Tag: Line 5

Enbridge Operating Line 5 Illegally

Citing new research and documentation revealing cracks, dents, corrosion, and structural defects in the twin oil pipelines in the Mackinac Straits, 22 environmental and tribal groups today formally requested that Gov. Snyder and Attorney General Schuette shut down “Line 5” oil in the Straits based on Enbridge’s multiple easement violations. The violations mean Enbridge is operating illegally and has broken its legal agreement with the state and people of Michigan.

Enbridge’s ongoing violations related to pipeline design threaten the very safety and health of the Great Lakes, and thus trigger the state’s duty to enforce its agreement with Enbridge. Under the 1953 easement, the state must provide Canadian-based energy transporter Enbridge 90 days to resolve any known easement violations.  The state now has substantial legal and factual cause to terminate the agreement with Enbridge to stop the oil flow and protect the Great Lakes, public water supplies, and the Pure Michigan economy, according to an April 13 letter to Snyder and Schuette, signed by partner groups in the Oil & Water Don’t Mix campaign.

“The law and this easement agreement are clear: state leaders cannot wait another year or more while Enbridge continues to violate safety conditions it agreed to and withholds safety inspection and other data from the public and the state,” said environmental attorney Liz  Kirkwood, Executive Director of FLOW (For Love of Water) in Traverse City. “Gov. Snyder and Attorney General Schuette must start the clock to terminate the state’s easement agreement that allows Enbridge to operate the Line 5 pipelines on state-owned bottomlands and waters.”

In their letter, the groups identified eight specific violations of the easement and state law, including:

  • Concealing information about cracks, dents, and corrosion with continued, sweeping assertions and misrepresentations that the Straits pipelines are in “excellent condition, almost as new as when they were built and installed” and have “no observed corrosion.” Of the nine rust spots on the eastern Straits pipeline, corrosion has eaten away 26 percent of the pipeline’s wall thickness in a 7-inch-long area, according to newly released company data.
  • Failing to meet the pipeline wall thickness requirement due to corrosion and manufacturing defects. Newly released Enbridge data reveals that manufacturing defects in the 1950s resulted in pipeline wall thickness of less than half an inch in perhaps hundreds of sections and up to 41 percent less thick than mandated on the west Straits pipeline. Enbridge continues to boast about its “nearly one-inch-thick walls of Line 5’s steel pipe travelling under the Straits.”
  • Failing to meet the “reasonably prudent person” provision by claiming that its steel pipelines lying underwater just west of the Mackinac Bridge since 1953 can last forever and do not require a plan for eventual decommissioning. The 63-year-old pipelines were built to last 50 years.
  • Failing to demonstrate adequate liability insurance, maintain required coating and wood-slat covering to prevent rust and abrasion and adequately support the pipeline, resulting in stressed and deformed segments.
  • Failing to adhere to federal emergency spill response and state environmental protection laws, including Act 10 of P.A. 1953, the Great Lakes Submerged Lands Act (“GLSLA”), the Michigan Environmental Protection Act (“MEPA”), and public trust law.

The twin Enbridge Line 5 oil pipelines lying exposed in the Mackinac Straits, where Lake Michigan and Lake Huron meet, are a high-risk shortcut moving up to 23 million gallons of oil and propane a day primarily from western Canadian oil fields to eastern Canadian refineries, as well as on to Montreal and export markets. FLOW’s research shows there are alternatives to Line 5 that do not threaten the Great Lakes, which hold 20 percent of the world’s fresh surface water, and do not disrupt Michigan’s oil and gas supply.

“Enbridge has consistently failed to provide appropriate documentation to the state and the public that supports its position that Line 5 is fit for service”, said Ed Timm, PhD, PE, a retired chemical engineer and former senior scientist and consultant to Dow Chemical’s Environmental Operations Business, who advises the Oil & Water Don’t Mix campaign. “The historical record and the documentation that Enbridge has provided raise many questions that suggest this unique pipeline no longer conforms to its original design specifications and easement requirements.”

Dozens of local communities and organizations, hundreds of businesses, and thousands of individuals and families support efforts by the Oil & Water Don’t Mix campaign to prevent a catastrophic oil spill by stopping the oil flowing through Line 5 in the Mackinac Straits, which University of Michigan experts have called the “worst possible place for an oil spill in the Great Lakes.” Enbridge has a long history of oil spills from Line 5, which runs from Superior, Wisc., to Sarnia, Ont., and is responsible for 2010’s million-gallon oil spill disaster into the Kalamazoo River that cost $1.2 billion to clean up to the extent possible.

