Liz Kirkwood, Executive Director Cell: 570-872-4956
FLOW (For Love of Water) Email: liz@flowforwater.org
Jim Olson, Founder & President Cell: 231-499-8831
FLOW (For Love of Water) Email: olson@envlaw.com
ST. IGNACE – The state of Michigan must immediately apply the law, stop Line 5’s oil flow, and reject a Canadian company’s application to extract more life out of its decaying steel pipelines built in 1953, according to FLOW, a Traverse City-based Great Lakes water law and policy center in public comments made today. The comments came at a public hearing in St. Ignace on Enbridge’s bid for state approval to shore up parts of Line 5 that are bent or deformed due to the company’s neglect and support other areas potentially prone to erosion.
“Enbridge characterizes the application as seeking authorization for routine maintenance,” said Liz Kirkwood, FLOW’s Executive Director and environmental attorney. “The reality is that Enbridge is scurrying to rectify its dangerous neglect of maintenance over decades, including multiple violations of a legal agreement to properly anchor its dual pipelines against the swift currents in the Straits.”
A recent report by Dr. Ed Timm, a FLOW adviser and former Dow Chemical engineer, shows Line 5 is bent and deformed where Enbridge wants to anchor it. The report presents new evidence of structural damage to the western pipe where Enbridge seeks to install five of the 22 anchors into Lake Michigan’s public bottomlands, stemming from a company pattern of violating a 1953 easement granted by the state allowing Enbridge to occupy the Mackinac Straits.
The state’s easement agreement allowing Line 5 to occupy the Mackinac Straits limits unsupported spans to no more than 75 feet, but a 2003 survey identified 16 unsupported spans greater than 140 feet; the longest at 224 feet on the east leg and 286 feet on the west leg. Other Enbridge inspection report revealed nearly 250 instances between 2005 and 2016 of unsupported spans on the pipelines exceeded a 75-foot legal limit in violation of Michigan’s easement agreement with Enbridge. This track record does not provide confidence that the company will fulfill its obligations in the future.
By attempting to cloak the results of its neglect and avoiding an assessment of Line 5’s impacts and alternatives, Enbridge is perpetuating the imminent threat to the Great Lakes and the protected public uses that include fishing, commerce, navigation, recreation, and drinking, according to a legal analysis by FLOW.
In fact, the company’s poor performance as well as the massive work proposed provides a compelling legal basis for the state to consider feasible and prudent alternatives to continued operation of the dual Line 5 pipelines.
“The state of Michigan must consider under rule of law whether there are viable options to the piecemeal patch-up of these aging steel oil pipelines threatening the Great Lakes,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney. “Enbridge has expanded Line 5 and the new Line 78 from Indiana across lower Michigan to Sarnia under the rubric of ‘maintenance.’ Our cities, villages, and citizens have ended up with Enbridge’s version of the Keystone XL right here in the Great Lakes, and it happened without the public notice, hearings, and independent impact and alternative analyses required by law.”
Line 5 transports nearly 23 million gallons of oil and natural gas liquids each day through the Mackinac Straits, 80 percent more volume than its past design capacity after several of its so-called “maintenance” upgrades.
Of particular concern is Enbridge’s continued failure to predict and prevent the cumulative impacts on Line 5 of lakebed erosion caused by Straits currents that frequently reverse and can exceed 10 times the flow over Niagara Falls.
Contrary to assertions by Enbridge, the state taking action to stop Line 5’s oil flow in the Mackinac Straits to prevent a catastrophic oil spill would not disrupt Michigan’s or the Midwest’s crude oil and propane supply, according to a set of expert reports FLOW released in December 2015. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American pipeline system run not only by Enbridge, but also by competitors supplying the same refineries in Detroit, Toledo, and Sarnia, Ontario.
“The fact is, Line 5 is not essential,” said Rick Kane, a Michigan-based hazardous materials risk management specialist advising FLOW. “The regional pipeline system can supply crude oil to Michigan and surrounding refineries while eliminating the risk that Line 5 poses to the Great Lakes,” Kane said. “Feasible and prudent alternatives exist to support domestic needs, as well as exports. However, pipeline company owners will not move to implement any alternatives as long as Line 5 operates and the public continues to carry the risk.”
