Tag: Line 5

End Enbridge Stonewalling

Published on May 17th, 2016 by - H2Olson

Observations by some that the State of Michigan has no regulatory authority over hazardous liquid pipelines is correct to the extent that it is understood in the context of  safety regulations — standards, inspection and enforcement; safety code enforcement is covered by the federal PHMSA law, regulation and agency.  However, it is not true that Michigan does not have authority to demand the information Enbridge keeps under its control, and it is not true that Michigan does not have enforcement authority.

As concluded by the Michigan Petroleum Pipeline Task Force Report, 2015, Michigan has authority under the 1953 Easement, including the continuing obligation of Enbridge to conduct itself with prudence at all times, and it has authority under:

(1) its sovereign ownership of bottomlands and waters of the Great Lakes since statehood in 1837 under “equal footings” doctrine. Michigan took title in trust to protect the basic rights of citizens as beneficiaries of a public trust imposed on the state.  This means the state has authority and duty to take actions to protect the public trust as a matter of its “property and public trust power,” whether or not it passes regulations on hazardous liquid pipelines or not.  Under public trust authority and principles, the state cannot transfer or shift control over waters and bottomlands held in trust to any private person or corporation; the retention of information by Enbridge that is required to protect the public trust or to determine whether the public trust is threatened with high unacceptable harm or risk violates this public trust principle, and the Attorney General can demand and take all action necessary to compel Enbridge to turn it over, indeed, even the easement recognizes and is subject to this public trust.

(2)  The Michigan Public Service Commission has authority over siting and locations of crude oil pipelines like Enbridge’s and others.  Anytime Enbridge or some other corporation applies for a change or improvement to the structure it regulates as to siting, including its consideration of risks to property and health or environment and alternatives, the MPSC has authority to demand all relevant information needed to  make a decision on the application for such change.  Unfortunately, the MPSC has not insisted on the full range of information it could demand, including alternative pipeline routes and capacity to Line 5 in the Straits of Mackinac when it doubled capacity for Enbridge’s new replacement for the failed Line 6B that ruptured into the Kalamazoo River in 2010.

(3) Finally, the Michigan Environmental Protection Act, Part 17,  NREPA, imposes a duty to prevent and minimize harm to air, water, and natural resources, and this includes the right to take action where necessary when a corporation’s actions are contrary to this duty to prevent and minimize harm; the MEPA, as it’s  often called, is derived from Art 4, Sec. 52 of the Michigan Constitution.

So while Michigan ponders the aging or new pipeline infrastructure for hazardous liquids and crude oil, the state, including the Attorney General, have the authority to take immediate action to prevent the high risk of Line 5 or other pipelines.  And, where that risk involves the devastating harm that undoubtedly may occur in the Straits, action should be taken immediately pending the coming one to two years of pondering.  In short, there is no legal excuse or justification for Governor Snyder, Attorney General Bill Schuette, or the Department of Environmental Quality to put up with Enbridge’s self-serving stonewalling on disclosure of all information related to its Line 5 hazardous crude oil pipeline.  And, there is no excuse or justification for our state leaders to delay action to eliminate the unacceptable harm from the Straits or other Michigan waters from Line 5.

 

 

Enbridge Downplaying the Potential Size of Catastrophic “Line 5” Straits Oil Spill

Published on May 9th, 2016 by - News

 

In the last two years, Enbridge has cut nearly in half its estimate of the likely size of an oil spill from a pair of aging pipelines that move nearly 23 million gallons of oil a day through the Mackinac Straits, while independent studies suggest the risk is much greater and growing. Read the full findings by engineer and FLOW technical expert Gary Street. 

President of WTCM Radio and FLOW Board Member Ross Biederman Speaks Out Against Line 5

Published on May 4th, 2016 by - News

Ross Biederman, owner of Midwest Broadcasting, issued a broadcast and print editorial today urging our political leaders and those running for office to  help shut down the flow of crude oil through Line 5 in the Straits.  Biederman warns it is too dangerous, the harm too devastating, and the risk too high to continue operating Line 5 in the Straits of Mackinac.  In a no nonsense, strong voice, he concludes oil in the Straits pipeline should be eliminated, there are alternatives for the crude synthetic lighter oil to get there and to satisfy the smaller needs of a refinery in Michigan, and most of the oil goes to Canada anyway, and that citizens should take action by demanding that their leaders take charge and act on this issue.  Read print copy of Ross’s broadcast below and listen to the radio spot here.

