Tag: Line 5

Oil and Water, and the Public Trust, Don’t Mix in the Great Lakes

Published on November 18th, 2020 by - Blog Posts, H2Olson, News

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

By Jim Olson

In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action. 

The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.

Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.

Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case. 

That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person. 

Line 5 passed that threshold many years ago. 

To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.

Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries. 

There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.  

A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.

This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount. 

Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.

Fact Check: When Line 5 Shuts Down, Detroit Jets Will Still Fly and Union Refinery Jobs Will Still Exist

Published on November 17th, 2020 by - Blog Posts, News

Photo credit: Kathryn DePauw

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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 by next May to prevent a catastrophic oil spill in the Great Lakes from the 67-year-old pipeline. Meanwhile, Line 5-owner Enbridge and its allies continue to engage in a Chicken Little “sky is falling” campaign, with the Canadian company claiming in recent days 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. It also would boost shipments of oil by rail or trucks, Enbridge said, without providing any evidence.

Enbridge’s drumbeat of fear has been building for a few years, for example, with a full-page advertisement in 2019 in the Traverse City Record-Eagle, alleging that “Shutting down Line 5, even temporarily, would mean lost union jobs, refinery closures, gas price spikes and greater harm to the regional economy every year.”

In fact, none of those predictions materialized when both legs of the dual Line 5 pipelines in the Straits were shut down for more than a week last June 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 during the partial shutdown by former Dow Chemical engineer Gary Street found that in August after more than 50 days with at least one leg of Line 5 closed, gasoline prices and supply were unaffected in Michigan and Canada.

The research results are consistent with these studies forecasting little if any change in energy costs after Line 5 shuts down for good:

Upon the shutdown of Line 5, 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.
  • A Line 5 shutdown could increase the cost of gasoline in metro Detroit by only about 2 cents a gallon, according to a 2017 study commissioned by the former Snyder administration.
  • 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 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.
  • Oil & Water Don’t Mix has a great animated video showing how the Upper Peninsula does not need Line 5’s propane.

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 the 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 2016 filing with the Securities and Exchange Commission that crude is delivered to its facility through three primary pipelines, Line 5 from the north, Capline from the south, 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.

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 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 the U.S. could be supplied by other sources currently serving the region, including the Capline and Mid-Valley pipelines, along with crude from Northern Michigan oil wells.

Fanning employee and community fears with inflated claims is the latest in a series of tactics deployed by Enbridge and its allies to pressure Michigan officials into letting the company continue to occupy 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 this week 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 protecting 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 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! 

Continuing to operate the decaying Line 5 risks jobs. Many jobs. 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 an 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’s 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, including a large number of jobs at these refineries. 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 2018 annual report for stockholders that it “processes a slate of light crude oils from Canada, the Mid-continent and the U.S. Gulf Coast.”
    • 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 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 refineries. There is absolutely no evidence that a shutdown would impair operations at Detroit Metro Airport.

Sources:

Comment by Oct. 19 on Permits for Risky Line 5 Oil Tunnel

Published on October 14th, 2020 by - Blog Posts

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On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline 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.

It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life. 

Below is guidance from FLOW on what to include in your written comments and how to submit them online by Monday’s deadline. EGLE expects to issue its final decision on the oil tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December.

Points to Make in Public Comments by Oct. 19

FLOW is providing this content for you to draw from and supplement with your own information and perspective in your comment to EGLE on the proposed Line 5 tunnel permits:

  • Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
  • Not good for the climate or Gov. Whitmer’s goals  — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with  the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
  • Not good for public health, safety, and welfare — EGLE is required to determine whether extending the life of an oil pipeline that will emit approximately tens of  million tons of greenhouse gases annually for the next 99 years, under the state Natural Resources and Environmental Protection Act, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
  • Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.

