Tag: Michigan Public Service Commission

Two Virtual Hearings, Two Real Steps Closer to Shutting Down Line 5 in the Great Lakes

Published on June 4th, 2024 by - Blog Posts, H2Olson, News

enbridges-line-5-under-the-straits-of-mackinac

Take Action: Click Here to Urge Michigan’s Leaders to Shut Down the “Significantly Damaged” Line 5 Right Now

Jim Olson is FLOW’s Founder and Legal Advisor

 

 

By Jim Olson 

For the past 6 years, Canada’s Enbridge has maneuvered the State of Michigan into rounds of back-and-forth letters, meetings, and agreements that have done nothing but delay any enforcement action to shut down Line 5 in the Straits of Mackinac, where Lake Michigan meets Lake Huron. After two pivotal hearings on Tuesday, June 30, however, Enbridge has begun to lose its grip on the fate of its dangerous twin Line 5 crude oil pipelines in the public waters of the Straits. Two hearings, and the State and its citizens are two steps closer to shutting down the unstable twin crude oil pipelines once and for all without replacement.

1st Hearing: The Michigan Public Service Commission on Enbridge’s Proposed Oil Pipeline Tunnel

On the morning of June 30, in a virtual public hearing with hundreds of participants, the Michigan Public Service Commission (MPSC) approved 3-to-0 an Order that rejected Enbridge’s bid to avoid its obligation to prove it is entitled to locate and construct its proposed tunnel pipeline “in the public interest” and that it is necessary at this time in history. (See FLOW E.D. Liz Kirkwood’s reaction here).

The company argued that it didn’t need the MPSC’s approval of the pipeline tunnel because the State’s utility commission approved the necessity of the existing line in 1953. In an Order more than 70 pages long, the MPSC described the complexity and importance of the public interest and necessity for a crude oil pipeline in the Great Lakes in 2020, not 67 years ago. The Order included an outline of the depth of the issues posed by the tunnel proposal before the public panel, relying on extensive comments submitted by the Michigan Environmental Council and National Wildlife Federation, Michigan tribal governments, For Love of water (FLOW), Michigan’s Attorney General Dana Nessel, and many other organizations and citizens.

The submitted comments pointed to the overarching public interest and public trust in the Great Lakes, demand for crude oil, alternative routes, threats to the environment, and risks to the Great Lakes from climate change, such as high-water levels and damaged infrastructure. The Order requires Enbridge to prove under the scrutiny of the MPSC in a formal, trial-like proceeding that the pipeline tunnel proposal is in the public interest, necessary, and that there are no reasonable alternatives to shipping oil through its and North America’s massive pipeline system.

2nd Hearing: Ingham County Circuit Court on a Preliminary Injunction to Shut Down Existing Line 5 in Attorney General Dana Nessel for the People of Michigan versus Enbridge Energy

On the afternoon of June 30, after a 5-hour virtual hearing in Ingham County Circuit Court in Lansing, Circuit Court Judge James Jamo continued the temporary restraining order (“TRO”) he issued on June 22, shutting down the flow of oil through Line 5 in the Straits of Mackinac. Enbridge argued that historical in-line inspections and video footage of scrapes to the exterior of the pipes and a twisted support structure designed to minimize damage from strong currents demonstrated the steel pipelines themselves were safe. Enbridge introduced a letter from the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) that stated the agency did “not object” to restarting the pipelines “based on the assurances of Enbridge.” Lawyers for Enbridge told the Court that if PHMSA says it’s safe, then the State and Court have no jurisdiction or power to interfere with restarting the lines, and that Enbridge should be able to reopen the lines. 

The Attorney General’s lead attorney told the Court that Enbridge hadn’t turned over all of the information related to Enbridge’s “assurances” to PHMSA and that the cause of the damage to the structure and lines remained unknown. He argued that without more information and independent review of what happened, there was no way Enbridge or the State could comply with the stringent due care and prudence obligations under public trust law to insure that the pipelines are not a danger to the waters, bottomlands, and people of Michigan. The public trust in the waters and bottomlands of the Great Lakes is derived from the State’s title granted to it when it joined the United States in 1837, and it can’t be impaired, endangered, or controlled by primarily private interests.

Judge Jamo probed Enbridge’s lawyers on whether PHMSA’s “non-objection” could deprive the State of its public trust jurisdiction by a letter based on only the assurances of Enbridge. The lawyers couldn’t give a clear answer, and by the end of the hearing it was clear that what PHMSA said was evidence of safety, was not conclusive of the broader duty of the State and the Court to determine whether there was a violation of the due care requirement to protect the public trust in the Straits.