 

Transcript of Biederman Editorial

If you think the Flint water crises was Catastrophe that could have been avoided by the state of Michigan imagine an oil spill in the Straits of Mackinac. Lurking beneath the water at the straits lies a 4 ½ mile long pipeline carrying about 500,000 barrels or 23 million gallons of liquid petroleum…crude…each day. The pipeline is owned by a Canadian company, Enbridge. It’s referred to as Line 5 and it carries crude from Superior, Wisconsin to Sarnia, Ontario. Line 5 is 63 years old and has never been thoroughly inspected by The State of Michigan. Here are just two potential problem areas. The welding techniques used in 1953 are out-dated. Also, the pipeline is covered in zebra mussels making comprehensive visual inspection difficult if not impossible.

Michigan’s Attorney General has the authority to order Line 5 shut down, but has not done so. He has ordered more studies which could take up to a year and a half. You have the power to do something! Bills have been introduced in both Michigan’s House and Senate that would accomplish this. They haven’t gone to committee yet and probably will not before the Legislatures’ Summer Recess. What can you do? Tell your State Representative and Senator to get off the dime and move this legislation. An oil spill at the Straits could foul both Lake Michigan and Huron because of the currents. Imagine it happening during the winter under the ice. The University of Michigan said the Mackinac Straits would be the worst possible place for an oil spill. I should mention that is was an Enbridge pipeline failure that dumped 840,000 gallons of crude into the Kalamazoo River in 2010…the largest inland spill in US history.

So make your voice be heard to end this potential danger to our ecology and economy. This is an election year. Every state representative is up for re-election as is half the Senate.

And by the way, it isn’t like we’d be cutting off our supply of oil. Enbridge has built a new pipeline…Line 6…that’s has twice the capacity. Line 6 runs through Wisconsin, around Chicago, and across Southern Michigan to Sarnia.

Michigan only gets 10-12% of the crude anyway….the rest goes to Canada.

With election nearing, now is the time to demand that candidates pledge to take action closing Line 5!

FLOW’s Pioneering Work on Right to Water, Commons and Public Trust Join the Mainstream

Published on April 26th, 2016 by - H2Olson

The launch of FLOW’s new website comes at the same time FLOW’s work (beginning back in 2009 when Terry Swier, President of Michigan Citizens for Water Conservation, my brother Eric Olson, Ted Curran, and a few others, saw the need to educate leaders and the public on the overarching  principle known as the public trust doctrine)  has been recognized by the most highly regarded body in the Great Lakes Basin—the International Joint Commission.  As part of a 15-year review of its efforts to protect the waters of the Great Lakes Basin, in January of this year, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes in the 21st century.   The launch also comes at the end of the second year of teaching the new water and sustainability course at Northwestern Michigan College’s Water Studies Institute.   This past week, the students heard a wrap-up lecture on the unifying principle of the course and water policy in the future—the framework for problem solving under the commons and public trust doctrine in water.[1]

What does this mean?  It means that FLOW’s vision, work,  and our supporters are at the forefront of efforts to educate and help leaders, citizens, businesses, and our communities address the systemic threats that face the Great Lakes region – and beyond—including climate change and water levels, invasive species, algal blooms, diversions and excessive and wasteful losses of water, exports, intensive aquaculture farming on the surface of public trust waters, and crude oil transport in, over, or near the Great Lakes. As highlighted by the IJC in a recent public opinion poll, fully eighty-five percent of citizens in the Basin put their concern for the Great Lakes at the top of their list – that’s 34 million out of the 40 million people who live in the Basin.  But the problem is we need to understand what we can do about the systemic threats to the Basin, and what principles will lead us there.  At FLOW we think the most fundamental principle is the public trust doctrine.

What is the public trust doctrine?

The public trust doctrine (as recounted by Traverse Magazine’s editor Jeff Smith in an article on FLOW’s pioneering work when he created the by-line name for this BLOG – H2Olson) is a background principle connected to the Great Lakes and other bodies of water.  It holds that these waters are held by the state as trustee and must be managed and protected for the benefit of the legal beneficiaries of this public trust – the 40 million citizens in the Great Lakes Basin.  It imposes a legally enforceable duty on government and leaders to affirmatively and perpetually take action to prevent harm or impairment to these waters, their ecosystem and public uses that depend on them – navigation, fishing, boating, swimming, drinking water, and sustenance.  It prohibits any person or entity – public or private – to enclose or transfer these waters for a primarily private purpose – these waters are held for the public. It means no public or private person can measurably impair the integrity of the quality and quantity of these waters from one generation to the next.  It means all of us share, collectively and individually, a right to water as beneficiaries of this trust.

