Tag: Line 5

Two Virtual Hearings, Two Real Steps Closer to Shutting Down Line 5 in the Great Lakes

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Take Action: Click Here to Urge Michigan’s Leaders to Shut Down the “Significantly Damaged” Line 5 Right Now

Jim Olson is FLOW’s Founder and Legal Advisor

 

 

By Jim Olson 

For the past 6 years, Canada’s Enbridge has maneuvered the State of Michigan into rounds of back-and-forth letters, meetings, and agreements that have done nothing but delay any enforcement action to shut down Line 5 in the Straits of Mackinac, where Lake Michigan meets Lake Huron. After two pivotal hearings on Tuesday, June 30, however, Enbridge has begun to lose its grip on the fate of its dangerous twin Line 5 crude oil pipelines in the public waters of the Straits. Two hearings, and the State and its citizens are two steps closer to shutting down the unstable twin crude oil pipelines once and for all without replacement.

1st Hearing: The Michigan Public Service Commission on Enbridge’s Proposed Oil Pipeline Tunnel

On the morning of June 30, in a virtual public hearing with hundreds of participants, the Michigan Public Service Commission (MPSC) approved 3-to-0 an Order that rejected Enbridge’s bid to avoid its obligation to prove it is entitled to locate and construct its proposed tunnel pipeline “in the public interest” and that it is necessary at this time in history. (See FLOW E.D. Liz Kirkwood’s reaction here).

The company argued that it didn’t need the MPSC’s approval of the pipeline tunnel because the State’s utility commission approved the necessity of the existing line in 1953. In an Order more than 70 pages long, the MPSC described the complexity and importance of the public interest and necessity for a crude oil pipeline in the Great Lakes in 2020, not 67 years ago. The Order included an outline of the depth of the issues posed by the tunnel proposal before the public panel, relying on extensive comments submitted by the Michigan Environmental Council and National Wildlife Federation, Michigan tribal governments, For Love of water (FLOW), Michigan’s Attorney General Dana Nessel, and many other organizations and citizens.

The submitted comments pointed to the overarching public interest and public trust in the Great Lakes, demand for crude oil, alternative routes, threats to the environment, and risks to the Great Lakes from climate change, such as high-water levels and damaged infrastructure. The Order requires Enbridge to prove under the scrutiny of the MPSC in a formal, trial-like proceeding that the pipeline tunnel proposal is in the public interest, necessary, and that there are no reasonable alternatives to shipping oil through its and North America’s massive pipeline system.

2nd Hearing: Ingham County Circuit Court on a Preliminary Injunction to Shut Down Existing Line 5 in Attorney General Dana Nessel for the People of Michigan versus Enbridge Energy

On the afternoon of June 30, after a 5-hour virtual hearing in Ingham County Circuit Court in Lansing, Circuit Court Judge James Jamo continued the temporary restraining order (“TRO”) he issued on June 22, shutting down the flow of oil through Line 5 in the Straits of Mackinac. Enbridge argued that historical in-line inspections and video footage of scrapes to the exterior of the pipes and a twisted support structure designed to minimize damage from strong currents demonstrated the steel pipelines themselves were safe. Enbridge introduced a letter from the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) that stated the agency did “not object” to restarting the pipelines “based on the assurances of Enbridge.” Lawyers for Enbridge told the Court that if PHMSA says it’s safe, then the State and Court have no jurisdiction or power to interfere with restarting the lines, and that Enbridge should be able to reopen the lines. 

The Attorney General’s lead attorney told the Court that Enbridge hadn’t turned over all of the information related to Enbridge’s “assurances” to PHMSA and that the cause of the damage to the structure and lines remained unknown. He argued that without more information and independent review of what happened, there was no way Enbridge or the State could comply with the stringent due care and prudence obligations under public trust law to insure that the pipelines are not a danger to the waters, bottomlands, and people of Michigan. The public trust in the waters and bottomlands of the Great Lakes is derived from the State’s title granted to it when it joined the United States in 1837, and it can’t be impaired, endangered, or controlled by primarily private interests.

Judge Jamo probed Enbridge’s lawyers on whether PHMSA’s “non-objection” could deprive the State of its public trust jurisdiction by a letter based on only the assurances of Enbridge. The lawyers couldn’t give a clear answer, and by the end of the hearing it was clear that what PHMSA said was evidence of safety, was not conclusive of the broader duty of the State and the Court to determine whether there was a violation of the due care requirement to protect the public trust in the Straits.

At the end of the hearing, the Court continued the TRO issued June 22. On Wednesday morning, July 1, the Court issued an amended TRO, keeping the suspension of use of the lines in force, but allowing Enbridge to inspect the west leg of the dual lines in the Straits to see if it could be used in the near future “subject to any future order of the Court.”