“I think pipelines are the safest way to transport oil, but because of the conditions of the Straits and the age of the pipelines, it is past time for an independent analysis to ensure the safety of this line for the citizens of Michigan,” said James Tamlyn, Chair of the Emmet County Board of Commissioners, which passed a resolution in December calling on the Snyder administration to shut down Line 5 in the Straits of Mackinac. “There’s one thing we all agree on and that’s the importance of protecting our clean water.  It defines us and without it, our communities and businesses would be wiped out.”

To date, more than 30 cities, villages, townships, and counties across Michigan have voted to call on the governor and attorney general to stop the oil flowing through the Straits, including Mackinac Island, Mackinaw City, and the cities of Cheboygan, Petoskey, Charlevoix, and Traverse City. Dramatic new research from the University of Michigan released in late March shows an Enbridge oil pipeline rupture in the Mackinac Straits could impact more than 700 miles of Lake Michigan and Lake Huron coastlines, as well as more than 15% of Lake Michigan’s open water and nearly 60% of Lake Huron’s open water.

“The effects of an oil spill in the Mackinac Straits would have catastrophic consequences for our area and for all Michiganders for years to come,” said Bobie Crongeyer, a community leader with Straits Area Concerned Citizens for Peace, Justice & the Environment, which has advanced resolutions to shut down Line 5 in many communities. “Tourists will find other places to vacation, while we will be left with the devastation that Enbridge leaves behind, including a poisoned fishery and drinking water supplies and a shattered economy.”

115-CE Pipeline Fact Sheet-rev

Read the full letter issued to Governor Snyder and Attorney General Schuette.

The Greatest Threat to the Great Lakes that No One Seems to Know About

The Greatest Threat to the Great Lakes and No One Seems to Know About It: Expanding Enbridge’s Line 5 Through the Straits of Mackinac

Click here to read and download PDF

How often do you hear a story in the news and then feel utterly shocked that you didn’t know anything about it? Well, that’s how all 40 million of us living in the Great Lakes should feel about the Enbridge Line 5 expansion across the Straits of Mackinac—a pipeline expansion project that will transport tar sands oil directly through the heart of the Great Lakes. In a nutshell, this just may be the greatest threat facing the Great Lakes at this time in history. “An oil spill in the Straits of Mackinac isn’t a question of if—it’s a question of when,” according to National Wildlife Federation’s (NWF) comprehensive report on this issue, Sunken Hazard.

What would a tar sands oil spill the size of Exxon-Valdez mean for the Great Lakes? Goodbye fisheries, aquatic food links, goodbye wildlife, goodbye municipal drinking water, goodbye Mackinac Island, goodbye tourism and property values, and goodbye to one of the world’s largest freshwater inland seas.

What company is stealthily completing this hazardous energy venture with limited public scrutiny? Enbridge—the same Canadian company responsible in 2010 for a million gallon tar sands oil pipeline rupture and a $1 billion cleanup along a 35-mile stretch of Michigan’s Kalamazoo River. Known as the largest transporter of crude oil, Enbridge is requesting a permit from the State Department’s U.S. Transportation Department’s Pipeline and Hazardous Materials Safety Administration (PHMSA) to expand its existing pipeline—Line 67 also known as the Alberta Clipper—to transport heavy tar sands oil originating from Alberta, Canada to Superior, Wisconsin. From there, Enbridge, according to company officials, has already expanded the capacity of a second existing pipeline—Line 5—that travels directly through the Straits of Mackinac to a refinery located in Sarnia, Ontario. The 1,000+ mile Alberta Clipper pipeline route will double the tar sands oil that it currently carries and will deliver even more tar sands oil than the highly publicized and controversial TransCanada Corp’s Keystone XL pipeline.

Built sixty years ago in 1953, Line 5’s twin pipelines that cross the Straits of Mackinac—each 20 inches in diameter—were designed to transport light conventional crude oil, not Enbridge’s viscous, heavy tar sands oil or “bitumen” blended or diluted with volatile natural gas liquid condensate, also known as “dilbit.” Dilbit spills are particularly difficult to remediate because the bitumen and diluents separate, releasing toxic volatile organic compounds (VOCs) and heavy, sticky bitumen material. And in Lake Michigan, who knows how long it would take to actually clean up these pollutants. The National Oceanic and Atmospheric Administration (NOAA) estimates that it takes an average of 99 years to rid of pollutants in Lake Michigan.