Why public trust principles?

Before the victorious court decision curtailing Nestlé’s bottled water exports from Michigan, the common law prohibited diversions or exports that diminished the flow or level of a lake or stream.—this means the very heart or integrity of a stream or lake cannot be impaired.   After the decision, this “non-diminishment” standard was weakened in favor of a “substantial harm” test that arguably would allow water exports, diversions and losses from the waters of the Great Lakes.  In effect, the court left the door open for foreign and domestic interests outside the Basin to claim the right to divert or use large quantities of water, and if challenged, potentially seek damages or other relief in private tribunals under the auspices of NAFTA or other trade agreements – possibly even the recent TPP.  Moreover, the Great Lakes Compact diversion ban left the door open for water prospectors to package raw water in any sized container (not just bottles) and ship water out of the Basin as a “product.”  The Compact also exempted diversions for public water supplies in communities that straddle the Basin, like the ongoing controversy over Waukesha, Wisconsin’s request for water  that looks more like a plan to grow communities outside the basin that meet current public need for water.   These and other events have sounded the horn for caution and action.

FLOW’s public trust vision converges with the human shift toward saving and promoting the “common good.”

In 2011, FLOW convened a conference to address systemic threats to the Great Lakes that fall outside water laws from the 20th century.  In 2012, FLOW with the Council of Canadians presented an in-depth study to the International Joint Commission, a binational body charged under a 1909 treaty to protect the Great Lakes.  The study urged the IJC to adopt a new overarching principle based on the ancient pubic trust doctrine:  This doctrine charges government, as trustee for citizen-beneficiaries, with a perpetual duty to prevent impairment or private control of water, as a commons, from one generation to the next.

From 2013 through 2015, FLOW submitted additional reports with the IJC and other governments to demonstrate how this this game-changing principle would address threats to water as a commons and human right. FLOW launched public presentations, a new water policy course with Northwestern Michigan College, and recommended solutions to address algal blooms, extreme water levels, climate change, invasive species, and recent scientific and policy reports that called for removal of oil in a pipeline in the Straits of Mackinac.

Since 2011, we’ve witnessed massive algal blooms shut down Toledo and Monroe’s water supplies and destroy fishing in Lake Huron.  We’ve seen law and high swings in water levels exacerbated by climate change effects.  We’ve seen the shut-offs of water  that services thousands of  Detroit residents and families, the Flint water crisis and exposure of thousands of innocent children and people to lead poisoning.   We see continuing in action on the time-bomb of shipping crude oil in or near the Straits or other waters of the Basin.  We see efforts to legalize private occupancy of acres of public waters and bottomlands of the Great Lakes to operate concentrated fish farms, when farming belongs on land and the surface of the Great Lakes belongs to the public.

In summer 2015, FLOW submitted a report on the IJC’s 15-year review of protecting the Great Lakes.  FLOW demonstrated how public trust principles would act as a backstop against known and unknown threats to the Great Lakes.  In January, 2016, FLOW’s work took a giant step forward.  As noted at the outset, the IJC issued a landmark recommendation that the states, provinces, and countries implement the public trust framework as a “backdrop principle” to safeguard the integrity of the Great Lakes!

Recently, in his encyclical letter on climate and our earth’s predicament, Pope Francis captured the awareness and reality of a world faced with massive loss of water, soil, and social and economic injustice.  He pointed out two ethical principles: Protect the common good and do so from one generation to the next.   All other endeavor, including economic, must honor and respect these principles.

What we are excited about at FLOW is, we find ourselves lockstep with the solutions to crises and threats to water here and elsewhere because the public trust doctrine in water brings legal principle to ethical principles to  promote the common good.