Public Statement
Michigan Department of Environmental Quality
Line 5 Straits New Anchor Structures
Jim Olson
President and Legal Advisor, FLOW (For Love of Water)
July 25, 2017
Director Grether, Division and Unit Chief Fisher, and the Gaylord Office Unit Supervisor Haas, and Great Lakes Submerged Land Specialist Graft:
This statement addresses a primary legal requirement for Enbridge concerning its proposal to locate, occupy, and engage in construction activity for twenty-two (22) new anchor supports on the public trust bottomlands and waters of Lake Michigan. The application as filed requests an activities permit pursuant to the Great Lakes Submerged Lands Act and Rules (“GLSA”) for placement of these twenty-two anchors as “other materials.” As will be seen, these anchors and the pipeline are new and involve far more than placing spoils or other materials as an activities permit. In fact, these anchor supports and line, in combination with the dual lines in the Straits, have never been authorized under the GLSA and public trust law.
FLOW submitted public comments into the record on this application on June 29, 2017, and will submit supplemental public comments and technical reports on or before August 4, 2017, the end of the extended public comment period. For purposes of the public hearing I offer the following specific comment on the legal framework for the proceedings under the GLSA for these twenty-two support anchors and the dual pipelines in the Straits of Mackinac.
First, the history of these new anchor supports, including the proposed twenty-two supports for the dual pipelines is directly related to the failure in design and construction of the original pipelines as authorized by the terms of the 1953 Easement and the substantial increase in crude oil flow rate from 300,000 bpd approved by the Public Service Commission in 1953 and the very new increase to 540,000 bpd as part of Enbridge’s project to expand its Lakeside System. A more detailed description of these anchors and why they are new and need approval to operate these dual lines are contained in FLOW’s June 29 public comment as supplemented by the comments to be filed on or before August 4, including the additional supplemental that will be submitted by technical experts Ed Timm and Gary Street.
Second, these anchor supports are new because they fall outside and were not authorized as part of the pipelines by the 1953 Easement. These anchors are new because they are proposed to prevent further bending in the compromised and deformed lines because of powerful currents and other forces in the Straits. As noted, they are also new because these supports together with other new facilities and equipment along Line 5 are part of the Enbridge expansion of its entire Lakehead System, including the doubling of Line 6b (now Line 78) to Stockbridge in southern Michigan.
In lay person terms, what does this mean? It means that the dual pipelines with these new anchor supports and increased flow volume have not been authorized by agreements to permit the occupancy of these anchor supports on the bottomlands and n the waters of the Great Lakes as required by the GLSLA and its Rules. It means that the pending application for the proposed new twenty-two new supports does not comply with the requirements under the GLSLA and its Rules for a proper agreement or authorization for occupying bottomlands and waters in the Straits.
New structures to prop up a previously authorized line based on the existing define and new and increased volumes as part of a major single expansion project require new authorization. It is as simple as that. Before the Department can act on Enbridge’s application for the construction activity permit for the anchor supports, Enbridge must first apply for and the State must authorize an occupancy conveyance or agreement in accordance with Sections 32502, 32503, and 32505 and other parts of the GLSLA and its Rules.
What to do, then? The most straightforward way to proceed is for the MDEQ to notify Enbridge that it must comply with the requirements for authorization to occupy as I have described above, and to cease or halt the use of the lines in the Straits unless and until these lines with these new anchor supports have been applied for and determined to satisfy the standards and requirements of the GLSLA and its Rules. Recent evidence from Enbridge records and grueling evaluation by Dr. Ed Timm demonstrate that the integrity of the pipelines, as noted above has been precariously compromised, and as a result, according to Dr. Timm, there is in 2017 a probability of a failure in one of the lines as high as forty-six percent (46%).