Clearly, Judge Jamo has taken control of the risks associated with the location of crude oil pipelines in the Straits. The condition of the two lines has totally changed from 1953. Approximately 150 saddle supports (with 50 some more on the way) have been added since 2001 to stabilize the failure of the original lines because of powerful currents in the Straits. Two recent events damaged the coating on the west line and broke an anchor support on the east line. Enbridge inspectors were not sure what caused the damage, but they thought it appeared to be anchor strikes or other objects dragged by passing ships. This is alarming because this brings the total number of known strikes to dual lines to three in the last 18 months. It appears Judge Jamo is exercising due care in continuing the shutdown of the lines. He took the request for preliminary injunction under advisement. In the near future, he is expected to decide on a previous motion to rule that the 1953 easement allowing Enbridge to place the two lines in the Straits in the first place is no longer valid under the public trust laws that protect the Straits and all of the Great Lakes.

Ultimately, this case and the fate of Line 5 will turn on the reality that in 2020 the conditions and circumstances are not the same as 1953. The Line 5 twin pipelines in the water and across the lakebed are in the wrong place because of certain serious conditions that will continue to exist and cannot be controlled. Under public trust law, these lines and the easement that allowed them are no longer lawful. Attorney General Nessel did the right thing in filing this lawsuit—the lines in this location violate the public trust and constitute a public nuisance in the form of an “environmental ticking time bomb,” as the State has argued, that could go off at any time. How strong a current, how many near-disaster anchor-strikes or other errors will it take before the inevitable catastrophe happens? Now is the time to prosecute these claims to the right conclusion, a permanent and orderly shutdown.

In the meantime, Circuit Court Judge Jamo was correct in keeping this matter under his control and advisement, and to continue the temporary order suspending the use of these pipelines pending further proceedings. For the moment, the pumps and twin lines remain silent.

MPSC: Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac Must Undergo Full and Vigorous Public Review

MPSC Chairman Sally A. Talberg

Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.


FLOW E.D. Liz Kirkwood

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.

“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”


See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:

Shutdown of Damaged Line 5 Must Be Permanent

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Gov. Whitmer, State of Michigan Should Put an End to Enbridge’s Damaged and Decaying Oil Pipeline in the Great Lakes to Protect Drinking Water, Economy, and Way of Life

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“In response to Enbridge’s revelation late Thursday that it had to perform an emergency shutdown of its 67-year-old Line 5 oil pipelines in the Straits of Mackinac because the infrastructure “has incurred significant damage,” according to the State of Michigan, FLOW is calling on the administration of Gov. Gretchen Whitmer to make the shutdown permanent to protect the Great Lakes, which is the drinking water source for half of all Michigan residents, the economic engine for the Great Lakes State, and the essence of a way of life here.

We support Gov. Whitmer’s demand for immediate and full disclosure of Line 5’s condition from Enbridge to address this clear and present danger to our lakes. During a global pandemic and a deep economic downturn when fresh water is critical to our survival and comeback, the Whitmer administration must take affirmative action to permanently shut down Line 5 and avoid an inevitable catastrophic oil spill in our Great Lakes.”

Background: The Governor’s demand of Enbridge about Line 5 comes on the heels of disturbing revelations about Canadian-based Enbridge’s safety practices:

  • News broke today that Enbridge has been fined $6.7 million for violating court orders on pipeline safety that put people and our drinking water at risk. 
  • On June 3, the Michigan Attorney General’s office argued in front of the Michigan Court of Appeals that Line 5 in the Straits is an “environmental time bomb.”
  • Enbridge revealed in late May that the protective coating on the Line 5 pipeline had worn away in several spots, leaving bare metal exposed to decay.
  • Since 2013, FLOW has filed legal and technical reports with the State of Michigan, including most recently in November 2019, citing extensive evidence of Enbridge operating illegally and risking the public’s water. 

 

State Points to Fatal Flaw in ‘Line 5’ Tunnel Law

In Enbridge v. Michigan, the Court of Appeals Hears Arguments on Constitutionality of Lame-Duck Legislation Fast-tracked under Former Gov. Snyder

Photo: Robert Reichel, framed in green rectangle, an Assistant Attorney General at the Michigan Department of Attorney General, addresses the Michigan Court of Appeals on June 3, 2020, via Zoom, in the case, Enbridge v. State of Michigan.

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

What may seem like dry legal arguments over the interpretation of a few words sometimes can have ripple effects on people, health, safety, and the environment.