[1] For those readers who want to gain a general understanding of FLOW’s work and the commons and public trust framework,  watch the wrap-up lecture and discussion at the NMC’s WSI 230 water and sustainability class. https://ensemble.nmc.edu/Watch/Xa45Sfy9

 

State Advisory Board Must Recognize Urgency, Consider Line 5 Oil Pipeline’s Impact to Inland Waterways and Climate Change

Published on February 12th, 2016 by - Reports & Media Releases

 

Great Lakes Group: State Advisory Board Must Recognize Urgency, Consider Line 5 Oil Pipeline’s Impact to Inland Waterways and Climate Change

 

TRAVERSE CITY – Great Lakes law and policy center FLOW submitted additional comments today to the Michigan Pipeline Safety Advisory Board in response to its requests for information and proposals to conduct alternatives and risk analyses for the Line 5 oil pipelines in the Mackinac Straits.  The group expressed deep concern about the Advisory Board’s lack of urgency addressing the potential for a catastrophic oil spill in the Straits, failure to consider Line 5’s climate change impacts, and the pipeline’s additional threat to inland waterways that feed the Great Lakes.  In response to criticism from concerned groups and citizens about the narrow 5-day comment period, the Advisory Board extended its public comment period to February 16, 2016.

One of the group’s key concerns is the unclear process by which the Advisory Board plans to integrate the two separate risk and alternatives analyses reports.  “This is a critically important step because the level of acceptable risk that is determined in the risk analysis will inform which alternative will ultimately be selected by the state,” said FLOW Executive Director Liz Kirkwood. “This correlation is essential to this process and must be understood by the contractors and the public.”  Another key issue is the lack of a sense of urgency by the Advisory Board and the entire process as a whole, as evidenced by the lack of any timeline for the review and reporting stage.  “At this time, it appears the current process will run into 2017 and there are no expectations for interim or conclusive measures in the meantime,”  Kirkwood said. A third recommendation is to create one central website accessible to the public that includes all of the Advisory Board’s findings, reports, and opinions as well as all public comments, testimony, and reports related to Line 5.  The group also is calling for more transparency and public comment opportunities on the risk and alternatives analyses reports.

The group’s most substantive remark is the need to recognize climate change and how it impacts our understanding of both the risk and alternatives analyses, given national and global commitments to keep average temperatures below 1.5 degrees Celsius.  Accordingly, FLOW contends that contractors must assess each alternative’s role in contributing to carbon emissions by examining its fossil fuel emissions, economic viability in a rapidly changing global energy market, and externalized social and environmental costs.  Line 5 is a part of a larger Enbridge network that makes up the world’s largest pipeline system carrying the planet’s dirtiest and most energy-intensive oil – light crude derived Canadian tar sands.  In addition, vulnerable inland sections of Line 5 must be examined as part of the overall analysis.

FLOW submitted separate comments to the Advisory Board last week, before the public comment period was extended. These recommendations included the call for a public peer review of both reports, the importance of defining a broad range system that identifies and reviews the economic impacts to the Great Lakes, and the inclusion of credible worst-case scenarios instead of the antiquated regulations defined by the Dept. of Transportation.  Additional recommendations were to include alternative release and worst-case scenarios in the risk analysis and to address public health impacts on drinking water and air emissions.

View Full Comments: 2/4/16 and 2/12/16 at flowforwater.org.

###

Watch How Spilled Oil Could Spread Across the Straits

Published on December 3rd, 2015 by - News

A new animated video by the University of Michigan and the National Wildlife Federation shows how devastating an oil spill beneath the Straits of Mackinac would be for the Great Lakes, wildlife, and communities. The animation shows that if an oil spill occurs, oil could reach popular tourist destinations like Mackinac Island, blanket 50 miles of Lake Huron shoreline, and reach Lake Michigan landmarks such as Beaver Island.

The University of Michigan research scientist says that “one million gallons is conservatively the amount of oil that resides in the pipelines in the Straits at any time.”

Great Lakes Lawyers & Scientists Urge Gov. Snyder & AG Schuette: Imminent Hazard Requires Immediate Actions to Eliminate Oil Risk in Straits of Mackinac

Published on September 21st, 2015 by - Reports & Media Releases

Filling a void left by the state, a Great Lakes law and policy group and its scientific advisors released a report today calling on the Snyder administration to take interim steps – including the immediate temporary halt of oil flowing through two aging pipelines in the Mackinac Straits – and swiftly pursue an “action plan” to prevent an oil spill that likely could not be cleaned up and would threaten the state and regional economy, a vital fishery, and the drinking water supply for Mackinac Island and St. Ignace.

