Tag: Little Traverse Bay Bands of Odawa Indians

Line 5 Oil Tunnel in the Great Lakes: Is the Die Cast for the Next 99 Years?

Photo: Jim Olson, FLOW’s Founder and Legal Advisor, makes arguments in a Sept. 30, 2020, court hearing conducted online. The hearing considered motions made by Enbridge regarding the proper scope of the Michigan Public Service Commission’s review of the proposed Line 5 oil tunnel.

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By Jim Olson

There was good news and bad news in a state administrative law judge’s October 23 ruling that addressed legal arguments over what the Michigan Public Service Commission (MPSC) can and cannot evaluate when deciding whether to permit the siting of Enbridge’s proposed oil pipeline tunnel project under the Straits of Mackinac, where Lake Michigan meets Lake Huron. 

First, the good news: Judge Dennis Mack rejected Enbridge’s attempt to escape accountability by restricting the MPSC’s review to the impacts associated with the mere installation of a new Line 5 oil pipeline into the tunnel after it is built. The MPSC must consider the impacts from construction to nearby surface waters, wetlands, and the overall safety of the location and construction of both the pipeline and the tunnel that would house it.

Now, the bad news: The judge granted the Canadian energy pipeline giant’s bid to exclude evidence from the MPSC’s review that the oil pipeline tunnel would worsen the climate crisis and cause other environmental harm. The judge also excluded from the MPSC’s consideration of the public necessity to transport up to 8 billion gallons of oil a year for 99 more years in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy. 

Absent a successful appeal by FLOW or other intervening parties in the case to the three-member MPSC to overturn the ruling, as Julius Caesar said when he crossed the Rubicon, Alea iacta est—the die is cast.

Clockwise from top-left: Dennis Mack (Administrative Law Judge); Spencer Sattler representing MPSC staff; Assistant Attorney General Robert Reichel representing the Michigan Department of the Attorney General; Chris Bzdok, representing Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians; Christopher Clark representing Bay Mills Indian Community; Margrethe Kearney, ELPC attorney representing the Environmental Law & Policy Center and Michigan Climate Action Network.

September Court-Zoom Drama

Judge Mack’s ruling on the scope of evidence the MPSC can consider followed sharply divided legal arguments on September 23 in a Zoom call from lawyers for Enbridge, the Michigan Public Service Commission, the Michigan Department of Attorney General, Native American tribes, FLOW, and several other public interest organizations. The judge heard a wide range of legal arguments over the scope of the MPSC’s review of impacts, necessity, and alternatives to Enbridge’s proposed utility tunnel and tunnel pipeline. The tunnel would extend the life of Line 5 and facilitate the transport of as much in total as 800 billion gallons of crude oil through Michigan and under the bottomlands and waters of the Straits of Mackinac for almost another century. Nothing less than the authority of the MPSC to protect the people of Michigan, the environment, the climate, and the future public interest of the citizens of Michigan is at stake, according to arguments made orally and also filed by FLOW and others.

Lawyers for Enbridge, in court and in their filing, pushed to strip the MPSC of its authority to review anything but a simple replacement of old plumbing with new plumbing for Line 5 in the Straits. In short, Enbridge argued that the MPSC could not evaluate any impacts from the massive tunnel, the need for the tunnel in a rapidly declining market for crude oil, or the billions of dollars in damage and cost from rising Great Lakes water levels, flooding, and collapsing of infrastructure in Michigan tied directly to the burning of fossil fuels and climate change. Rather, lawyers for Enbridge argued the MPSC could look at only the physical impacts of removing old dual pipelines and replacing them with a new pipeline put in a new tunnel in the bedrock and mixture of rock and soil under the lakebed.

In contrast, the lawyers for intervening parties in the case—including on behalf of Michigan Attorney General Dana Nessel, Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, FLOW, Environmental Law and Policy Center, Michigan Climate Action Network, Michigan Environmental Council, National Wildlife Federation, Tip of the Mitt Watershed Council—argued for a broader scope of review concomitant with the magnitude of the proposed 99-year $500 million+ tunnel and new pipeline. They argued that the tunnel and pipeline are inseparable, and that it is a single project that would commit the state of Michigan to the environmental and public health impacts of the transport of up to 8 billion barrels of crude oil a year, carried from Canada under the Straits of Mackinac and back into Canada to Sarnia’s Chemical Valley cluster of refineries and chemical plants.

