By Paul Hendricks, Manager of Environmental Responsibility, Patagonia, Inc.
All photos courtesy of Paul Hendricks.
Every fall, strong north winds bring in a steady flow of storms that rip across the Great Lakes. You’ve probably witnessed one of these storms, where waves crash over pier heads and howling winds cut through your parka, chilling you straight to the bone. Over the years, these storms have tormented sailors, bringing thousands of ships to the icy lake bottoms. These days, they beckon surfers to brave the chilling waters in search of “unsalted” swell. From any perspective, there is something powerful about this time of year on the Lakes. It is raw, unharnessed nature that is both beautiful and prideful for those who call these waters home.
Right now, there is a different kind of storm brewing on the Great Lakes. For 65 years, a decaying pipeline known as “Line 5” has been pumping 23 million gallons of oil each day through the heart of the Great Lakes. Operated by Enbridge Energy – who was responsible for a 1.1 million gallon oil spill in the Kalamazoo River in 2010 – this pipeline is 15 years past its expected life. And it’s showing: Researchers have documented cracks, dents, bends, gouges, and failed supports on the pipeline’s path through the Straits of Mackinac, putting our freshwater and over 700 miles of our coastline at risk.
Concerned citizens have been fighting for the decommissioning of this line for years, believing that the Great Lakes – our public waters – are not worth risking for the short-term economic gains of a private company. These lakes provide the basis of this region’s identity and economy – 1.5 million jobs and over $62 billion in wages every year.
Yet, Enbridge Energy has been fighting to keep the oil flowing – touting the pipeline’s “as good as new” condition and importance on the region’s economy. Photo evidence of the decrepit pipeline and documentation of only 102 Enbridge employees in Michigan prove these claims don’t hold to the wind. To add insult to injury, Enbridge struck a deal with Governor Snyder to “explore” digging a tunnel to house Line 5 through the Straits, a billion-dollar deal that doesn’t stop an oil spill from happening.
I work for Patagonia, Inc., a company that makes apparel for outdoor recreation – skiing, hiking, climbing, fishing, surfing. We are a successful business, with growth that has far eclipsed our industry’s average – success which we attribute to our obsessive dedication to minimizing our impact and maximizing our influence to protect our most treasured natural resources.
Our company’s mission statement reads, “Build the best product, cause no unnecessary harm, use business to inspire and implement solutions to the environmental crises.” In that statement, we acknowledge that our business will always cause some amount of harm, but we are mandated to not cause unnecessary harm – through claiming responsibility for our impacts and reducing them wherever we can.
Paul Hendricks, Manager of Environmental Responsibility, Patagonia, Inc.
Line 5 is the epitome of unnecessary harm. It has been proven that the oil flowing through Line 5 can be redirected through existing infrastructure that doesn’t put the Great Lakes at risk. By asking to decommission Line 5, nobody is asking Enbridge to go out of business, but to act responsibly, and respect this region’s greatest resources.
This month, the Line 5 storm is coming to a head as our politicians are making decisions that will last for the next 100 years. As Michiganders head to the polls on Election Day, I urge you to think through the multi-generational impact your vote will have on this region. Vote for policy makers that value the lasting protection of this region’s backbone. Vote for Water.
On its 61st birthday, the Mackinac Bridge faces its biggest threat to date
FOR IMMEDIATE RELEASE November 1, 2018
Contact: Liz Kirkwood, Executive Director Email: Liz@FLOWforWater.org
FLOW (For Love of Water) Office: (231) 944-1568, Cell: (570) 872-4956
TRAVERSE CITY, MI – The use of the legal powers of the Mackinac Bridge Authority (MBA) to facilitate an oil tunnel under the Straits of Mackinac, as proposed by outgoing Gov. Rick Snyder in a secretly negotiated deal with Enbridge Energy Partners, violates environmental provisions of Michigan’s Constitution and laws, threatens the fiscal integrity of the MBA and its Mackinac Bridge, and could subject the authority and taxpayers to billions of dollars of liability in the event of a tunnel accident, FLOW said today in a letter to members of the authority.