“The Michigan Task Force and Attorney General Schuette have determined that the magnitude of harm from a release of oil in the Straits is unacceptable, and that the days of these aging pipelines for transport of oil are limited,” said Jim Olson, a Traverse City attorney and President of FLOW.  “According to FLOW’s scientific experts, the transport of oil under the Straits is an imminent hazard that is at the highest level risk. Based on standard hazardous management practices, this means that interim measures that significantly lower the risk must be immediately implemented.  This also requires an immediate independent evaluation of alternative pipeline routes, capacity and logistics to eliminate the high risk of serious harm.  Until this evaluation is done, the reasonable and prudent thing to do is to halt the transport of crude oil under the Straits.”

“An effective oil spill response and recovery is virtually impossible, particularly in winter months when the Straits are covered with four feet of ice,” said Liz Kirkwood, FLOW’s Executive Director.  “According to our scientists, shutting off the flow of oil under the Straits won’t interfere with natural gas liquids, such as propane used for home heating, because they do not pose the same risk to the Straits and would continue to flow to residents in the Upper and northern Lower Peninsulas.”

The 33-page report on the Enbridge “Line 5” pipelines points to new findings, including the pipeline company’s own admission that tens of thousands of gallons of oil a day could leak into the Mackinac Straits undetected, to conclude that an “imminent harm” to the Great Lakes exists and must be stopped. The report also finds that at least one of the Straits pipelines is dented despite Enbridge’s reassurances otherwise and that the wooden slats meant to surround and protect the outside of the pipelines are missing.

“Analysis of these issues, as documented by several reports, now leads me to the conclusion that Line 5 is far more likely to present an imminent threat to health and property than not,” said Ed Timm, PhD., PE, a former senior scientist and consultant to Dow Chemical’s Environmental Operations Business and member of the FLOW expert team.  “Immediate action should be taken to assure the safety of Line 5 while the legal deliberations go on.”

The report released by FLOW, an independent nonprofit organization that evaluates Great Lakes scientific and policy issues, is intended to fill and strengthen the gap left by a state task force report issued in July that made important recommendations for assessing the risk and seeking alternatives to the Enbridge oil pipelines, but lacked action steps and a timetable. The FLOW report charts a course with clear actions to the Snyder administration and Attorney General Schuette who are charged with the responsibility of implementing the state task force recommendations and protecting the Mackinac Straits and Great Lakes from any release of oil with serious and catastrophic consequences.

The FLOW report concludes that the current use of Line 5 for the transport of crude oil “poses a high level of risk and imminent high magnitude of harm,” and proposes a specific action plan to eliminate the harm, including to:

  1. Promptly conduct an independent expert alternatives assessment regarding transport of crude oil in Line 5 through the Straits segment, as called for by the state task force;
  2. Convene and complete immediately an independent risk analysis based on credible, worst-case scenarios;
  3. Require adequate financial assurances and an approved emergency response plan by independent qualified experts that conform to the level of risk and worst-case scenarios;
  4. Require immediate submission of additional verifiable information from Enbridge and other qualified and independent sources.
  5. Take immediate enforcement actions against Enbridge to address any material violations of the state-granted 1953 easement allowing Enbridge to occupy state bottomlands in the Straits.
  6. Exercise the full authority under our constitution and laws, including common law and the public trust, that eliminate or prevent the failure of Line 5 under the Straits.

Built in 1953 during the Eisenhower administration, the aging Enbridge pipelines push nearly 23 million gallons of oil and natural gas liquids a day through the Mackinac Straits, which the company uses as a shortcut for its Line 5 route from Superior, Wis., to Sarnia, Ontario. Canadian-based Enbridge is infamous for its Line 6B pipeline that corroded and spilled 1 million gallons of heavy tar sands oil in 2010 into the Kalamazoo River watershed near Marshall, Michigan.

Enbridge estimates that a “worst-case” spill from Line 5 in winter would dump up to 360,000 gallons of oil in the Mackinac Straits and would cost as much as $900 million to clean up, not including any damages to persons, property, or natural resources for which Enbridge is liable, nor for any fines or penalties. A U.S. Environmental Protection Agency on-site oil cleanup coordinator said in March 2015 that in good conditions, no more than half of the oil spilled in open water is ever recovered. The U.S. Coast Guard Commandant in April testified to Congress that he is “not comfortable” with the current contingency plans for a worst‐case spill in the Great Lakes.