At the end of the hearing, the Court continued the TRO issued June 22. On Wednesday morning, July 1, the Court issued an amended TRO, keeping the suspension of use of the lines in force, but allowing Enbridge to inspect the west leg of the dual lines in the Straits to see if it could be used in the near future “subject to any future order of the Court.”

Clearly, Judge Jamo has taken control of the risks associated with the location of crude oil pipelines in the Straits. The condition of the two lines has totally changed from 1953. Approximately 150 saddle supports (with 50 some more on the way) have been added since 2001 to stabilize the failure of the original lines because of powerful currents in the Straits. Two recent events damaged the coating on the west line and broke an anchor support on the east line. Enbridge inspectors were not sure what caused the damage, but they thought it appeared to be anchor strikes or other objects dragged by passing ships. This is alarming because this brings the total number of known strikes to dual lines to three in the last 18 months. It appears Judge Jamo is exercising due care in continuing the shutdown of the lines. He took the request for preliminary injunction under advisement. In the near future, he is expected to decide on a previous motion to rule that the 1953 easement allowing Enbridge to place the two lines in the Straits in the first place is no longer valid under the public trust laws that protect the Straits and all of the Great Lakes.

Ultimately, this case and the fate of Line 5 will turn on the reality that in 2020 the conditions and circumstances are not the same as 1953. The Line 5 twin pipelines in the water and across the lakebed are in the wrong place because of certain serious conditions that will continue to exist and cannot be controlled. Under public trust law, these lines and the easement that allowed them are no longer lawful. Attorney General Nessel did the right thing in filing this lawsuit—the lines in this location violate the public trust and constitute a public nuisance in the form of an “environmental ticking time bomb,” as the State has argued, that could go off at any time. How strong a current, how many near-disaster anchor-strikes or other errors will it take before the inevitable catastrophe happens? Now is the time to prosecute these claims to the right conclusion, a permanent and orderly shutdown.

In the meantime, Circuit Court Judge Jamo was correct in keeping this matter under his control and advisement, and to continue the temporary order suspending the use of these pipelines pending further proceedings. For the moment, the pumps and twin lines remain silent.

Disgraceful: MPSC Approves Permit for Enbridge Tunnel in the Straits of Mackinac; Breaches Legal Duty to Protect Michigan’s Natural Resources

Published on December 1st, 2023 by - Blog Posts, Reports & Media Releases

Traverse City, Mich. — FLOW is shocked that the collective efforts of thousands of Michiganders and treaty-protected tribes to protect our waters from the catastrophic risks of Line 5 have been ignored in today’s decision by the Michigan Public Service Commission (MPSC) to grant authorization for a Line 5 tunnel. The Straits are no safer while an unprecedented tunnel perpetuates the threat of an explosion spilling oil and gas into these ecologically fragile and economically vital waters.

In the same week that Governor Whitmer signed into law a nationally significant climate bill to decarbonize 100% of Michigan’s electricity production by 2040, today’s ruling is a black mark on the administration’s climate record and a disgrace to all of Michigan. A Line 5 tunnel with a 99-year lease will be an embarrassing albatross, hobbling future efforts to transition the region off fossil fuels and imprudently burdening taxpayers.

The Commission’s approval of a tunnel and 99-year new crude oil and natural gas liquids pipeline betrays its perpetual and solemn public trust responsibility as the sworn guardians of the public rights of citizens in the Great Lakes. This is not a “just transition” but a craven capitulation to fossil fuel profits.

Three years ago, FLOW intervened as a party before the MPSC in Enbridge’s proceeding seeking approval of a pipeline tunnel under the Straits. FLOW legal advisors Jim Olson and Skip Pruss have represented the public’s interest in the Great Lakes and Michigan’s priceless ecosystem. Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960).

The authorization breaches the MPSC’s legal duty to prevent likely degradation of Michigan’s air, water, natural resources, and public health—including drinking water, fishing, sanitation, boating and recreation—under Michigan’s environmental protection laws and the mandates under article 4, section 52 of Michigan’s Constitution.

Michigan environmental law prohibits the Commission from authorizing a pipeline when, according to the recent PLG Consulting report, reasonable, practical, feasible, and prudent, and affordable alternatives exist, and environmental damage is likely. The Michigan Environmental Protection Act expressly states that under these circumstances, a permit or approval “shall not be authorized.”

