Tag: Line 5

What Enbridge Really Knows About the Risk of a Line 5 Rupture in the Straits of Mackinac

“Safety. It’s a core value that makes us Enbridge. It’s our way of life.”
Enbridge, Our Commitment

 

Universally considered among the most vulnerable, at-risk pipelines in the world, the 4-mile segment of Line 5 crossing the Straits of Mackinac, where Lake Michigan and Lake Huron meet, is quite literally, an accident waiting to happen.

Line 5: America’s Most Dangerous Pipeline?

Owned and operated by Canadian corporation Enbridge, the 71-year-old dual pipelines known as Line 5 no longer rest on the lakebed floor as the original engineers in the early 1950s planned. Due to massive erosion and lakebed scouring from the strong lake currents, Line 5 is now haphazardly tethered and suspended above the bottom of the Straits of Mackinac by more than 200 supports.

And yet every day, this high-wire act moves 23 million gallons of oil and natural gas liquids through the water. Given the extraordinary currents in the Straits, the structural integrity of the now-elevated pipelines is a continuing concern, second only to the ever-present risk of an anchor strike from a passing ship rupturing one or both of the pipelines.

The chasm between Enbridge’s public statements regarding its pipeline safety measures and Enbridge’s internal understanding of the actual risk of Line 5 failing catastrophically should alarm everyone in the Great Lakes region.

Like the oil industry concealing its long-held understanding of the climate effects of fossil fuel combustion, or the denials of the tobacco companies regarding the cancer risks from smoking, Enbridge has deceived the public by underplaying its internal findings that Line 5 could rupture at any time.

In its public statements, Enbridge assures the public that everything is fine. But Enbridge’s internal assessment of the risk of a catastrophic oil spill from a Line 5 failure is at odds with its PR statements. And its commitment to safety appears as porous as its pipelines.

The Anchor Strike Threat: Serious, Undeniable, and Fully Acknowledged by Enbridge

Shipping on the Great Lakes accounts for nearly 40% of total cross-border trade between the US and Canada, and the Straits of Mackinac are one of the busiest shipping lanes in the region. Each year, hundreds of cargo vessels – some measuring 1,000 feet and carrying as much as 70,000 tons of cargo – pass through the turbulent 5-mile wide strait, and directly over Line 5.

In 2015, Dynamic Risk Assessment Systems, Inc. conducted a comprehensive risk analysis of the Straits pipelines. The analysis found that the risk of a pipeline-anchor incident depends largely on four “vulnerability factors”:

  1. size of the pipeline;
  2. water depth (relative to anchor chain length);
  3. pipeline protection (depth of burial, use of armoring material); and
  4. number and size distribution of ship crossings per unit of time.

The report found that the Line 5 pipelines scored high on all four risk factors:

“[I]t must be noted that with respect to the above vulnerability factors, the Straits Crossing segments cross a busy shipping lane…They are also situated in water that is shallow, relative to the anchor chain lengths of most cargo vessels. Furthermore, a 20-in. diameter pipeline is small enough to fit between the shank and flukes [emphasis added] of a stockless anchor for a large cargo vessel, and thus, is physically capable of being hooked.”


(click to enlarge)

The Dynamic Risk report concluded that the chance of a pipeline rupture caused by an anchor strike in the Straits within the next 35 years is one in sixty. Those are the same odds that the average person has of being involved in a traffic accident this year.

In a 2018 Enbridge commissioned report, Enbridge acknowledged the threat of an anchor strike in the section titled: Potential Impacts of Anchor Drops and Drags.

“Dragging of an anchor across an unburied pipeline may result in impact, pull-over or, less frequently, a hooking interaction with the pipeline. A large-diameter pipeline could safely resist the pull-over anchor loads of small vessels, but anchor loads of larger vessels could potentially pull the pipeline beyond its bending capacity [emphasis added]. If an anchor is dragging along the lakebed and is not pulled over the pipeline, it could be hooked under the pipeline.” (p. 21)

Predictably, Line 5 has been struck by at least three anchor strikes or cable drags in the last 5 years – even with heightened scrutiny – that have damaged the pipelines or severed nearby transmission cables.

