Editor’s Note: The following is a media release issued by FLOW on November 16, 2021; please contact Executive Director Liz Kirkwood at (570) 872-4956 or Liz@FLOWforWater.org or Senior Legal Advisor Jim Olson at (231) 499-8831 or Jim@FLOWforWater.org.
Judge Neff’s decision today addresses only the narrow, procedural issue of whether a state or federal court should decide if the State of Michigan lawfully ordered the shutdown of the Line 5 oil pipelines in the Straits of Mackinac. Although the federal court’s decision to exercise jurisdiction over this matter is disappointing, it does not resolve the validity of the State’s action to protect the public’s legally revered interests in the Great Lakes. Canadian energy transport giant Enbridge continues to defy the order to shut down Line 5.
The decision is legally deficient for multiple reasons, most notably because it failed to consider express provisions of federal law that affirm Michigan’s sovereign right to apply and enforce its own laws to protect its waters and environment. The court also did not properly consider the State’s sovereign interests as required when making a jurisdictional determination.
“The court overlooked the sovereign public interests of Michigan, an omission that seriously threatens not only Michigan’s sovereignty over its navigable water, but every state in the nation,” said FLOW Founder and Senior Legal Advisor Jim Olson.
The decision also threatens the sovereign interests of states by setting an extremely low bar for removing state-court lawsuits to federal court. This could result in the weaponization of federal jurisdiction by foreign corporations seeking to litigate disputes involving state law in federal court.
“Fortunately,” said Liz Kirkwood, Executive Director of FLOW, “until decided by a court, Governor Whitmer’s revocation of Line 5 stands firm. FLOW stands in solidarity with the State of Michigan as Attorney General Nessel defends the public waters of the Great Lakes in this nationally significant litigation.”
Dire Straits: A damaged portion of Line 5 in the Straits of Mackinac shown in this June 2020 photo provided to the State of Michigan by Enbridge.
By Nora Baty
Nora Baty is a Milliken Law and Policy Intern at FLOW and a 3rd-year law student at the University of Michigan.
Do you remember the last time Line 5 shut down? This week marks the one-year anniversary of Line 5’s closure following significant damage to an anchor support likely caused by an Enbridge-contracted vessel.
Enbridge continues to operate Line 5 in direct violation of Governor Gretchen Whitmer’s lawful shutdown order, with the Canadian pipeline company claiming that “shutting down Line 5 even temporarily, would have immediate and severe consequences on the economies of Michigan, Ohio, Ontario, and elsewhere.”
Enbridge Line 6B’s 2010 spill into the Kalamazoo River near Marshall, Michigan
Line 5 is a ticking time bomb in the Straits that threatens more jobs than it sustains. Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. Some 3 miles of the pipeline are elevated off the public bottomlands with supports meant to shore up the decaying infrastructure in fierce currents that scour the lakebed. The change in structural design has exposed the pipeline to strikes by anchors and cables, and poses an extreme navigational hazard in a busy shipping channel. (See also, “Key Facts: Line 5 and the Proposed Oil Tunnel“).
“Pervasive organizational failures at Enbridge” caused one of the nation’s largest inland oil spills in July 2010 when its Line 6B pipeline burst near Marshall, Michigan, and for 17 hours dumped 1.2 million gallons of heavy tar sands oil into the Kalamazoo River watershed. It took four years and over $1.2 billion to clean it up to the extent possible.
Enbridge Line 6B was 41 years old when it failed; Enbridge Line 5 is 68 years old and counting.
Story published May 24, 2021. UPDATED June 2, 2021
Editor’s note: This article has been updated to reflect Enbridge’s 2020 Securities and Exchange Commission (SEC) filings
By FLOW staff
Gov. Gretchen Whitmer and the State of Michigan have taken legal action to shut down Line 5 in the Straits of Mackinac to prevent a catastrophic oil spill in the Great Lakes from the dangerous and decaying, 68-year-old pipeline. Meanwhile, Line 5-owner Enbridge and its enablers continue to engage in a Chicken Little “sky is falling” campaign, with the Canadian company claiming that, “shutting down Line 5 would cause shortages of crude oil for refineries in Michigan, Ohio, Pennsylvania and eastern Canada, as well as propane shortages in northern Michigan. Enbridge also alleges a Line 5 shutdown would boost shipments of oil by rail or trucks, without providing any evidence.
Enbridge’s misinformation campaign has been building for a few years, for example, conspiring with DTE and others in 2020 to oppose electrification, renewable energy, and climate change mitigation measures.
