Tag: Line 5

Line 5’s Failing Design – Anchor Supports, Anchor Strikes, and the Rising Risk of an Oil Spill Disaster in the Great Lakes

Published on August 8th, 2019 by - Blog Posts, News

Above: An underwater image from Canadian oil transport giant Enbridge shows deep grooves in the Straits of Mackinac lake bottom, going up and over one of the twin Line 5 oil pipelines and leaving damage to the pipe’s outer coating, the result of an April 1, 2018, anchor strike.
(Photo: Enbridge via U.S. Senate)

By Jim Olson

The disclosure by Enbridge that 81 feet of Line 5 has been undermined by powerful currents and is slumping points to something far more serious—and dangerous: The 66-year-old dual pipelines in the Straits of Mackinac are failing and also at risk of rupture from a ship’s anchor drag that hooks and rips the pipeline wide open. It is also a violation of the law that governs the protection of the public trust in the Great Lakes and the soils beneath them.

Since at least 2001, Enbridge has known of these risky violations of the easement that the State of Michigan granted in 1953 to conditionally authorized Enbridge to pump oil through twin pipelines, and changed the pipeline’s design by adding anchor supports to shore it up.

At first, it was a few anchors, but between then and now, Enbridge has added a total of 202 supports that elevate 3 miles of dual oil pipelines that were designed to lay on the lakebed of the Straits. The former Michigan Department of Environmental Quality (MDEQ) under the Snyder Administration was an accomplice allowing the supports, but without requiring authorization under Michigan law based on a necessary risk, impact, and alternative assessment.

Rather, the MDEQ until now has looked only at the impact to the lakebed from the screw anchors, nothing more. In other words, a completely new design is being built in the Straits for this dangerous Line 5 that carries nearly 23 million gallons of crude oil daily, and the design has never been evaluated or authorized by the DEQ, now the Department of Environment, Great Lakes, and Energy (EGLE). 

The State of Michigan now finally recognizes the greater risk of an anchor strike from the change in design; one dented the dual lines in three places in April 2018, and the State cited this serious risk in its lawsuit filed June 27 against Enbridge to shut down Line 5.

With 3 miles (almost 40 percent) of the Line 5 crude oil lines in the Straits now 2 to 4 feet above the lakebed, the next strike has a strong likelihood of hooking and rupturing the lines; causing a massive release that will devastate hundreds of miles of Lake Huron and Lake Michigan; shut down Mackinac Island, ferries, ships, drinking water, fishing, boating, and recreation; and destroy the habitat and ecosystem and economy for years to come—to wit: the Deep Horizons blowout in the Gulf of Mexico.

Fortunately, we have new leadership in Governor Gretchen Whitmer (call her office at 517-373-3400, or share your opinion here) and EGLE Director Liesl Clark (call her at 800-292-4706), who can correct this attack on the public trust rights of citizens in the Great Lakes, and restore the rule of law that was abandoned by the Snyder administration for 8 years.  What should you do?  Email or call Governor Whitmer and Director Clark , and urge them to take action immediately by sending a letter to Enbridge demanding it apply for authorization of this major change in design not covered by the 1953 easement, and never evaluated or allowed.

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

If Line 5 Ruptures, Shut Mackinac Island Water System, Evacuate Everyone

Published on July 25th, 2019 by - Blog Posts, News

Photo: Bryan Newland, chair of the Bay Mills Indian Community, addresses the 2019 Mackinac Island Community Forum.

By Jacob Wheeler

During conversations at a home on the West Bluff of Mackinac Island on Friday afternoon, July 19, summer resident Susan Lenfestey described what she had learned at a previous community meeting about the immediate consequences if Line 5 ruptured and an oil spill in the Straits of Mackinac.

The municipal water plant would have to be shut down immediately to prevent oil from getting into its pipes and filters, and an immediate and unprecedented evacuation of the island would ensue because of the oil flowing from the pipelines underwater west of the Mackinac Bridge.

The island’s residents, thousands of seasonal workers, and deluge of tourists would all need to flee for mainland Michigan. Soon, however, the oil would engulf Mackinac Island and stop all boat traffic, stranding passenger ferries from Shepler’s and Star Line in Mackinaw City and St. Ignace. Small aircraft landing on the island’s small strip would be the last resort for evacuating masses of people.