FLOW called on the MBA to reject the proposed public-private partnership, or any other agreement with Enbridge, for the proposed tunnel or other privately owned utilities. The MBA Board on November 8 in St. Ignace will, for the first time, hold a public meeting to learn about and discuss its proposed role in the Snyder-Enbridge agreement that’s been hashed out covertly by Gov. Snyder for at least a year. Snyder in recent months has stacked the MBA Board with a majority that shares his tunnel vision.
“In law and practice since the day the Mackinac Bridge opened on November 1, 1957, exactly 61 years ago today, the MBA and the bridge have been jealously protected as a completely independent and stand-alone entity,” said FLOW Founder and President Jim Olson, who is an environmental attorney. “The bridge was a singular, and wholly public, state project for its citizens and the general motoring public connecting the people of both peninsulas. A key provision of the Snyder-Enbridge deal would do just the opposite. It demands that the MBA agree to and participate in a ‘public-private partnership,’ which is vastly different from a state-sponsored project for a singular public purpose like transporting the citizens and general public.”
The Snyder-Enbridge deal provides that the MBA would own the proposed oil tunnel and lease it to Enbridge for 99 years. However, while a lease in theory could provide for indemnification of the MBA for any liabilities, damages, or losses, these are only contractual assurances and will not prevent the MBA from being held liable for any occurrences, including catastrophic damages and losses, as owner and overseer of the project and its operation for essentially a private function. In essence, the MBA’s protection through such contractual promises is a fantasy.
“The MBA should postpone any hasty decisions that dilute its single-purpose mission to protect and maintain the Mackinac Bridge and that burden this authority for the next century to take ownership responsibility for a risky private tunnel venture,” FLOW wrote.
FLOW Executive Director Liz Kirkwood observed, “Enbridge has other alternatives not threatening the Great Lakes that this foreign corporation can and should use its own financial resources and borrowing power to apply for the necessary lands, authorizations, and permits to implement those options.”
Michigan’s legislature enacted the Mackinac Bridge Authority in 1952 for the express and singular purpose of building, maintaining, and operating the Mackinac Bridge. The bridge was opened for traffic on November 1, 1957. To this public end, the MBA has operated for more than six decades as an independent authority designed to be free from outside influence and political pressure. Each of Michigan’s governors since that time has appointed members to the MBA who have fiercely defended its independence. The MBA’s singular mission is to maintain and govern this iconic infrastructure that spans and unites our Michigan peninsulas.
In 2004, the Michigan Department of Transportation sought to increase the control of over the MBA and its engineering, finances, and employees. In response, the state legislature voted the next year in unanimous, bipartisan fashion (107-0 in the house, 38-0 in the senate) to amend to the MBA law to prohibit state government interference. The 2005 amendment expressly directs that the MBA and its core tasks must be kept “independent” and free of interference by state agencies and officials.
“The principle of MBA independence, so critical to lawmakers for six decades, is too important to be cast aside by a lame-duck governor in the waning weeks of his administration,” Olson said.
The MBA’s stand-alone powers also do not satisfy the modern legal regime designed to protect the public interest and public trust resources. For example, the MBA Act exempts the actions of the authority to transfer public lands, bottomlands, and construct the bridge from “any approvals required from state boards or agencies.” However, using the MBA Act to authorize Great Lakes oil tunnel construction would be inconsistent with the mandates, policies, and standards of the Great Lakes Submerged Lands Act; Article 4, Sec. 52 of the state’s 1963 Constitution; the 1970 Michigan Environmental Protection Act; and the 2002 Michigan statute banning oil and gas drilling under the Great Lakes.
The waters of the Great Lakes and the lands beneath them are held in and protected by a public trust, Kirkwood explained. “The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation, said Kirkwood, an environmental attorney. “As a general rule, there can be no disposition, transfer, conveyance, occupancy, or use of any kind of these public trust waters and the soils beneath them, unless there is a statute authorizing this and the action predominantly serves a public interest, not a private one.”
This week’s Friday Favorite was written by Julius Moss, one of our summer interns who has since returned to Vermont Law School.
To me, the Mackinac Bridge is not just a bridge. It is also a portal. Every time I head north from my home in Traverse City, MI and cross the bridge, it feels like I have been transported to a simpler place. A place of boundless natural beauty, full of sandy beaches, clear blue water, dense pine forests, and mesmerizing sandstone cliffs. A welcoming place that is connected to the wild around it, embracing all four seasons mother nature has to offer. A place that is simply called the Yoop!