The only prudent and correct thing for the State to do to prevent impairment or injury to the public trust and public and private riparian rights, public health, and safety, is to halt the flow of oil and put the onus on Enbridge to apply for proper conveyance authorization for these new structures in conjunction with these pipelines—they are inextricably related. Enbridge can decide to apply for these new supports in conjunction with the condition of the pipelines and the eighty percent (80%) increase in flow of crude oil. The State DEQ can now once and for all finally consider and determine as trustee of the public trust protected by the GLSLA, whether Enbridge has shown there is no likely high risk of serious impairment to the public trust interests of Michigan and its citizens.
To date, not one agency has considered the environmental impact or existence of other alternatives related to the increase in flow of crude oil, the new supports and the condition of these lines. The State can now evaluate in an orderly legal process whether the dual lines in the Straits can be or should be authorized. If Enbridge does not apply in order to comply and demonstrate a right to authorization and approval, then that is its own choice, and the State has the power, duty, and right to halt the transport of crude oil or demand decommissioning of the dual lines because they do not comply with state law and regulations enacted under its title and police power to protect its public trust lands and waters.
Thank you.
On June 29, the State of Michigan released for public comment a consultant’s study on alternatives to Line 5, the risky 64-year-old dual oil pipelines that cross the lakebed of the Straits of Mackinac. The state is now holding public meetings on the study.
The study is a major disappointment and contributes little of value to the discussion on the fate of the oil pipelines operating in the Great Lakes since 1953.
FLOW’s position is unchanged: the State of Michigan must terminate the easement allowing Enbridge to use Lake Michigan’s lakebed for the pipelines. The state has the authority and the responsibility to do so to prevent a catastrophic oil spill. In light of Enbridge’s consistent record of disregard for maintenance of Line 5, the state must do so.
* FLOW rejects the alternatives study as fatally tainted by the authors’ blatant conflict of interest. The consulting firm’s vice president has an extensive history of working alongside of, and in support of, Enbridge. The state’s process is now revealed for what it always has been – a distraction from its responsibility to protect the Great Lakes by shutting down Line 5 now.
* Substantively, the alternatives study can’t be taken seriously because it:
FLOW is a leader in the Oil & Water Don’t Mix campaign uniting citizens, businesses, groups, governments, tribes, and faith communities in support of shutting down Line 5 to avoid a catastrophic Great Lakes oil spill.
LANSING – Oil & Water Don’t Mix today said the Michigan Department of Environmental Quality’s decision to cancel a study that was rife with conflicts of interest amplifies the need to shut down the Line 5 pipelines once and for all – and called on state leaders to disclose all details of the draft study that was plagued by conflicts of interest.
“Citizens groups have been sounding the alarm bells for months about the massive conflicts of interest between Big Oil companies and the departments that are charged with regulating them, and this cancellation raises more questions than it answers,” said David Holtz, Chair of Sierra Club Michigan Chapter and Oil & Water Don’t Mix campaign coordinator. “The State of Michigan owes all citizens a full account of how and why this study was allowed to continue, even in light of the massive conflicts of interest. Michiganders deserve answers.”
“This study was tainted by huge conflicts of interest and a complete lack of transparency from the state, all with Line 5 continuing to pose a clear danger to our Great Lakes, our economy, and our way of life,” said Liz Kirkwood, executive director of For Love of Water. “In addition to a full and complete disclosure of the facts regarding this cancellation, we demand that Attorney General Schuette start acting like the lead attorney for the people of Michigan, who elected him to protect us and the Great Lakes, and shut down Line 5 without delay.”
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Urgent Threat: Enbridge is courting an oil spill disaster again in Michigan, and this time the Great Lakes are at risk. The public has until June 29, 2017, to oppose the Canadian energy transport giant’s request for state permission to squeeze more life out of a cracked, dented, and deformed pair of pipelines that push 23 million gallons of oil a day across the bottom of the Mackinac Straits, where Lake Michigan and Lake Huron meet. The request to continue the piecemeal patch up of the 64-year-old “Line 5” pipelines threatens the drinking water source for more than 40 million people, the economic engine for the Great Lakes region, and a way of life for millions of North Americans.