The cherished horses—an iconic presence and primary source of transport on this automobile-less island—would be left behind, at least initially.

“That really hit home when people realized what that would mean on a hot summer day, with thousands of tourists camped out in Marquette Park, not to mention no water for the approximately 500 horses on the island,” said Lenfestey. “A question followed about what would a spill would mean in the winter? How would there be a clean up under the ice?  The answer: ‘No idea.'”

Gasps were audible among those gathered, suggesting that some hadn’t fully considered the true magnitude of what a spill from Enbridge’s old and decaying pipes would mean for the island, which is adored not just by residents, but by people all over Michigan.

The Mackinac Islanders who earlier that day attended FLOW’s sixth annual Community Update on Line 5 at the local Community Hall were an economically and politically diverse crowd. What united them was a concern over Line 5, and a desire to learn from FLOW and tribal representatives, lawyers, and risk experts about this sunken hazard in the fragile Straits of Mackinac — and how we are pressuring the State of Michigan to restore the rule of law and shut down Line 5 before an oil spill happens. FLOW has been working with Mackinac Island residents for six years on this issue because they’re at the epicenter of the threat of a Line 5 oil spill.

Lenfestey credited FLOW for its rational, fact-based and evidence-based approach to fighting this battle.

This year’s Community Update featured a welcome by George Goodman, board chair of the Mackinac Island Community Foundation, which co-sponsored the event. The welcome was followed by an introduction by FLOW executive director Liz Kirkwood and a synopsis by FLOW founder and president Jim Olson of the legal fights playing out on multiple fronts. FLOW board member and international risk expert Rick Kane followed with a tutorial about the logistics and economics of oil pipelines, soundly debunking Enbridge’s falsehood that shutting down Line 5 would deprive Upper Peninsula residents of propane or Detroit Metro Airport of jet fuel). And Bryan Newland, chair of the Bay Mills Indian Community, delivered a rousing speech by about what Mackinac Island means, spiritually, ecologically, and legally, to Native peoples of the Great Lakes.

Newland describe the Anishinaabek story of the great flood over the earth and how the Creator then recreated land and put it on the back of a turtle. The Anishinaabek word for turtle is “Mackinac.”

“Right here on this island is where our story tells us this happened,” said Newland. “If the pipelines were to burst, if oil were to wash upon these shores, it would degrade the very place where we say that life was reborn.”

This year’s Line 5 Community Update was streamed live on FLOW’s Facebook page (watch a recorded version below). You can click here to view the slideshow presentation. And click here for our updated Line 5 fact sheet and new Key Facts list, with the most up-to-date information about Line 5, the proposed oil tunnel, and actions you can take to protect Mackinac Island and the Great Lakes from an oil spill.    

Attendees of the Community Update engaged the presenters with important questions such as whether Enbridge is “winning the PR campaign.” The Line 5 owner/operator is spending millions of dollars on an advertising and disinformation “Chicken Little” campaign around the state—from billboards in the Upper Peninsula, to full-page advertisements in regional newspapers, to the aforementioned, hyperbolic, oversimplified narrative that shutting down Line 5 would affect statewide fuel supplies.

In fact, 95 percent of the oil pumped through Line 5 flows through Michigan and back to Canada. Only 0.25 percent (that’s just one-quarter of 1 percent) becomes propane for the Upper Peninsula, which can be replaced by a few trucks or rail cars. When the pipeline shuts down, Detroit jets will still fly and refineries in Toledo, Ohio, will still exist. For more on that, check out our Fact Check: When Line 5 Shuts Down, Detroit Jets Will Still Fly and Union Refinery Jobs Will Still Exist.

And check out these videos by the Oil & Water Don’t Mix campaign that refute Enbridge’s wild claims that the Upper Peninsula will freeze without propane from Line 5 and that building a tunnel for Line 5 would protect the Great Lakes. 

“The world won’t end if Line 5 shuts down,” said Liz Kirkwood.

Kirkwood reminded the Mackinac Islanders that July 25 marks the nine-year anniversary of the Kalamazoo River oil spill when Enbridge’s Line 6B ruptured in southern Michigan.

FLOW’s gathering on Mackinac Island also took place one day before the 50th anniversary of the Apollo 11 mission landing on the moon.

“If we can put a man on the moon, we can certainly shut down an oil pipeline,” said Kirkwood. 

