Tag: Line 5

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

Media Release: January 3, 2024

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

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

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

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

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

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

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

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

Related:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Key Findings:

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

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

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

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

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

Summary

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

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

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

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

[PRESS RELEASE: DOWNLOAD PDF]

[AMICUS BRIEF: DOWNLOAD PDF]

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

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

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

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

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

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

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

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FLOW’s Technical Questions for the Mackinac Straits Corridor Authority

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

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

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

Download FLOW’s letter to the MSCA (PDF)

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

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

Download the PDF

U.S. Army Corps to Limit Line 5 Tunnel Review

“The US Army Corps of Engineers decision to exclude the cumulative impacts of the fossil fuels Line 5 will transport, climate concerns, and, remarkably, engineering concerns raised by experts as to the integrity of the tunnel, flies in the face of the Corps’ purpose and mission, the Biden Administration’s goals and policy, and public concern for the protection of Great Lakes waters.” – Liz Kirkwood, FLOW Executive Director

On this day in 2010: Enbridge Oil Spill in Kalamazoo River

This week marks the unlucky 13th anniversary of one of the largest inland oil spills in U.S. history. On July 25, 2010, a pipeline operated by Enbridge – the same corporation operating the risky Line 5 in the Strait of Mackinac – burst and released dirty tar sands oil into Talmadge Creek, a tributary of the Kalamazoo River. Nearly forty miles of the Kalamazoo River were closed for cleanup until June 2012. Enbridge paid more than $177 million in penalties and was required to improve safety measures. The estimated cost of the cleanup was more than $1 billion.

Corrosion fatigue – poor maintenance by Enbridge – was cited as the underlying cause of the catastrophic breach by the U.S. National Transportation Safety Board. NTSB Chair Deborah Hersman compared Enbridge’s inept handling of the spill to the Keystone Kops.

“Why didn’t they recognize what was happening, and what took so long?” she asked.

 

 

 

“The Strait Story” Line 5 Webinar

Watch on YouTube: https://www.youtube.com/watch?v=xzO-NA-qjfw

Download the Line 5 Fact Sheet (PDF)

 

Enbridge’s Line 5 pipeline is over 70 years old and remains a threat to the waters and people of the Great Lakes region.

On Wednesday, July 19 2023, FLOW and Oil & Water Don’t Mix presented a special live webinar, featuring a panel of experts on how Michigan, Wisconsin, and the Bad River Band of Lake Superior Chippewa are working together in the courts to shut down Line 5 and bring an end to Enbridge’s trespass on state, sovereign, and indigenous lands. We also discussed smart pipeline alternatives, how organizations are working to avert an oil spill disaster, and answered audience questions.

Our expert panel:

  • Riyaz Kanji, founding member and Directing Attorney of Kanji & Katzen and attorney for the Bad River Band of Lake Superior Chippewa.
  • Christopher Clark, Supervising Senior Attorney, Earthjustice – representing Bay Mills Indian Community
  • Sean McBrearty, Campaign Coordinator, Oil & Water Don’t Mix and Legislative and Policy Director at Michigan Clean Water Action
  • Read full panelist bios.

Hosted by FLOW Executive Director Liz Kirkwood, and moderated by Senior Legal Advisor Skip Pruss.

This online webinar was supported in part by a grant award from the Mackinac Island Community Foundation’s Natural Resources and Preservation Fund.

 

FLOW Welcomes Court Order in Michigan Attorney General’s Case to Shut Down Line 5

Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan, in response to a federal district court’s certification on Tuesday of questions for interlocutory review by the U.S. Court of Appeals for the Sixth Circuit. The decision comes in the case of Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019, in the Michigan Circuit Court for the County of Ingham, to shut down the Line 5 oil pipelines in the Great Lakes. Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or by cell at 231.620.7911.


“This is a welcome development in Attorney General Dana Nessel’s effort to return to state court her state-law claims seeking the shutdown of Enbridge’s dual oil pipelines on state-owned bottomlands in the Straits of Mackinac. FLOW credits her petition for mandamus—filed just two business days before the certification order—for prompting the federal district court to finally take action on a motion that the Attorney General filed more than five months ago.

“Although the district court’s order does not guarantee that the Sixth Circuit will agree to resolve the certified questions, we are hopeful that the Court will recognize that interlocutory review is necessary to protect the fundamental state rights that are undermined by the district court’s erroneous procedural and jurisdictional rulings. 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster,” said FLOW Legal Director Zach Welcker 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster.” 

Additional Resources:

Petition for Writ of Mandamus in Nessel v. Enbridge-2023-2-17 

Opinion and Order Granting Motion to Certify-Nessel v. Enbridge-2023-2-21

FLOW’s Line 5 Program

FLOW’s Line 5 News