Public Need, Public Interest, Public Trust, and a Private Tunnel

Lawyers challenging Enbridge pointed out that Act 16, the law that defines the MPSC’s scope of review, imposes three standards and findings before a utility project like this can be legally approved: (1) the demonstration of need to realize a true public need; (2) safety and consistency with the public interest; and (3) the project is a reasonable alternative. Lawyers for FLOW and the other groups and tribes also pointed out that the MPSC has a duty under the Michigan Environmental Protection Act (MEPA) to prevent and minimize likely impairment to the air, water, and natural resources, and the public trust in those resources, and to find there is no feasible and prudent alternative to the project. 

The question of a public need for the project faces the reality of rapidly falling demand for oil and a sea change in investment toward renewable energy and a conservation economy. There are alternatives to continuing to risk the Great Lakes and our water-based economy, including the obvious use of excess capacity in Enbridge’s greatly expanded oil pipeline across southern Michigan to Sarnia that replaced the corporation’s aged line that ruptured and caused the devastating 2010 Kalamazoo River oil spill disaster. Lawyers for the tribes made clear that the environmental impacts of the proposed oil tunnel pose serious threats to tribal fishing and sovereignty over their treaty waters. Feasible and prudent alternatives clearly exist that are more consistent with the public interest of the citizens of Michigan, and the Michigan Supreme Court has made it abundantly clear that the state has a duty to comprehensively consider the likely effects and range of alternatives in deciding the necessity of a project like the century-spanning tunnel and pipeline. [Highway Comm’n v Vanderkloot, 392 Mich 159 (1974)]

The public interest in this proceeding includes our environment, protected by the MEPA, but it is also defined by what the public trust in the air, water, and environment of our Great Lakes—an ancient, irrevocable legal principle that protects the overarching rights of the public to enjoy the Great Lakes for navigation, fishing, drinking water, sustenance, boating, and swimming. [Obrecht v National Gypsum Co., 361 Mich 399 (1960); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892)] This public trust imposes an affirmative and perpetual duty on governmental agencies, like the MPSC, to protect these legal-beneficiary rights of citizens.

Enbridge’s Narrow View of Public Oversight

Enbridge tried unsuccessfully to avoid or narrow the MPSC’s review of the crude oil tunnel project last April, when it asked the MPSC to rule that the tunnel proposed today was covered by its ruling existing 67 years ago on the existing Line 5 pipelines in the Straits. Agreeing with FLOW and others, the MPSC rejected the attempt, and issued an order on June 30, as FLOW chronicled, that concluded, “the Commission finds that the Enbridge’s Line 5 Project involves significant factual and policy questions and complex legal determinations that can only be resolved with the benefit of discovery, comprehensive testimony and evidence, and a well-developed record.” [MPSC Order, June 30, 2020, Case No. U-20763]

The October 23 ruling by Administrative Law Judge Mack rejected Enbridge’s argument that the authority of the MPSC was restricted to replacing the old dual lines with a new single line in a tunnel. The judge ruled definitively, as argued by the organizations and tribes, that the tunnel is inseparable from the pipeline, and the impacts and operation of both must be considered. On the other hand, the judge interpreted more narrowly the MPSC’s June 30 order that signaled a desire for a “well-developed record” on all of the complex issues involved in the oil pipeline tunnel project. The judge’s decision rejected arguments by the Attorney General, organizations, and tribes that the MPSC must undertake a comprehensive evaluation of the need, safety, impacts, and alternatives, including the inherent commitment by the state to permit the transport of nearly a trillion gallons of oil over the next 99 years, the lack of need for this oil, and the devastating effects of climate change.

Context is King: Construction Project or Climate Change Nightmare?

All of the parties in the case will be evaluating the effect of the judge’s decision to allow consideration of the impacts of the tunnel and pipeline construction, but exclude consideration of overall necessity, impacts, and alternatives of the century-spanning tunnel and pipeline project. Any party has a right to request a full review and decision by the three members of the MPSC itself. The parties, conversely, could choose to proceed in a hearing set for February 12, 2021, with testimony and evidence limited by the judge to just the impacts of building the tunnel and moving the pipeline. If the latter course is taken, then indeed Michigan will have crossed the Rubicon on the climate crisis and protecting the Great Lakes and ourselves from the worst of it.