Jacob Wheeler is FLOW’s Communications Coordinator.

The Public Trust and YOU

Published on July 1st, 2019 by - Blog Posts, News

“The Great Lakes belong to all of us. It’s in our DNA,” said FLOW executive director Liz Kirkwood. “We know that those waters that surround us, that bathe us, that nurture us underneath our feet, are inalienable rights for all.”

During this high-water month of July, FLOW will publish video postcards each weekday that feature Michiganders (and citizens of the Great Lakes Basin) explaining what the Public Trust Doctrine means to us and how our precious, publicly-owned fresh water shapes our lives and relationship to this place we call home.

“We chose July because this is the height of summer and the connections people have with our waters,” added Kirkwood. “This is an opportunity for us to renew our commitment to the Great Lakes and think about what stewardship really means. What will we do to make sure these waters are protected for our children and our children’s children?”

At its core, the Public Trust is a set of legal principles establishing the public right to our natural resources. It also establishes the government’s responsibility to protect public health and public rights to use those natural resources. Our goal is to increase everyday awareness about the Public Trust and make it feel less like a legal term and more like an existential code by which we all live.

We saw the Public Trust Doctrine in action last week when the State of Michigan and Attorney General Dana Nessel took the important step of defending the Great Lakes by suing Enbridge and alleging that its occupation of Line 5 violates the Public Trust.

“When Michigan and other states joined this country, the states took title to all navigable waters and the soils beneath them like the Great Lakes in trust for the benefit of its citizens,” said Jim Olson, FLOW president and founder and nationally recognized expert on public trust law. “This means the State has a duty to protect these waters, soils, natural resources, and the rights and uses of citizens from one generation to the next.

“Every citizen is a legally recognized beneficiary for use and enjoyment of these public trust resources for fishing, boating, drinking water, bathing, swimming, and other recreational activities. Governments and private persons cannot interfere with, impair, dispose of or alienate these public trust resources or preferred public rights and uses.”

Olson underscored the importance of the Public Trust Doctrine and its principles at this time in history.

“Whether oil pipelines in the Great Lakes, toxic algae and ‘dead zones’ in Lake Erie, Green Bay, or along Sleeping Bear Dunes, the sale and private control of public water, changes in water levels, erosion, flooding and damage to piers, docks, roads, water infrastructure from global warming and climate climate, the public trust in our waters offers all of us a path forward to address the existing damage and threats, and the world water and climate crisis. When government fails or others refuse to change, citizens have the right to enforce the law to protect their rights and the common good of the community, and their children and grandchildren.”

Our Public Trust video postcards this month will feature everyone from a U.S. Senator and a state Attorney General, to leading environmental advocates, to poets and dancers, to boaters and fishermen, to everyday citizens recreating, beach walking and swimming in their public waters. Through these videos, we hope to empower citizens, educate people about beach access rights, discuss the importance of protecting our groundwater, and reinforce the importance of protecting our freshwater in the age of Climate Change.

On the Fourth of July, we’ll also unveil an online “Public Trust Passport” that you can view, download or print, and use as a handy guide to learn more about your freshwater recreation rights.

Stay tuned to FLOW’s social media feed to learn why Sen. Gary Peters loves backpacking at Isle Royal National Park, why poet Anne-Marie Oomen loves to paddleboard, why toddler Judah Heitman digs swimming and kayaking, and the lifelong resonance of fly fishing with her father on the Boardman River for dancer Sarah Wolff.

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

Published on June 26th, 2019 by - Blog Posts, News

As the time for the State of Michigan to take action on Line 5 at the Straits of Mackinac approaches, an increasingly desperate Enbridge is enlisting allies to engage in what can only be deemed a deceitful Chicken Little campaign. Behold, for example, Enbridge’s full-page advertisement Wednesday in the Traverse City Record-Eagle, which wildly alleges 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.”

The campaign is designed to scare officials into giving the company what it wants — a 99-year lease to use the people’s waters and lakebed to transport dirty tar sands oil from western Canada primarily to Sarnia, Ontario.

The latest and one of the most outrageous fabrications regarding the impact of a Line 5 shutdown emerged last week from management of the PBF refinery in Toledo, Ohio. No doubt 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 is absurd on its face — What kind of refinery management would leave itself vulnerable by receiving crude from only one source? — but 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.