Terrible Track Record: Recall that Enbridge in 2010 caused the largest inland oil spill in U.S. history when its southern Michigan pipeline ruptured and dumped more than one million gallons of heavy tar sands oil into the Kalamazoo River watershed. That failure sickened 150 people, and permanently drove 150 families from their homes, taking four years and over $1.2 billion to clean up to the extent possible. Enbridge’s Line 5 has a similar dark history, with at least 29 spills totaling more than one million gallons of oil spread along its path in Michigan and Wisconsin since 1953.
Damage Done: Now Enbridge has applied to the State of Michigan for a permit to install more underwater anchor supports on its antiquated Line 5 pipelines in the Mackinac Straits, which the University of Michigan calls the “worst possible place” for a Great Lakes oil spill. The 22 anchor supports are another belated attempt to keep Line 5 from shifting, bending, and grinding on the bottom in the powerful underwater currents at the Straits, but the damage is already done. These supports are merely the latest in a series of stopgap measures that ignore decades of metal fatigue and stress on the pipeline, which is now well past its 50-year life expectancy and should be permanently shut down as soon as possible.
Public records reveal that…
This strategy has previously enabled the company to avoid State of Michigan review of the safety and necessity of the pipeline itself, and dodge the legally required consideration of alternative routes and methods that do not threaten the Great Lakes.
The public has until June 29, 2017, to submit comments to the Michigan Department of Environmental Quality opposing Enbridge’s bid to keep Line 5 on life support and seeking to prevent a Great Lakes oil spill disaster.
Thank you!
Some of my favorite childhood memories include hiking trips across Northern Michigan and taking in the beauty that is our Great Lakes. As my own children grew up, we regularly went on family trips across Michigan because I wanted to make sure the natural wonders of our state could be passed along to the next generation.
The Great Lakes mean so much to me personally, as they do to millions of Michiganders. They are more than just an economic engine and drinking water source: they are a way of life in Michigan.
That’s why we must protect our Lakes at all costs – and why I am very concerned about the unique threat posed by the Line 5 pipeline running underneath the Straits of Mackinac. Any pipeline leak – no matter how minor – could devastate the Great Lakes watershed and contaminate much of the safe drinking water 40 million people rely on.
According to the University of Michigan, the volume of water going through the Straits of Mackinac is ten times that of Niagara Falls, and it’s rapidly changing currents could carry oil up and down Michigan’s coasts in the event of a spill. Like you, I was alarmed by recent reports that sections of Line 5 are missing critical protective coatings.
In March, I teamed up with Senator Stabenow to demand some answers from Enbridge, whose past assurances about the structural integrity of Line 5 run directly counter to these reports. Here’s what we want to know:
These are just a few of the many serious questions must be addressed by Enbridge. But while we work to find these answers, we can’t afford to keep our eye off other concerns related to pipeline safety in the Great Lakes.
For example, U.S. Coast Guard officials have told me that we do not have adequate research or a plan for cleanup of oil spills in fresh water, especially under heavy ice cover and adverse weather conditions that we see during Michigan winters.
Last year, I was pleased that my bipartisan pipeline safety bill was signed into law by then-President Obama. Among other provisions, it required the federal agency overseeing pipeline safety to consider ice cover when developing oil spill response plans, designated the Great Lakes a high consequence area – making any pipeline in the Lakes subject to higher standards – and required pipeline reviews and oversight on the age and integrity of natural gas and hazardous liquid pipelines.
I’m also focused on efforts to classify Line 5 – and other pipelines crossing the Great Lakes – as offshore pipelines. Right now, Line 5 is considered an onshore pipeline, meaning it’s held to less stringent regulatory standards and liability requirements in the event of a spill. Given the potential for significant economic and ecological harm from an oil spill in the Great Lakes, this change in classification is critical.
Finally, I’ll be looking at ways to improve freshwater spill research and make updates to our coastal maps and data in order to better safeguard our natural resources.