On one of my recent adventures to the Upper Peninsula, I headed north for a weekend bike trip in Marquette, MI. I was unable to leave Traverse City until that Friday evening, and did not want to drive late into the night. Although I had previously spent evenings on Mackinac Island, I found this to be the perfect opportunity to camp somewhere near the Straits for the first time.
After a short drive up US-31 and across the Mighty Mack, I set up camp in the Straits State Park on the North shore of the Straits. I was fortunate to claim a campsite just off the water, and was able to spend the evening walking the shores of the Straits. While listening to the water lap against the beach, I could only stop and wonder why we have a rusty 65-year old oil pipeline perched along the shifting bottom of the Straits, and why in the world would we continue to risk our precious natural resources by delaying the decommissioning of Line 5 for the construction of a tunnel.
The Straits of Mackinac are the heartbeat of the Great Lakes. In fact, more water flows through the Straits than over Niagara Falls on a daily basis. Furthermore, the Straits are home to the majority of the Lake Michigan commercial whitefish industry, allowing the Michigan Tribes to pass down their cultural connection to the water. The Straits are also home to destinations such as Mackinac Island, a place allows visitors from across the globe to venture back to a time before the automobile.
It is crucial we as Michiganders do all we can do to protect the Straits. I encourage you all to contact your local representatives, the Mackinac Bridge Authority, and the governor and Attorney General’s office to express your concerns about Line 5 and the possibility of a utility tunnel. I also encourage you all to become informed voters this November and understand where candidates stand on Line 5 and protecting the Great Lakes. The Straits must continue to be a place that transports water, people, and culture. To do that – we must stop the transportation of oil in the straits and decommission Line 5 once and for all.
When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.
The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.
Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.
This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the  Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the  Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.
Jim Olson, President and Legal Advisor
So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.
Saturday, September 1 was a day of action for citizens of Michigan. The fourth annual Pipe Out Paddle Protest was held in the Straits of Mackinac, followed by the inaugural Water Is Life Festival. Organized by Jannan Cornstalk, both events drew participants from all over the mitten, coming together to protect our waters. The family friendly Water Is Life Festival featured musicians, panels, and celebrations of water.
“The 2018 Paddle Protest and Water is Life Festival were a powerful showing of our collective commitment to protecting our Great Lakes and decommissioning Line 5,” said FLOW Executive Director Liz Kirkwood, who participated in the event. “The voices of our Indigenous leaders with sovereign treaty rights were bold and clear: water is sacred and the Great Lakes should not continue as an oil corridor for Enbridge corporate profit.”
In addition to the events at Mackinaw City, the first sister paddle protest was held in Traverse City, MI. Paddling together down the Boardman River, participants “spilled” into West Bay, and joined into a flotilla to protest the continued operation of Line 5.
Co-organizer of the TC paddle Karen Bunting said, “We were thrilled with the community turnout for the sister Pipe Out Paddle Protest! We left the Union Dam area cleaner than we found it, paddled together down the Boardman River, and raised awareness about the dangers of Line 5. Other paddlers joined us in West Bay, and we formed a flotilla of about 50 water protectors to demand that Line 5 be decommissioned before it’s too late.” She added,“Our most sincere appreciation to all those who showed up for this important event and our sponsors: FLOW, The River Outfitters, Paddle TC, Oryana, Image360 and Tee See Tee. We made a difference on Saturday and couldn’t have done it without all of you!”
All three events highlighted concerns about Line 5, elevating local voices and putting forth a unified effort and belief that protecting our Great Lakes is more important than preserving a risky 65-year-old pipeline.
Michigan Senator Gary Peters, ranking member of a Senate committee overseeing hazardous pipelines, held a public hearing in Traverse City, Michigan Monday, ground zero in a race to turn off Enbridge’s 65-year old Line 5 before it spills millions of gallons into the Straits of Mackinac and blackens the water, life, and economy of the Upper Great Lakes. Senator Peters called the hearing to open an investigation and find solutions to reform a patchwork of ineffective federal regulations that lack authority and power to shut down pipelines that threaten the health and safety of residents, businesses, schools, and communities across the country. What better place to start than Line 5 in the heart of the Straits and Great Lakes?