Exploiting worker and community fears with bogus claims is the latest in a series of unconscionable tactics deployed by Enbridge to pressure Michigan officials into letting the company occupy the Straits with its current antiquated pipeline and later, a tunnel under the lakebed.

In another last-gasp attempt to distort decision-making and alarm the public, PBF claims the (nonexistent) Toledo refinery shutdown will 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 impacts of a Line 5 shutdown on Metro Airport jet fuel have never before been raised as an issue in the Line 5 debate or when Line 6B ruptured and was closed down in 2010. Its introduction at the 11th hour after more than five years of controversy over the fate of Line 5 is a transparent effort to alarm the public with false information and bring pressure on state officials.

Enbridge has a track record of misleading the public and governments about its performance, and its recent efforts are consistent with the company’s apparent philosophy of 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 report in May 2018, 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 lack of transparency.
  • The numbers are inflated:
  • Enbridge and refineries and some politicians are misleading the public. They falsely claim that the 2 Toledo refineries and 1 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 Metro Airport

  • In a letter to Michigan Governor Gretchen Whitmer, Ohio Governor 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:

Marathon 2019 total capacity:  140,000 bpd https://www.marathonpetroleum.com/Operations/Refining/Detroit-Refinery/

Increase of Heavy Crude to 115,000 bpd https://www.myplainview.com/news/article/Marathon-refinery-seeks-support-for-second-8578737.php                           

https://www.ogj.com/general-interest/companies/article/17286350/marathon-to-upgrade-expand-detroit-refinery

BP Husky capacity and crude feed: https://www.hydrocarbons-technology.com/projects/bp-husky/

PBF Capacity: 170,000 bpd https://investors.pbfenergy.com/~/media/Files/P/PBF-Energy-IR-V2/documents/annual-reports-and-proxy/pbf-energy-2018-annual-report.pdf

PBF Truck terminal at Toledo:  22,500 bpd; https://www.pbflogistics.com/~/media/Files/P/PBF-Logistics-IR-V2/reports-and-presentations/20190514-pbfx-may.pdf (Appendix)

Jet Fuel Consumed per day at DTW: https://www.metroairport.com/sites/default/files/business_documents/masterplans_2009archive/04_-_demand_capacity_facility_requirements_2-16-10.pdf

 

An earlier version of this blog inadvertently reported that jet fuel consumption at Detroit Metro totals 1,658,000 barrels per day. 1,658,000 gallons is the correct amount.

Actress Amy Smart and writer and producer Geoff Johns urge Michigan Gov. Whitmer to protect our Great Lakes and shut down ‘Line 5’

Published on June 7th, 2019 by - Blog Posts

 

Actress Amy Smart and comic book writer, screenwriter, and film and television producer Geoff Johns urge Michigan Governor Gretchen Whitmer to protect our Great Lakes and shut down Enbridge’s Line 5 oil pipeline in the Straits of Mackinac, where Lake Michigan meets Lake Huron.

Amy: Hi, I’m Amy Smart.

Geoff: Hi, I’m Geoff Johns.

Amy: And we’re here to urge you, Governor Whitmer. We’re so excited that you are the governor of Michigan, and we’re so excited that you believe in the Great Lakes and keeping them clean. We both grew up — you grew up in Michigan.

Geoff: I grew up in Michigan. I have a lot of family still in Michigan. I love Michigan, and Michigan is known for its lakes. It’s the Great Lakes State, and there is nothing more important than those lakes to the whole state and the people in it.

Amy: Yes, nothing more important. I now am a resident of Michigan, and we really need your leadership more than anything to shut down Pipeline 5. It’s way too risky, and it would be completely catastrophic if anything happened, so it’s urgent right now that you do that. We also would highly recommend not letting Enbridge build a tunnel because we don’t need any oil problems in our lakes at all.

Geoff: We don’t want to risk it, and we know you’re in a really tough situation right now, but we ask you to please use your judgment and make the right call. Thank you!

Amy: Thank you!

‘Line 5’ Threat to Great Lakes Won’t Be Solved By Proposed Anchor Rules

Published on May 15th, 2019 by - Blog Posts, Reports & Media Releases

“Let’s be clear: the ‘Line 5’ oil spill threat to the Great Lakes won’t be solved by emergency anchor rules that Gov. Whitmer called for today,” said Liz Kirkwood, executive director of FLOW. “The real solution to the threat of Line 5 in the Straits of Mackinac is to shut it down now.” 

