources currently serving the region, including the Capline and Mid-Valley pipelines, along with crude from Northern Michigan oil wells.

Fanning employee and community fears with inflated claims is the latest in a series of tactics deployed by Enbridge and its allies to pressure Michigan officials into letting the company continue to occupy the Straits of Mackinac with its antiquated Line 5 pipeline, and later, a proposed oil pipeline tunnel under the lakebed.

PBF also claims that a feared Toledo refinery shutdown, which research cited above dispels, would seriously impinge on the supply of jet fuel at Detroit Metropolitan Airport, driving up fares or reducing flights, or both. The claim is that 40% of the jet fuel used at the airport comes from refined Line 5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day, and again alternative pipeline sources can more than make that up.

It is worth noting that prior to PBF’s claims made in 2019, the impacts of a Line 5 shutdown on Metro Airport jet fuel had never before been raised as an issue in the Line 5 debate. Now Canadian officials are singing the same tune to bring political pressure on the Whitmer administration, claiming this week that Line 5 “is the single largest supply for gasoline, ultimately, in southern Ontario; for aviation fuel out of the Detroit airport; for heating fuel in northern Michigan; for the refineries in northern Ohio that fuel much of the Midwest U.S. economy.”

For its part, Enbridge has a track record of misleading the public and governments about its performance, including failure for 3 years to report bare spots in the protecting coating on Line 5 in the Straits, violating for several years the safety conditions of its easement agreement to occupy the public waters and bottomlands of the Straits, and running a dubious advertising campaign claiming to protect Michigan’s water. Enbridge’s and allies’ recent claims are consistent with the company’s apparent philosophy of avoiding transparency and saying anything to keep Line 5 petroleum and profits flowing.

Key Facts, in a Nutshell

Jobs, let’s talk jobs! 

Continuing to operate the decaying Line 5 risks jobs. Many jobs. Shutting down Line 5 will protect hundreds of thousands of jobs in Michigan’s tourism economy. According to a FLOW-commissioned report in May 2018 conducted by an Michigan State University ecological economist, direct spending by tourists supports approximately 221,420 jobs, and the total tourism economy in 2016, including direct, indirect and induced impacts, supported 337,490 jobs—approximately 6.1% of total employment in Michigan.

Toledo PBF Refinery 

  • Enbridge’s and fossil-fuel industry allies have a track record of false and unsubstantiated claims and a lack of transparency.
  • The numbers are inflated:
    • Enbridge and refineries and some politicians are misleading the public. They falsely claim that the two Toledo refineries and one Detroit refinery, and by extension the jobs there, are fully and wholly dependent on Line 5, including a large number of jobs at these refineries. The refineries supposedly affected are: Marathon-Detroit; BP-Husky-Toledo — which carries no Line 5 feedstock because it’s a tar sands refinery that takes feedstock from Line 78 (formerly Line 6B), and PBF-Toledo. PBF states in its 2018 annual report for stockholders that it “processes a slate of light crude oils from Canada, the Mid-continent and the U.S. Gulf Coast.”
    • The refineries rely on multiple pipelines and suppliers, and they say so in writing.
    • Marathon refinery primarily uses dilbit, which Line 5 doesn’t currently carry.

Detroit Metropolitan Airport

  • In a letter to Michigan Gov. Gretchen Whitmer, Ohio Gov. Mike DeWine claimed, “our refineries supply the majority of aviation fuels to Detroit Metro Airport” and asserted shutdown of Line 5 would lead to airline schedule disruptions.
  • But 2020 jet fuel consumption at Detroit Metro will total 1,658,000 gallons per day, according to a 2010 estimate by the airport. Based on numbers published by PBF, BP Husky and Marathon Refineries, Line 5 appears to supply only about 10% of the jet fuel at Detroit Metro Airport, not 40% as claimed by Ohio Gov. DeWine. Both Marathon and PBF have other crude oil sources, and therefore other pipelines could provide feedstock to satisfy regional jet fuel needs. Alternatively, other nearby refineries in Illinois, Indiana and Ohio could make up this shortfall.

Bottom line: Shutting down Line 5 will protect hundreds of thousands of jobs. A Line 5 shutdown would not significantly impact jobs at Toledo refineries. There is absolutely no evidence that a shutdown would impair operations at Detroit Metro Airport.

Sources:

Comment by Oct. 19 on Permits for Risky Line 5 Oil Tunnel

enbridges-line-5-under-the-straits-of-mackinac

On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life. 

Below is guidance from FLOW on what to include in your written comments and how to submit them online by Monday’s deadline. EGLE expects to issue its final decision on the oil tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December.

Points to Make in Public Comments by Oct. 19

FLOW is providing this content for you to draw from and supplement with your own information and perspective in your comment to EGLE on the proposed Line 5 tunnel permits:

  • Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
  • Not good for the climate or Gov. Whitmer’s goals  — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with  the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
  • Not good for public health, safety, and welfare — EGLE is required to determine whether extending the life of an oil pipeline that will emit approximately tens of  million tons of greenhouse gases annually for the next 99 years, under the state Natural Resources and Environmental Protection Act, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
  • Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.

How to Submit Your Comments to EGLE by Oct. 19

Be sure to submit your comments on Enbridge’s proposed Line 5 oil tunnel by the Monday, Oct. 19 deadline. The public can submit comments either by email to EGLE-Enbridge-Comments@Michigan.gov — referencing Application Number HNY-NHX4-FSR2Q — or via two EGLE web pages for commenting separately on each of the permits. Click on each link below and follow the instructions provided by the state:  

  • EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
  • EGLE public comment page for National Pollutant Discharge Elimination System (NPDES) wastewater impacts.

How to Learn More about Line 5 and the Risky Oil Tunnel

To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:

Thank you for speaking up for the Great Lakes, drinking water, and a way of life here in the Great Lakes State!

Turning the Spotlight on Line 5 in the Great Lakes

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60

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.