Senator Peters convened two panels: one made up of an Enbridge upper-level executive and federal officials from the Pipeline Hazardous Materials Safety Administration (PHMSA), the Coast Guard emergency response team, and National Oceanic and Atmospheric Administration (NOAA); the other filled with representative leaders from conservation, labor, and business across the region. After their testimony and questioning from a well-prepared, sometimes passionate Senator Peters, and applause from a sympathetic audience, the message was clear—we need legal reforms, and we need them now, to fix the holes and fragmentation in current regulations.
Monday’s public hearing may well be the tipping point to turn off the rush of 23 million gallons a day through a pipeline that is outdated and failing the dictates of its original design. It may also be the year of reckoning for the Snyder Administration’s and Attorney General Schuette’s game of footsie with Enbridge that has, in my opinion, imprudently gambled the soul of our state’s water, life and economy by helping Enbridge keep Line 5 open for gushing crude oil from Alberta to Sarnia far too long. Here’s why.
After four years of state task forces, boards, studies and exercises to clean up a mock spill, nothing has happened except permission to Enbridge to keep Line 5 going at full tilt. During this same time, National Wildlife Federation, FLOW, the Grand Traverse Band of Ottawa and Chippewa Indians, and other tribes and organizations have filed compelling scientific, technical, and legal analyses and reports that have more than documented what is now obvious: Crude oil in Line 5 in the Straits and over or near tributaries that flow to Lake Michigan and Lake Huron constitutes what is known in the hazardous risk industry as a “Tier 1″ risk. It must be avoided, and reasonable alternatives exist– that is, Line 5 in the Straits or waters of the Great Lakes is not essential for Canada, Enbridge, or Michigan and its residents.
A “Tier 1″ risk means that the magnitude of harm is so devastating or grave, that principles of risk management require those responsible to implement both a temporary and a long-term solution that removes and avoids the risk entirely. In plain terms, this means that if there is an alternative to a pipeline that is unacceptable under any circumstances, the alternative must be implemented, as long as it reasonably achieves the overall purpose of avoiding the risk and allowing a means through some other route to continue transporting crude oil.
In the last four years, it has become clear, as reinforced by Senator Peters at the start of the hearing, that the Straits is “the worst place for an oil pipeline in the Great Lakes,” and that we must find a way to take hold of this unacceptable risk and end it. For example, strong currents have continuously scoured the rocks and soil under the heavy pipeline designed to lay on the bottom of the lakebed; in an attempt to patch a failing design, Enbridge, with the help of Michigan’s DEQ, has been able to install anchor supports to elevate the line above the lakebed since 2001 as a “repair,” with little to no notice to the public. There are now 150 supports holding up the line, and an application to the DEQ for 48 more. That means nearly three miles or one-third of the original design has been totally changed, and the stage is set for more and more “repairs” without any application, determination, and legal authorization as required for altered and new pipeline designs or structures on the bottomlands of the Great Lakes under our Great Lakes Submerged Lands Act. If our leaders forced Enbridge to apply for new authorization of this serious, never-before-reviewed change, Enbridge would have to show no “Tier 1″ risk and no alternative– finally, the substance and risk and fate of the Straits and Great Lakes and citizens would be under the rule of law.
Also, in the last four years, strategic organizing from Oil and Water Don’t Mix, a consortium of organizations like Groundwork Center, Michigan Environmental Council, Sierra Club, the tribes, Northern Michigan Environmental Action Council, and many others have fostered tens of thousands of letters, public comments, all urging state leaders to end this catastrophic risk that puts oil above the state’s and its citizens’ paramount interest and public trust in water and the Great Lakes.
Nearly 70 communities have passed resolutions calling for decommissioning or ending the flow of oil in Line 5, as have approximately 15 tribes and tribal organizations. This has led to a Pipeline Advisory Board questioning the lack of action by the state, conflicts of interest in a risk study, and questioning whether Line 5 should be allowed to continue in light of reasonable adjustments and alternatives elsewhere within Enbridge’s larger system.
Then, last fall, Governor Snyder announced he’d signed an agreement with Enbridge that allows Enbridge to pick an option to replace Line 5 with a new line in the Straits. In other words, Enbridge was given the green light to replace Line 5, continue Line 5 in the Straits until the replacement was operational in seven years, and avoid the rule of law.