Now let’s dig a little deeper into Enbridge’s depressing track record. According to NWF, “Enbridge’s pipelines had more than 800 spills in the U.S. and Canada between 1999 and 2010, leaking 6.8 million gallons of oil.” So with the combination of strong currents along the Straits, Enbridge’s inexcusable track record, its weak emergency response, and a strong likelihood of mechanical pipeline failure in this fragile ecosystem, we must ask ourselves: is this a risk we as citizens, inheritors, and future protectors of the Great Lakes are willing to accept?

This Enbridge pipeline expansion is a perfect example of why we have the public trust in our navigable waters—an ancient legal doctrine dating back to the Roman times—designed to protect our common shared resources like the Great Lakes. The public trust empowers us as a democratic and thoughtful people to question the impacts of proposed actions like Enbridge’s and determine whether they will impair, pollute or irreparably harm our water resources, and jeopardize protected water uses like fishing, swimming, and navigation.

This proposed action is a clear violation of the public trust as the pipeline threatens to destroy the Great Lakes’ common waters, which support the region’s $62 billion economy with 1.5 million jobs, drinking water for 40 million citizens, as well as our very social fabric, quality of life and enjoyment, and shared ecosystem with wildlife. The unprecedented scale of such an ecological and economic disaster also would undermine the $1 billion already invested in the U.S. government’s Great Lakes Restoration Initiative. This is why the public trust and its protection of the commons is more important than ever.

What this debate really boils down to is a much-needed larger national conversation about our country’s future energy policy. Not only does President Obama need to have the Keystone XL pipeline on his radar, but all pipeline expansions like this project, in assessing the impacts of climate change. It’s time that our nation makes good energy choices that respect the Great Lakes as a shared common resource protected by the public trust. We need to put the safety of our water and our future generations before our overzealous energy development. If we do this, we can chart a future with clean and abundant water, food, energy and a prosperous economy.

Looking for something concrete to do about this pressing pipeline issue? Come join FLOW, TC350, 350.org, National Wildlife Federation, Michigan Land Use Institute, Food & Water Watch, and many other organizations and attend the Oil and Water Don’t Mix: A Rally for the Great Lakes on July 14th at the St. Ignace Bridge View Park, just north of the Mackinac Bridge. The purpose of the rally is to bring attention to the dangers of this pipeline and its expansion, and to organize a response to these risks. We want to pressure our leaders to put safety measures in place to prevent a devastating oil spill in the heart of the Great Lakes. Click here to sign up and RSVP via this Facebook event.

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Enbridge Under the Bridge: What We Do and Don’t Know about the Underwater Oil Pipeline in the Great Lakes

FLOW Executive Director Liz Kirkwood

FLOW Executive Director Liz Kirkwood

FLOW and a number of organizations have come together over the last year to rally the public and raise awareness about the Canadian energy company Enbridge and their Line 5 pipeline, a 61-year-old pipeline under the Straits of Mackinac in the Great Lakes which has increased in flow and pipeline pressure and poses a great risk to our common water. On February 5, I carpooled up to St. Ignace, Michigan to attend a public meeting wherein Enbridge delivered a presentation to Mackinac County officials (and a packed room full of concerned citizens) to assuage growing concerns about the Line 5 pipeline expansion. My companions Jim Dulzo from Michigan Land Use Institute, FLOW intern Jonathan Aylward and I didn’t know what to expect, but we certainly all had a lot of questions that remained unanswered.

Background: The issue captured our attention after a critical 2012 report from National Wildlife Federation (NWF) titled Sunken Hazardpublished the scary facts: if Line 5 were to leak, then in the eight minutes that it takes for Enbridge to shut off the pipeline about 1.5 million gallons of oil would release, along with catastrophic impacts and dispersion across both Lakes Michigan and Huron. However, this is not even the “worse case discharge” given that it took the same company, Enbridge, 17 hours to respond to the worse inland oil pipeline spill in U.S. history along the Kalamazoo River just 3 years ago.  In short, the Great Lakes have never been more at risk and yet the public is largely uninformed.

