Tag: Michigan attorney general

Courtroom Showdown Coming Friday over Line 5 Shutdown

Michigan A.G. Dana Nessel’s team to make arguments in historic public trust case to end threat of Great Lakes oil spill

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

By Jim Olson

Streaming live online this Friday morning, Michigan Attorney General Dana Nessel or members of her staff—attorneys Peter Manning, Bob Reichel, and Dan Bock, steeped in water and natural resources law—will make historic arguments to bring Line 5 in the Straits of Mackinac under the rule of law and lead to its orderly closure. Nessel’s action was taken to protect the public trust of all of Michigan’s citizens, now and in the future, in Attorney General Dana Nessel On Behalf of the People of Michigan v. Enbridge Energy, Limited Partnership, et al., before Ingham County Circuit Court Judge James S. Jamo.

Click here to view FLOW’s amicus brief in the Nessel v. Enbridge case, as well as amici briefs also filed by the Sierra Club and three states in support of Michigan Attorney General’s lawsuit to shut down Enbridge’s Line 5. 

Line 5 in Court: Watch Live on Friday, May 22, at 9 a.m. EST

The public can watch this legal effort by the State of Michigan to shut down Line 5, which is supported FLOW and other organizations standing up for the public trust in our Great Lakes. This case is set for oral argument at 9 a.m. on Friday, May 22. According to the Court, you may watch the hearing by tuning in to the livestream on Judge Jamo’s YouTube Channel.

 

After 6 years of stalling and unfulfilled promises by former Governor Rick Snyder’s administration and former Attorney General Bill Schuette, Michigan voters in 2018 ushered in new leaders—Governor Gretchen Whitmer and Attorney General Dana Nessel, who pledged to end Line 5’s threat to the Straits, where Lake Michigan converges and collides with Lake Huron.

Last June, Attorney General Nessel fulfilled her promise to take swift, strong action to bring an end to the unacceptable, massive, catastrophic risk of damage to the Great Lakes posed by Enbridge’s 67-year-old Line 5 the Straits of Mackinac.

Growing Pile of Evidence against Line 5

The State of Michigan’s legal action comes in response to growing evidence of Line 5’s failed design, anchor strikes, strong currents, sloughing and shored-up pipelines operating beyond their life expectancy, admitted inability to clean up a spill, and a conservative, worst-case scenario rupture from an anchor strike (which actually happened on April 1, 2018, narrowly avoiding a spill) forecast to trigger more than $6 billion of measurable damages. Scientific studies show that a spill would smother several hundred miles of shoreline, affect up to 60 percent of Lake Huron’s surface area and a substantial portion of Lake Michigan, close drinking water and sanitation systems of cities like Mackinac Island, shut down fishing, kill fish and fish habitat, halt shipping, and cause irreparable damage and impairment of public uses, private property, businesses, and the ecological diversity of the upper reaches of two Great Lakes.

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.

Historic Public Trust Case the First brought by a Michigan Attorney General for the People in 60 Years

The attorney general’s action is truly historic. Why?

It has been 60 years since an Attorney General of Michigan filed a lawsuit to protect the paramount public trust in the Great Lakes and legal rights of citizens as beneficiaries to enjoy and use our waters for navigation, fishing, boating, drinking water, swimming, historic and biological research, and recreation. That’s right. It’s been 60 years since then Michigan Attorney General, later state Supreme Court Justice, Paul Adams won a landmark victory in 1960 in Obrecht v National Gypsum Co. (361 Mich 399 (1960)), a landmark Michigan Supreme Court case putting a stop to unauthorized industrial encroachment and risk to the public trust and paramount protected uses of our Great Lakes.

Cottage owners and citizens along the shore of Lake Huron filed a lawsuit to stop the encroachment of a large industrial loading dock to reach ships a quarter-mile into Lake Huron. Justice Adams intervened as a party in the case and aligned himself and the People of Michigan with the cottagers and citizens whose use and enjoyment of the trust waters of Lake Huron would be subordinated to the private use of the industrial dock and mining company. After an extensive battle in the lower courts and arguments in the Supreme Court, the Court sided with Justice Adams and the people of Michigan.