In fact, none of Enbridge’s predictions of an energy shortage materialized when both legs of the dual Line 5 pipelines in the Straits were shut down for more than a week in June 2020 and one leg remained closed until about mid-September following damage that the U.S. Coast Guard said likely was caused by an Enbridge-contracted vessel. Research conducted by former Dow Chemical engineer Gary Street found that gasoline prices and supply were unaffected in Michigan and Canada after more than 50 days of a court-ordered Line 5 shutdown in the summer of 2020.
The research results are consistent with these studies forecasting little, if any, change in energy costs after Line 5 shuts down for good:
The shutdown of Line 5 won’t lead to fuel shortfalls because available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors.
Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and Pure Michigan economy, according to FLOW’s experts.
Shutting down Line 5 is unlikely to significantly impact gasoline prices (an increase of less than once cent per gallon is forecast), according to a 2018 study conducted by London Economics International, LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
Shutting down Line 5 would add just five cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study conducted by London Economics International, LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
The Upper Peninsula has viable options to Line 5 for its propane supply and economy, according to FLOW’s research.
Another claim regarding the impact of a Line 5 shutdown emerged last year from management of the PBF refinery in Toledo, Ohio. Likely at Enbridge’s behest, PBF warned of a refinery shutdown and loss of a thousand jobs if the supply provided by Line 5 is no longer available. The Toledo refinery, PBF suggested, has no other source of petroleum.
This assertion immediately raised the question: What kind of refinery management would leave itself vulnerable by receiving crude from only one source? It also directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts. They emphasize that PBF refinery has several sources of supply and can adjust them depending on market conditions.
“The [PBF] refinery only processes light/medium and sweet crude and gets most of its WTI crude through pipeline from Canada, the mid-Continent, the Bakken region and the U.S. Gulf Coast,” an analyst says. Another credits PBF with using “its complex crude processing capacity to source the lowest cost input.” PBF says in its 2020 filing with the Securities and Exchange Commission that crude is delivered to its facility through three primary pipelines, Enbridge from the north, Patoka from the west, and Mid-Valley from the south. Crude is also delivered to a nearby terminal by rail and from local sources by a truck-to-truck unloading facility in the refinery property.
Formerly the PBF refinery was supplied in part by the Capline pipeline. However, the energy market is shifting dramatically and the Capline pipeline is being reversed, demonstrating that the system is flexible and can adapt to changing markets without shutting down the refinery.
The fact is that multiple alternative pipelines, rail, and truck sources are and will be available to enable PBF to continue refining petroleum as it is today. No credible evidence points to job loss in Toledo from a Line 5 shutdown. And PBF itself said in a September 2017 news story challenging EPA regulations because of alleged job losses that the Toledo refinery employed 550, not 1,000, workers.
After Line 5 is shut down, the small percentage of its light crude coming to U.S. refineries could be supplied by other sources currently serving the region, including the Patoka and Mid-Valley pipelines, along with crude from Northern Michigan oil wells.
Fanning the fears of employees and communities with false and inflated claims is the latest in a series of tactics deployed by Enbridge and its enablers. Their goal is to pressure Michigan officials into letting the company continue to occupy the public bottomlands of the Straits of Mackinac with its antiquated Line 5 pipeline, and later, a proposed oil pipeline tunnel under the lakebed.
PBF also claims that a feared Toledo refinery shutdown, which research cited above dispels, would seriously impinge on the supply of jet fuel at Detroit Metropolitan Airport, driving up fares or reducing flights, or both. The claim is that 40% of the jet fuel used at the airport comes from refined Line 5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day, and again alternative pipeline sources can more than make that up.
It is worth noting that prior to PBF’s claims made in 2019, the impacts of a Line 5 shutdown on Metro Airport jet fuel had never before been raised as an issue in the Line 5 debate. Now Canadian officials are singing the same tune to bring political pressure on the Whitmer administration, claiming that Line 5 “is the single largest supply for gasoline, ultimately, in southern Ontario; for aviation fuel out of the Detroit airport; for heating fuel in northern Michigan; for the refineries in northern Ohio that fuel much of the Midwest U.S. economy.”
For its part, Enbridge has a track record of misleading the public and governments about its performance, including failure for 3 years to report bare spots in the protective coating on Line 5 in the Straits, violating for several years the safety conditions of its easement agreement to occupy the public waters and bottomlands of the Straits, and running a dubious advertising campaign claiming to protect Michigan’s water. Enbridge’s and its allies’ recent claims are consistent with the company’s apparent philosophy of avoiding transparency and saying anything to keep Line 5 petroleum and profits flowing.