“The Enbridge oil pipelines are past their life expectancy, bent, and battered. The governor’s duty is to protect the Great Lakes from Enbridge, which has a well-documented track record of deceiving the state of Michigan about the condition of Line 5. The fastest way to protect the driver of Michigan’s economy and drinking water source for half of all Michiganders is to revoke the 1953 easement allowing Enbridge conditional access to the state’s waters and bottomlands. Burying this risk in an oil tunnel, which the Whitmer administration is negotiating now with Enbridge, is not a solution. It’s a recipe for another century of risk to our waters and our climate.”

Images and video were released yesterday showing damage to the Line 5 oil pipelines in the Straits of Mackinac from an April 1, 2018, anchor strike. The footage showed a gash across the east pipeline and several dents, exposed steel, and scrapes on the west pipeline. The longest dent is nearly two–feet long. Enbridge supplied the video and photos to the U.S. Senate Committee on Commerce, Science, and Transportation and to the U.S. Coast Guard, which is investigating the anchor strike. Enbridge told the committee they considered the evidence ‘confidential’and didn’t want it published. U.S. Senator Gary Peters (D-Mich.) released the footage this week, after conferring with the Coast Guard.

Today, Michigan Governor Gretchen Whitmer directed the state Department of Natural Resources to proactively file an emergency rule to prevent anchor strikes in the Straits of Mackinac. According to the governor’s office, the emergency rule “will require large vessels to verify no anchors are dragging before passing through the Straits.” Whitmer also made a formal request to the U.S. Coast Guard to create a similar rule for all foreign vessels, which lie beyond state authority.

A ‘Line 5’ Oil Tunnel Won’t Protect the Great Lakes from Enbridge, Climate Change

Published on May 2nd, 2019 by - Blog Posts

Above: FLOW’s Liz Kirkwood speaking in opposition to a proposed oil tunnel in the Straits of Mackinac, during a November 8, 2018, hearing in St. Ignace.

In the world of public relations, there are facts, exaggerations, and untruths. Right now, Enbridge is bombarding the people of Michigan with hazy PR claims that it has safely operated the Line 5 oil pipelines in the open waters of the Straits of Mackinac for the last 66 years.

The Canadian energy pipeline giant, however, conveniently fails to tell the public that it has allowed the pipelines to deteriorate badly, bending and grinding on the lake bottom in the fierce currents. Enbridge also neglects to mention that on April Fools’ Day 2018, Line 5 threatened to dump its oil into the Great Lakes when a tugboat anchor struck, and risked breaching, the underwater pipelines. 

Rather than seizing on this near-disaster to decommission the decaying pipeline infrastructure built in 1953, the Snyder administration instead spent its final eight months in office cementing a private pact with Enbridge. The backroom deal would leave Line 5 vulnerable to another anchor strike or rupture for up to a decade while Enbridge explores the feasibility of building an oil tunnel under the Straits.

Michigan’s new attorney general, Dana Nessel, in late March correctly determined that the tunnel law passed hastily in the waning days of the 2018 lame-duck legislature was unconstitutional. Gov. Gretchen Whitmer later that same day directed all state departments to halt work on tunnel permitting. But Gov. Whitmer’s recent opening of negotiations with Enbridge seeking to speed up the stalled tunnel process contradicts her own directive and circumvents a transparent public process.

Trying to hasten a bad idea won’t make it any better. While seeking to revive Snyder’s 99-year tunnel deal with Enbridge risks undermining Gov. Whitmer’s own goal to combat climate change risks and impacts.

And Enbridge and the former Snyder administration’s claims that the proposed oil tunnel would serve a public purpose by also housing electrical and other utilities is a ruse that masks an enormous risk of explosion, as experts advising FLOW determined in prior research.  

Just today, in fact, an electrical supplier to the Upper Peninsula – American Transmission Company or “ATC” – issued a letter indicating that it has no intention of running its 138,000-volt electric lines through the proposed oil tunnel. “A tunnel of uncertain timing, later in the decade, does not serve the public,” the letter stated. “ATC does not believe that installing high voltage electric lines in close proximity to high pressure oil or gas lines is a good idea.”