Tribes and Environmental Groups Will Help Decide Fate of Proposed Line 5 Oil Tunnel in the Great Lakes

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MPSC seeks public comments online and at August 24 public hearing

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

By Jim Olson

Good news arrived recently for citizens concerned about Enbridge’s dangerous Line 5 pipelines that convey millions of gallons of petroleum each day, and the proposed massive new tunnel pipeline in the Straits of Mackinac — the very heart of the Great Lakes.

Administrative Law Judge Dennis W. Mack, who is handling the contested case for the Michigan Public Service Commission (MPSC) on Enbridge’s application for the Line 5 tunnel and tunnel pipeline, issued a ruling August 13 granting intervention to participate in the case to several federally recognized Indian tribes in Michigan and key environmental groups, including FLOW, that petitioned to bring special knowledge and expertise to the case.

The Administrative Law Judge (ALJ) granted intervention to a total of 13 entities, including four tribes — Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and the Nottawaseppi Huron Band of the Potawatomi, providing the first three tribes listed with an opportunity to formally assert their treaty rights this way for the first time. The Nottawaseppi Huron Band, based in Calhoun County, will bring their knowledge and experience gained by living near the site of Enbridge’s disastrous Line 6B pipeline spill in 2010 into the Kalamazoo River watershed. 

The ALJ also granted intervention to five environmental organizations — the Environmental Law & Policy Center with the Michigan Climate Action Network, For Love of Water (FLOW), Michigan Environmental Council, National Wildlife Federation, and the Tip of the Mitt Watershed Council — with reach across the state of Michigan, Great Lakes region, and nation. The Mackinac Straits Corridor Authority, Michigan Attorney General, Michigan Laborers’ District Council, and Michigan Propane Gas Association & National Propane Gas Association also were allowed to intervene in the case.

Enbridge filed a 17-page objection to the intervention by the organizations’ and tribes’ participation as parties in the case, taking the extreme position that since the MPSC granted approval in 1953 for the existing Line 5 in the Straits of Mackinac, Enbridge doesn’t need approval now for the proposed half-billion-dollar tunnel and tunnel pipeline.

FLOW and other organizations filed replies to Enbridge’s objection to their intervening in the case, pointing out that the MPSC in June had already rejected the company’s attempt to cut off further review and obtain immediate approval of the project without a comprehensive review of necessity, public interest at stake, impacts, and alternatives to the massive project. Over Enbridge’s objections, Judge Mack recognized the significant interests and rights and the unique perspective and expertise these organizations and sovereign tribes will bring to the case.

The comprehensive review and proceeding before the MPSC will continue in stages addressed by a scheduling memorandum entered August 13 by Administrative Law Judge Mack. Legal questions involving the nature and scope of the review required by the MPSC governing laws and regulations, the Michigan Environmental Protection Act (MEPA), and public trust principles that govern the Straits of Mackinac will be argued and decided between now and late October. After that, the case will proceed with discovery and exchange of information, direct testimony, rebuttal testimony, and cross examination of the testimony and evidence from late November until next summer, with a decision by the MPSC expected in early fall of 2021.

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Comment Now or at MPSC’s Aug. 24 Virtual Public Hearing

The Michigan Public Service Commission has invited public comments on Enbridge’s tunnel proposal through written submissions, as well as by telephone during an online public hearing scheduled for August 24, 2020. Oil & Water Don’t Mix, which FLOW co-leads with allied tribal and environmental groups, has created this easy tool for you to submit your comment to the MPSC opposing an Enbridge oil tunnel through the public bottomlands in the Straits of Mackinac. You also can sign up here or here to comment at the MPSC public hearing.

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See FLOW’s recent coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel here:

Decision Time Coming on Line 5 Oil Tunnel

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Thousands urge MPSC to bring Enbridge under rule of law to protect Great Lakes

By Emma Moulton, FLOW Milliken Intern for Communications

By Emma Moulton, FLOW Milliken Intern for Communications

During a three-week comment period that ended in mid-May, the Michigan Public Service Commission (MPSC) received a flood of more than 3,100 public comments, with a strong majority firmly opposed, on Enbridge’s request to bypass the legal review process and plow forward with other permitting required to replace and relocate the decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a new pipeline.

MPSC spokesman Matt Helms called the volume of comments “definitely a high amount” even for an agency whose utility rate-setting cases sometimes draw intense public scrutiny. The submissions poured in from individuals, families, tribes, environmental groups, elected officials, business owners, political groups, and many others opposed to the Canadian company’s attempted legal maneuver.