Documented Anchor Strikes on Line 5

In April 2018, the tug Clyde S. Van Enkevort in articulated combination with the barge Erie Trader, dragged an anchor and chain over both Line 5 pipelines. The large anchor, weighing 12,000 pounds, dented the pipelines and easily could have ruptured either the eastern or western pipeline had the anchor’s fluke caught a pipeline. The same incident severed electrical cables in the Straits close to Line 5, releasing approximately 800 gallons of dielectric fluid into the Straits that the Coast Guard never recovered.

Enbridge sued the owner of the tug Van Enkevort. In its complaint, Enbridge’s attorneys asserted that “a reasonable vessel operator would be cognizant of the potential for severe harm to the Great Lakes should any of the pipelines and cables in the Straits of Mackinac be struck by an anchor…” [emphasis added].

In other words, Enbridge is fully aware of the dangers of running fossil fuel pipelines through the open waters of the Straits of Mackinac, and the environmental disaster that could occur.

Later inspections in May and June 2020 revealed extensive new damage to the coatings and surface of both east and west pipelines. Enbridge’s internal investigation revealed that a ship under contract to Enbridge likely dragged a cable that became entangled with a pipeline support, damaging both the support and the pipeline.

In June 2020, following the discovery of the damage and Enbridge’s admitted failure to fully notify the State of Michigan as it is required to do, Michigan Circuit Court Judge James Jamo ordered a temporary shutdown of the pipeline, writing that the risk of harm to the Great Lakes would be “not only substantial but also in some respects irreparable.”

In July 2021, another 15,000-pound anchor lost by an Enbridge-contracted vessel was found on the lakebed between the two Line 5 pipelines. Larger than the Van Enkevort anchor, if the flukes had caught either of the pipelines, disaster would have ensued.

Pipeline breaches by anchor strikes are not uncommon. The Associated Press reviewed more than 10,000 reports submitted to federal regulators and found at least 17 pipeline accidents linked to anchor strikes from 1986-2020.

Anchor strikes are, unfortunately, all too frequent–and the Line 5 pipelines are uniquely vulnerable.

Anchor Deployments in the Great Lakes

The Coast Guard’s realization of the apparent danger of anchor strikes and cable drags in the Straits resulted in the promulgation of a rule establishing a Regulated Navigation Area (RNA) that restricts anchoring in the area proximate to the pipelines. The RNA, however, specifically allows anchoring in the event of an emergency. A ship may deploy an anchor to protect the ship and crew in the event of a loss of power or steerage, or in the event of a collision, grounding, explosions, fires, or heavy weather.

The unfortunate reality is that vessels on the Great Lakes can lose propulsion or steerage within areas designated a “no anchor” zone.

A recent review of U.S. Coast Guard records by the Detroit News revealed that freighters on the Great Lakes lost steerage, propulsion, or electrical power more than 200 times between 2012 and 2022. When such an emergency occurs, a ship captain’s first responsibility is to protect the vessel from damage and ensure the safety of the crew by deploying anchorage.

That is precisely why the dual pipelines in the Straits are uniquely vulnerable to anchor strikes and catastrophic rupture – as affirmed by Enbridge itself. The record of the last five years alone is one of repeated anchor strikes, cable drags, and detached anchors discovered lying near the pipelines.

To justify the continued operation of Line 5 in the Straits, Enbridge touts a “suite of extra safety measures at the Line 5 Straits crossing.” They include the establishment of the Enbridge Straits Maritime Operations Center (ESMOC), the “nerve center” of the marine traffic safety system put in place by Enbridge in the Straits that ostensibly warns ships of the danger of anchoring in the Straits.

But the ESMOC has a loophole you could sail a freighter through: it can only operate as intended 1) in daylight, and 2) if weather conditions permit. But even if it operates as intended, a ship will almost certainly throw an anchor in the event of an emergency loss of power or steerage – which happens on average 20 times per year in the Great Lakes.