How to Submit Your Comments to EGLE by Oct. 19

Be sure to submit your comments on Enbridge’s proposed Line 5 oil tunnel by the Monday, Oct. 19 deadline. The public can submit comments either by email to EGLE-Enbridge-Comments@Michigan.gov — referencing Application Number HNY-NHX4-FSR2Q — or via two EGLE web pages for commenting separately on each of the permits. Click on each link below and follow the instructions provided by the state:  

  • EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
  • EGLE public comment page for National Pollutant Discharge Elimination System (NPDES) wastewater impacts.

How to Learn More about Line 5 and the Risky Oil Tunnel

To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:

Thank you for speaking up for the Great Lakes, drinking water, and a way of life here in the Great Lakes State!

Turning the Spotlight on Line 5 in the Great Lakes

Published on August 5th, 2020 by - Blog Posts, H2Olson, News

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

By Jim Olson

FLOW Founder and Legal Advisor

Last week the Michigan Attorney General’s Office chose not to appeal a lower court ruling upholding the constitutionality of a law that facilitates the framework for an oil tunnel under the Straits of Mackinac—forgoing any further challenge, but, in reality, yielding no strategic legal ground.

Don’t get me wrong. The constitutionality of the Act 359 “tunnel law” under the so-called “Title-Object” clause of article 4, section 24 of Michigan’s Constitution always has been an important question. This clause requires the purpose of a bill be stated in its title. Clearly, the legislature had no business stating the tunnel project was a public project like the Mackinac Bridge, then passing a law that allows a company to build, operate, and control its own private tunnel pipeline. 

But the tunnel law only sets up a framework for a tunnel and new pipeline in the Straits. By forgoing any further appeal of the “Title-Object” question, the spotlight turns on the more central question at hand:  

Can Canada’s Enbridge obtain the required authorizations under the rule of law, for its private gain and control, for a massive tunnel and tunnel pipeline beneath the public trust bottomlands of the Great Lakes?

The lame-duck legislature’s tunnel law and agreements signed by the Snyder Administration in its last days in 2018 sought to tie the hands of the newly elected Governor Gretchen Whitmer and Attorney General Dana Nessel, who took their oaths of office on January 1, 2019. But the 11th-hour maneuvers failed to bind the new leaders. Why? Because Act 359—the tunnel law—and the related tunnel agreements compel Enbridge to obtain the required approvals and permits for the location and construction of the tunnel and tunnel pipeline under all applicable federal and state laws. In other words, constitutional or not, the law simply begs the question.

The tunnel is not a done deal. Under the law, Enbridge is required to obtain a long list of governmental approvals and permits. Notably, it needs authorization under Michigan’s Great Lakes Submerged Lands Act (GLSLA) for easements and leases for location of the tunnel, a construction permit, and authorization to locate the pipeline in the tunnel as a “public utility” under the public trust bottomlands of the Great Lakes. 

Moreover, Enbridge can’t even apply for location of the tunnel pipeline until it obtains certification of the new line as a “public utility” from the Michigan Public Service Commission (MPSC). Thus, in addition to the required authorizations under the GLSLA, Enbridge also must prove and the MPSC must make findings that the tunnel is “necessary” and “in the public trust interest” in the uncertain and tumultuous world of 2020—declining crude oil markets, climate change, and rapid transition to a renewable economy that just may make life livable for our children and grandchildren in this century.

Not only are these findings required, but the MPSC also must find that there are no “likely environmental impacts” and that there are “no feasible and prudent alternatives” to the new tunnel—when there are thousands of miles of crude oil pipelines owned by Enbridge and its competitors crisscrossing North America in every direction. Enbridge’s  super-sized replacement of the ruptured Line 6B pipeline that despoiled the Kalamazoo River in 2010 has enough unused design capacity to nearly equal the average amount of crude oil pumped through Line 5 every day. The proposed oil tunnel is not necessary, clearly not in the public interest at this time in history, and there are alternatives that are both feasible and prudent.