Key Facts, in a Nutshell
Jobs! Let’s talk jobs!
If the Great Lakes region were a country, it would have a GDP of US$6 trillion making it the third largest economy in the world. In fact, a new report analysing the 83 coastal counties along the Great Lakes has found that the Great Lakes support more than 1.3 million jobs that generate $82 billion in wages annually. Continuing to operate the decaying Line 5 risks many jobs, while shutting down Line 5 will protect hundreds of thousands of jobs in Michigan’s tourism economy. According to a FLOW-commissioned report in May 2018 conducted by a Michigan State University ecological economist, direct spending by tourists supports approximately 221,420 jobs, and the total tourism economy in 2016, including direct, indirect, and induced impacts, supported 337,490 jobs—approximately 6.1% of total employment in Michigan.
Toledo PBF Refinery
Enbridge and fossil-fuel industry allies have a track record of false and unsubstantiated claims and a lack of transparency.
The numbers are inflated:
Enbridge and refineries and some politicians are misleading the public. They falsely claim that the two Toledo refineries and one Detroit refinery, and by extension the jobs there, are fully and wholly dependent on Line 5. The refineries supposedly affected are: Marathon-Detroit; BP-Husky-Toledo — which carries no Line 5 feedstock because it’s a tar sands refinery that takes feedstock from Line 78 (formerly Line 6B), and PBF-Toledo. PBF states in its 2020 filing with the Securities and Exchange Commission that it “processes a slate of light, sweet crudes from Canada, the Mid-continent, the Bakken region and the U.S. Gulf Coast.”
The Patoka pipeline and the Mid-Valley pipeline supply PBF with oil and the refinery receives oil from rail and truck.
The refineries rely on multiple pipelines and suppliers, and they say so in writing.
Marathon refinery primarily uses dilbit, which Line 5 doesn’t currently carry.
Detroit Metropolitan Airport
In a letter to Michigan Gov. Gretchen Whitmer, Ohio Gov. Mike DeWine claimed, “our refineries supply the majority of aviation fuels to Detroit Metro Airport” and asserted that the shutdown of Line 5 would lead to airline schedule disruptions.
But 2020 jet fuel consumption at Detroit Metro will total 1,658,000 gallons per day, according to a 2010 estimate by the airport. Based on numbers published by PBF, BP Husky and Marathon Refineries, Line 5 appears to supply only about 10% of the jet fuel at Detroit Metro Airport, not 40% as claimed by Ohio Gov. DeWine. Both Marathon and PBF have other crude oil sources, and therefore other pipelines could provide feedstock to satisfy regional jet fuel needs. Alternatively, other nearby refineries in Illinois, Indiana, and Ohio could make up this shortfall.
Bottom line: Shutting down Line 5 will protect hundreds of thousands of jobs. A Line 5 shutdown would not significantly impact jobs at Toledo, Ohio, refineries. There is absolutely no evidence that a shutdown would impair operations at Detroit Metropolitan Airport.
Every hour, Enbridge’s Line 5 pipelines pump nearly a million gallons of oil through the heart of the Great Lakes at the Straits of Mackinac, which connect Lakes Michigan and Huron. This location with its powerful currents is “the worst possible place for an oil spill in the Great Lakes,” threatening over 700 miles of Lakes Michigan and Huron coastline, according to the University of Michigan. Governor Whitmer calls Line 5 “a ticking time bomb” that Enbridge has refused to defuse.
This morning along East Grand Traverse Bay, the drinking water source for Traverse City, Liz Kirkwood explains why Enbridge’s decision to ignore the law amounts to privatizing the Great Lakes and the Public Trust.
Sixty-eight years ago, Enbridge’s predecessor, Lakehead Pipeline Company, chose this vulnerable location as the shortest distance to transport Canadian oil back to Canada. In 1953, the public, political leaders, and pipeline operators had not yet experienced catastrophic oil spills like the Exxon Valdez in Alaska, BP Deepwater Horizon in the Gulf of Mexico, or Enbridge’s own Line 6B Kalamazoo River disaster in southern Michigan.
Now, despite the well-documented and lasting economic and ecological harm of oil pipeline disasters across the globe, we are witnessing intense, orchestrated opposition from Canada’s Enbridge and its allies to shutting down a clear-and-present danger to Michigan’s waters and way of life. A Line 5 oil spill would be an unprecedented ecological and economic disaster in the Great Lakes, threatening 84% of North America’s surface fresh water and some 20 percent of the planet’s fresh surface water, devastating coastal communities, and causing billions of dollars of damages to the environment and local and regional economy.