Only by sheer luck has the Great Lakes region avoided a multibillion-dollar economic and environmental catastrophe.

Enbridge’s calamitous safety record

Enbridge is responsible for the most destructive pipeline rupture in United States history. The July 2010 failure near Marshall, Michigan released more than 1 million gallons of diluted bitumen (known as “dilbit”) into a direct tributary of the Kalamazoo River. The rupture of Line 6B resulted in devastating impacts to human health and the environment. The Michigan Department of Community Health identified 320 individuals experiencing acute adverse health effects.

The NTSB’s accident report documented how malfeasance and mismanagement exacerbated the pipeline failure, resulting in pervasive contamination and massive ecological damage to the waters and surrounding wetlands from the oil that flowed from Marshall Creek and contaminated a 40-mile stretch of the Kalamazoo River.

The NTSB concluded that “the rupture and prolonged release were made possible by pervasive organizational failures at Enbridge. [emphasis added]” According to then NTSB Chairman Deborah Hersman, “The investigation identified a complete breakdown of safety at Enbridge.” “Their employees performed like Keystone Kops and failed to recognize their pipeline had ruptured and continued to pump crude into the environment. Despite multiple alarms and a loss of pressure in the pipeline…they failed to follow their own shutdown procedures.”

Since the Kalamazoo disaster, Enbridge has claimed a renewed ethic of responsible oversight and commitment, stating that the “safety of the public and the environment, and the operational reliability of our systems will always be our Number One priority.” Sued by the Environmental Protection Agency over the catastrophe, Enbridge entered into a consent decree in 2017 where it agreed to undertake a suite of pipeline monitoring and preventative measures aimed at reducing the likelihood of future pipeline failures. Enbridge paid over $177M in a settlement with the U.S. Department of Justice for the Kalamazoo disaster.

While Enbridge makes much of its new safety-first principles, the record indicates a pattern of systemic noncompliance with the terms and conditions of the 2017 consent decree. Since Enbridge entered the agreement with the federal government, the United States has assessed stipulated penalties for allegedly violating the inspection requirements and other terms of the consent decree, indicating that Enbridge has repeatedly failed to remedy pipeline safety issues in a timely manner.

In total, the United States has assessed Enbridge with penalties of $16,462,000 for failing to live up to its commitments and responsibilities under the 2017 consent decree.

Even after the most consequential pipeline disaster in U.S. history that, according to Enbridge, led to sweeping safety reforms throughout the company, Enbridge was penalized six times by the United States for failing to live up to its commitments on safety.

Line 5 must be shut down now

The incident history of the Enbridge pipeline system reveals a pattern and practice of negligence and willful indifference to the strict requirements of federal pipeline safety regulations. Enbridge’s safety record speaks for itself. Data from the Pipeline and Hazardous Materials Safety Administration (PHMSA) indicate that the U.S. segments of Enbridge’s pipeline network experienced 215 hazardous liquids “incidents” from 2002 to August 2018 – an average of one every twenty-eight days. Line 5 alone has experienced at least thirty-three reportable leaks and spills since its installation.

There is overwhelming evidence that the dual underwater pipelines crossing the Straits of Mackinac are particularly vulnerable to catastrophic ruptures and could fail at any time – a possibility acknowledged and affirmed by Enbridge itself. As Enbridge has asserted in its pleadings in the Van Enkevort litigation, the elevated pipelines are clearly vulnerable to anchor strikes and cable drags that could result in the catastrophic failure of the pipelines at the center of the most sensitive and valuable fresh surface water system in the world.

Enbridge knows that anchor drags and strikes are common in the Great Lakes.

Enbridge knows that Line 5 is vulnerable to anchor strikes.

Enbridge knows its warning system is half-baked.

Enbridge knows that an oil spill in the Straits would be catastrophic.

Enbridge knows that today could be the day.

And Enbridge knows it makes a whole lot of money sending fossil fuels through pipes – and through our Great Lakes.