After the tunnel law passed, Enbridge received an assignment of an easement and a 99-year lease-back from the Michigan Department Natural Resources (DNR) to locate, use, and operate the proposed tunnel and tunnel pipeline under the bottomlands of the Great Lakes. But Governor Snyder, the DNR, and Enbridge have not applied for authorization of this conveyance and lease under public trust law and the GLSLA. And, the tunnel and tunnel pipeline have not been certified by the MPSC. Nor has the project been authorized by the United States Army Corps of Engineers.

So, it is not surprising the constitutionality of the tunnel law aside, the central effort at this point must seek a prompt shutdown of the imminently dangerous conditions surrounding the existing dual pipelines in the Straits of Mackinac. And, as for the tunnel, the spotlight must determine whether the massive tunnel project should or can ever be approved under the rule of law of Michigan—the laws that protect the constitutional and public trust interests of our quality of life.

It’s time to navigate what we face in the 21st century, rather than remain stuck in the irons of the 20th century, when the 67-year-old Line 5 was installed in the open waters of the Great Lakes.

 

Line 5 Must Be Closed Before Disaster Strikes

The 67-year-old  dual Line 5 pipelines continue to operate in the Straits of Mackinac, threatening the Great Lakes with a massive oil spill from a leak or rupture in the worst possible place in the country. Hazards include strong currents, underestimated for the “as built” pipes, anchor strikes, and, now, we learn, anchor lines that dragged along the pipes, and tore out a saddle support, installed because the strong currents were scouring and undermining the original as built dual pipelines.

Attorney General Dana Nessel filed suit (Nessel v Enbridge) against Enbridge in Ingham County Circuit Court to decommission Line 5 in an orderly fashion to prevent well over $6 billion in damages and irreparable long-term harm should a spill occur. The existing Line 5 dual lines and this lawsuit must proceed. It is not, and should not be, tied to the proposed tunnel; these dual lines need to be closed down before an inevitable accident or rupture happens. Circuit Judge James Jamo has stopped use of the east leg of Line 5, and is considering the revocation of a 1953 easement that was given conditionally to Enbridge, but without any understanding of the conditions that exist in 2020.

An Enbridge Oil Spill on My Grandparents’ Farm

Published on July 24th, 2020 by - Blog Posts, News

Photo: The clean up on the Zinn family farm in Marshall, Michigan, after Enbridge’s Line 6B failed a decade ago on July 25, 2010, eventually contaminating nearly 40 miles of the Kalamazoo River and its watershed with a million gallons of tar sands oil, sickening more than 300 people, permanently driving more than 150 people from their homes and properties, and destroying wildlife and habitat.

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By Frank D. Zinn

Ten years ago, my uncle answered an early morning phone call. He lives in Ann Arbor, about 60 miles east of Marshall, the location of the Zinn family farm. The call was from a Marshall neighbor who reported that something was happening on the Zinn property — there was a gas or oil leak, and things looked and smelled really bad.

The Zinn farm in 2008 before the Enbridge Line 6B oil spill.

My aunt and cousin drove to the farm the next day to check things out. Things did indeed look and smell bad — there was a thick layer of oil sludge on the surface of Talmadge Creek, a tributary of the Kalamazoo River, which runs across the north end of the property. At that point it was clear that a pipeline had ruptured — but the extent of the spill and damage was not yet known.

Several days later, I joined my uncle and father to visit the property again. We met with a lawyer who represented Enbridge, the owner-operator of the Line 6B pipeline. We learned that the rupture occurred a few yards from our property line and that Enbridge was starting the process of cleaning it up and would therefore require access to our property. The lawyer told us that things were not as bad as they looked, and that Enbridge had everything under control. He said “a year from now, you won’t even know this happened” and reassured us that Enbridge would restore the land to be better than it was before the spill.

The 6-foot gash on Enbridge Line 6B that gushed more than 1 million gallons of heavy tar sands oil into the Kalamazoo River watershed when it failed on July 25, 2010.