Such is the case with arguments heard June 3 before the Michigan Court of Appeals over the fate of the proposed Enbridge oil pipeline tunnel under the Straits of Mackinac, which promises to leave a lasting mark on the future of the Straits and the people of the Upper Great Lakes. (Click here to watch a video-recording of the Court of Appeals hearing).

In December 2018, the Legislature passed Act 359 as the Snyder Administration prepared to leave office. The goal of the Act was to help Canada’s Enbridge build, lease-back, use, and operate tax-free a tunnel to house a new pipeline to replace its decaying Line 5 crude oil pipeline snaking across the bottom of the Straits of Mackinac. In March 2019, Attorney General Dana Nessel, in a carefully written opinion, ruled that the tunnel law was unconstitutional because it violated article 4, section 24 of the Michigan Constitution.

As a result, state agencies could not process matters based on the proposed tunnel law because the Attorney General’s opinion was binding on those agencies.  A few months later, Enbridge filed a lawsuit against the State to nullify the Attorney General’s opinion and rule Act 359 constitutional and its tunnel pipeline deal valid, prevailing in the Court of Claims in October. The State appealed to the Court of Appeals for the arguments heard Wednesday and a decision.

State: Title of Tunnel Law Says One Thing, Does Something Else

The State of Michigan focused its argument in front of the Appeals Court on article 4, section 24 of the Michigan’s Constitution, popularly labeled the “title-object” clause, which prohibits the legislature from saying a law’s purpose is one thing, when the text of the law is about something else or when adding other things that are not incidental to implementing the law’s purpose.

Let’s give this some context. For example, the legislature cannot state in legislation that it is acquiring state land to establish and operate a public state park, then convey the land to a private corporation to build and operate the park. Or, given the same example, the state law cannot expressly say the project is a public park, then provide in the law for also using the land for a race-track, which is not incidental to implementing a public park, the law’s purpose.

So, there’s good reason for this provision of the state constitution, because it prohibits the legislature from duping others, including the public, into thinking the law is about one thing, when in fact it is about another or multiple things. In short, as our Supreme Court has said, the purpose of the “title-object” limitation is to provide “fair notice” to legislators and the public and to prevent “subterfuge” or deceit on affected persons and the public.

Enter the COVID-19 “Zoom” Courtroom of the Michigan Court of Appeals

On June 3, Judges Cameron, Boonstra, and Letica heard arguments from Robert Reichel, a senior, career lawyer for Michigan’s Attorney General Dana Nessel, and John Bursch, a lawyer for Enbridge, over the constitutionality of Act 359 under the “title-object” clause of the Michigan Constitution.  There were no fireworks. Bob Reichel meticulously laid out the State’s two-fold arguments: 

  1. The title clause of Act 359 authorized the Mackinac Bridge Authority (“MBA”) to acquire and operate, or a new Mackinac Straits Corridor Authority (“MSCA”) to acquire and operate a state corridor utility tunnel for Enbridge’s oil pipeline and supposedly other utility electrical or natural gas lines under the Straits of Mackinac. But the provisions of the law itself authorized Enbridge, a private corporation, to acquire the bottomlands of the Straits, construct, transfer to the MSCA the title, but leaseback to Enbridge to control, occupy, and use the public trust bottomlands for 99 years, with little oversight.
  2. The title clause of Act 359 has a single object, the acquisition and operation of a public bridge by the authority for public vehicles. The body of the law has multiple purposes or objects, including transferring authority for the tunnel and pipeline to MSCA, assigning easements, entering into the 99-year lease, requiring the MSCA to review and sign a tunnel agreement, third agreement, authorizing Enbridge to sublease and manage the tunnel space, and requiring the Attorney General of Michigan to pay Enbridge’s legal costs if the Attorney General on behalf of the people of Michigan objects to the lawfulness of the tunnel and pipeline [Emphasis added].

Enbridge Downplays the “Who” and Expands the “What” in Tunnel Law

John Bursch for Enbridge avec bowtie, argued that the title clause of Act 359 covered infrastructure connecting the Upper Peninsula to the Lower Peninsula, so the tunnel and pipeline are surely part of the purpose and object. He also argued that it doesn’t matter “who” does the project, as long as it’s a government agency doing it, so the MSCA has full authority to sign agreements and to satisfy the project described in Act 359. As to multiple purposes not squarely within the title, he argued they were germane to carrying out the project.

Robert Reichel exercised his right to rebuttal and pointed out that both the “who” and “what” mattered.  In the “title” clause of Act 359, both the new Mackinac Straits Corridor Authority and older Mackinac Bridge Authority are authorized to acquire, establish, and operate a public project. But unlike the “title” clause, the body or provisions of Act 359 itself actually authorize Enbridge, a private entity, to control and operate the tunnel. After listening to arguments, none of the three judges asked any questions.