Why FLOW is concerned:

  1. We know that Enbridge has “upgraded” Line 5 with new pump stations but we don’t know for sure what “product” (light or heavy, sweet or sour, dilbit, etc) is being transported 640 miles from Superior, Wisconsin through the Straits of Mackinac to Sarnia, Ontario;
  2. Heavy tar sands is the dirtiest and most carbon-intensive energy on earth and a spill would destroy our shared international waters and way of life;
  3. This “upgraded” pipeline is 61-years-old and is submerged under water in the heart of the Great Lakes that contains 20 percent of the world’s fresh surface water;
  4. Enbridge has a dismal pipeline safety record, underscored by the two recent heavy tar sands disasters in Marshall, Michigan along the Kalamazoo River (1 million gallons spilled in 2010) and Grand Marsh, Wisconsin (50,000 gallons spilled in 2012);
  5. Federal pipeline regulations do not provide for public disclosure in the event of a product change from light crude oil to heavy crude oil for example; and
  6. An unsettling feeling of lack of transparency and public disclosure about the safety of Line 5 for the Great Lakes.

The Enbridge “side of the story”

At 2 pm at Little Bear Arena in St. Ignace, Mackinac County Planning Commission (“the Commission”) Chairman Dean Reid stood before 175 people, amazed at the turnout, and explained the rationale for this special meeting. The fact of the matter was that the Commission “wanted to hear Enbridge’s side of the story” after receiving NWF’s Sunken Hazard, and video footage of the submerged Line 5 under the Straits of Mackinac. Interestingly, though, I learned from Beth Wallace at NWF who co-authored the report that the Commission did not invite NWF to participate as a panelist to publically present both points of view.

Commission officials and the audience listen to the Enbridge representatives' presentation.

Commission officials and the audience listen to the Enbridge representatives’ presentation.

Chairman Reid laid out the agenda, calling for Enbridge to address the integrity of their Line 5 pipeline under the Straits of Mackinac, the frequency of their testing, and emergency procedures in the event of a pipeline rupture. Recognizing the potential regional impact a spill would have in the Straits, the Commission invited other local units of government and organizations to attend this meeting. No public comments were allowed, but Enbridge panelists read and answer cards with written questions.

Next came Enbridge Community Relations Director Jackie Guthrie who described herself as a mom but also as a former lieutenant colonel in the U.S. Army. She gave the audience a succinct and compelling PR presentation on Enbridge’s overall operations. “Think of Enbridge as the ‘Fed-Ex’ of the oil and gas industry,” she cleverly described, “Enbridge delivers 2.5 billion barrels of crude and liquid petroleum, 5 billion cubic/feet of natural gas, and 1,600 MW of renewable energy a day.” Her numbers underscored the amazing recent growth of this billion-dollar company coinciding with North America’s energy boom. For example, in the last seven years, Enbridge had doubled its employees to 11,000. Guthrie concluded her overview by noting that Enbridge was recognized as one of the Global 100 Most Sustainable Corporations in the World.

This last claim got me thinking: if Enbridge can get that level of praise despite its shocking track record of 800 pipeline spills in the U.S. and Canada between 1999 and 2010, leaking 6.8 million gallons of oil and causing the largest inland heavy tar sands rupture in U.S. history, I wonder what the other energy companies are like.

Guthrie described the Line 5 as a 650-mile pipeline originating in Superior, Wisconsin traveling across the Upper Peninsula across the Straits of Michigan and down to Sarnia, Ontario. Line 5 is a 30-inch pipeline, except across the Straits where it divides into two 20-inch pipelines. Guthrie emphasized that Line 5 was carrying “light crude oil” which has “the consistency of skim milk.”

The view driving across the Mackinac Bridge: the Enbridge Line 5 oil pipeline is submerged beneath the same Straits of Mackinac that the Bridge traverses.

The view driving across the Mackinac Bridge: the Enbridge Line 5 oil pipeline is submerged beneath the same Straits of Mackinac that the Bridge traverses.

Blake Olson, Enbridge’s Escanaba Area Manager for over 400 miles of Line 5, followed with a presentation on the integrity of the Line 5 pipeline. He described Line 5 in the Straits as a one-inch thick seamless steel pipe, build with such a robust design that they just don’t build pipelines like this anymore. In fact, Olson commented that Line 5 at the Straits is the thickest pipeline in North America. Since 2012, Enbridge had increased the flow or volume of the product by 10 percent. Then he made the case that Enbridge had made a number of significant upgrades in their leak detection system within the last couple of years, including:

  • automatic shut-off valves at both sides of the Straits,
  • replacement of St. Ignace Valve Yard (2011) and Valve Yard containment system (2012),
  • the on-going installation of emergence flow restriction devices,
  • a back-up electric generator installed in 2013, and
  • a thermally imaging leak detection system to be installed this year.