Enbridge continues to violate inspection and monitoring agreements, safety standards, and regulations. It has breached the terms of easement granted by the State of Michigan for the operation of Line 5, defied a lawful Notice of Revocation and Termination of the easement from the Governor of the State of Michigan to cease operation of the pipelines crossing the Straits of Mackinac. And it benefits from a continuing trespass on the sovereign lands of the Bad River Band in northern Wisconsin.

Enbridge’s defiance is a lethal combination of greed, arrogance, and a breach of corporate and civic responsibility. The continued operation of Line 5 must end now.

FLOW Appeals MPSC Decision Approving the Line 5 Tunnel

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

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

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

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

Nessel v. Enbridge: Oral arguments in the U.S. Court of Appeals for the Sixth Circuit

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Listen to audio recording of the oral arguments

Traverse City, Mich.— Today, March 21, the U.S. Court of Appeals for the Sixth Circuit heard oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.

Both before and after Nessel’s suit, the Straits pipelines have been repeatedly struck by anchors or cables dragged by passing vessels, and two anchors have been found lying on the lakebed near the pipelines. “The threat of rupturing the aging pipeline and causing a catastrophic oil spill in the Great Lakes is a clear and ever-present danger,” stated FLOW Executive Director Liz Kirkwood. “The largest fresh surface water system in the world is at great risk.”

The Attorney General filed her lawsuit in Michigan state court in 2019 to force shutdown of Line 5. Since then, Enbridge, following Big Oil’s playbook of delay, has thrown up numerous procedural roadblocks to try to derail the lawsuit, including removal of the case to federal court. The Attorney General challenged that removal on the grounds that Enbridge’s tactic came way too late, and the federal courts lacked jurisdiction over the state law-based claims in the complaint originally filed in state court.

In 2023, the federal district court sitting in Grand Rapids sided with Enbridge, and the Attorney General appealed. Today, Assistant Attorney General Dan Bock argued to the Sixth Circuit that by waiting more than two years to remove the case to federal court, Enbridge’s removal was untimely and must be rejected. Mr. Bock also argued that, timing issues aside, the federal court misapplied the law when it ruled that the case belongs in federal court rather than state court. The Attorney General argued that yanking the case out of state court simply because Enbridge prefers a federal forum violates the State’s right to have state claims resolved in state court.

Enbridge’s attorney Alice Loughran argued that the removal to federal court was timely, and should remain in federal court because federal issues dominate the case. Those issues include the effect of the 1977 U.S. – Canada transnational pipelines treaty, the federal Submerged Lands Act, and the extensive federal regulation of oil pipelines. Enbridge essentially argued that Michigan’s sovereign rights and responsibility to protect the clean waters of the Great Lakes from another Enbridge oil pipeline disaster are not enforceable in state court and must yield to the need for continuous crude oil delivery through Line 5. In short, the protection of commerce and Enbridge’s Line 5 profits (roughly $2 million per day) are federal issues that must take precedence.

The arguments were presented to a three-judge panel of the Sixth Circuit Court of Appeal: Judges Griffin, Thapar and Nalbandian. The questioning by the judges reflected deep skepticism of Enbridge’s argument that the district court was correct when it excused the company from compliance with the time requirements for removal of the case from state court to federal court. On the question of jurisdiction, the judges seemed divided on whether the federal Submerged Lands Act or the pipelines treaty with Canada provide a sufficient basis for the exercise of federal court jurisdiction. At the conclusion of the arguments the case was taken under advisement. While no timeline was given, we expect the court to issue its ruling this spring.

FLOW filed an amicus curiae (friend of the court) brief in support of the Attorney General. In its brief, FLOW argued that removal of the case to federal court upset the traditional balance of responsibilities between the federal and state judiciaries. In particular, an affirmance of removal would deprive the State of Michigan and the Attorney General of well-established rights under Michigan law and U.S. Supreme Court precedent to assert the public trust doctrine to prevent the use of state-owned Lake Michigan bottomlands for private, commercial gain. FLOW also argued that Enbridge’s reliance upon the so-called “foreign affairs doctrine” to shield it from state remedies for violation of the public trust, nuisance law, and enforcement of the Michigan Environmental Protection Act is a gross distortion of federal-state relations under our federal system of government guaranteed by the U.S. Constitution. Mr. Bock acknowledged FLOW’s arguments during his presentation to the court.