No wonder Senator Peters held the hearing to launch a process to find out why the federal regulatory framework hasn’t done more. As urged by the Senator and agreed to by other panelists at the hearing, the Straits and Great Lakes demand a far more responsive legal framework than PHMSA safety code inspections and wrist slapping or Coast Guard after-the-fact response and cleanup actions. And it’s not just the Great Lakes. There are thousands of miles of crude oil pipelines and thousands of communities, lakes, streams, groundwater, drinking water and other sensitive environments that have been damaged or are threatened.
We need go no farther than the 2010 Enbridge Kalamazoo River rupture and disaster or the Deep Horizon debacle in and along the beaches of the Gulf of Mexico.
Based on the testimony of the panelists and careful questioning of Senator Peters, here is what the record looks like and what we might expect to address Line 5 and many other oil pipeline risks across the United States and, hopefully, beyond our borders.
First, after accidents like the anchor strike that broke the utility line, released pollutants into the Straits and was reported by Enbridge to have dented Line 5, inspections by PHMSA review the company’s evaluation and self-reporting, and the Coast Guard completes assessments of conditions and response actions only after a spill of pollutants. As it turned out, PHMSA did not independently inspect the dents. The Coast Guard has no jurisdiction except to respond to the spill of the pollutant from the utility line. Fortunately, an assessment and inspection performed 2.5 weeks later revealed a “gouge,” not just a dent.
Second, while PHMSA has legal authority to force shutdown of a pipeline, it has never ordered one decommissioned and removed. The state, through its public trust authorities, has the power to do so, but so far, it seems, has done everything possible not to shut down Line 5.
Third, Enbridge and others maintain that the Great Lakes and Line 5 are not “offshore” hazardous or crude oil pipelines, and are not regulated as strictly as offshore lines and oil wells. The U.S and Michigan supreme courts have consistently ruled that the Great Lakes are seas, like the oceans, and subject a high-degree of protection under the public trust doctrine.
Fourth, PHMSA has not certified the Great Lakes as a critical “environmentally sensitive” area that would impose, at least, stronger safety measures, inspections, or assessments.
Fifth, inspections and assessments are not “hands-on” and are often delayed or too late to quickly determine the gravity of the condition of a pipeline.
Sixth, there is no legal process under federal law or regulations that comprehensively regulates, assesses, and determines whether to shut down high risk pipelines– those that have failed or those in sensitive areas like the Great Lakes. So, while most states, like Michigan, have the authority to locate or terminate high risk pipelines, particularly where they are old, failing, and alternatives exist, the federal government has no framework to do much at all.
Senator Peters has done a great service, and his Senate Commerce Committee needs to carry the day by continuing, as directed by the senator, to record and investigate. The goal should be to establish a framework for the Senate, with the help of experts and citizens, to find a way to overhaul these laws and rules that are supposed to protect the public. For starters, here are some suggestions:
Amend federal laws, such as the Clean Water Act or the PHMSA authorizing law, to establish an authority for the certification of oil and other hazardous liquid or materials pipelines.
New pipelines would have to go through an application, hearing, full transparent information and disclosure, evaluation and study process to determine the risk, potential impacts and damage based on a true “worst case scenario,” and the full range of feasible and prudent alternatives.
Old pipelines, say older than 40 years, or less if beyond their “useful safe lifeline” would have to apply for certification, showing that they do not involve high risks or catastrophic harm or serious impacts based on a worst case scenario, and if the risk is high, they must be shut down if there exists a feasible and prudent alternative or the operation if continued could result in a high-magnitude of harm to the public health, safety, and welfare.
New pipelines proposed for the Great Lakes or equivalent paramount public trust waters or natural resources are prohibited.
Owners and operators of old pipelines in, over, or under the Great Lakes or equivalent public trust waters and natural resources must apply for certification and a determination that there is no feasible and prudent alternative with reasonable adjustments to other routes, design capacities, and locations within the overall crude oil pipeline system and logistics; if there is no feasible and prudent alternative, there would be a determination of remaining “useful life” and that the risks are less than a “Tier 1″ based on a competent credible worst case scenario.
All applications, and supporting materials would be public records and made available, all applications would be subject to public hearings, comments, and testimony by all interested persons and members of the public, and there would be direct citizen suit enforcement similar to that in the Clean Water Act.