In addition, Olson described Enbridge’s integrity protective system along Line 5, which included corrosion prevention with coal tar coating and cathodic protection, anchor strike prevention and brackets every 50 feet (coming this summer), monitoring with internal and external pipeline inspections, lighted shore signage and nautical charts stating DO NOT ANCHOR.

Too little, too late?

This was an impressive list to the casual listener/observer, but what troubled me was that a lot of these basic safety protections to ensure pipeline protection were recently instituted and this pipeline was 61-years-old. For example, in the 61 years of this pipeline’s history, the U.S. Coast Guard did not have nautical charts informing vessels about the very location of Line 5 until January 2014.  This change only happened because a number of concerned Michigan groups met with the Governor’s office to discuss Line 5’s safety in December 2013.

Olson assured the audience that Enbridge’s integrity program demonstrated that Line 5 under the Straits was “fit for service” with no dents or anomalies and met all federal pipeline regulations.

Before the Q&A session, Enbridge invited its contractor Bill Hazel from Marine Pollution Control to provide an overview of the emergency response measures set in place in the event of catastrophic spill on Line 5 under the Lakes. Hazel pointed to a number of simulated winter emergency response drills that Enbridge had participated in or serves as the lead in 2008, 2012, 2013, and this year. What became crystal clear was how catastrophic a Line 5 rupture would be especially during the wintertime. One follow-up question captured our imagination of this seemingly impossible mission: ‘May day, May day, May day!  It’s January 21, 2014 and it’s -9 °F and the wind chill is -25 °F, the Straits of Mackinac are frozen over, the ice four feet deep, and Line 5 has ruptured under the ice.  What are you going to do about it?’

Left to right: Jim Dulzo, MLUI; Jonathan Aylward, FLOW; Lee Sprague, Little River Band of Ottawa Indians; Anne Zukowski, Don't Frack Michigan; Jannan Cornstalk, Little River Band of Ottawa Indians

Left to right: Jim Dulzo, MLUI; Jonathan Aylward, FLOW; Lee Sprague, Little River Band of Ottawa Indians; Anne Zukowski, Don’t Frack Michigan; Jannan Cornstalk, Little River Band of Ottawa Indians

Enbridge answers (some) public questions

Following a final word from the local emergency manager in Mackinac, Guthrie gathered the 5×7 questions cards, proceeded to sort them into piles, and distributed them to the appropriate Enbridge representative for answers at the podium. Several illuminating points came out:

  1. Line 5 only transports light crude oil, the consistency of skim milk.
  2. Line 5’s light crude oil currently comes the Bakken oil fields.
  3. There are no plans to pump heavy crude oil through Line 5.
  4. Seamless pipe wasn’t really a seamless pipe as Enbridge had described previously, rather Line 5’s two 20-inch pipelines are seamless only up to the joints that repeat every 40 feet along the 4-mile stretch along the bottomlands of the Straits.
  5. A wintertime spill would present unprecedented challenges in mounting an emergency response.
  6. If a rupture occurred and the automatic shut-off valves turned off in a 3-minute period, 5,500 barrels would be released and disperse over an area 25-square-miles wide.  This number was down considerably from 15,000 barrels before Enbridge installed the automatic shut-off valves.

The last question was: ‘If tar sands were being transported through Line 5, what pipeline changes would Enbridge have to make?’ Enbridge’s Guthrie pulled the card aside and said, “let me hold off on this question because it is complex.”  But time was on Guthrie’s side as the meeting ended sharply at 3:30 pm and she never had to answer this telling question.

The composed Midwestern temperament of the room quickly changed as audience members shouted out that their questions had not been answered.  But it was clear that the meeting was over.

The bottom line for the bottomlands

I walked out into the 12 °F air, looked out over the Straits and felt an urgent need for additional public forums in Mackinac and the Great Lakes to further educate and inform all walks of life who live here about Line 5. Enbridge had attempted to calm the public’s concerns about Line 5, but they hadn’t been entirely forthright and it bothered me. Without public transparency, we will need to engage the State of Michigan to assert its authority as trustee of the waters and bottomlands of the Great Lakes for the benefit of the public.