FLOW strongly supports Attorney Nessel’s effort to return this case to state court and proceed to a trial on the merits of her claim that Line 5 is unreasonably dangerous, and that the threat of an enormous environmental disaster must be terminated without further delay.

Federal Court Hears Arguments from Bad River Band and Enbridge in Appeal of Line 5 Pipeline Shutdown Order

Traverse City, Mich.— On February 7, 2024, the U.S. Court of Appeals for the Seventh Circuit in Chicago heard oral arguments in the Line 5 case involving northern Wisconsin’s Bad River Band of Lake Superior Chippewa and Enbridge, Inc., a Canadian multinational pipeline and energy company headquartered in Calgary, Alberta, Canada. The panel of Appellate Judges was Frank H. Easterbrook, Michael Y. Scudder, Jr., and Amy J. St. Eve. Line 5 is a 71-year-old pipeline, threatening the Great Lakes with a catastrophic spill to deliver oil and gas to Canada.

In 2019, the Bad River Band initiated this litigation to evict Enbridge’s 12-mile stretch of Line 5 oil pipeline from their territory based on claims of trespass, nuisance, unjust enrichment, and injunctive. The band then filed for emergency injunctive relief in May 2023, following massive spring flooding events that caused alarming rates of erosion along the Medicine River and threatened to destabilize and rupture the pipeline. On June 16, 2023, U.S. Western District Court of Wisconsin Judge Conley issued a remarkable decision, finding Enbridge in “conscious and willful trespass” and ordering shut down by June 2026 of a Line 5 section running through the tribe’s sovereign territory, and pay the tribe $5.1 million. This is the first time a date has been set to shut down Line 5. 

On appeal, Enbridge’s attorney Alice Loughran argued the Seventh Circuit should vacate Judge Conley’s order, relying on two key arguments: (1) the Bad River Band was not acting pursuant to the “best efforts” clause of the 1992 easement agreement; and (2) Judge Conley’s order violated the 1977 Pipeline Treaty between the U.S. and Canada, which limits the authority of each country to impede the flow of oil and natural gas through pipelines between the nations. 

In response, the Bad River Band’s lawyer, Paul Clement, urged the appellate court to affirm the lower court’s order requiring Enbridge to stop trespassing, and require immediate compliance, not three more years on top of ten years of trespass. Clement also argued that Enbridge must turn over the Line 5 profits realized since its reservation easements expired in 2013. Three additional years of ongoing trespass is unreasonable, Clement said, particularly given the upcoming spring flooding threat, like last year’s, which eroded the land to within 11 feet of the pipeline.

The judges probed why federal agencies were not working faster to approve Enbridge’s proposed 41-mile pipeline re-route around the Bad River reservation. They also questioned why the tribe has not taken precautionary measures like using sandbags to mitigate the risk created by Enbridge. Clement countered that it is unreasonable and unfair to expect the tribe to take affirmative steps that sanction and reinforce the trespasser’s illegal and intentional occupation of the tribe’s land. 

The hearing concluded with Judge Easterbrook announcing that the court would not decide this case until at least next month, after the court receives a briefing on the federal government’s position. 

Next month on March 21, the U.S. Court of Appeals for the Sixth Circuit will hear oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Multiple anchor strikes have occurred, threatening to rupture the line and causing a catastrophic oil spill in the Great Lakes. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.

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FLOW is an independent, 501(c)(3) nonprofit that serves as a Great Lakes water law and policy center dedicated to ensuring the waters of the Great Lakes Basin are healthy, public, and protected for all. The enduring idea of the commons and legal principles of the public trust offer unifying adaptive solutions to address basin-wide threats. FLOW’s staff of legal and policy experts, journalists, and community-builders makes FLOW an authoritative resource for Great Lakes advocates. FLOW builds a knowledge base for communities, state agencies, and legislators to inform policy and advocacy for water issues. Learn more at www.ForLoveOfWater.org.