A Private Tunnel Project Paraded as a Publicly Operated One Is Subterranean Subterfuge

The way I see it, the scales of justice in this case tip precipitously in favor of the people of the State of Michigan and the integrity of the state constitution. The law should mean what it says, not what a lame-duck legislature concocts in the last weeks of 2018 to satisfy the desires embodied in self-serving agreements between Enbridge and the Governor’s executive office. Ironically, these agreements themselves offer up the violation of the title-object clause.  

The 1952 law creating the Mackinac Bridge Authority provided for the establishment and operation of a public project, financed by the public, and managed and operated by the public through the MBA and Michigan Department of Transportation. The title clause of the 2018 tunnel law, Act 359, represents the same thing, a public utility tunnel, owned and operated by the MSCA, a state governmental body.  In fact, the body of the law provides for a complex set of agreements, rights, and duties that hands the tunnel and pipeline control, and control of other utilities, and operation entirely to Enbridge with relatively little paper-shuffling control by the MSCA. Paragraph G of the Second Agreement, signed by Snyder and Enbridge in October 2018, contains this glaring admission: 

The State and Enbridge agree to initiate discussions, as soon as practicable, to negotiate a public-private partnership agreement with the Mackinac Bridge Authority (“Authority”) with respect to the Straits Tunnel for the purpose of locating the Line 5 Straits Replacement Segment and, to the extent practicable, Utilities in that Tunnel (hereinafter “Tunnel Project Agreement”)… [T]he Authority would execute a lease or other agreements to: (a) authorize Enbridge’s use of the Straits Tunnel for the purpose of locating the Line 5 Straits Replacement Segment for as long as the Line 5 Straits Replacement Segment shall be in operation by Enbridge; (b) provide that Enbridge will operate and maintain the Straits Tunnel during the term of the lease on terms to be agreed; and (c) specify the conditions under which Utilities may gain access to the Straits Tunnel.

Nowhere in the “title” clause of Act 359 calling on the MSCA to establish and operate a tunnel does the law state that Enbridge will build, control, use, and operate a tunnel for as long as the tunnel is in operation. In the words of the Michigan Supreme Court, this does not provide fair notice to the log-rolling that took place in the last days of 2018. Worse, it constitutes a subterfuge and deceit on the people of Michigan that our constitution and courts prohibit.  

Attorney General Nessel was right when she issued her opinion in 2019; Act 359 is unconstitutional. If Enbridge wants to build and operate a tunnel, let it choose to design and apply for the authorization and permits to build a tunnel for its private crude oil pipeline under the laws of Michigan that apply to and protect the waters and bottomlands of the Straits of Mackinac and the Great Lakes.

FLOW & Straits of Mackinac Alliance Urge State of Michigan to Suspend Review of Enbridge’s Application for a ‘Line 5’ Oil Tunnel

The State of Michigan was right this week to suspend consideration of Enbridge’s April 7, 2020, application for construction permits to dig an oil tunnel under the Straits of Mackinac and place a pipeline in it until the Canadian energy-transport giant corrects deficiencies, including the failure to consider viable alternatives to the risky project and to acknowledge pending litigation to void the 1953 pipeline easement.

Now state environmental officials should take the next step and advise Enbridge that it will continue to suspend consideration of the application until the company has applied for the required authorization for an easement to occupy state-owned bottomlands with a tunnel along with any construction permitting, according to formal legal comments submitted jointly on May 1 to the state Department of Environment, Great Lakes, and Energy (EGLE) by FLOW and the Straits of Mackinac Alliance.

“We agree with EGLE that Enbridge’s permit application for an oil tunnel under the Great Lakes falls far short of complying with legal requirements,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “But the bigger picture is that Enbridge is putting the cart before the horse by applying to build through state-owned public trust lands under the Straits.”

“Enbridge asking EGLE to consider a construction permit before it has the required authorization for the easement for the private takeover of the public’s bottomlands under the Straits of Mackinac does not comply with the public purpose and interests protected by the law that protects the Great Lakes. The company’s haphazard rush during the pandemic is alarming,” Kirkwood said.

Enbridge laid out its oil tunnel scheme in agreements reached with the former Snyder administration to replace the company’s 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

Enbridge, however, has not sought, nor received, the state of Michigan’s authorization under public trust law and the Great Lakes Submerged Lands Act for the easement, assignment, and lease required by law to locate a risky, multibillion-dollar oil pipeline tunnel in the public trust soils and waters of the Great Lakes.