All applications would be subject to the National Environmental Policy Act environmental impact statement process.
Federal agencies involved would cooperate with state agencies, including shared jurisdictional and information agreements, and the federal process would not preempt or supplant the state process. State proceedings involving use or potential impact to their sovereign water and other natural resources, or public trust interests in those resources, would not be preempted and could impose more stringent standards or otherwise reserve the state’s property power and public trust in its waters and natural resources to prohibit any existing or proposed new pipeline (which is the law in Michigan and other states today).
Jim Olson, President and Founder
In short, thank you, Senator Peters and the Senate Commerce committee, and those panelists who participated in the hearing Monday: It is far better to remove these regulatory holes with a comprehensive approach to prevent unacceptable risks entirely than to face the catastrophe of a gaping hole in Line 5 in the Great Lakes or other high-risk lines across the country.
Even the significantly understated economic impacts of a spill from Line 5 at the Straits of Mackinac in a state-commissioned analysis reveal a fiscal and human price tag too high for the people of Michigan, FLOW (For Love of Water) said in comments submitted to Lansing officials before Sunday’s deadline.
FLOW submitted the comments to the state on a draft Independent Risk Analysis coordinated by Dr. Guy Meadows of Michigan Technological University that was released in July.
The Traverse City-based Great Lakes law and policy center said that while the state-commissioned analysis rests on excessively conservative assumptions that lead to underestimates, the potential $2 billion economic impact it calculates is unacceptable and justifies an immediate shutdown of the twin petroleum pipelines owned and operated by Enbridge Energy. The company was responsible for the largest inland oil spill in U.S. history when its Line 6B ruptured and contaminated the Kalamazoo River watershed in 2010.
An analysis released by FLOW in May and conducted by ecological economist Dr. Robert Richardson of Michigan State University estimated impacts and damages of over $6 billion from the same approximate volume of spill used as an assumption in the state-commissioned study.
“A Line 5 spill will ravage Michigan’s economy and environment no matter which estimate you use,” said Liz Kirkwood, executive director of FLOW. “The state-sponsored report confirms that the economics of Line 5 are bad news for the people of Michigan and our precious Great Lakes.”
FLOW said the state-commissioned study’s flaws understate the potential impact; for example:
Short-term impact? The study wrongly assumes that an oil spill in the Straits will only have a short-term effect on the region’s tourism and recreational economies, commercial shipping industry, commercial fishing, and coastal property values. It bases the short-term economic impact assumption on a recreation assessment for the Deepwater Horizon oil spill in the Gulf of Mexico in 2010. However, that spill occurred roughly 41 miles off the coast of Louisiana, while a potential Line 5 spill would occur approximately two miles offshore at most. This proximity to the shoreline and coastal communities amplifies the impacts of a Line 5 spill.
Quick cleanup? The study grossly underestimates the amount of time it will likely take to remove the dispersed oil, to the extent even possible, and start restoring the water and shorelines of Lake Michigan and Lake Huron. If the Line 5 spill estimated in the state-sponsored study were to occur, and approximately 441 miles of shoreline were affected, cleanup crews would have to restore over a mile of beach every day to ensure the shoreline would be in condition for the next summer season, when the majority of Michigan tourism and recreational activities take place.
No lasting harm to the Pure Michigan brand? The study does not account for any lingering stigma that a catastrophic environmental disaster would likely cast. The long-term taint and diminution of property values from a release of hazardous substances and water pollution are well documented. The Risk Analysis assumes the reduction in the value of lakefront properties would only amount to $2.6 million. Richardson’s analysis estimates a multi-year impact of over $485 million in coastal property values.
Loss and damage to people, communities The Risk Analysis acknowledges that “mental health issues are a significant concern after disasters such as a potential oil spill at the Straits of Mackinac.” As significant as the effects to mental health on residents and tribal members, the Risk Analysis fails to discuss the potential costs of long-term mental health counseling, therapy, and other services needed to prevent or treat the mental health symptoms caused by a worst-case scenario Line 5 spill. The Risk Analysis also fails to evaluate the risks to the public drinking water supply on Mackinac Island, as well as the emergency response plan that would have to be implemented to ensure Mackinac Island residents and visitors have adequate drinking water supplies after a spill.