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FLOW Appeals MPSC Permit to Site Replacement Line 5 Pipeline in Proposed Great Lakes Tunnel

Media Release: January 3, 2024

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Traverse City, Mich.— For Love of Water (FLOW), a Great Lakes water law and policy center, filed an appeal on December 22, 2023 with the Michigan Court of Appeals to overturn the Michigan Public Service Commission’s December 1 decision to approve the application from Canadian oil company Enbridge to relocate its twin Line 5 crude oil and natural gas liquids (NGLs) pipelines to a proposed new underground tunnel. Line 5 currently spans 4.5 miles on the lakebed floor of the Straits of Mackinac.

In its approval, the MPSC dismissed alternatives to routing Line 5 through the Straits. However, recent industry reports show that there are a range of commercially feasible and operationally viable alternatives to transport crude and NGLs in the event of a Line 5 shutdown. These alternatives include leveraging excess capacity in existing pipelines that do not run through the waters of the Great Lakes.

FLOW contends that the Commission’s decision to permit relocating Line 5 to a yet-to-be-approved tunnel violates the Michigan Environmental Protection Act (MEPA). MEPA requires all agencies to determine if a proposed project is likely to impact the air, water, and natural resources, or public trust in those resources, and to deny approval when, as here, there are feasible and prudent alternatives.

Multiple studies demonstrate that the North American energy market is flexible, adaptable, and resilient, and that Line 5 could be decommissioned without causing supply shortages or price spikes. It is clear that the region has the capacity for a planned and orderly transition to shut down Line 5 and to protect the Great Lakes – which comprise 95% of North America’s fresh surface water – from a catastrophic oil spill. Since 2017, large energy firms and refineries have developed contingency plans for a Line 5 shut down.

Enbridge has yet to obtain the required federal authorization from the US Army Corps of Engineers to construct this mega-infrastructure tunnel project. A final environmental impact statement is expected from the Army Corps in spring of 2026, following public meetings and comment period in 2025.

“Because the Snyder administration cut a deal in 2018 to let Enbridge continue to use the vulnerable dual pipelines in the Straits until a tunnel is built, the State unlawfully and prematurely gave the green-light to Enbridge to operate Line 5 for another 99 years,” James Olson, Sr. Legal Advisor and attorney for FLOW said. “This has poisoned decisions by state agencies, most recently the MPSC, to assume that they don’t have to consider the risks, effects, and alternatives to the continued operation of Line 5.”

FLOW, and other organizations and tribes who have appealed the Commission’s December 1 order will ask the Court of Appeals to overturn the decision and require the Commission to apply the rule of law under MEPA and consider feasible and prudent alternatives to the tunnel and reevaluate its improper, short-sighted commitment to this major piece of new fossil fuels infrastructure in the face of undeniable climate change impacts and risks.

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Contact: Liz Kirkwood, Executive Director
Phone: (231) 944-1568
liz@flowforwater.org

Related:

December 1, 2023: Disgraceful: MPSC Approves Permit for Enbridge Tunnel in the Straits of Mackinac; Breaches Legal Duty to Protect Michigan’s Natural Resources

November 17, 2023: What happens when Line 5 is shut down? A report on energy market impacts

March 16, 2022: FLOW to Michigan Public Service Commission: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Disgraceful: MPSC Approves Permit for Enbridge Tunnel in the Straits of Mackinac; Breaches Legal Duty to Protect Michigan’s Natural Resources

Traverse City, Mich. — FLOW is shocked that the collective efforts of thousands of Michiganders and treaty-protected tribes to protect our waters from the catastrophic risks of Line 5 have been ignored in today’s decision by the Michigan Public Service Commission (MPSC) to grant authorization for a Line 5 tunnel. The Straits are no safer while an unprecedented tunnel perpetuates the threat of an explosion spilling oil and gas into these ecologically fragile and economically vital waters.