Writing for the Court, Justice Black, a lawyer from the shoreline City of Port Huron, foreshadowed the future battles over the Great Lakes:

The last great frontiers of Michigan’s public domain lie submerged between her thousands of miles of shoreline… [T]he courts of these inland coastal states may well brace themselves for a series of new questions having to do with the nature and alienability of sovereign title to such domain and the inevitable collision of riparian rights… with the sovereign responsibility [of the state] as permanent trustee thereof. These cases become a notable forerunner. (Id. 361 Mich at 403)

The defendant National Gypsum Corporation claimed the private riparian right as owner of lake frontage to build a dock into the lake as far as needed to reach deep-draft ships. Justice Adams and his allies argued that the private right was subordinate to the public trust rights of citizens. Reaching back to 100 years of court fights over the St. Clair Flats and Lake Michigan, and relying on the 1892 U.S. Supreme Court Illinois Central case that ruled the Great Lakes were subject to the public trust doctrine, our Michigan Court ruled that a private corporation could not subordinate or alienate the public trust in the Great Lakes:

No part of the beds of the Great Lakes, belonging to Michigan can be alienated or otherwise devoted to private use in the absence of due finding of one of two exceptional reasons for such alienation or devotion to non-public use.

* * *

No one… has the right to construct for private use a permanent deep-water dock or pier on the bottom lands of the Great Lakes… unless and until he has sought and received, from the legislature or its authorized agency, such assent based on the finding as will legally warrant the intended use of such lands. Indeed, and aside from the common law as expounded in Illinois Central, the legislature bids us construe its design and purpose ‘so as to preserve and protect the interests of the general public’ in such submerged lands and as authorizing the sale, lease, exchange or other disposition of such submerged lands when and only when it is ‘determined by the department of conservation that such lands have no substantial public value for hunting, fishing, swimming, pleasure boating or navigation and that the general public interest will not be impaired by such sales, lease or other disposition.’ (Id., at 412-413, citing and adopting Illinois Central R. Co. v. Illinois, 146 U.S. 387, 455-60 (1892)).

The Public Trust Imposes a High, Solemn Duty on the Government

Unlike other natural resource laws, the public trust imposes a high, solemn duty on the government to protect these waters, bottomlands, habitat, shorelines, and paramount public uses from private takeover or impairment (Collins v Gerhardt, 237 Mich 38, 49 (1926). The public trust doctrine imposes on the State as trustee “a high solemn and perpetual trust which it is the duty of the State to forever maintain.”). Justice Black and the Court agreed “with the attorney general that the public title and right is supreme as against National Gypsum’s asserted right of wharfage, and hold that the latter may be exercised by the Company only in accordance with the regulatory assent of the State. No such assent has been given and, for that reason alone, the chancellor erred in decreeing that National Gypsum might proceed with what in law has become, since entry of such decrees, an entry upon and unlawful detention of State property.” (Id., at 413-414)

So, in 2020 once again a collision looms over the right of a corporation to occupy for itself the state-titled trust bottomlands and waters of the Straits of Mackinac, the very heart of the Great Lakes, for its aged dual pipelines to transport crude oil to its private markets. It cannot do so without the assent of the State “in the absence of due findings” that the one or two of the narrow exceptions apply.  In short, public trust law as one would expect does not authorize any deed, occupancy, or alienation of public trust bottomlands and waters except where there are findings that the private use protects and promotes the public trust interests and protected uses—navigation, fishing, boating, drinking water, swimming, and other recreational or ecological purposes—or that these treasured public trust resources have no such public value.

Courtroom Context on May 22

Let’s return to the present, May 2020. Like Paul Adams in 1960, our State Attorney General Dana Nessel and her lawyers Manning, Reichel, and Bock have filed briefs and will argue Friday that the 67-year-old Enbridge Line 5, like National Gypsum’s private industrial dock in 1960, is unlawful under the high, solemn public trust law and duties of government that apply to our Great Lakes.

The facts are undisputed. In 1953, after the legislature delegated authority to grant public utility easements over or under state lands, including our public trust Great Lakes, the Department of Conservation never made any findings that the easement to Enbridge for its dual crude oil pipelines (1) would preserve and protect the public’s public interests and uses, or (2) do not have substantial public value for navigation, fishing, boating, swimming, other accepted public trust uses. Without these findings, Line 5 must be terminated. The only way the Enbridge’s private use can be validated is for the company to apply to the State for findings in 2020 that the known risks of devastating unacceptable harm to the Great Lakes, communities, property owners, businesses and citizens is consistent with and will protect these paramount public trust uses, or that the Straits of Mackinac has no public value for these uses.

A Powerful Mix of Duty, Integrity, Courage on Display

We applaud Attorney General Nessel and her legal staff for their courage to take a stand in fulfillment of their solemn duty to protect and preserve the integrity of the public trust in our bottomlands and waters of or Great Lakes. Yes, this case is about integrity, and it has all the hallmarks to become the next historical milestone in the history and jurisprudence over the great frontier of those lands and waters between our shores.