What I’m talking about is the public trust doctrine, which legally requires Governor Snyder and both the Department of Natural Resources and the Department of Environmental Quality, as state trustees, to ensure that Enbridge’s Line 5 under the Straits will not impair the public waters of the Great Lakes. This means that the State must demand full transparency and disclosure of all Enbridge’s activities not only for the people within range of a potential catastrophic spill, but for all residents of Michigan. Thus, if and when Enbridge decided to transport any type of heavy tar sands oil through Line 5, Enbridge has a duty to inform the state and the public and secure proper authorization under the Great Lands Submerged Lands Act. That’s FLOW’s take on the issue, and it’s what you will be hearing more about in the weeks and months to come. Stay tuned.

Troubled Water Film Screening in Frankfort!

Join For Love of Water, the Groundwork Center, and Oil & Water Don’t Mix at the Garden Theater in Frankfort for the highly anticipated Great Lakes adventure-conservation documentary Troubled Water on Friday, July 19, at 7:30 p.m. The film screening will be followed by a question-and-answer session with actor and filmmaker William Wright and staff of the host organizations.

Troubled Water chronicles Wright and Chris Yahanda, two Michiganders and life-long best friends, embarking on an epic 36-day, 425-mile journey on standup paddleboards to shed light on man-made threats to Michigan’s fresh water, including the decaying Enbridge Line 5 oil pipeline in the Straits of Mackinac. Watch the inspiring preview here:

Can they overcome the mounting fatigue from the wind, waves, and ever-changing weather to complete their quest? What ecological and life lessons will they learn along the way? 

Sponsors:

An abridged and ongoing list: Things Enbridge Takes Credit For

Do you enjoy celebrating the holidays with your friends and family? How about checking items off your bucket list, or watching the Super Bowl? Are cookies, chips, and pizza some of your guilty pleasures?

Believe it or not, you can thank your friendly neighborhood pipeline company for all of these things and more! (Unless your neighborhood is Marshall, MI.)

We don’t know if this is absolutely bonkers PR, or just some good old-fashioned Search Engine Optimization tactics. But either way, you almost have to admire the chutzpah!

Here is an ongoing list of Things Enbridge Takes Credit For (check back for updates!)

 

Achieving your lifelong dreams

4th of July Celebrations

Chocolate chip cookies

Thanksgiving dinner and parade balloons

Not dying of a heart attack

4th of July Celebrations (again)

Fudge

Back to School shopping

Potato chips

Michigan fall tourism

Thanksgiving dinner and visiting your family

The Super Bowl and Super Bowl parties

Not dying from diabetes

Family fun

County fairs and festivals

Detroit-style pizza and football

Eyeglasses, kayaks, deodorant, etc.

Christmas presents

Christmas decorations

 

But there are some important things Enbridge doesn’t like to take credit for, like being penalized six times by the United States for failing to live up to its commitments on safety; violating the terms of its pipeline easement with Michigan; or operating a pipeline in the open waters of the Straits of Mackinac that is uniquely vulnerable to anchor strikes.

Denial, Disinformation, and Doublespeak: Exposing Enbridge’s Playbook on Line 5

To fully understand the fossil fuel industry’s playbook, let’s start with some basic definitions. You might call them the 3 Ds: Denial, Disinformation, and Doublespeak.

Denial is the refusal to believe or accept something as the truth.

Disinformation is false information that is intended to mislead, especially propaganda issued by a government organization to a rival power or the media.

Doublespeak is deliberately euphemistic, ambiguous, or obscure language.

On May 1, the U.S. Senate Budget Committee held a full hearing on this very topic: Denial, Disinformation, and Doublespeak: Big Oil’s Evolving Efforts to Avoid Accountability for Climate Change. This hearing was based on an extensive three-year Congressional investigation led by the House Oversight Committee that culminated with an April 2024 report by the same title.

Relying on industry documents obtained by the House Oversight Committee, the House report revealed that “fossil fuel companies routinely mislead the public and investors about their emission reduction targets, their plans to comply with the Paris Agreement, the viability of low-carbon technologies they tout, the alleged safety of natural gas, and their commitments to support various climate policies.” (p. 11). The key findings of this report included:

  1. “Documents demonstrate for the first time that fossil fuel companies internally do not dispute that they have understood since at least the 1960s that burning fossil fuels causes climate change and then worked for decades to undermine public understanding of this fact and to deny the underlying science.
  2. Big Oil’s deception campaign evolved from explicit denial of the basic science underlying climate change to deception, disinformation, and doublespeak.
  3. The fossil fuel industry relies on trade associations to spread confusing and misleading narratives and to lobby against climate action.
  4. The fossil fuel industry strategically partners with universities to lend an aura of credibility to its deception campaigns while also silencing opposition voices.
  5. All six entities—Exxon, Chevron, Shell, BP, API, and the Chamber [of Commerce]—obstructed and delayed the Committees’ investigation.” (i-ii).