Line 5’s original design intended the dual pipelines to lie upon the lakebed and was subject to a detailed and comprehensive engineering evaluation of 20 specific areas, including written determinations of fitness that were certified by consulting engineers. Now, after decades of patchwork repairs to shore up the decaying infrastructure, as much as 3 miles of pipelines are elevated above the lakebed floor and prone to physical hazards such as anchor strikes in the busy shipping channel of the Straits of Mackinac.
After extensive legal review of Enbridge’s incurable violations in public trust waters, the governor and the Department of Natural Resources took decisive legal action to defend the Great Lakes from a catastrophic oil spill under the state’s sovereign public trust law. Leaders in 16 states and the District of Columbia and four tribes have taken Michigan’s side in its fight to have a state court, not a federal judge, decide whether the state has the authority to shutter Enbridge’s Line 5 oil pipeline in the Straits of Mackinac.
In refusing to shut down Line 5 per the Governor’s order, Enbridge’s flagrant disregard for the law exposes a deep-rooted and reckless corporate culture of exceptionalism that includes the following:
Refusing to hold the State of Michigan, its people, and the tribes of Michigan harmless, thus foisting risk of a Line 5 spill on the U.S. and the Great Lakes.
Engaging in a targeted, sophisticated misinformation media strategy through Enbridge’s front group affiliate Consumer Energy Alliance.
Gov. Whitmer on Tuesday pledged in a letter to seize any profits that Enbridge makes from operating Line 5 after today’s midnight shutdown deadline, alleging it would constitute trespass and unjust enrichment. Also on Tuesday, several federally recognized tribes in Michigan took legal steps under tribal law to limit Enbridge and the threat from Line 5. Bay Mills Indian Community in the Upper Peninsula, as well as a five-tribe organization including Bay Mills that manages the fishery in the Straits of Mackinac, voted to banish Enbridge’s Line 5 from its territory. Banishment is a legal action that is considered a punishment of last resort in tribal law.
“This was the first, necessary step in banishing Enbridge from these waters,” said Bay Mills chairperson Whitney Gravelle, who said the move applies to the reservation and treaty-ceded waters. “We’re calling on the state and the United States to enforce this banishment.”
Michiganders have not forgotten Enbridge’s epic failure and legacy of the million-gallon, Line 6B oil spill disaster into the Kalamazoo River in 2010 that drove dozens of families permanently from their homes and cost an estimated $1.2 billion in cleanup costs, damages, and restoration.
“The Enbridge Kalamazoo River spill of 2010 was a real thing — people remember it,” said David Holtz, spokesman for the Oil & Water Don’t Mix campaign. “They understand that oil still lies at the bottom of that river, and that a million gallons were spilled. They understand that could happen again times 10 in the Straits of Mackinac — no matter what Enbridge says in its million-dollar ad buys.”
As part of “a sophisticated public affairs strategy,” Enbridge and its ally Consumer Energy Alliance—a national oil industry front group—continue to claim that shutting down Line 5 could lead to propane and oil shortages and increased prices harming Michigan consumers. However, the vast majority of the liquids shipped via Line 5 do not supply Michigan, and an independent analysis found that shutting down Line 5 was unlikely to significantly impact consumer prices at the pump (less than one cent per gallon) and that Michigan’s energy needs could be met without Line 5. Research conducted by former Dow Chemical engineer Gary Street found that in August 2020, after more than 50 days with at least one leg of Line 5 closed due to damage from an cable strike, gasoline prices and supply were unaffected in Michigan and Canada.
At the same time, the energy landscape is rapidly changing with the adoption of electric vehicles, accelerating commitments to cut greenhouse gas emissions, and the slowdown of oil and gas production. Enbridge has been on notice for several years that the State of Michigan was seriously considering the shut down of Line 5.
But not everyone is waiting around. In fact,several oil companies seeking alternatives to Line 5 have contingency plans put in place. Suncor Energy purchased a stake in the Portland-Montreal pipeline to import oil from Maine to Montreal if Line 5 is shut down. Toronto’s Pearson Airport has stated that its fuel sources are “diversified and consequently not at risk.”
Line 5 also threatens our climate and water security in an increasingly hot and thirsty world. Each year, Line 5 pumps out more than 57 million metric tons of greenhouse gas emissions, which is equivalent to the combined operation of the nation’s three largest coal plants. Dismissing the climate emergency, Enbridge and its political allies in the U.S. and Canada promote energy security alone and insist that “the operation of Line 5 is non-negotiable.”