We must continue to highlight the risks posed by Line 5, and FLOW’s efforts to shine a light on these risks is more important than ever. From keeping our Great Lakes free of pollution to highlighting the dangers of invasive species like Asian Carp, I applaud FLOW’s commitment to protecting this unique ecosystem. Together, we can work to keep our Great Lakes clean and safe for future generations of Michiganders.
FOR IMMEDIATE RELEASE
Tuesday, March 28, 2017
Media Contacts: Leonard Page 231-268-8430/ leonard@thepages.net
David Holtz 313-300-4454/david@davidholtz.org
Citizens Respond to Attorney General Schuette:
Get Off the Sidelines on Line 5 and Protect Great Lakes
Responding today to a letter from Attorney General Bill Schuette, citizens groups from across the state told state officials that their decision to “stand on the sidelines” by failing to enforce legal requirements on pipeline operator Enbridge Energy Partners is putting the Great Lakes at risk from a catastrophic oil spill in the Straits of Mackinac.
In a March 8 letter to the Oil & Water Don’t Mix campaign, the attorney general, Dept. of Natural Resources Director Keith Creagh and Dept. of Environmental Quality Director Heidi Grether responded to revelations that protective anti-corrosion coatings were missing from 18 areas of Enbridge’s Line 5 in the Straits. In their letter, Schuette, Creagh and Grether said they would investigate findings in a late 2016 report detailing the missing coatings as well as other evidence calling into question claims by Enbridge that Line 5 is safe.
In their response letter today to state officials, citizens groups told Schuette and other state officials that their failure to assert regulatory authority over Line 5 in the Straits could result in an oil spill that would “devastate our public drinking waters and our water-dependent economy.”
“It is not enough to stand on the sidelines or fail to take action that has the effect of complicity by deferring to Enbridge,” the groups said in their letter to Schuette. “For nearly two years, we have heard our state leaders declare that the days of this pipeline are numbered and that Line 5 wouldn’t be built today. However, the State of Michigan has not taken a single preventative measure to make our Great Lakes safer from a catastrophic oil spill.”
The missing Line 5 coatings, the groups said, violated a 1953 easement agreement with the state and should, at a minimum, have resulted in enforcement action against Enbridge. By instead deferring to Enbridge, the state’s failure to act allows Enbridge to avoid comprehensive review of Line 5 and delays any potential action for months while the state continues to study the pipelines.
“Attorney General Schuette’s urgency in protecting the Great Lakes and our communities from an oil spill seems to be missing,” said attorney Leonard Page of the Straits Area Concerned Citizens for Peace, Justice and the Environment. “We need action now, before Line 5 ruptures and destroys our way of life and economy.”
In April 2016 the Oil & Water Don’t Mix campaign wrote Schuette and other state officials, identifying eight violations of the 1953 easement, including missing pipeline anchors, emergency oil spill response plan violations along with issues related to pipeline coatings in the Straits. While the state notified Enbridge of easement violations, it has yet to require Enbridge to submit to a comprehensive environmental assessment under state law. A current series of studies being done by the state with $3.6 million in funding from Enbridge are advisory.
“What Attorney General Schuette or any state official can’t tell us is how the structural integrity of these pipelines in the Straits are holding up against age, strong currents, missing anchors and missing coatings,” said David Holtz, chair of Sierra Club Michigan Chapter Executive Committee. “They can’t tell us that because they are not taking the kind of enforcement actions that could produce answers. They are not prioritizing protecting the Great Lakes over Enbridge’s profits.”
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Oil & Water Don’t Mix is a campaign supported by 22 organizations and thousands of citizens businesses who want to end the threat of a Great Lakes oil spill by shutting down the flow of oil through Enbridge’s Line 5 in the Straits of Mackinac.
The March 27, 2017 letter to Attorney General Schuette, the March 8 letter to OWDM from Schuette and OWDM’s original letter to Schuette are located here:
http://www.oilandwaterdontmix.org/owdm_response_to_ag_schuette_michigans_legal_duty