Enbridge also lacks authorization for these conveyances, lease, and agreements from the State Administrative Board, and failed to consider and determine the effect on and potential impairment to the substantial tribal property rights of the 1836 Treaty Tribes in fishing, fishery habitat, and other protected activities.

“Will the State of Michigan allow Canadian-owned Enbridge without authorization to claim and exercise a private right to control in perpetuity these bottomlands, soil, and the Great Lakes that must be held in perpetual trust for the benefit of the public? It’s unfathomable,” said Jim Olson, FLOW founder and legal advisor. 

Public trust law also requires Enbridge to demonstrate its private oil tunnel, serving as a shortcut primarily to move oil from western Canada to refineries in Ontario would serve a public purpose in Michigan, and the Michigan Environmental Policy Act mandates consideration of oil tunnel’s potential impacts (including climate and greenhouse gas emissions) and feasible and prudent alternatives to the proposed project. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the tunnel is a bad idea that poses an explosion risk.

“We don’t think there is any way that Enbridge could conclusively demonstrate that a private oil tunnel in public bottomlands and waters designed to serve Canadian and overseas markets for the next 99 years would serve a public purpose in Michigan,” said Leonard Page, vice president of the Straits of Mackinac Alliance, a citizen group based in Cheboygan with members living on waterways that would be impacted by an oil spill from Enbridge’s decaying Line 5. “And a 10-year tunnel construction project does nothing to protect our members, local communities and businesses, and a way of life from the devastation of an oil spill that grows more likely every day that Line 5 keeps pumping 23 million gallons of oil through the Straits of Mackinac.”

FLOW, the Straits of Mackinac Alliance, Tribes, and many other organizations have called for the shutdown of the existing Line 5 based on the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the existing Line 5 or a crude oil tunnel that would continue to risk 20 percent of the world’s fresh surface water.

Enbridge’s ‘Line 5’ Oil Tunnel Permit Application is Contrary to the Legal Process

Enbridge Energy’s permit application is out of step with Michigan’s legal process, according to FLOW.

The Canadian energy-transport company has not even sought, let alone obtained, authorization from the State of Michigan for the easement and lease required by law to locate a risky, multibillion-dollar oil pipeline tunnel in the public trust soils and waters of the Great Lakes. Nor has the company sought and obtained a certificate of necessity and approval from the Michigan Public Service Commission to locate the tunnel in the Straits of Mackinac.

“Until Enbridge receives such legal authorization from the State of Michigan, the Canadian company has no business applying for the construction permit, and many other permits and approvals, they would need to locate and build an oil pipeline under the Straits of Mackinac,” said Jim Olson, FLOW founder, president and legal advisor.

“To obtain state authorization, Enbridge has the burden to demonstrate conclusively that a private oil tunnel in public trust soils and waters designed to serve Canadian and overseas markets for the next 99 years is in Michigan’s public interest, which it is not,” Olson added.

Enbridge’s timing amidst the coronavirus pandemic is disturbing, because it fails to respect the public’s right to engage in meaningful public hearings at this time when critical state resources are focused on managing this unprecedented public health crisis.

FLOW joins our allied organizations in calling on Michigan Gov. Gretchen Whitmer to delay full consideration and public review of Enbridge’s oil tunnel applications until the State of Michigan emerges from its coronavirus shutdown.

“It’s important to remember that this proposed oil tunnel fails to solve the greatest threat facing the Great Lakes — the decaying Enbridge Line 5 oil pipelines in the Straits of Mackinac that continue to pump 23 million gallons of oil every day,” said Liz Kirkwood, FLOW’s executive director and an environmental attorney.

“A 10-year tunnel construction project will not prevent an oil spill disaster that grows more likely every day. The State of Michigan has a perpetual and paramount public trust duty to its citizens, not a private Canadian corporation whose uninterrupted oil transport threatens grave consequences for 95 percent of America’s fresh surface water supply,” Kirkwood said.

FLOW to U.P. Energy Task Force: Act Fast to Protect Residents, End Reliance on Risky ‘Line 5’ Oil Pipeline

Photo by Kathryn DePauw for FLOW.


To alleviate the rising threat to the safety and economic security of Upper Peninsula residents, a state energy task force at its April 13 online public meeting should act with urgency to adopt, prioritize, and schedule the implementation of the 14 recommendations in its draft propane supply report.  Swift action is needed in order to end reliance on the risky Line 5 pipeline, dismantle the Canadian energy monopoly over the Upper Peninsula, and secure more diverse and renewable energy choices, said FLOW (For Love of Water) in formal public comments sent Monday to state officials.