This strident reaction from Canadian politicians stems in part from the fact that Canadians have rejected building any new pipelines in the last decade in their own country going east or west to the coasts for export. In this pipeline battle, the Anishinabek Nation says the Canadian government isputting the oil and gas industry ahead of the Great Lakeswith its support for the Line 5 pipeline. The Great Lakes are international water bodies, and Canadians should be just as concerned for their protection as the United States.
The Great Lakes support over 1.3 million jobs that generate $82 billion in U.S. wages annually, with 350,000 of those jobs in Michigan alone. More than 48 million Americans and Canadians draw their drinking water from the Great Lakes. Line 5 represents an unacceptable risk to the jobs and economy of the Great Lakes region, drinking water, and tribal treaty and fishing rights. While Enbridge might refuse for now to stop Line 5’s oil flow or collaborate in the global energy transition, for the future prosperity of Michigan, the Great Lakes, and the planet, we all must transition away from Enbridge.
About the authors:
Liz Kirkwood is FLOW’s executive director. Nora Baty is a third-year law student at the University of Michigan Law School and currently serving as FLOW’s Milliken Law and Policy Intern.
The following is in reaction to the Michigan Public Service Commission’s ruling today regarding the scope of review for permitting required for Enbridge to replace and relocate its decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a single new pipeline.
FLOW and other organizations and tribes have formally intervened in the MPSC contested case process for siting the tunnel and pipeline to assert that Michigan law requires a comprehensive review of the project’s necessity, impacts, and alternatives in the context of climate change and the ongoing rapid transition to renewable energy sources.
“FLOW applauds the MPSC’s careful commitment to science, sound economics, and the public interest,” stated Liz Kirkwood, executive director of For Love of Water (FLOW). “The Commission’s decision is significant because it recognizes that the Michigan Environmental Protection Act applies to consideration of greenhouse gas emissions that would be spurred by Enbridge’s proposed oil pipeline tunnel. The MPSC clearly understands the need to accelerate the energy transition, adopt clean energy solutions, and avoid the environmental and economic impacts of legacy fossil fuels.”
Jim Olson, FLOW’s founder and legal advisor, said, “The MPSC’s decision demonstrates true leadership to address the transport and consumption of crude oil and the devastating effects crude oil has on the climate and the Great Lakes, infrastructure, and our quality of life in the 21st century.”
Background on Line 5 and the MPSC
See FLOW’s ongoing coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel proposed for the Straits of Mackinac here:
The United States and Canada are not only close friends and neighbours, but are also committed to resolving their differences with civility and common purpose. The 112-year-old International Joint Commission (IJC), which prevents and resolves disputes over boundary waters, is an example of this special relationship. So is the groundbreaking agreement among Ontario, Quebec and the eight Great Lakes states to ban water diversions from these shared and treasured waters.
The two nations, however, are clashing over energy policy and the effects of Line 5, the Canadian petroleum pipelines in the open waters of theStraits of Mackinac, a major shipping lane and important whitefish spawning ground where Lake Michigan meets Lake Huron. If both Canada and the U.S. take a hard look at these issues together, they will swiftly realize that co-operation, not confrontation, is in the best interests of both — and, significantly, the interests of the planet.
The current discord between the two nations is over the decision in November by Michigan Gov. Gretchen Whitmer to exercise her state’s sovereign constitutional authority to revokethe 68-year-old easementthat Enbridge has relied upon to transport petroleum by pipeline from Alberta to Sarnia, Ont., across the public bottomlands of the straits separating Michigan’s upper and lower peninsulas.
The governor took this action in light of the clear and present danger from Enbridge’s appalling track record of easement violations in operating Line 5, including lake-bed erosion undermining support of the dual pipelines in the fierce currents where Lake Michigan meets with Lake Huron. Enbridge alsolacks adequate liability insuranceand has steadfastly refused to provide any of thefinancial assurancesthat Gov. Whitmer has demanded.
Enbridge knew at least 20 years ago that the original design of the Straits of Mackinac pipelineswas failing. Year after year, the company quietly sought approval from the state of Michigan to shore up the pipeline, passed off as “repairs,” by installing supports — now 228 of them — in effect lifting about three miles of the dual pipelines into the water column. Government officials, however, never required Enbridge to get approval for such a radical change that poses a whole set of new and serious risks.