In the report, FLOW’s science and technical advisors reached several key findings, including that Enbridge’s own documents filed with the state show that 140,000 gallons of oil per day can leak into the Great Lakes at the Mackinac Straits from Enbridge’s aging Line 5 oil pipelines without Enbridge detecting it or triggering its “automatic” shutoff valves because of the technological limits of its equipment.

“A permanent solution – eliminating the Line 5 Straits crossing – may take time, but short-term action to immediately reduce the risk should be undertaken.” said Rick Kane, a hazardous materials risk-management specialist and member of the FLOW expert team. “The Line 5 crossing is a high risk due to the severe consequences of a leak and probability that a leak could occur from a number of causes, including a large failure or a smaller failure that would leak over a number of days or weeks below the system detection threshold, potentially releasing thousands of gallons per day, unknown to operators.”

The experts also found, similar to the findings underlying a recent formal notice sent by the National Wildlife Federation to the federal Department of Transportation, that Enbridge has never been required to do, and has never done, a competent emergency response plan based on a full and worst-case scenario of a rupture or release of crude oil in the Straits. In addition, Enbridge lacks sufficient capacity at the local level to respond, particularly in the winter when a response or clean up could not be done.  The expert team also found that there is a lack of sufficient structural supports and wooden slat covers to protect Line 5 under the Straits, exposing the pipeline to currents, abrasion, and other failures.

As Long as Oil Flows through the Straits Pipelines, the Great Lakes Remain at Unacceptable Risk

Published on July 16th, 2015 by - News

The Great Lakes are no safer from an oil pipeline spill today despite yesterday’s release of the State of Michigan Pipeline Task Force’s 80-page report and recommendations.

The Task Force report included four recommendations directed at Enbridge’s twin 62-year-old petroleum pipelines located on the bottom of the Straits of Mackinac: (1) Ban transportation of heavy crude oil through the Straits pipelines; (2) Require an independent risk analysis and full insurance coverage for the pipelines; (3) Require an independent analysis of alternatives to the existing pipelines; (4) Obtain more inspection data from Enbridge relating to the pipelines.

Yet, oil still flows through Line 5.  The Task Force rejected shutting down Line 5 while gathering additional information on the basis that they had “inadequate information at this time to fully evaluate the risks presented by the Straits Pipelines.” (P. 57)

Impose Emergency Measures Immediately

At a minimum, however, the Task Force should impose immediate emergency measures on the pipeline given (1) potential violations of the 1953 Easement related to Enbridge’s inability to demonstrate that it has adequate liability coverage to cover all damages from an oil spill; (2) the Coast Guard’s admission that it is inadequately prepared to clean up an open water spill in freshwater let alone under frozen winter conditions; (3) Enbridge’s failure to disclose inspection, maintenance, and repair records to document internal and external corrosion rates under the Straits and inherent limitations related to inline inspection tools.

The question remains: how much more information do we need to unveil before our trustee – the State – takes swift protective action that prioritizes the paramount interests of citizens over private corporations?

The Task Force and the public have rejected the idea that the Straits Pipelines can last indefinitely.  In fact, the Attorney General Bill Schuette has declared that “the days of letting two controversial oil pipelines operate under the Straits of Mackinac are numbered.”  This is hopeful news, but every day counts, and until we have specific measures in place that prevent a catastrophic spill, the State of Michigan is placing the Great Lakes at risk.

FLOW Responds to Task Force Report

Published on July 14th, 2015 by - Reports & Media Releases

LANSING – This morning Attorney General Bill Schuette and DEQ Director Dan Wyant released the long-awaited Michigan Petroleum Pipeline Task Force report, outlining specific recommendations to address the significant risks surrounding a Canadian pipeline company’s controversial twin pipelines (known as “Line 5” or the Straits Pipelines).  The Task Force report establishes a framework to determine whether the transport of oil through the pipelines under the 5-mile long Straits segment is prudent or justified, especially when it appears other pipelines or routes could deliver the oil to markets without endangering the Great Lakes and the public and private uses that depend on them.

Four of the 13 recommendations are directed at the 62-year-old Straits Pipelines:

  • prevent the transportation of heavy crude oil through the Straits Pipelines;
  • require an independent risk analysis and adequate financial assurance for the Straits Pipelines;
  • require an independent analysis of alternatives to the existing Straits Pipelines; and
  • obtain additional information from Enbridge on personnel, products transported, inspections, and repairs.