It’s never been clearer that Enbridge is pretending there’s a public purpose to their private oil tunnel in order to gain access to the public waters and bottomlands of the Great Lakes. The Great Lakes Submerged Lands Act requires there be a “public purpose,” no impairment or interference with fishing and other public trust uses and rights of citizens and communities, and a showing of no feasible and prudent alternative for transporting Canadian oil back to Canada. The state of Michigan must restore the rule of law and transparency by requiring Enbridge to apply to build a tunnel in the Straits under the law, not negotiate occupancy of public bottomlands behind closed doors.

The real solution to the Line 5 threat must protect the Great Lakes, which define Michigan, drive our economy, and provide drinking water to half the state’s population. Gov. Whitmer must heed her campaign promise to shut down Line 5, while implementing a common-sense backup plan for propane transport in the Upper Peninsula using truck, train, or a small new pipe that doesn’t cross the Straits of Mackinac.

Let’s cut through Enbridge’s PR-fog and get the facts straight. Line 5 is not vital energy infrastructure for Michigan. More than 90 percent of the oil in Line 5 comes from and flows back to Canada.

Not only does Enbridge lack adequate insurance to cover the impacts of a catastrophic spill estimated from $1.87 billion to as much as $45 billion, the company’s oil spill response plan was held to be inadequate in late March by the U.S. District Court for the Eastern District of Michigan.

Liz Kirkwood, Executive Director

Enbridge’s dismal track record is underscored by its 2010 Line 6B Kalamazoo River disaster – known as the largest inland tar sands oil spill in U.S. history – and extends to Line 5, which has leaked in total over a million gallons of oil in Michigan and Wisconsin from at least 33 known spills since 1968.

Infrastructure needs abound in Michigan – ranging from our failing drinking water and wastewater infrastructure to the aging Soo Locks and a long-term clean energy plan for the U.P and the state as a whole.  Let’s shut down Line 5 and create jobs focused on those real needs, instead of protecting Enbridge’s private interest in our public waters.

The Future of Line 5 in the Straits of Mackinac

Published on April 12th, 2019 by - Blog Posts, H2Olson

Now that Michigan’s governor and attorney general have sunk the oil tunnel scheme hatched by the last administration, I’m asked nearly every day: What can citizens and state leaders do to shut down the propped-up, banged-up Line 5 oil pipelines in the Straits of Mackinac for good?

Here’s my answer, as succinctly as I can distill it, accompanied by a summary of the law and political history in play.

So what should Governor Whitmer and Attorney General Nessel do?

Governor Gretchen Whitmer and Attorney General Dana Nessel must take swift and comprehensive actions to review and reverse the improper failure of the former Snyder administration to bring Line 5-owner Enbridge under the rule of law. Enbridge has had its way with Michigan’s prior elected officials, and it is time to call a halt to this nonsense. Here are the steps to getting Enbridge out of the Great Lakes for good:

Proposed Oil Tunnel:

  1. Send a Letter: Tunnel Deal Is Dead– Governor Whitmer and Attorney General Nessel should send a formal letter to Enbridge advising the company that its agreements calling for a transfer or occupancy of the Straits of Mackinac public trust bottomlands, the new state-granted easement, and 99-year lease for the proposed oil tunnel that would house a new Line 5 are unenforceable unless Enbridge has obtained authorization under state law – the Great Lakes Submerged Lands Act (GLSLA).

Line 5 in the Straits:

  1. Send another Letter: No Life Support for Line 5 – Governor Whitmer and the Michigan Department of Environmental Quality (DEQ), along with Attorney General Nessel, should send a letter to Enbridge advising it that the agreements purporting to grant Enbridge occupancy and use of waters and bottomlands the existing Line 5 for 10 years or more are unenforceable, because the former administration and Enbridge failed to obtain the required authorization under the GLSLA.
  1. Apply the Law to the Redesign of the Ailing Pipelines – Governor Whitmer and the DEQ, along with Attorney General Nessel, should investigate and correct the lack of review and showings required by the GLSLA and public trust law for the substantial change in design implemented for the 3 miles of pipeline elevated above the lakebed under the guise of “repair.” Enbridge should be instructed that it must show the risks and magnitude of harm are minimal and that there exist no other alternative than the existing line in the Straits or Great Lakes.

