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 [email protected] 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.
Jim Olson, environmental attorney and senior legal advisor to FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, reacts to a narrow ruling released today by an administrative law judge on Enbridge’s oil tunnel proposed for the Straits of Mackinac:
“Today’s ruling by Administrative Law Judge (ALJ) Dennis W. Mack ignores the declining public need for oil as the U.S. and world finally reckon with the climate emergency, and it is blind to the fact that Gov. Whitmer has ordered the permanent shutdown of the Line 5 pipeline that the tunnel would contain this May.
“The State of Michigan will never reach a just and lawful decision on the proposed oil tunnel by agreeing with Enbridge to ignore critical evidence and treat a proposed oil tunnel meant to last 99 years as simply a maintenance-and-replacement project. The tunnel is a Trojan Horse designed to push billions of gallons of oil through the world’s largest system of freshwater lakes in an era of water crises hastened by climate change.
“The Michigan Environmental Protection Act (MEPA) enacted in 1970 was created to compel agencies like the MPSC to evaluate the cumulative environmental impacts and to examine alternatives to proposed projects. In the case at hand, MEPA requires the MPSC to examine the environmental, health, and climatic risks of the proposed tunnel and Line 5 pipeline. The greenhouse gas emissions from Line 5’s oil and natural gas liquids, at more than 57 million metric tons a year, is greater than the annual yield from the combined operation on the nation’s three largest coal plants.
“The law does not keep the MPSC frozen in time such that they can ignore these paramount issues.
“The State of Michigan has a perpetual duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them, which led to the Governor’s and DNR’s November 13 order and lawsuit to revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac. The ALJ rejected the argument that the Governor’s notice and revocation of the 1953 easement is a basis to evaluate the environmental effects of Line 5 or the consumption of the oil transported on the system under MEPA.”
Background: 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:
Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), reacts to news today that the State of Michigan has granted environmental permit approval for Enbridge’s proposed Line 5 oil tunnel in the Straits of Mackinac:
“We are deeply disappointed by the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) decision today to approve permits for Enbridge’s proposed oil tunnel in the Straits of Mackinac.
“EGLE’s permits ignore direct adverse evidence of the tunnel’s risk to surface waters, wetlands, public trust bottomlands, cultural resources, endangered species, treaty fishing rights, climate change impacts, local economic impacts, tourism, and public and private property. In addition, EGLE’s permits ignore feasible and prudent alternatives to the proposed tunnel.
“EGLE’s action is directly at odds with the legal process underpinning the Governor Whitmer’s revocation and termination on November 13 of the easement allowing Line 5 to operate in the public waters and bottomlands of the Great Lakes. The governor’s November decision was based on determinations required under the Public Trust Doctrine. Those same findings, required by law, were never made for the proposed tunnel.”
Many years and legal and regulatory hurdles remain in the state and federal permitting process for Enbridge’s proposed oil tunnel, which might never be built, but continues to distract from the clear and present danger posed by the decaying Line 5 pipelines in the open waters of the Straits of Mackinac.
Final approval of Enbridge’s proposed oil tunnel remains in doubt as permitting reviews continue by the U.S. Army Corps of Engineers, which is assessing environmental impacts and alternatives, and the Michigan Public Service Commission, which is considering the project’s public need, climate impacts, and location.
The proposed tunnel, at roughly 20-feet in diameter and 4 miles long, would house a new Line 5 pipeline. Enbrige’s goal is for Line 5 to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
Enbridge has a terrible track record of oil spills across Michigan from Line 5 and from Line 6b, which in 2010 dumped more than a million gallons of oil into the Kalamazoo River.
FLOW on Nov. 6, 2020, filed an appeal with the Michigan Public Service Commission of the October 23 decision by Administrative Law Judge (ALJ) Dennis W. Mack granting in part Enbridge Energy Limited Partnership’s motion to exclude critical evidence from consideration by the MPSC in deciding whether to permit the siting of Enbridge’s proposed Line 5 oil pipeline tunnel through public trust bottomlands under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
FLOW’s appeal seeks to allow evidence that the proposed, roughly four mile-long oil pipeline tunnel under the Great Lakes would commit the citizens of Michigan for another 99 years to the unnecessary generation of more harmful greenhouse gases. According to the Michigan Department of Health and Human Services, greenhouse gas emissions already have resulted in the impairment of Michigan’s public health and natural resources – effects that will get worse unless CO2 emissions are abated.