FLOW said state officials, as public trustee of the waters, should require Enbridge to submit and demonstrate through a comprehensive alternative analysis that there are no other feasible and prudent alternatives to the continued operation of Line 5 in the Straits of Mackinac. At a minimum, state officials must demand that Enbridge demonstrate that they possess sufficient liability coverage for all liabilities and/or damages stemming from the worst-case scenario Line 5 spill outlined in the Risk Analysis. Enbridge has made no attempt to do so, instead calling on the state and citizens to trust that another Kalamazoo River-scale disaster won’t happen again.
“Trust is no substitute for hard evidence,” Kirkwood said. “Enbridge has continually failed to demonstrate it can be trusted with the future of our great waters.”
Over three years ago, on July 15, 2015, the State of Michigan’s Petroleum Pipeline Task Force released its recommendations for the state to conduct an independent risk analysis and independent alternatives analysis on the Line 5 pipelines located in the open waters of the Great Lakes. The Governor’s Advisory Board, created by executive order, promised the public these two separate reports by the summer of 2017.
But just before the risk report’s release in June 2017, the state scrapped the report due to a conflict of interest involving Enbridge and the independent contractor who has simultaneously worked on Enbridge’s Line 6B pipeline. Now, three years after the initial study recommendation, we finally have the risk report estimating Enbridge’s liability at $1.8 billion for a worst-case-scenario (WCS) oil pipeline spill in the heart of the Great Lakes.
FLOW’s 2018 commissioned economic impact report (released in May 2018) — conducted by a nationally respected ecological economist and based on conservative assumptions — estimates $697.5 million in costs for natural resource damages and restoration and more than $5.6 billion in total economic impacts, including:
$4.8 billion in economic impacts to the tourism economy;
$61 million in economic impacts to commercial fishing;
$233 million in economic impacts to municipal water systems;
over $485 million in economic impacts to coastal property values.
Our FLOW team attended and testified at the state’s presentation this past Monday, on August 13, 2018, held at Boyne Highlands, and it was the first honest conversation between the state and citizens in a public forum about the real risk Line 5 poses to our waters and our way of life.
A team led by Dr. Guy Meadows of Michigan Technological University presented this independent risk analysis on its 58,000-barrel WCS disaster that would potentially affect 441 miles of Lakes Michigan and Huron shoreline in Wisconsin, Michigan, and Ontario. The Risk Analysis examined impacts to public health, drinking water, cultural resources, tourism, property values, natural resources, and economy. The report’s final section analyzed perceived risk and the social license to operate based on public opinion. To do this, the report reviewed the 45,000 comments submitted in December 2017 on Dynamic Risk’s Alternative Report, and found an overwhelming 80 percent of commentators opposed to Line 5. The reasons articulated by the opposition were grounded in sound science and law, according to Dr. Meadow’s team.
Although the dollar figures are different due to methodologies and assumptions, what the FLOW-commissioned MSU economic impact report and the state’s report demonstrate is this: Line 5 poses an unacceptable risk to the Great Lakes and the State of Michigan. Period.
The risk and potential harm unfairly burdens the citizens, businesses, and tribes of Michigan, and the freshwaters of the Great Lakes. A spill from Enbridge’s Line 5 could contaminate nearby municipal drinking water intakes, devastate some of the commercial, recreational, and tribal fisheries of the Great Lakes, kill aquatic and terrestrial wildlife, impair critical ecosystem services, diminish coastal property values, and tarnish the image of the state of Michigan and perceptions of its high levels of ecological integrity. Even bigger impacts would damage Michigan’s critical tourism industry.
The state’s risk analysis is yet another compelling reason for the state to take swift action to shut down Line 5.
In an end-run around the public participation process they established, Governor Rick Snyder and Enbridge, Inc., the owner and operator of Line 5, are exploring the possibility of building a $500 million tunnel to replace the stretch of 65 year-old Line 5 pipeline that runs under the Straits of Mackinac.
While a tunnel, properly designed and engineered, may be able to prevent harm in the event of a pipeline breach under Lake Michigan, there are compelling reasons why a tunnel should not be built.