Then, as if fate were sounding a warning alarm, a 12,000-pound anchor from a passing vesselstruck and dentedthe twin pipelines on April 1, 2018. Last summer, Enbridge disclosed two more strikes by anchors or cables. These foreseeable accidents could have opened a gash in the pipeline,exposing 700 hundred miles of the Great Lakes shoreline— potentially including those of Georgian Bay — to a catastrophic spill costing$6 billion in economic damagesto tourism, drinking water and other interests. Even worse, such a spill could trigger a domino effect of damage disrupting Great Lakes commercial shipping and steel production, slashing jobs andshrinking the U.S.’s gross domestic product by $45 billionafter just 15 days. Michigan will lose tens of thousands of jobs if Line 5 ruptures.
Many families, communities, tribes and businesses understandably are skeptical of Enbridge’s safety assurances. Enbridge calls Line 5 “as good as new” and says it can last “forever,” even though Line 5 hasfailed at least 33 timessince 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. In 2010, the company was the culprit in one of the largest petroleum spills in U.S. history. A leak in an Enbridge pipeline in southwest Michigandumped 1.2 million gallonsof heavy tarsands oil into the Kalamazoo River watershed, harming human health and damaging fish and wildlife habitat. The spill cost Enbridge over $1 billion to clean up to the extent possible. The U.S. agency that investigated the spill likened the Enbridge response to the spill to the “Keystone Kops” and cited “pervasive organizational failures at Enbridge.”
Many Canadians are concerned about the possible distortion of their energy supply. They shouldn’t be.Available capacity and flexibilityto meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to experts from the Great Lakes protection groupFLOW. They argue that when Line 5 shuts down,regional domestic energy needs and supplies for refinerieswill still be able to be met. The estimated increased cost to consumers would be afraction of a cent per gallon of gasoline, according to a study commissioned by the National Wildlife Federation.
The threat to the Great Lakes, both U.S. and Canadian waters, is clear. Equally clear is the risk to the planet of another 99 years of transporting carbon-rich petroleum from the Prairies to Sarnia for refining and ultimately releasing massive carbon dioxide emissions. Government promises of a new commitment to action on climate change are hollow if Line 5 continues operation indefinitely.
The law in the U.S. and Canada recognizes the waters of the Great Lakes are held in trust to be managed by the governments as guardians for navigation, fishing and other paramount needs of citizens. Unfortunately, the Canadian and Ontario governments have joined forces with Enbridge to forsake this guardianship by pressuring Gov. Whitmer. As the company spends resources on a slick public relations campaign exaggerating the benefits of Line 5 to the U.S. while neglecting to mention its history of environmental negligence, the governments dispute Michigan’s concerns about a Great Lakes spill.
In 2016, the IJC urged governments in the Great Lakes region to adopt the public trust doctrine as a legal backstop to assure the majesty of the lakes and bottomlands is not impaired. The IJC recommendation makes sense for present and future generations. If Canada and the U.S. do so, they will inevitably support decommissioning of Line 5.
The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, in reaction to the Whitmer administration’s release today of a five-point propane security plan to aid Michigan residents after the dangerous Enbridge Line 5 pipeline is shut down.
Liz Kirkwood, Executive Director
“The MI Propane Security Plan is the right plan at the right time for Michigan’s energy independence and future prosperity. With state leadership, the propane supply and distribution system can continue to adjust to meet demand, particularly in the Upper Peninsula where about 18 percent of households heat with propane.
“It’s far too risky for residents and the State of Michigan to continue to rely on the dangerous and outdated Line 5 pipelines that cross the open waters of the Straits of Mackinac for their propane supply. Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. Line 5 is owned and operated by Enbridge, which caused the Kalamazoo River oil spill disaster in 2010—after providing reassurances to Congress just 10 days earlier of ‘almost instantaneous’ response to leaks in the Canadian company’s sprawling North American pipeline system.
“We cannot trust Enbridge to keep running Line 5 through the Great Lakes, 20% of the world’s supply of fresh surface water and the drinking water source relied on by 48 million Americans and Canadians, including about half of all Michigan residents.
“According to the State of Michigan, the MI Propane Security Plan addresses potential price gouging, invests in renewable energy, energy efficiency and electrification, encourages investments in alternatives to Line 5, ramps up propane storage infrastructure, and calls for more actions to avert any disruption of energy supply.”
The Upper Peninsula Has Viable Options to Line 5 for Its Propane Supply and Economy — FLOW Fact Sheet. Just 1-2 propane rail cars or 4-5 tanker trucks a day could replace the aging Line 5 pipeline’s P. propane capacity without risking a Great Lakes oil spill, FLOW’s latest research shows. The rail cars or tanker trucks could deliver propane from Superior, Wisc., to the existing propane storage-and-distribution center in Rapid River, Michigan, north of Escanaba on U.S. 2.