FLOW – a Great Lakes policy and research center located in Traverse City – credits the Task Force for seriously considering and incorporating many public interest recommendations like the need for an independent alternatives analysis.  However, the report lacks a timeline for implementation of the recommendations, enforcement measures under public trust law, and a clear process on conducting the independent alternatives analysis.  Further, there are no interim measures to keep the Great Lakes safe while the state continues to gather information.  FLOW urges Attorney General Schuette and Director Wyant to implement these additional recommendations and establish a transparent public process for evaluation under the Great Lakes Submerged Lands Act.

“The report is promising and surprisingly frank, recognizing the state’s legal authority and duty under the 1953 Easement and public trust law.  However, it doesn’t recognize the urgency of the situation in the Straits,” said Liz Kirkwood, Executive Director of FLOW, “Allowing the oil to continue flowing while awaiting further information is simply unacceptable given the ongoing risk and magnitude of harm to the Great Lakes.” FLOW expert Ed Timm observed, “Line 5 becomes more hazardous with each passing day.”

The 62-year old pipeline is owned and operated by Enbridge under a 1953 Easement that reserved ownership and the public’s rights in the Great Lakes to the State of Michigan.  Enbridge ships liquid natural gas and oil through Line 5, and its use is limited by what a reasonably prudent person would do to protect public safety, public property, and private property from harm.

According to FLOW expert Rick Kane, “there is an “end-of-life” for the Line 5 Straits Crossing that can be established by proper planning and implementation.  An alternatives assessment with an aggressive time schedule is needed to protect the Great Lakes from an unplanned incident such as those that have occurred with other aging pipelines.”  The Enbridge Line 5 pipelines push nearly 23 million gallons of oil and natural gas liquids a day through the Straits of Mackinac, which the company uses as a shortcut for its Line 5 route from Superior, Wis., to Sarnia, Ontario.  A July 2014 study by the University of Michigan called the Straits “the worst possible place for an oil spill in the Great Lakes” and depicted the prospect of a plume from a million-gallon oil spill in the Straits stretching for 85 miles – from Lake Michigan’s Beaver Island to Mackinac Island to Rogers City down the Lake Huron shore.

FLOW and partner organizations, including National Wildlife Federation, Michigan Environmental Council, and Oil & Water Don’t Mix Coalition have submitted reports and made presentations to the Task Force during the last year.  FLOW’s expert report released in April 2015 identified grave structural concerns related to corrosion, welding and coating failures, and invasive quagga mussel impacts weakening the steel pipelines.  “Emergency measures are needed, and they are needed now.” said FLOW expert Gary Street.

“Attorney General Schuette, Director Wyant, and the Task Force should be commended for their hard work on the report and the direction of these recommendations,” said Jim Olson, Founder and President of FLOW.  “Our state officials are legally recognized trustees who have a solemn duty to protect the Great Lakes from harm.  If our leaders quickly and prudently implement these recommendations, it should put an end to the transport of oil in the Straits because the risk is unacceptable to the citizens and well-being of Michigan.  At the moment, there are absolutely no executive orders, letters to Enbridge, or even suggestions for procedures, notices, and decisions to implement the Task Force recommendations.  The Attorney General, Director DEQ, and state officials must establish immediately a procedure, with public participation, transparency, and accountability under rule of law and the public trust in the Great Lakes.  Failure to do so, would be a clear violation of their public trust responsibilities.  We urge them to implement a timely, fair, and meaningful process to bring these recommendations on Line 5 and Enbridge.”

Over the last year, FLOW has elevated the State of Michigan’s leading role in addressing these petroleum pipelines that were built on state-owned bottomlands under a 1953 easement held in public trust (see FLOW’s July 1, 2014 letter to the State). The State has changed its position and accepted that they as trustees of the Great Lakes have jurisdiction over these pipelines in addition to the federal pipeline agency, PHMSA (Pipeline Hazardous Materials Safety Administration). Without the State of Michigan’s express authorization under the 1953 Easement and public trust law, Enbridge’s predecessor, Lake Head Pipe Line Company, could never have built these pipelines on the bottomland of the Straits of Mackinac.  As trustee, the State of Michigan must ensure the interests of the public by protecting the waters for citizens’ use and enjoyment in perpetuity.

“Extraordinary measures for management, communication, continuous monitoring, inspections, and emergency response are typical actions regulators take and industry expects when faced with major environmental and economic risks like Line 5,” said Kane.

 

For more information, visit our Line 5 page.