The scene was a difficult one for my family. The farm had been in the family since about 1930 when my great-grandfather bought part of the property. My grandparents moved their young family there in 1947, so it was where my father and his siblings spent much of their childhoods. After my grandfather died in 1996, my aunt and uncle restored the 440-acre property to indigenous prairie to honor the legacy of his environmentally minded parents. During the two years before the spill, my family collaborated with a Chicago-based developer to design an eco-friendly project for the farm — one that combined a vineyard and winery with housing. We had planned to launch the project in the fall.

At the start of the clean-up process, my family gave Enbridge the benefit of the doubt and remained hopeful that we could proceed with our plans. However, after a few weeks it became clear that the extent of the damage was such that the eco-development project would no longer be feasible. We learned, for example, that Enbridge was immediately notified by its pressure sensors that there was a problem, but did not shut the line down for 17 hours, allowing approximately one million gallons of oil to escape (ignoring the company’s much-touted “policy” that a pipeline would be shut down within 10 minutes if the cause of an alarm could not be determined).

Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010

Moreover, the cleanup was not well designed or implemented, and, as a consequence, nine months into the process, Enbridge was ordered by the U.S. Environmental Protection Agency (EPA) to go back and do it again. Enbridge had failed to account for the fact that the heavy, tar sands crude oil broke down to be heavier than water, and therefore could not be simply skimmed off the surface of the water. At the end of the cleanup, the EPA and Enbridge admitted that at least 5% (about 50,000 gallons) would never be recovered.

After many months of getting little or no response from Enbridge to our questions about the extent of contamination and their plans to restore the property, my family felt it had no other option but to file a lawsuit. After a difficult and painful legal process, we finally settled with Enbridge. Enbridge bought the farm. The project we designed to honor my grandparents would not be built.

Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010

When Lakehead Pipeline Co. (Enbridge’s Line 6B predecessor) came to my grandfather in 1969 and offered to purchase an easement under the farm, he refused, citing his concerns about the environmental impact a spill would have. Lakehead took my grandfather to court in order to obtain the easement, and a Lakehead engineer testified under oath to a judge that a significant spill could never occur because three separate monitoring devices would immediately shut down the pumping station in the event of a rupture. Lakehead was awarded the easement on the basis of that testimony.

Enbridge acknowledges that its pipelines had 610 spills that released more than 5.5 million gallons of crude oil into the environment between 1999 and 2008. Enbridge’s inspections of Line 6B identified 140 instances of cracks/corrosion in 2007, and an additional 250 instances in 2009 — only 61 of these were repaired.

On July 15, 2010, just 10 days before Enbridge Line 6B ruptured, Enbridge’s vice president of U.S. operations for Enbridge Liquid Pipelines, Richard Adams, testified before the U.S. House of Representatives Subcommittee on Railroads, Pipelines, and Hazardous Materials. The focus of the hearing was on Enbridge’s Pipeline Integrity Management. In his testimony, Adams lauded the Enbridge Integrity Management Program and, under questioning, testified that the detection of large leaks in Enbridge pipelines were “almost instantaneous” by Enbridge control center personnel and that, if there was any uncertainty, they would shut down the pipeline.

So, the promises made to my family by the Enbridge lawyer a few days after the spill were not kept. The impacts of the spill on the farm are still evident, and the land is not better than it was before the spill. The statement made by the Lakehead engineer in 1969 was not true. Nor was the testimony made to the U.S. House of Representatives by an Enbridge vice president a few days before the spill.

Furthermore, it is clear that the pipeline regulation is not adequate. While the largest fine in history was levied against the company after a blistering accident report was issued by the National Transportation Safety Board (NTSB) in 2012, Enbridge looks to be back to business as usual (here’s a link to the NTSB report).  Many of the claims made by Enbridge about its Line 5 pipeline that runs through the Straits of Mackinac sound eerily similar to the claims it made about Line 6B before the spill a decade ago.