How Did We Get Here on Line 5? Tracing the Law and the Politics

The plotting of former Governor Snyder’s administration and Enbridge to hand over the public trust soils and bedrock under the Straits of Mackinac for the company to build and operate a new crude oil pipeline in a tunnel for 99 years has been put on hold.

On her first full day in office, Governor Gretchen Whitmer asked Attorney General Dana Nessel for a formal opinion on whether the Snyder-Enbridge agreement and legislature’s stamp of approval through a lame-duck law known as “Act 359” to hand over the Straits for Enbridge’s tunnel  to Enbridge was constitutional.  In late March, Attorney General Nessel found it was not constitutional because the legislature tried to graft a private tunnel-pipeline project onto a public infrastructure law that governs a public icon—the Mackinac Bridge.

Read more about the history and law surrounding Line 5 here!

  1. Revoke the Easement – Attorney General Nessel along with the Department of Natural Resources (DNR), along with the above actions, revoke the 1953 easement because under the current circumstances the existing Line 5 is no longer in compliance with the common law standards of the paramount interests of the Great Lakes protected by public trust law; if Enbridge desires to continue using the existing line in the Straits, the company must submit an application for authorization of such use and occupancy along with the authorizations identified in this list.
  1. Increase Insurance Requirement and Verify It – Governor Whitmer, the DEQ, and the DNR, with the Attorney General, should require Enbridge to submit financial assurances that cover the worst case economic and natural resources damages of at least $6 billion (significantly more than the current cap of $1.8 billion), retain qualified experts to determine the adequacy of those assurances, and require Enbridge to name the State of Michigan as an “additional insured” and/or “named insured” on its insurance coverage for Line 5. Inadequate insurance is another cause for revoking the easement.

Once the Governor and Attorney General do these things, they will have taken action consistent with their pledge in being elected to lead the State and protect the Great Lakes, by nullifying the improper actions and agreements of their predecessors and bringing Enbridge, finally, under the rule of law. Regardless of the outcome, the interested parties, communities, and persons in this controversy and the government will be required to make determinations concerning the fate of Line 5 in an open forum based on facts, science, and law.  We are ruled by law, not by self-serving agreements that were plotted to avoid it.

Given President Trump’s executive orders this week to water-down or smooth over federal laws and regulations affecting water, the Great Lakes, and pipelines, it is more critical than ever that Governor Whitmer and Attorney General Nessel exercise the full jurisdiction and authority they and the State of Michigan under its exclusive power over use of the waters and bottomlands of the Great Lakes, its lakes and streams, public lands, and the public trust in the Great Lakes and navigable waters and public common property of Michigan. This trust imposes a duty on our leaders to protect the interests of citizens, the legal beneficiaries of this trust. Not the President, not Congress, not federal agencies, or state government can repeal, limit, or narrow the state’s duties and citizens’ individual and common rights under this public trust.

What Should Citizens Do?

It is quite simple: Citizens should do what they always do best. Continue to stay involved, increase communications to Governor Whitmer, Attorney General Nessel, and the Director of the DEQ, and the DNR.  These communications should do the following:

  • Thank our state leaders for taking action on the unconstitutional Act 359 and the misguided oil tunnel agreement;
  • Urge our state leaders to take immediate steps to implement the actions outlined above to formally scrap the oil tunnel and shut down Line 5.

FLOW Praises Governor for Action on Line 5

Published on March 28th, 2019 by - Reports & Media Releases

FOR IMMEDIATE RELEASE:                                                                      March 28, 2019

Liz Kirkwood, FLOW Executive Director                                                   Email: Liz@FLOWforWater.org
Office: (231) 944-1568, Cell: (570) 872-4956                                           Web: www.FLOWforWater.org

Jim Olson, FLOW Founder and President                                                Email: olson@envlaw.com
(231) 499-8831 

Dave Dempsey, FLOW Senior Advisor                                                     Email: dave@FLOWforWater.org
(612) 703-2720

In the wake of an opinion by Attorney General Dana Nessel invalidating a law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, Governor Gretchen Whitmer has now ordered state agencies to pause permitting on Line 5, an action hailed by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

“We welcome the Governor’s swift, prudent action to halt the legal effect of the law and tunnel and side agreements,” said Jim Olson, founder and president of FLOW. “Now, it’s time to bring the existing perilous Line 5 in the Straits under rule of law and decommission it as quickly as possible.”