FLOW Founder and veteran Michigan environmental lawyer Jim Olson said: “There is no justification, morally or legally, for a new crude oil pipeline and tunnel that will last into the days of our great-great-grandchildren. When they look back at us, what kind of ancestors will they see?”

This fight is not over, and FLOW will be there.

FLOW to Michigan Public Service Commission: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Published on March 16th, 2022 by - Blog Posts, Reports & Media Releases

Editor’s Note: FLOW submitted the following comments today to the Michigan Public Service Commission in advance of the MPSC’s March 17, 2022, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac. See the MPSC’s March 17 meeting agenda, and learn about the opportunity to comment in person or online. Members of the media, please contact FLOW Legal Director Zach Welcker at (231) 620-7911 or Zach@FLOWforWater.org with any questions.

Dear Honorable Members of the Michigan Public Service Commission (“MPSC”):

Thank you for the opportunity to comment.

FLOW urges the MPSC to suspend further consideration of this ill-conceived oil tunnel project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies. 

We have previously provided the MPSC with detailed analyses of this issue. Suffice it to say, Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960). Thus, it would be a waste of time and resources for the MPSC to continue considering Enbridge’s proposal at this time.

If the MPSC decides, to the peril of Michiganders, to disregard Enbridge’s lack of authorization for this project, it must contend with the fact that Enbridge’s proposal to build a new oil pipeline inside a new tunnel underneath the Straits of Mackinac has ballooned into a supersized infrastructure project. In comparison to the original project, the diameter of the tunnel will now require a tunnel boring machine four times the size initially proposed. Correspondingly, the amount of excavated material that must be transported and disposed of has quadrupled.

Testimony from Enbridge’s geotechnical expert, Michael Mooney, before the MPSC indicates that the tunnel must also be bored deeper than the original design, stating: “The depth to rock was determined to be deeper than assumed during the Alternative study and the resulting vertical profile takes the tunnel deeper in order to remain fully within rock. The geotechnical investigation also revealed highly fractured rock in places that would yield high groundwater pressures during construction.” On file with the MPSC, pp. 19-20.

Yet Enbridge’s initial $500 million estimate of the cost of the tunnel has not been revised. Experts have raised a host of related geotechnical and safety concerns. Significantly, Enbridge has also recently informed the Federal Energy Regulatory Commission that climate concerns may limit the expected service life of the proposed tunnel to twenty years. The MPSC must accordingly reevaluate the prudence of moving forward with this project in light of these significant developments.

FLOW Praises Decision Today by Michigan Public Service Commission to Consider Climate Impacts in Permit Case for Proposed Oil Tunnel in Great Lakes

Published on April 21st, 2021 by - Blog Posts, News, Reports & Media Releases

The following is in reaction to the Michigan Public Service Commission’s ruling today regarding the scope of review for permitting required for Enbridge to replace and relocate its decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a single new pipeline.

FLOW and other organizations and tribes have formally intervened in the MPSC contested case process for siting the tunnel and pipeline to assert that Michigan law requires a comprehensive review of the project’s necessity, impacts, and alternatives in the context of climate change and the ongoing rapid transition to renewable energy sources.

“FLOW applauds the MPSC’s careful commitment to science, sound economics, and the public interest,” stated Liz Kirkwood, executive director of For Love of Water (FLOW). “The Commission’s decision is significant because it recognizes that the Michigan Environmental Protection Act applies to consideration of greenhouse gas emissions that would be spurred by Enbridge’s proposed oil pipeline tunnel. The MPSC clearly understands the need to accelerate the energy transition, adopt clean energy solutions, and avoid the environmental and economic impacts of legacy fossil fuels.” 

Jim Olson, FLOW’s founder and legal advisor, said, “The MPSC’s decision demonstrates true leadership to address the transport and consumption of crude oil and the devastating effects crude oil has on the climate and the Great Lakes, infrastructure, and our quality of life in the 21st century.”

Background on Line 5 and the MPSC

See FLOW’s ongoing coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel proposed for the Straits of Mackinac here:

For more information, see FLOW’s Line 5 fact sheets and blogs:

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

Published on October 28th, 2020 by - Blog Posts, H2Olson, News

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

Published on August 21st, 2020 by - Blog Posts, H2Olson, News

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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

Published on May 28th, 2020 by - Blog Posts, News

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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.