Here in the Great Lakes, we see Enbridge applying these same tried and true strategies in its effort to wring every last bit of profit from its fossil fuel infrastructure and its most dangerous pipeline, Line 5, which carries refined tar sands from Canada(1).

This 645-mile pipeline runs through hundreds of waterways in Wisconsin and Michigan, including a nearly 5-mile segment in the open waters of the Straits of Mackinac, where it is vulnerable to anchor strikes that could cause a catastrophic oil spill in the heart of the Great Lakes.

 



Denial and deception have been key tactics for Enbridge. Before the State of Michigan’s 2019 litigation against Enbridge to revoke and terminate the Line 5 easement in the Straits, Enbridge knowingly lied to state and federal regulators for years about the dangerous failing nature of the pipeline and its faulty engineering design that resulted in the pipeline’s cathodic protection against corrosion being scraped off. In fact, Enbridge publicly argued that Line 5 was in good condition.

But, Enbridge knew that it was in a state of constant violation of the State of Michigan’s requirement that the pipeline be supported every 75 feet. Long, unsupported spans of pipeline stress the metal and risk rupture. For decades, Enbridge failed to address unsupported spans of 200, 300, and even 400 feet long (PDF, pg. 10).

Today, Enbridge knows that Line 5 is vulnerable to anchor strikes from ships passing in one of the busiest shipping lanes in the Great Lakes. Enbridge knows that if a Line 5 oil spill happened in the Straits, it would be on a magnitude and scale that would dwarf the company’s 2010 Kalamazoo oil spill disaster–which is to this date one of the largest inland oil spills in U.S. history. Enbridge knows that in the event of an oil spill in the Great Lakes, less than 30 percent of the oil could be recovered, based on the U.S. Coast Guard emergency response rates.

And while Enbridge seeks to build a massive new fossil fuels tunnel through the Straits of Mackinac, it cautions investors  that “Our business, financial condition, results of
operations, cash flows, reputation, access to and cost of capital or insurance, business plans or strategy may all be materially adversely impacted as a result of climate change  and its associated impacts.” (PDF, p. 45) [emphasis added]

It also notes, without irony, that “Climate-related physical risks, resulting from changing and more extreme weather, can damage our assets and affect the safety and reliability of our operations.” Enbridge is complaining about the problem (climate change) that its own business is causing.

 

Disinformation also has been a hallmark of Enbridge’s campaign to keep fossil fuels flowing through Line 5. For years, Enbridge claimed that shutting down Line 5 would result in freezing the grannies in Michigan’s Upper Peninsula. Clearly, this is ridiculous. Line 5 didn’t even carry natural gas liquids (NGLs) for home heating until the 1990s, and yet, somehow, the pre-grunge era grandmothers endured. A 2020 report (PDF) prepared for the Michigan Department of Environment, Great Lakes, and Energy (EGLE) found that the Upper Peninsula has dozens of alternative sources for propane.

But litigation changed everything, when Enbridge finally had to testify under the rule of law. The public finally learned that Line 5 is not critical infrastructure, as Enbridge had touted for years. In fact, Enbridge is using Line 5 primarily to move Canadian tar sands oil back to Canadian refineries–using Michigan and the Great Lakes as a high-risk shortcut.

Enbridge knows that the current operation of Line 5 in the open waters of the Great Lakes is dangerous. That’s why it concocted and drafted special legislation in 2018 under the Snyder Administration to use yet more public lands and waters under the Great Lakes to build a tunnel for Line 5. The disinformation surrounding the tunnel continues to run thick.

What is clear is that no new fossil fuel infrastructure can be built (including Enbridge’s proposed tunnel and the 41-mile pipeline reroute around the Bad River Band reservation in Wisconsin) if we are to achieve international net-zero emission goals by 2050, according to the International Energy Agency (IEA).

The proposed tunnel is a seductive alternative to the status quo of Line 5, but this is not an alternative that will promote energy and water security in the Great Lakes region. Smart alternatives using existing infrastructure are available and should be prioritized.