“The backroom deals creating Enbridge’s proposed oil tunnel couldn’t survive public scrutiny, and now we know they can’t survive the rule of law,” said Liz Kirkwood, Executive Director of FLOW. “It’s time to focus on Michigan’s true energy future and protect Michigan’s Great Lakes and our economy from a Line 5 pipeline rupture. The path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac.”

FLOW Praises Attorney General for Restoring Rule of Law on Line 5

Published on March 28th, 2019 by - Reports & Media Releases

FOR IMMEDIATE RELEASE:                                                                      March 28, 2019

Liz Kirkwood, FLOW Executive Director                                                   Email:Liz@FLOWforWater.org
Office: (231) 944-1568, Cell: (570) 872-4956                                           Web: www.FLOWforWater.org

Jim Olson, FLOW Founder and President                                                Email:olson@envlaw.com
Cell: (231) 499-8831

Dave Dempsey, FLOW Senior Advisor                                                     Email:Dave@FLOWforWater.org
(612) 703-2720

FLOW supports attorney general’s process and opinion, which is binding on state agencies and rejects the fatally flawed law and undermines side agreements on Enbridge oil pipelines, proposed tunnel in Mackinac Straits

In a major step toward restoring the rule of law, Michigan Attorney General Dana Nessel issued an opinion today declaring unconstitutional a hastily crafted law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, while allowing the aged, dangerous existing “Line 5” oil pipelines in the Straits to continue operating for another decade as the tunnel is considered and possibly built.

The move comes in response to a formal request by Gov. Gretchen Whitmer and is critical to unpacking the layers of problems with the law creating the Mackinac Straits Corridor Authority that the lame-duck legislature rushed through in late 2018.

“We applaud Attorney General Nessel for clearly recognizing the legislative overreach, restoring the rule of law, and stopping the attack on the Great Lakes and the state constitution, which demands that the state’s air, water, and natural resources are treated and protected as ‘paramount,’” said Liz Kirkwood, an environmental attorney and Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

The attorney general’s opinion on Public Act 359 is binding on state agencies and voids the tunnel agreement called for by the law, and also nullifies the legal effect of the side agreements reached between the state of Michigan under then-Gov. Rick Snyder and Line 5-owner Enbridge. Those agreements allowed continued oil pumping through the Straits, where Lake Michigan meets Lake Huron, and an easement and 99-year lease of Great Lakes public bottomlands to Canadian-based Enbridge for private control of the tunnel for its own gain.

Public Act 359 and the related agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act (GLSLA) that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.

Public Act 359 and the side agreements are peppered with other serious problems, most of which are covered by the questions the Governor asked the Attorney General to answer, which include:

  • Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
  • Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
  • Violating provisions of the state constitution that prohibit fostering private or special purposes, the commingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.

“We hope this critical first step by the Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ deliberate evasion of the rule of law and mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Straits of Mackinac, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the soils and waters of the Great Lakes,” said Olson.

FLOW recommends that Gov. Whitmer take immediate action to end the massive threat posed by the existing Line 5 in the Straits of Mackinac in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes, including by:

  • Acknowledging that State of Michigan agencies are bound by the attorney general’s opinion.
  • Sending a letter to Enbridge indicating that the company should decide for itself, if it wants to build a new oil tunnel, and apply, if it chooses under the Great Lakes to construct a tunnel under the rule of law. The rule of law requires a full consideration of the risk to the paramount public rights in the soils and waters of the Great Lakes, and a showing that the company has no prudent and feasible alternatives to using the Great Lakes as a shortcut for western Canadian oil on its way to refineries in eastern Canada as well as overseas markets. If the company does not chose to do this, or cannot satisfy these mandatory requirements that protect the Great Lakes, then it should choose to use other parts of its several-thousand mile system.
  • Starting the process to decommission the 66-year-old Line 5 pipelines in the Straits of Mackinac, which are operating without lawful authority, in violation of the public trust and GLSLA, and in violation of their 1953 easement granted by the state. If Enbridge chooses to continue operating the existing Line 5 in the future, it can apply under the GLSLA for new authority to continue using Line 5 if it can demonstrate little risk and no feasible and prudent alternative to the unacceptable existing Line 5, but the state is not obligated to agree.

“Public Act 359, coupled with the State’s public entanglement with Enbridge, has put private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes,” said Olson. “The unconstitutional law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes.”