FLOW’s letter to the U.P. Energy Task Force, which Michigan Gov. Gretchen Whitmer created last June, comes at the deadline for the public to review the March 20 draft report on propane supply options. FLOW is urging the task force to act immediately on both short-term and long-term recommendations for the State of Michigan to resolve the clear and present danger to public health and the Great Lakes posed by Line 5.

FLOW finds that the most reliable, secure, lowest-cost, and lowest-risk alternative for propane supplies in the short term is a combination of the recommendations on rail and truck, plus an increase in propane inventory in the Upper Peninsula. Highest priority should be given to recommendations with a full range of diverse alternatives that are not dependent on the decaying Enbridge Line 5 pipeline, which crosses the Upper Peninsula and the open waters of the Straits of Mackinac.

FLOW also urges the task force to evaluate all of the environmental and health impacts and risks that each alternative poses to air, water, and land resources. The Great Lakes and other natural resources remain at grave risk with the continued daily operation of Line 5, and impacts to these public trust resources must be fully considered in the final propane report.

FLOW also calls on the task force to expedite its work and complete its renewable energy plan in 2020, well ahead of its March 2021 deadline for reporting to the governor. Michigan and the Great Lakes cannot wait another year for more studies as Line 5 continues to age.

“The U.P. Energy Task Force draft propane report concludes that both short-term and longer-term feasible and prudent alternatives exist to decommission Line 5 and to secure reliable, safe, and affordable energy to U.P. residents based on adjustments within the energy system,” said Liz Kirkwood, Executive Director of FLOW, the Great Lakes law and policy center based in Traverse City.  “Given the current propane monopoly and lack of backup alternatives to Line 5, U.P. residents are exposed to substantial financial and safety risks. Moreover, Line 5 also poses unprecedented and devastating economic, environmental, and public health risks to the Great Lakes.”

With the help of the task force to prioritize recommendations and advance much needed energy planning, the State of Michigan can work as expeditiously as possible to decommission the aging Line 5 pipeline and transition to safe and affordable energy alternatives for U.P. residents.

Background

The U.P. Energy Task Force, formed by Gov. Whitmer’s Executive Order 2019-14, is charged with “considering all available information and make recommendations that ensure the U.P.’s energy needs are met in a manner that is reliable, affordable, and environmentally sound.” The Order also directs the Task Force to examine “alternative means to supply the energy sources currently used by U.P. residents, and alternatives to those energy sources.”

The precipitating force behind this urgent energy analysis is Enbridge’s increasingly risky 67-year-old Line 5 pipeline, which has ruptured or otherwise leaked at least 33 times since 1968, and the failure to date to prioritize and assure a backup alternative for delivering propane in the Upper Peninsula. Line 5 is operating far past its life expectancy and continues to threaten the Great Lakes, public health, and drinking water supplies for thousands of Michiganders. With no backup plan for delivering alternative propane supplies to the U.P. in the event of a catastrophic Line 5 pipeline rupture, including in the dead of winter, the outdated pipeline also endangers the safety, security, and energy independence of Upper Peninsula residents who rely on propane to heat their homes.

Michigan DNR Takes Steps to Hold Enbridge Accountable

Michigan Department of Natural Resources (DNR) Director Daniel Eichinger today set a 30-day deadline for Enbridge to submit key information regarding its ongoing violations of the state-granted easement conditionally allowing the Canadian company’s 66-year-old Line 5 oil pipelines to occupy the Straits of Mackinac.

Eichinger’s letter to Enbridge, which includes 20 questions to be answered by Feb. 12, is an appropriate step to conclude the DNR’s review ordered by Governor Whitmer last June, according to FLOW, the Great Lakes law and policy center based in Traverse City.

“It’s a welcome sign that Director Eichinger and his staff appear to be wrapping up their Line 5 investigation by asking for all other information and documentation that Enbridge has in its possession or control,” said Kelly Thayer, Deputy Director of FLOW (For Love of Water). “At the conclusion of this process, these serious and continuing violations of the easement by Enbridge should trigger the state to shut down the dangerous dual Line 5 oil pipelines in the Great Lakes before it’s too late.”

FLOW commended the DNR for taking this step to restore the rule of law on Line 5, the oil pipelines running through the open waters of the Straits of Mackinac, which researchers have called the worst possible place for a Great Lakes oil spill due to the powerful underwater currents, strong waves, seasonal ice cover, and extreme difficulty in responding to an oil pipeline failure.

“It’s clear that Line 5’s original design in the Straits is failing, as the powerful currents scour the public bottomlands and undermine the pipelines placed there in 1953,” said Jim Olson, FLOW’s President and legal advisor. “Enbridge’s continuing addition of more than 200 pipeline supports constitutes a risky redesign that never has been evaluated or authorized under the Great Lakes Submerged Lands Act and public trust law.”