Many comments, including from FLOW, highlighted deep concerns over due process, the rule of law, and tribal treaty rights in response to Enbridge’s request for a declaratory ruling that no approval from the MPSC is even necessary. The Canadian pipeline company justifies its request by claiming that a new, roughly 4-mile long tunnel through the bedrock and loose soil of the public trust bottomlands should be considered mere “maintenance” on the old Line 5 pipelines in the open waters that the MPSC approved 67 years ago.

It’s 2020, Not 1953, and A Momentous Decision Awaits

An overarching theme of the comments was that this is no longer 1953, when Dwight Eisenhower was president and color TV was new to America. Now climate change, water scarcity, privatization, and oil spills must be taken into account when considering this massive, new fossil-fuel infrastructure. The public comments demand that MPSC’s decision be based on actual necessity in light of societal clean-energy goals and public interest in a sustainable future. Line 5 only grows more dangerous with age, and it is decision time for Michigan’s leaders.

“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”

Groups Point to Risks, Legal Tactics, Lack of Public Necessity

In their comments, many environmental groups spoke to the unacceptable risk a tunnel would pose to natural resources in Michigan. Several submissions cited the major catastrophe that would be unleashed by an oil spill under and gushing into the Great Lakes, including the damage to drinking water supplies, public health, jobs and the economy, public and private property, aquatic life and habitat, current and future generations, and a way of life in the Great Lakes State.

And the groups directly addressed the criteria the MPSC considers in weighing Enbridge’s request for a declaratory ruling. The Sierra Club, for instance, insisted that the MPSC deny Enbridge’s request, as it, “asks the Commission to ignore that its proposal is in fact to replace the dual Line 5 pipelines by building a new single pipeline, of a different size, in a new location”—noting that Sierra Club members from Michigan rely on the Great Lakes for their clean water and their livelihoods.

The citizen-led Straits of Mackinac Alliance questioned the necessity of the tunnel given the economic downturn here and beyond, writing, “Any projection of tunnel use beyond the next decade is highly speculative” due to Michigan’s change in oil demand. “Michigan’s need for oil products in 2020 is totally different than it was in 1953… Current demands for oil have dropped dramatically and industry projections for shale oil sources do not look promising. The shale oil producers may not be in business when the tunnel project is completed.”

On behalf of multiple groups and tribes, including the Michigan Environmental Council, the Grand Traverse Band of Ottawa and Chippewa Indians, Tip Of The Mitt Watershed Council, and National Wildlife Federation, attorney Christopher Bzdok highlighted Enbridge’s thin reasoning in support of its request for a declaratory ruling and noted that the MPSC “reserved jurisdiction and authority over Line 5, and the right to issue subsequent orders as the Commission deemed necessary. That reservation gives the Commission ample authority to require a new approval for the project and a new contested case.”

Tribes Voice Concerns over Treaty Rights and Survival

Throughout the comments, there is a powerful presence of tribal organizations voicing their critical position on the request, most often citing the 1836 Treaty of Washington, which preceded Michigan’s statehood in 1837 reserved the tribes’ rights to hunt, fish, and gather throughout the territory, and asserted the need for an environment in which fish can thrive.

In addressing tribal rights, attorney Bzdok highlights the lack of tribal collaboration in the MPSC’s original 1953 decision on Line 5: “The Tribes – at least two of which will be intervening in this case – were the original occupants of the property that will be occupied by the project. They retain certain reserved rights to natural resources in the project area under the Treaty of Washington.”

On behalf of the Little Traverse Bay Bands of Odawa Indians, Tribal Chairperson Regina Gasco-Bentley states that the reserved treaty rights “remain central to our culture, economy, and physical and spiritual well-being. The Straits of Mackinac are the life blood of our Tribe. An oil spill or geologic mishap from tunneling under the Straits would devastate our Tribe beyond any economic valuation.”

Next Steps from the MPSC on a Line 5 Oil Tunnel

The MPSC through May 27 accepted any replies on the public comment that was submitted by the May 13 deadline. The public body expects to decide on Enbridge’s request for a declaratory ruling at a June or July meeting, or shortly after, according to spokesman Helms.

If the MPSC rightly rejects the request, then, according to FLOW’s Jim Olson, the MPSC in its review of Enbridge’s April 17 tunnel application should “fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties” of Enbridge’s tunnel pipeline proposal under the Straits of Mackinac to replace its existing four-mile Line 5 pipeline on the lakebed.