First, the five-mile segment of a tunnel running under the Straits of Mackinac represents less than 1 percent of Line 5’s total length of 645 miles. Long segments of this aging infrastructure run parallel to the Lake Michigan coast in the Upper Peninsula, crossing 400 rivers and streams that are tributary to Lake Michigan and numerous other water bodies. Records from the Pipeline Hazardous Materials Safety Administration indicate that in the last 50 years, there have been at least 29 spills along the length of Line 5 outside of the Straits, resulting in the release of over 1 million gallons of oil and natural gas liquids.
The threats to our freshwater lakes and streams will escalate over time as the other 640 miles of Line 5 age and degrade.
Second, aside from the fact that Line 5 crosses Michigan largely to serve markets outside our state, a tunnel for Line 5 is a fundamentally unsound investment – one that is unneeded, economically imprudent, and may soon be functionally obsolete.
Major new pipeline infrastructure investments assume the continued demand for transportation fuels. But our fossil fuel-based economy is in transition and will be completely transformed within the coming decades.
Recent petroleum sector forecasts by firms specializing in energy trends like Bloomberg, Navigant, and Goldman Sachs, predict that the transition to electric vehicles will accelerate quickly with a corresponding, precipitous drop in the demand for transportation fuels.
The world’s major auto manufacturers are validating these predictions. General Motors, VW, Volvo, and others are making clear that petroleum-free electric drivetrains will dominate their future manufacturing investments and that future product offerings will not use transportation fuels.
At the same time, sovereign nations are intent on extinguishing demand for petroleum. England, France, Norway, Netherlands, Slovenia, India and China have announced their intentions to ban future sales and, in some cases, the use of vehicles with internal combustion engines. Ireland has gone even further, announcing that it will divest its sovereign interest in all oil, gas and coal.
And while Enbridge boasts that it transports 63 percent of all Canadian oil to the United States, Big Oil sees the writing on the wall. Seven international oil companies – Exxon Mobil, Conoco Phillips, Statoil, Koch Industries, Marathon, Imperial Oil and Royal Dutch Shell – will not need Enbridge’s future pipeline services as they have announced that they are writing off tar sand assets in Alberta.
The confluence of these trends will result in demand for transportation fuels declining precipitously, rendering a Line 5 tunnel project a costly albatross.
Third, climate change is the elephant in the room. Continued investment in fossil fuel infrastructure is fundamentally at odds with the global consensus on the urgent need to reduce greenhouse gas emissions. The findings of our National Climate Assessment are unambiguous – decarbonization of the global economy is an imperative, entailing a “fundamental transformation of the global energy system” to one that is no longer dependent on fossil fuels. As the need to address climate change becomes more acute, new pipelines proposals will be met with the scrutiny they deserve.
Finally, we should all be able to agree that there are exceptional places and natural features that are deserving of special protections. Just as we would not allow a foreign corporation to build a tunnel under the Grand Canyon, the Great Lakes should be off limits to fossil fuel infrastructure.
Our Great Lakes are a globally-unique natural resource, the largest interconnected freshwater system in the world, containing 84 percent of all surface water in North America. Recognizing that certain natural resource endowments are invaluable and irreplaceable gifts of nature, both state and federal law already prohibit all oil and gas development, even if done laterally from inland areas.
Skip Pruss, FLOW Chair
Building a tunnel to perpetuate Line 5 makes little economic or environmental sense. The decisions we make about how to use and protect our freshwater seas will ultimately be judged on whether they do or do not protect the ecological, social, cultural, and economic interests of future generations.
Simply put, our Great Lakes merit extraordinary protection, and their bottomlands must be off limits to oil and gas pipelines.
Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago.”
The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.
But Sellek’s comment obscures the more important issue: Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5. What is more, there is legal precedent for such action.
In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America. The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.
The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.
Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.
The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine. These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.
In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5. The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people. And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.
Line 5 is showing a number of red flags. Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims:
Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
Anchor strikes that have dented the pipeline in three locations.
These facts support a finding that Line 5 poses an imminent risk. Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm. A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron. And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.
Line 5, if it continues to operate, will fail eventually. It is unscientific and reckless to suggest that it can function indefinitely. While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.
So, what was the result of Attorney General Kelley’s action in 1986?
The Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources” but denied the state’s request to void the lease for state bottomlands. Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.
Skip Pruss, FLOW Chair
The result: A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF.
As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands. It is time for Schuette to act on Line 5, not make excuses.