The Water-Energy Nexus: FLOW at the MI Governor’s Energy Policy Listening Session

Published on April 22nd, 2013 by - H2Olson

As part of Earth Day today, I had the opportunity to submit FLOW’s memorandum to the Michigan Public Service Commission at the Governor’s “listening session” on future energy policy in Michigan. At FLOW we believe that by looking at the entire hydrological cycle as a basis for addressing systemic threats like climate change–the single largest human induced diversion from the Great Lakes–water and energy policy and actions are inseparable. More importantly, if energy policy is elevated to an obligation to protect the integrity of water, something the commons and public trust in water may well require, then our energy policy can better promote jobs and economic stability and growth and protect water and the environment. FLOW Executive Director Liz Kirkwood also spoke at the forum to address the need to connect water to climate change, energy, and wasteful or inefficient and inequitable water consumption practices related to energy and food production, and other consumptive uses. You can read FLOW’s memorandum on the Energy and Water Nexus, along with the rest of our reports, on our policy center page. The text of our comments are below:

Click here to read FLOW President Jim Olson’s comments as a PDF
 
Click here to read FLOW Executive Director Liz Kirkwood’s comments as a PDF
 

Statement by James M. Olson, Chair, FLOW
A Water and Energy “Nexus” Policy For Michigan

The “energy listening” sessions ordered by Governor Snyder to help Michigan fashion an energy policy are welcomed. However, at a time of a climate change crisis fired by coal and other greenhouse gases with severe and worsening impacts and costs, including increasing extreme low water levels, there is a disconnect between energy and Michigan’s most valuable common treasure – water and the great lakes. No energy policy in Michigan should omit the protection of the integrity of our water – both quality and quantity- as one of if not its central core principles.

There is a rapidly increasing demand for water world wide and strong probability that global demand will outstrip supply in just 30 years. If anything drives the point home for a 21st century policy that centers on a “nexus” between water and energy, it is the staggering cost to life, property and communities from storms like those experienced in the northeastern United States this past year. Add to this the lowest water reported water levels in the Great Lakes, and devastating future climate change entails for all of us and our children in this century, and it becomes quite evident that water and energy are inseparable. It is imperative that water is declared the core of our energy policy. If we honor and respect the integrity of water and our Great Lakes, we will find and follow a sound energy policy.

Because of the need to address water and energy together (as a “nexus),” Michigan must move forward with a multi-disciplined framework that requires application of “integrated resource planning” principles for evaluating energy policy and options. The same should be true for water policy. This would require a goal and planning effort that seeks the least costly energy services and goods with a full evaluation of all costs to water, the ecosystem, and our communities. Without “full cost” and integrated resource planning, Michigan’s energy policy and use will lead the state into an impoverishing downward spiral — economically, environmentally, and culturally. “Pure Michigan” and a sound sustainable economy and jobs mean pure air and pure water both in quality and quantity.

Therefore, it is my opinion, and I urge the governor, his advisors and staff, and the legislature to consider and adopt an energy policy that conforms to the integrity of water, the gravity of climate change, and a dynamic open mindedness that applies full cost evaluation and integrated resource policy. If we fail to do this, Michigan will fall into decline while other parts of North America and the world begin to prosper.

Three points:

  1. Michigan sits in the middle of the most valuable water/ecosystem in the world. It is held in public trust so that it is protected from impairment and loss. The Great Lakes Compact and Water Quality Agreement of 2012 underscore this principle and enact a policy that these waters are held in trust and should not be diverted or loss by consumptive uses, and this requires a response to keep greenhouse gases in check.
  2. In one week, thermal electric power plants use (a net loss to great lakes) as much water as the Chicago Diversion. Energy costs are rising, water levels are falling, water is more essential than coal-fired or other fossil fueled power, including the extraction of equally water intensive fuels like fracturing deep shale for natural gas – deep shale fracturing will displace or remove approximately 21 million gallons in 21 days for just one gas well. Multiply this times the 1,000 wells we will see if this is not carefully considered and regulated, and it will result in a permanent loss of 21 billion gallons of water from fragile headwater areas.
  3. The only sound and secure goal for Michigan is to move quickly toward a renewable and efficient energy world. This will diversify, increase, and lower cost of energy supplies, reduce costly infrastructure, reduce toxic air and water impacts, and temper the effects of climate change, including our plummeting water levels. Equally important, it will set Michigan on a course to lead the nation and help the next generation create positive profitable investments, cheaper more appropriate power, new industries and jobs – batteries, solar, wind, and conservation. Michigan must enact a “greenhouse trust fund” for any so-called “bridge fuels” like natural gas so that the justification of such a water-intensive environmentally risky method of extraction will be assured by a conversion to a renewable energy economy.