In the same week that Governor Whitmer signed into law a nationally significant climate bill to decarbonize 100% of Michigan’s electricity production by 2040, today’s ruling is a black mark on the administration’s climate record and a disgrace to all of Michigan. A Line 5 tunnel with a 99-year lease will be an embarrassing albatross, hobbling future efforts to transition the region off fossil fuels and imprudently burdening taxpayers.

The Commission’s approval of a tunnel and 99-year new crude oil and natural gas liquids pipeline betrays its perpetual and solemn public trust responsibility as the sworn guardians of the public rights of citizens in the Great Lakes. This is not a “just transition” but a craven capitulation to fossil fuel profits.

Three years ago, FLOW intervened as a party before the MPSC in Enbridge’s proceeding seeking approval of a pipeline tunnel under the Straits. FLOW legal advisors Jim Olson and Skip Pruss have represented the public’s interest in the Great Lakes and Michigan’s priceless ecosystem. Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960).

The authorization breaches the MPSC’s legal duty to prevent likely degradation of Michigan’s air, water, natural resources, and public health—including drinking water, fishing, sanitation, boating and recreation—under Michigan’s environmental protection laws and the mandates under article 4, section 52 of Michigan’s Constitution.

Michigan environmental law prohibits the Commission from authorizing a pipeline when, according to the recent PLG Consulting report, reasonable, practical, feasible, and prudent, and affordable alternatives exist, and environmental damage is likely. The Michigan Environmental Protection Act expressly states that under these circumstances, a permit or approval “shall not be authorized.”

FLOW Founder and veteran Michigan environmental lawyer Jim Olson said: “There is no justification, morally or legally, for a new crude oil pipeline and tunnel that will last into the days of our great-great-grandchildren. When they look back at us, what kind of ancestors will they see?”

This fight is not over, and FLOW will be there.

What happens when Line 5 is shut down? A report on energy market impacts

PLG Consulting’s 111-page October 2023 report, Likely Market Responses to a Potential Shutdown of LINE 5, provides an overview of potential impacts and market responses in the event of a planned and orderly shutdown of Enbridge’s Line 5 pipeline. Line 5 is part of Enbridge’s Lakehead System, transporting crude oil and natural gas liquids from Superior, Wisconsin — through the underwater Straits of Mackinac — to Sarnia, Ontario.

For several years, litigation and policy efforts have sought Line 5’s closure. Recently, a federal court ordered the removal of a section of the pipeline by June 2026 – a significant development in the Line 5 saga. The report addresses what would happen to Line 5 products and markets in the event of a planned shutdown, exploring alternative options for crude oil and natural gas liquids (NGLs) transportation. PLG emphasizes that it does not take a position on the merits of a shutdown.

Key Findings:

Market Adaptation: With advance notice, energy markets can be expected to adapt to a Line 5 shutdown without experiencing supply shortages or price spikes.

Resilience Characteristics: The report highlights the resiliency of Line 5 products and markets, with large energy firms having developed contingency plans since 2017.

Crude Oil Alternatives: Commercially viable and operationally feasible alternative supply chain solutions exist for crude oil, involving existing infrastructure and increased utilization of rail capacity.

NGL Alternatives: The report outlines solutions for propane delivery to specific regions, including utilizing existing rail terminals in the short term, and longer-term options like expanding rail terminals.

Long-Term Trends: Decarbonization will have long-term impact on refined fuels demand, considering factors like vehicle fuel efficiency standards and the growing market share of electric vehicles.

Summary

A range of commercially feasible and operationally viable solutions exist for alternative crude and NGL supply chains in the event of a Line 5 shutdown.

For a more detailed understanding, please refer to the original document.