The State of Michigan already has documented evidence on Line 5 of anchor strikes, exposed metal surfaces, and deep scouring of bottomlands that undermine the pipelines and even bend some of the newly installed supports. There also has been evidence of bending of Line 5 beyond curvature limits, Enbridge has failed to provide proof of liability insurance and other financial assurances, and missing protective pipeline coating and delamination.

FLOW filed formal comments in mid-November 2019 to assist the State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge and rising risk to the Great Lakes, jobs, and drinking water. In those Nov. 13 comments, FLOW called on the state to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shutdown of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane in the Upper Peninsula (which a state task force is studying).

FLOW’s request followed recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders.

Until Enbridge has applied for and obtains authorization under the rule of law or Line 5 is shut down, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit of 300,000 barrels per day (1 barrel = 42 U.S. gallons of oil). Enbridge currently pumps 540,000 barrels a day through Line 5 in the Straits, which is 80% more than the original design approved by the State of Michigan.

Pending such authorization or shutdown, state officials also should implement more stringent requirements for a mandatory emergency shutdown, including when there is a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of at least $5 billion, based on a study commissioned by FLOW that found that a Line 5 oil spill could deliver a multibillion-dollar blow to natural resource and Michigan’s economy.

Chronicling FLOW’s Accomplishments in 2019

Powered by our supporters, FLOW had quite a year in 2019.

Our legal advocacy work to restore the rule of law made a big impact at the state level. Michigan’s new Attorney General Dana Nessel filed a public trust lawsuit on June 27 to revoke the 1953 easement that conditionally authorizes Enbridge to operate its 66-year-old Line 5 oil pipelines in the Straits of Mackinac.

“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood about Nessel’s bold legal action.

On December 3, the Michigan Court of Appeals nullified a lower court order that would have allowed the bottled water giant Nestlé to build an industrial booster pump facility to remove millions of gallons of groundwater per year from Osceola Township. The court affirmed that bottled water is neither an “essential public service” nor a “public water supply”.

“Bottled water diversion and export operations can no longer be paraded as public,” said FLOW founder and president Jim Olson. “The purpose of the bottled water industry has only one purpose—maximum profit off the sale of packaged public water.”

Meanwhile, a bill has been introduced in Lansing by Rep. Yousef Rabhi that extends public trust protection to groundwater and mandates that the state protect that water.

Our work has had a national impact as well. In February, the United States Supreme Court reaffirmed that we have a public trust right to walk the Great Lakes shorelines below the natural high water mark of private property, when it declined to hear an Indiana case filed by riparian land owners. Jim Olson was involved in the original case.

 

Education and protective policy

FLOW launched several education campaigns in 2019 including a Groundwater Awareness Week, what it is and why it matters; the Michigan Septic Summit on Nov. 6 that convened parties from public health officials to realtors to watershed nonprofits to generate new partnerships and build political will to pass a statewide septic code; an environmental economics project and four policy briefs by former FLOW board chair Skip Pruss about the benefits of government regulation to protect the environment and public health; and a Public Trust month in July that included a “Great Lakes Passport” and a month-long series of videos that featured the public answering the question: “Who owns the Great Lakes?”.

We advocated for several protective policies in 2019, including a two-pronged proposal to the International Joint Commission (IJC) for an emergency pilot study and urgent action to address the effects of climate change on the Great Lakes, the inclusion of funding for clean water in Michigan Governor Gretchen Whitmer’s budget, and the need for statewide requirements for septic system inspection, particularly given that Michigan is the only state in the nation without any statewide septic code.

The International Joint Commission, which held a public hearing in Traverse City on July 24, also appointed FLOW executive director Liz Kirkwood to its Great Lakes Water Quality Board.

“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said. “Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound.”

FLOW senior policy advisor Dave Dempsey was also invited to present at the Great Lakes Funders Conference in Cleveland in late October.

 

Celebrating water

FLOW held several events in 2019 to recognize the importance of inspiring citizens viscerally and emotionally (as well as cerebrally) to protect the Great Lakes. We launched our “Art Meets Water” webpage to highlight examples of the heartfelt creativity that inspires us to fight for our public waters. “We all know that water is the source of the future,” says Leelanau County writer Anne-Marie Oomen. “But it’s also a part of our souls and our spirits.”

On June 28, cellist Crispin Campbell and “Mad Angler” poet Mike Delp performed at our “In Praise of Water” benefit for FLOW at the Cathedral Barn at Historic Barns Park in Traverse City. “The Mad Angler finds himself upset about the state of affairs that Michigan rivers find themselves in,” said Delp. “When you hear that deep sound coming out of the cello, that’s the heart of where this comes from… I’m right down inside that cello.”