Attorney General Nessel, Governor Whitmer Take Bold Legal Actions to Shut Down Line 5 and Apply Rule of Law

Today represents a historic turning point for all Michiganders. Attorney General (AG) Dana Nessel took decisive legal action on Pipeline 5 in the Straits of Mackinac when she filed suit in Ingham County Circuit Court to revoke the 1953 Easement that conditionally authorized Enbridge to pump oil through twin pipelines.

Nessel’s lawsuit alleges that Enbridge’s continued operation of the Straits Pipelines violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution, impairment, and destruction of water and other natural resources. Simultaneously, Governor Whitmer and the natural resources and environmental protection agencies have taken action through the AG to dismiss Enbridge’s June 6 lawsuit to defend the public’s rights and waters of the Great Lakes. 

“I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes,” said the Attorney General. “Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay.”

Gov. Gretchen Whitmer also ordered the Michigan Department of Natural Resources to review violations of the Line 5 easement. As the state’s top leader and public trustee, Whitmer has the express legal authority to revoke the easement to start decommissioning the pipeline.

“The governor’s primary goal has always been and remains to get the Line 5 dual pipelines out of the Straits of Mackinac as soon as possible,” said Whitmer’s press secretary Tiffany Brown today in a statement. “The risk of a catastrophic oil spill in the Great Lakes, and the harm that would follow to Michigan’s economy, tourism, and our way of life, is far too great to allow the pipelines to continue to operate indefinitely. As a recent National Transportation Safety Board report documented, any doubt as to the risk posed by Line 5 was erased in April 2018 when a barge dragging a 12,000-pound anchor nearly caused disaster.” 

FLOW (For Love of Water) commends Attorney General Nessel’s and Governor Whitmer’s legal actions against Enbridge. It’s about time Michigan’s government is standing up for our public waters — waters located in arguably the worst possible place in the Great Lakes for an oil spill to happen.

“Today, Attorney General Nessel returns Michigan and the protection of its citizens, taxpayers, and the Great Lakes to the rule of law,” said Jim Olson, president and founder of FLOW. “Governor Whitmer’s action on behalf of the state to nullify the lame-duck tunnel agreements also returns Michigan to the rule of law. They should be thanked. No, they should be applauded.”

Nessel’s move comes three weeks after Enbridge sued the State of Michigan on June 6 to claim its right to continue operating Line 5 and to build and operate a tunnel under the Great Lakes for the next 99 years. It comes just over six months after former Governor Snyder, former Attorney General Schuette and lawmakers gifted Enbridge a one-sided law and set of agreements during their last days in office that handed control of Great Lakes waters and soils beneath the Straits of Mackinac to a private Canadian company for its private gain.

Act 359 and the agreements during the 2018 lame-duck session were designed to allow Enbridge to continue the dangerous and unacceptably grave risks of a failing Line 5 design until the company builds a tunnel to lease for the next 99 years, with massive potential liabilities for the State and citizen taxpayers.

“The deal was approved by a lame-duck session law that was based on dubious constitutional and legal grounds, and sought to suspend the rule of law in Michigan, binding citizens and the state to the control of part of the Great Lakes for the next century,” said Olson. “The Snyder administration helped Enbridge run around our state constitution and evade the rule of law that protects the public’s ownership and rights in the Great Lakes.”

 

New year, new administration

After taking office on Jan. 1, Governor Whitmer’s first move was to direct Attorney General Nessel to examine the legality of the lame-duck tunnel deal. AG Nessel ruled in March that Act 359 violated Michigan law and openly violated the state constitution. Whitmer quickly ordered the executive branch to adhere to Nessel’s opinion, preventing the implementation by state agencies of the unlawful deal.

On June 6, Enbridge reacted by filing a lawsuit against the State in an attempt to resuscitate the lame-duck law and agreements, claiming easements and the right to continue using the existing Line 5 in the Straits indefinitely—or until it gets a 99-year tunnel and new pipeline to transport crude oil from Alberta and through Michigan into Ontario.

The Attorney General telegraphed her decision to stand with the Great Lakes. At the Mackinac Policy Conference in late May she told WWMT-TV in West Michigan, “I’m tired of it and we can’t have a private company be more important than the natural resources and residents of our state. They don’t own us, they don’t own the natural resources in this state and I think it’s time that we had elected leaders in office that recognize that.”

On the campaign trail in 2018, Nessel ran on a message to shut down Line 5.