Shutting down Line 5 would add just 5 cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study by London Economics International LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
For more information, see FLOW’s Line 5 fact sheets and blogs:
By Liz Kirkwood, Executive Director, and Mike Vickery, Board Chair
Being in, on, or near water brings us into balance, restores clarity, and grounds us in understanding what matters most. Water is life. These elemental connections to water and nature were profoundly important to all of us in the tumultuous year of 2020, as the coronavirus upended our lives and economy.
Liz Kirkwood
Mike Vickery
In reflection, as we recount in our Annual Report released today, November 2020 marked an extraordinary milestone for the Great Lakes—and for FLOW. After seven long years of advancing public trust law as the legal basis to shut down Line 5, FLOW watched Governor Gretchen Whitmer and DNR Director Daniel Eichinger assert public trust law as the cornerstone of the state’s action to advance critical legal action to protect the Great Lakes from a catastrophic oil spill.
Equitable and affordable access to clean drinking water remained at the forefront of our work in 2020 as we partnered with frontline Detroit and Flint groups to successfully persuade Governor Whitmer, and then the legislature, to extend a moratorium on water shutoffs through March 2021. We also partnered to form Water for All of Michigan to evaluate equitable and just financing and funding strategies to assure safe, affordable water for all communities. FLOW’s model legislation, Public Water, Public Justice, is a key part of this work.
FLOW also worked to spotlight and protect the Sixth Great Lake, Michigan’s groundwater, unveiling a groundwater story map in March and a June webinar to highlight the implications of a preliminary state decision approving Nestlé’s permit to increase withdrawals for commercial bottled water. And we chronicled a baffling decision in November by the State of Michigan to dismiss the citizen-led contested case challenging the Nestlé permit. In a year dominated by a global pandemic, a reckoning with racial injustice, record-high Great Lakes water levels, an unprecedented national election, and profound challenges to our most important institutions, FLOW stood firm as a fair witness to, and advocate for, the power and value of the public trust in moving forward. Working alongside our partners, allies, supporters, and friends, FLOW planted new seeds from which will grow a more just, diverse, inclusive, equitable, prosperous and resilient water future for generations to come.
Your support and passion for the Great Lakes, groundwater, and drinking water for all inspires us and helps drive us forward. Thank you for our shared successes. We hope you enjoy reading about the fresh waters and public trust rights that we have protected together in our Annual Report 2020.
Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), reacts to news today that the State of Michigan has granted environmental permit approval for Enbridge’s proposed Line 5 oil tunnel in the Straits of Mackinac:
“We are deeply disappointed by the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) decision today to approve permits for Enbridge’s proposed oil tunnel in the Straits of Mackinac.
“EGLE’s permits ignore direct adverse evidence of the tunnel’s risk to surface waters, wetlands, public trust bottomlands, cultural resources, endangered species, treaty fishing rights, climate change impacts, local economic impacts, tourism, and public and private property. In addition, EGLE’s permits ignore feasible and prudent alternatives to the proposed tunnel.
“EGLE’s action is directly at odds with the legal process underpinning the Governor Whitmer’s revocation and termination on November 13 of the easement allowing Line 5 to operate in the public waters and bottomlands of the Great Lakes. The governor’s November decision was based on determinations required under the Public Trust Doctrine. Those same findings, required by law, were never made for the proposed tunnel.”
Background:
Many years and legal and regulatory hurdles remain in the state and federal permitting process for Enbridge’s proposed oil tunnel, which might never be built, but continues to distract from the clear and present danger posed by the decaying Line 5 pipelines in the open waters of the Straits of Mackinac.
Final approval of Enbridge’s proposed oil tunnel remains in doubt as permitting reviews continue by the U.S. Army Corps of Engineers, which is assessing environmental impacts and alternatives, and the Michigan Public Service Commission, which is considering the project’s public need, climate impacts, and location.
The proposed tunnel, at roughly 20-feet in diameter and 4 miles long, would house a new Line 5 pipeline. Enbrige’s goal is for Line 5 to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
Enbridge has a terrible track record of oil spills across Michigan from Line 5 and from Line 6b, which in 2010 dumped more than a million gallons of oil into the Kalamazoo River.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
Enbridge has launched yet another attack on the rule of law in Michigan, a habit that underscores its arrogance and looks more like the disregard for rule of law exhibited by the mob that attacked the constitution, the Capitol, and rule of law of the Nation on January 6. It’s not surprising that Enbridge, a foreign corporation operating in the United States for its own advantage, has a history of disdain for the rule of law. (Enbridge said on January 12 that it won’t comply with Michigan Governor Gretchen Whitmer’s Line 5 easement revocation, and plans to continue operating the pipelines.)