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FLOW files amicus brief; urges Sixth Circuit Court of Appeals to remand Line 5 lawsuit back to state court

Read FLOW’s summary of the PLG Consulting report, Likely Market Responses to a Line 5 Shutdown

[PRESS RELEASE: DOWNLOAD PDF]

[AMICUS BRIEF: DOWNLOAD PDF]

Traverse City, Mich.—Today, September 25, 2023, FLOW (For Love of Water) filed a motion with the Sixth Circuit Court of Appeals in the 2019 state lawsuit Attorney General Dana Nessel v. Enbridge, requesting the federal appeals court to accept an amicus brief that articulates why this case should be remanded back to state court where it belongs.

Built in 1953, Line 5 is a 70-year-old oil pipeline operating in fierce currents on the bottomlands of the Straits of Mackinac, where Lake Michigan and Lake Huron meet. The underwater pipeline has been repeatedly struck by ship’s anchors, and cables dragged by passing vessels have damaged the pipeline and its supports. Line 5 is uniquely vulnerable to multiple impacts that could result in irreversible environmental harm and billions of dollars of damage to the Great Lakes regional economy.

Three years after the Attorney General filed the 2019 state lawsuit, Enbridge in a procedural tactic removed the case to the federal district court in Grand Rapids, Michigan. The federal district court refused to remand the case back to state court. The Sixth Circuit Court of Appeals accepted Attorney General Nessel’s request to appeal the district court’s ruling in July, and has directed the Attorney General and Enbridge to submit legal arguments on whether to remand the case back to state court in Michigan.

The waters and bottomlands are sovereign public trust resources held by the State of Michigan in trust for the benefit of the citizens of Michigan and the Great Lakes region. Long-standing legal principles that balance federal and state interests weigh in favor states’ rights and jurisdiction over public navigable waters and bottomlands.

As an advocacy organization committed to protection of the precious state sovereign water resources, FLOW has requested permission to file a “friend of the court” brief, technically called an amicus brief, to provide the Sixth Circuit Court of Appeals our unique perspective regarding its knowledge and experience of Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine. State courts are the sworn guardians with a responsibility to protect the public’s rights in and uses of navigable waters and submerged lands throughout the Great Lakes region. Our shared waters are a public trust, and it is the duty of our state governments to act as stewards of this trust, ensuring that the interests of current and future generations are safeguarded.

But for the State of Michigan’s conditional authorization under public trust law, Line 5 could not have been built on the bottomlands of Lake Michigan in the Straits of Mackinac. When the state granted an easement to Enbridge’s predecessor 70 years ago, it was subject to the perpetual duty and right of the state to assure the public trust in the Great Lakes is never impaired. The easement was never properly authorized, and in any event, is subject to revocation and termination when the public trust waters and natural resources are threatened with risks of devastating harm. In the absence of that authorization and in the face of this extraordinary risk, Line 5 can not continue to operate.

The Great Lakes Business Network (GLBN) alongside 60 Tribes and First Nations have filed two additional amici briefs supporting the Attorney General’s request to remand the Line 5 public trust case back to state court.

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FLOW’s Technical Questions for the Mackinac Straits Corridor Authority

The Mackinac Straits Corridor Authority (MSCA) is a three-member panel that is responsible for overseeing Enbridge’s proposed pipeline tunnel project under the busy, environmentally sensitive Straits of Mackinac, pending all applicable permits and approvals.

In June 2023, FLOW submitted public comments to the MSCA, to help further public understanding of the purpose, need, and challenges associated with the present status of the tunnel project. For each question, FLOW has provided background information in order to contextualize the questions and illustrate the importance of providing critical project information so that stakeholders can be better informed.

The next meeting of the MSCA will be held on October 2, 2023 in St. Ignace.

Download FLOW’s letter to the MSCA (PDF)

Get the Facts on Line 5 with FLOW’s New, Updated Fact Sheet

Every day, Enbridge’s Line 5 pipeline carries nearly 23 million gallons of oil and natural gas liquids (NGLs) from the oil sand fields in western Canada to refineries in Ontario, using the Straits of Mackinac as a high-risk shortcut. In FLOW’s new, updated Line 5 Fact Sheet, you’ll learn the latest on the pipeline, why the tunnel is a dangerous proposition, and what you can do to help get oil out of the Great Lakes.

Download the PDF