“No state can cede the Great Lakes or soils under them to a person or private corporation,” said Olson. “These lakes and the soils under them are held in public trust for fishing, boating, drinking water, recreation, bathing, swimming for all citizens. This trust cannot be suspended by private agreements. The use of these trust waters and soils can only be authorized under law with transparent findings that there is no private deal or gain and no risk of impairment of current and future generations.”

 

Pure Michigan

Our freshwater seas are of paramount importance to Michiganders, and citizens throughout the Great Lakes basin. They uphold our economy and represent our very way of life. According to the Great Lakes Commission, Michigan has more than 3,000 miles of freshwater coastline and 11,000 inland lakes that provide residents, businesses, and visitors with access to nearly 20 percent of the world’s surface freshwater. More than 800,000 Michigan jobs and $62 billion in resulting annual wages are directly linked to the Great Lakes. 

An oil spill in the turbulent Straits of Mackinac between Lakes Michigan and Huron, where the currents create a washing machine effect, could jeopardize all that we are as Michiganders.

“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood.Attorney General Nessel and Governor Whitmer made strong campaign promises to shut down Line 5, and now our elected leaders are making good on their commitment to protect the Great Lakes.” 

Reactions from local leaders — both in city hall and in the private sector — were strong.

“Shutting down Line 5 is a priority to those in northern Michigan who rely on the economic benefits of the natural resources we have in our Great Lakes,” said Traverse City Mayor Jim Carruthers. “Our Attorney General is right for supporting the immediate shut down of this aging Enbridge Pipeline under our Straits, to ward off the devastating effects of a breach that will destroy all that is important to life ‘up north’. As the mayor of Traverse City, I wholeheartedly support these actions to protect the waters around my city for all to enjoy and benefit from.”

Business owners like Brian Schwartz of eightyfive MILES, a lifestyle apparel and accessory brand company, reflected on the economic value and significance of the Great Lakes.

“I am the owner of a Great Lakes’ inspired start-up and former hedge manager, and I don’t see Enbridge’s enthusiasm or desire to fund a $500 million tunnel project,” he said. “We believe it’s a faulty plan and the time is now to shut down Line 5. We support Attorney General Dana Nessel in the State’s battle to shut down this aging pipeline. Our company contributes a share of revenues to support Great Lakes’ conservation and it would be an ecological disaster and economic catastrophe to Michigan if the pipe were to burst. There’s no need to put the State’s livelihood and environment at risk.”

 

Deception campaign

“Despite the posturing and rhetoric of Enbridge’s media scheme, there are alternatives to the existing Line 5 that do not require a tunnel,” said Olson. “These include delivering propane for those pockets of customers in the Upper Peninsula, and the use of excess capacity in other Enbridge lines that run across southern Michigan and northern Indiana to Canada and Detroit. We don’t need a 99-year tunnel and pipeline in light of plummeting demand for crude oil as the world economy rapidly shifts to renewable energy.”

“The Enbridge lawsuit is a diversion from the reality that the 540,000 barrels of oil are pulsating through a 66-year old pipeline, which is peppered with design flaws, gouges, corrosion, and unavoidably threatened with another anchor strike at any time.”

Enbridge has failed to prove itself as a trustworthy and transparent partner. Time and time again, Enbridge has withheld information, attempting to hide Line 5’s design flaws, pipeline coating, cracks, gouges, corrosion, and the April 1, 2018 anchor strike that nearly caused a calamitous spill, anchor strikes, and more. Enbridge’s operational track record is dismal. Its Line 6B Kalamazoo River disaster in 2010, one of the largest inland oil spills in U.S. history, cost $1.3 billion in damages. Line 5 has suffered 33 known spills, leaking approximately 1.1 million gallons of oil into Michigan’s environment.

An increasingly desperate Enbridge is enlisting allies to engage in what can only be deemed a deceitful Chicken Little campaign. The Canadian company 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 refined dirty tar sands oil from western Canada primarily to Sarnia, Ontario.

Enbridge makes the absurd claim that the PBF refinery in Toledo, Ohio, would lose a thousand jobs if Line 5 is shut down. But that directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts, emphasizing the refinery has several sources of supply and can adjust them depending on market conditions. PBF also claims that 40% of the jet fuel used at Detroit Metropolitan 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. Alternative pipeline sources can more than make that up. 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 closed 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.

Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Mackinac Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.

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.

FLOW applauds Michigan’s top leaders — Gov. Whitmer and AG Nessel — for their leadership in defending the people’s rights and public waters of the Great Lakes.