Look at the slippery manipulation of rules by the same corporation that caused the Line 6b disaster along the Kalamazoo River in 2010. Look at Enbridge’s repeated resistance to turning over information to the Attorney General of Michigan from 2014 until today. The corporation sat on information it had about the strong currents scouring under the existing dual pipelines in the Straits of Mackinac and the addition of band-aid support structures over the past 15 years. The corporation dragged its feet on reporting the first anchor strike in 2018, and claimed it would never happen — and then it became public knowledge that it happened again when early last summer Ingham County Circuit Court Judge James Jamo ordered Enbridge to turn over information and reports that confirmed that fact that two more dangerous anchor strikes and a cable dragged along the Line 5 pipelines.
No responsible official would wait for the next strike or next band-aid to prop up a sagging pipeline. Under the state’s solemn duty to protect the Great Lakes and its citizens before serious harm occurs, Governor Whitmer and DNR Director Dan Eichinger, after a thorough 15-month review of information—including strong currents, failing pipelines from scouring and support structures that suspend the pipeline four feet into the water column, sitting in wait —had no choice but to issue the Notice of Revocation and Termination of the 1953 Easement for the existing pipelines.
Similarly, Attorney General Nessel had no choice but to file a lawsuit in Ingham County Circuit Court to enforce the revocation and terminate Enbridge’s gamble that it can extract over $1 million a day at the risk of a major rupture or leak that according to experts would cause over $6 billion in damages and devastate the State’s economy for many years. Our southern Gulf states still have not recovered from the 2010 Deep Water Horizon blowout.
Under the U.S. Constitution and law of the U.S. Supreme Court and our own Supreme Court, Michigan took absolute title and sovereign control of the waters and bottomlands of the Great Lakes into a legally enforceable public trust on admission to statehood in 1837. Under public trust law, the state and its officials are trustees, just like trustees at a bank, and are charged with a solemn duty to prevent impairment, alienation, and subordination of this public trust, including attempts by private corporations to control it. This public trust protects the rights of citizens, communities, and property owners along the Great Lakes and our inland waters for fishing, boating, navigation, drinking water, sustenance, health, swimming, and other recreation. These rights and these public trust lands and waters are paramount to any private rights.
When Michigan took title in trust, all the United States government reserved for the nation was a navigational servitude —meaning, it could pass laws allowing shipping and improve related dock and port infrastructure under its police power to protect navigation. But the United States and Congress did not reserve the power to pass laws that erase, interfere with, or subordinate the State’s public trust duties and the rights of citizens as legal beneficiaries. If the federal government can’t interfere with the State’s paramount public trust, certainly no foreign corporation can do so.
Yet, Enbridge sent a 7-page letter this week to Governor Whitmer and our state officials falsely stating that the State has no legal authority over the existing pipeline, and that the corporation and its officials refuse to comply with the Notice of Revocation and, presumably, any state court order that would enforce the revocation and shutdown this dangerous line. Enbridge also claimed that its lame-duck agreement with the Snyder Administration in late 2018 gives it the right to locate a tunnel and new tunnel pipeline under the Straits in these public trust bottomlands and waters and the right to continue the existing line until it gets its tunnel.
As it turns out, the easements and 99-year lease for the tunnel deal haven’t been authorized under public trust law either. When the 2018 tunnel deal is examined closely, it reveals that Enbridge thumbed its nose at the rule of law and never obtained approval for these conveyances and use agreements under the Great Lakes Submerged Lands Act and the law that authorizes utility easements on public trust bottomlands.
When will Enbridge stop flaunting the law and stop trying to use its big buck advertising, political, and legal muscle? Since when did Enbridge become the trustee for Michigan’s Great Lakes? The public trust doctrine is perpetual, and when a use like the Enbridge 1953 dual lines in the Straits is no longer compatible with the protection of the public trust and rights of citizens, the state can revoke the use. Enbridge’s attempt to remove the State’s necessary and prudent actions to protect the public trust in the waters and bottomlands of the Great Lakes that it holds for citizens doesn’t float because it’s full of holes.
If the U.S. Congress can’t pass laws that take over or interfere with the absolute public trust rights and title of the Great Lakes in the States, surely a foreign corporation cannot expect to, no matter how much money and power it uses to back up such defiance. And those of us who live in the Great Lakes Basin—40 million of us—won’t let this defiance destroy the rule of law of our State. Thankfully, Governor Whitmer, Director Eichinger, and Attorney General Nessel know this, and rather than look the other way, have the courage to stop it under the rule of law.