On July 24, Oomen and the Beach Bards storytellers’ troupe presented, “Love Letters to the Lakes” (which she had solicited from writers across Michigan) in a live reading to the International Joint Commission, in hopes that deeply personal prose would impact public policy to protect the Great Lakes. And on October 11, Higher Art Gallery in Traverse City held “Artists for FLOW,” inviting local artists to share water-inspired works for a show that benefits our fight to protect that water.

After all, protecting the Great Lakes is “A Matter of the Heart” writes FLOW supporter Jerry Beasley:

“What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love, there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.”

FLOW Cites New Evidence of Enbridge Operating Illegally, Calls for Orderly Shutdown of ‘Line 5’ Oil Pipelines in Straits of Mackinac

enbridges-line-5-under-the-straits-of-mackinac

Formal comments filed today to assist State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge, rising risk to the Great Lakes, jobs, and drinking water

FLOW today called on the State of Michigan to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shut down of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane.

FLOW’s request came in formal comments to the state following recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders. 

FLOW’s comments are directed to the Michigan Department of Natural Resources (“DNR”) and Michigan Department of Environment, Great Lakes, and Energy (“EGLE”), and intended specifically to aid in the DNR’s “comprehensive review of Enbridge’s compliance with the 1953 easement and other factors affecting its validity,” as ordered by Governor Gretchen Whitmer on June 27.

“It’s time for the State of Michigan to restore the rule of law on Line 5. We call on the Whitmer administration to commence the shutdown of the dual oil pipelines and direct Enbridge, if it wishes to continue operating its 66-year-old pipelines in the Straits, to apply for permission under public trust law and the Great Lakes Submerged Lands Act,” said FLOW executive director Liz Kirkwood. “Enbridge must prove that its use and operation, including the substantial change in design with hundreds of elevated spans and significant other matters, complies with and is entitled to authorization.”

Until the shutdown is complete, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit, a reduction of 40% from current flow. State officials also should implement more stringent requirements for a mandatory emergency shutdown, including a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of $5 billion.

FLOW’s comprehensive review of eight violations of the state-granted easement — related to design, operation, and maintenance — demonstrates convincingly that Enbridge has committed, and continues to commit through its conduct, omissions, and breaches of the 1953 easement that are beyond correction. It is also clear that there are major “other factors affecting the validity” of the 1953 easement and Enbridge’s continued use and operation of the cracked-and-dented Line 5 dual oil pipelines in the open waters and on the bottomlands of the Great Lakes in the Straits of Mackinac, including the failure of Enbridge to obtain from previous directors of the DNR (and its predecessor Department of Conservation) the authorizations required by the common law of public trust and/or the Great Lakes Submerged Lands Act (“GLSLA”).  

Enbridge’s ongoing violations related to anchors and pipeline design threaten the very safety and health of the Great Lakes, and thus trigger the state’s duty to enforce its conditional occupancy agreement with Enbridge. The State continues to have substantial legal and factual cause to terminate the agreement with Enbridge to stop the oil flow.

In support of these comments, FLOW also submitted the multiple reports and comments that FLOW and others have previously submitted to the DNR, DEQ (now “EGLE”), the Attorney General’s office, and Governor’s office over the past six years. It is clear that the Director of the DNR and executive team, as trustees of the Great Lakes and soils beneath them, have the authority and duty to invalidate, direct compliance with, terminate, and/or revoke the 1953 Easement.

The 200-plus anchor supports (constituting 3 miles of elevated pipelines in the water column) represent a substantial change in design from the dual pipelines designed and built pursuant to the specifications of the 1953 easement. Although DEQ (now “EGLE”) approved anchor supports of the elevated lines over the past 18 years, the anchors have been issued only as permits to “place other materials on bottomlands,” and not as a conveyance or agreement for occupancy or use of the bottomlands and waters for the substantial change in the dual pipelines themselves. The Affidavit of Dr. Edwin Timm filed in the consolidated contested cases against the State of Michigan demonstrates seriously increased risks, a total lack of review of applicable risk standards for elevated multiple-span pipelines, and new or substantially changed pipeline that has not been assessed by the state.

“The only real solution now is to apply the law and shut down the 66-year-old Line 5 pipelines permanently to protect the Straits, and nearly 400 other water crossings in Michigan, from the next Enbridge oil spill,” said Kirkwood. “The Canadian oil, which Enbridge does not own, can be sent through other pipelines operated by Enbridge and its competitors. Michigan has no obligation to guarantee Enbridge a shortcut to Ontario oil refineries and the overseas export market.”