FLOW, Environmental, and Tribal Groups Urge U.S. Army Corps to Reject Enbridge Line 5 Tunnel Permit

Published on July 16th, 2020 by - Blog Posts, News, Reports & Media Releases

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Enbridge’s request for federal approval of a Line 5 replacement oil pipeline in a proposed tunnel in the Straits of Mackinac should be rejected to protect the Great Lakes from the continued risk of a catastrophic oil spill and a pipeline that is no longer needed, 10 leading environmental and tribal groups said Tuesday in comments to the U.S. Army Corps of Engineers.

Citing a federal court order on July 6 involving the Dakota Access pipeline that also involves Enbridge, the groups told the Army Corps it cannot give rubber-stamp permit approval to Enbridge’s massive Great Lakes oil pipeline tunnel construction project without conducting an environmental impact statement (EIS) as required by the National Environmental Protection Act (NEPA).

“The biggest consequence right now of this proposed project is that it distracts the government from its duty to shut down a risky oil pipeline in the Great Lakes. Instead, we are talking about a proposed oil tunnel that may or may not ever be built,” said Liz Kirkwood, executive director of FLOW. “However, if Enbridge insists on this, then a full environmental review of this tunnel proposal is required. That’s what a federal court told the Army Corps, and that’s what we are telling the Army Corps. There’s no shortcut when it comes to potential risks to the Great Lakes.”

In their 22-page comment to the Army Corps, FLOW, Sierra Club, Clean Water Action, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350.org, Straits Area of Concerned Citizens for Peace Justice and the Environment, Chippewa Ottawa Resource Authority (“CORA”), and Michigan League of Conservation Voters (“MLCV”) requested a public hearing on the proposed permit and a thorough review of the tunnel project under the National Environmental Policy Act. So far the Army Corps has failed to set a public hearing or undertake an environmental assessment of the proposal. A federal judge in July ordered the shutdown of the Dakota Access pipeline in Missouri after ruling in March that the Army Corps failed to conduct a full environmental review of the proposed pipeline project.  Enbridge also has an ownership stake in the Dakota Access pipeline. 

In separate comments filed with the Army Corps, five Michigan tribes with treaty rights to the Straits, said the massive proposed tunnel project is a threat to the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch.

“Whether it is a 67-year-old pipeline aging under pristine freshwater, or a proposed tunnel creating pollution and causing disruption to tribal fishing industries for years, Enbridge should not be allowed to cut corners and bypass a full environmental review, something that Line 5 has never had,” said Bryan Newland, president of the Bay Mills Indian Community. “We’ve seen the exemptions made and lack of thorough pipeline equipment reviews result in surprises of corrosion, dents and the most recent screw anchor damage. With the company’s lack of transparency and poor track record, moving forward with a tunnel is putting pipelines and profits above the safety of Michiganders and the environment, allowing a potential oil spill to continue threatening our Great Lakes.”

In their comments, the environmental groups cited numerous concerns with Enbridge’s tunnel proposal and said oil and propane supplies that are needed can be delivered by other means. Major concerns with the proposal include impacts on drinking water quality from millions of gallons of wastewater discharge and a potential oil spill, significant impacts on the local tourism economy, rental housing, public safety and health systems from a multi-year construction project.  Additional risks include pipeline safety and financial exposure to the state from a tunnel abandonment by Enbridge or collapse, including the potential for an explosion involving hazardous liquids. Tunnel safety was cited in a 2019 letter by the American Transmission Company withdrawing any potential participation in the proposed tunnel project.

“This project tunnel project is a massive undertaking with huge water quality, coastal wetlands, drinking water contamination, and other impacts for the Great Lakes and Michigan,” said Anne Woiwode, Chair of the Sierra Club Michigan Chapter. “This involves a waterbody of international importance that is protected under the Clean Water Act and we expect the Army Corps to follow the law.”

Shutdown of Damaged Line 5 Must Be Permanent

Published on June 19th, 2020 by - Blog Posts, Reports & Media Releases

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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

Published on June 8th, 2020 by - Blog Posts, H2Olson, News

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

Published on May 8th, 2020 by - Blog Posts, Reports & Media Releases

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

Published on April 9th, 2020 by - Blog Posts, News, Reports & Media Releases

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.