Michigan and Michiganders are nothing without water. Any approach to energy without integrity of water as its core principle and without an immediate shift to renewable energy and efficiency will put Michigan in an economic and environmentally disastrous downward spiral. We owe to ourselves and children and grand children to put water and Community first. It is a matter of water and public trust. It is a matter of survival.
 
 

FLOW Executive Director Liz Kirkwood’s Comments on the Water-Energy Nexus

My name is Liz Kirkwood and I’m the Executive Director of FLOW (“For Love Of Water”), which is a water policy and educational institute dedicated to understanding the threats and solutions to water in the Great Lakes by focusing on the nexus between water, energy, food, and climate change.

I want to thank Michigan Public Service Commission Chairman John D. Quackenbush and Michigan Energy Office Director Steve Bakkal for the opportunity to speech and address overall question 1: What information do energy policy makers need to consider in order to make good energy decisions?

Michigan faces a watershed moment and opportunity to chart a new cleaner energy course that is good for jobs, good for the environment, good for energy affordability, and good for the water.

To chart this new course, we first must recognize that our energy choices profoundly affect our water and cause serious climate change impacts.

Water and energy are inextricably linked. Water is used and lost in energy-resource extraction, refining and processing, transportation, and electric-power generation. And yet, because water is such a cheap commodity, it is rarely calculated and balanced in our energy decisions. Let’s change this so that the water-energy nexus become an integral part of charting Michigan’s energy future plans.

By 2035, the amount of water consumed for current energy production is projected to double. During this same time, there will be increasing water scarcity from pollution, waste, drought and human-induced climate change and impacts.

Given the clear interrelationship between energy, food, and water, we can no longer “silo” these sectors; rather we must improve decision-making with greater integration and collaboration between water resource management and energy production.

This calls for a new vision that recognizes the nexus between water, energy, food, and climate change. To make this shift, we must view water in a different light where water becomes the starting point for everything we do. Without water the health of our people, economy and ecosystem are diminished.

The recent U.S. natural gas industry shale boom has reignited attention on the water-energy-climate change nexus. The big issue with hydraulic fracking is the water, both in terms of sheer quantity (e.g., 300 million gallons to frack 13 wells in Kalkaska County) and safe disposal of chemical-laden and often toxic waste water that will never return to our hydrologic cycle. Before Michigan embraces natural gas as a “bridge” fuel, we must conduct a generic analysis of cumulative impacts on water, environment, and health that properly weighs the unprecedented risks that fracking poses to our precious water resources.

Additionally, Michigan’s coal-fired power plants are the state’s largest single source of heat-trapping carbon dioxide emissions, which are detrimentally contributing to climate change by increasing lake evaporation and causing our extreme low water levels in Lake Michigan-Huron.

In fact, we hit record low water levels in January of this year – 26 inches below average – according to data collected by the U.S. Army Corps of Engineers since 1918. The water levels issue is at the heart of the Great Lakes’ and Michigan’s economy, energy and water needs, social fabric, quality of life, and environment. In March of this year, our Governor signed legislation providing $21 million in taxpayer emergency funds to dredge state harbors that are in danger of becoming impassable because of low water levels.

We cannot sit idle anymore; rather we must adapt our current fossil-fuel economy to one with low-carbon and low-water footprint. Water in effect must become the center of everything we do, such that shifting to renewables becomes the obvious energy choice and addresses the root causes of receding water levels so that we do not jeopardize our current and future way of life.

Michigan is already witnessing renewable energy sources like wind becoming more cost effective and affordable to our businesses and citizens than polluting traditional sources like coal and oil. Wind is at 4.5 cents/KWH as opposed to traditional blended energy sources at 7.6 cents/KWH. The benefits of renewable energy are clear: affordable, clean, stable rates, Michigan job generator, minimal water use, and protective of human health and the environment.

In addition, Michigan should promote energy efficiency and energy conservation in all sectors because it is the cheapest, cleanest, and most quickly deployed source of energy.

To chart this new course, Michigan must embrace its innovative manufacturing traditions and promote renewable energy sources to reduce pressure on water resources and limit adverse climate change impacts. We think Michigan can and should become a leader in renewable energy, and at a minimum compete with the neighboring states that currently generate 20%+ of renewable power with excellent reliability.

We urge the State of Michigan to think wisely about its future energy choices, pay for water consumed, and ensure that the long-term energy decisions are good for our water too. Once we chart this path, then we can proudly say we are living up to our motto: “Pure Michigan.”