Moreover, the proposed tunnel will become an albatross around Michigan’s neck. Michiganders will be liable and fiscally responsible for the upkeep of the tunnel to nowhere when Line 5 becomes a stranded asset in less than 20 years. Enbridge has filed a truncated depreciation schedule with the Federal Energy Regulatory Commission (FERC). Enbridge is racing to recoup its costs because it knows the sun is setting on the fossil fuels industry, and the tunnel will have a limited economic life.

In its 2023 annual report, Enbridge recognizes that stakeholder and organized opposition to fossil fuels threatens its operations and financial position, writing “We are also exposed to the risk of higher costs, delays, project cancellations, loss of ability to secure new growth opportunities, new restrictions or the cessation of operations of existing pipelines due to increasing pressure on governments and regulators, and legal action, such as the legal challenges to the operation of Line 5 in Michigan and Wisconsin.” (PDF, pg. 53) [emphasis added]

Where does that “increasing pressure” come from? It comes from all of us: voters, coalition organizations, courts, activists, the business community, and everyone who is speaking out about this dangerous, unnecessary pipeline and climate change.

That’s why Enbridge is ratcheting up its PR campaign in this presidential election year, by blanketing the airwaves and media outlets across Michigan. Here in northern Michigan, Enbridge is running underwriting spots on public broadcasting, ads on Spotify (even on left-leaning podcasts), and “greenwashing” digital ads on LinkedIn.

According to data available from the Meta platforms Ad Library, in January 2024 Enbridge launched an advertising blitz on Facebook and Instagram, spending approximately $128,000 to date on ads targeting Michigan, Wisconsin, and notably, Washington D.C. These ads have been viewed well over 3 million times.

(click to enlarge)

 

Why? Because Enbridge needs Michiganders to accept the tunnel as inevitable. Enbridge needs Wisconsinites and indigenous communities to embrace the pipeline re-route. Enbridge needs legislators and agency staff in D.C. to believe it is fighting the climate change its products cause.

Enbridge is desperate to turn down the pressure.

 

Lastly, we turn to Enbridge’s doublespeak. Enbridge’s playbook takes the cake here. As if causing one of the largest inland oil spills in U.S. history wasn’t bad enough, Enbridge has the gall to take credit for fulfilling your lifelong dreams! Ignoring the fact that you need clean water to kayak and not a catastrophic oil spill, Enbridge now is taking credit for it all because life takes energy. According to Enbridge’s Community Engagement Manager in Northern Michigan, Lauren Brown says: “It’s satisfying to know that in some way, Line 5 can have a role in helping people to achieve their lifelong dreams,” Check it out here. For real.

Like so many of us, Michigan’s Attorney General is also tired of this fossil fuel playbook. In May 2024, Attorney General Dana Nessel announced that her department is seeking proposals from outside lawyers and law firms willing to pursue litigation as special assistant attorneys general working on behalf of the state. In an interview with Bridge Michigan, Nessel said Michigan taxpayers face “billions of dollars of losses” as climate change fuels extreme weather, warms lakes and rivers to the point of crisis for fish species, destroys northern forests and threatens the state’s people and economy. Attorney General Nessel remarked that climate change impacts in Michigan were “caused by these companies that knew exactly what they were doing.”

Enough is enough. It’s high time that we call Enbridge’s bluff and call out this multinational corporation’s intentional and repeated actions to deny and deceive.


(1) The amount of air pollution coming from Canada’s oil sands extraction is between 20 to 64 times higher than industry-reported figures, according to a recent groundbreaking study. Canada’s oil sands are the fourth-largest oil deposit on Earth and among the most energy-intensive to access and process. https://news.mongabay.com/2024/05/canada-oil-sands-air-pollution-20-64-times-worse-than-industry-says-study/ (Visited May 21, 2024).

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 had 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 added over time.

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: Immediate, Incontrovertible, 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.”


[Illustration of the approximate size of a Great Lakes freighter anchor relative to Line 5. 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. Federal agencies report 22 pipeline accidents in the period 1979 through 2021, all of which resulted in the release of oil.

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.

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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 implement required safety measures 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 have occurred in the Straits of Mackinac.

Enbridge knows that Line 5 is uniquely 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.


Take Action:

Email your Michigan representatives in Lansing

FLOW Appeals MPSC Decision Approving the Line 5 Tunnel

Download FLOW Appellate Brief  (PDF)

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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