Nothing less than the authority of the MPSC to protect the people of Michigan, environment, climate, and public interest of the citizens of Michigan and the Great Lakes for years to come is at stake, according to arguments filed by FLOW and other intervenors and made orally at a September 30 hearing.
“Authorizing a billion-dollar fossil fuel infrastructure project is fundamentally at odds with what science tells us must be done to avoid the most catastrophic effects of climate change,” said Liz Kirkwood, executive director of FLOW, a Great Lakes public trust law and policy center based in Traverse City. “Eliminating the determination of ‘public need’ when granting a Certificate of Necessity makes no sense.”
FLOW’s appeal also contests the ALJ ruling that the MPSC need not make a finding of “public need” to transport up to 8 billion gallons of oil a year for nearly a century in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy. The pipeline tunnel proposed by Enbridge is inseparable from the business of transporting oil through existing Line 5, the Candian company’s 67-year old pipeline that runs from Superior, Wisconsin, through Michigan and on to refineries in Sarnia, Ontario.
Several market indicators suggest that investment in new pipeline infrastructure is highly questionable in light of clear trends indicating a precipitous drop in oil consumption in future years. Analysis released on August 9 by BNP Paribas, the world’s 8th-largest bank, reports “that the economics of oil for gasoline and diesel vehicles versus wind-and solar-powered EVs [electric vehicles] are now in relentless and irreversible decline, with far-reaching implications for both policymakers and the oil majors.”
FLOW is joined by several other intervening parties in the case in appealing to the three-member MPSC to overturn the ALJ ruling. Lawyers filed a joint appeal on behalf of the Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians, Tip of the Mitt Watershed Council, and National Wildlife Federation, as well as a joint appeal on behalf of the Environmental Law & Policy Center and the Michigan Climate Action Network. Bay Mills Indian Community also appealed. Attorney General Dana Nessel also sought to support and join in the appeals filed by the groups and tribes.
FLOW’s appeal requests that the MPSC:
Reverse the ALJ’s granting of Enbridge’s motion to exclude evidence of public need and likely environmental effects and alternatives related to the new tunnel and tunnel pipeline and the intended purpose of the tunnel project to engage in business and operations to transport crude oil as part of the tunnel project and the existing Line 5 in Michigan; and
Remand to the ALJ to take appropriate action to incorporate the excluded evidence into the discovery and evidentiary hearing that will be submitted as a full case to the MPSC for final decision and order.
“We’re talking about water, climate, and the plummeting demand for crude oil,” said Jim Olson, FLOW’s founder and legal counsel. “The MPSC by law 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.”
“Enbridge’s attempted private takeover of the public’s bottomlands under the Straits of Mackinac for the tunnel project breaches the state’s duty to protect the public trust in the Great Lakes and is not good for the climate or Gov. Whitmer’s goals as the nation and world turn to clean energy for survival,” said Kirkwood.
Many groups, including FLOW and Oil & Water Don’t Mix, have articulated scientific and legal deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life.
In more details, FLOW’s appeal asserts that:
The ALJ erroneously restricted the Broad Authority of the Commission under Act 16 by excluding review of the new or extended business and operations to transport crude oil through the new tunnel and pipeline.
The exclusion of evidence of “public need” under Act 16 is contrary to the law and deprives the parties the right to introduce evidence on questions of fact related to public need.
The State of Michigan has made new commitments to integrate climate change into government decision-making.
The duty to consider and/or determine the likely effects and alternatives under the Michigan Environmental Protection Act (MEPA) and its case law applies to the new tunnel and tunnel pipeline, and the intended purpose to extend the business and operations of Enbridge to the Straits and all of Line 5.
MEPA requires an evaluation of feasible and prudent alternatives, including a “no action” alternative.
Enbridge’s giant tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan connects to Lake Huron.
Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.
FLOW E.D. Liz Kirkwood
The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:
“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.
“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”
See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:
Photo of the Mackinac Bridge and Straits of Mackinac by Kathryn DePauw.
The Michigan Public Service Commission should reject Enbridge’s attempt to dodge the legal review process required to replace and relocate the segment of the Line 5 oil pipeline crossing the Straits of Mackinac into a $500 million proposed tunnel pipeline project, according to formal comments filed Wednesday with the MPSC by FLOW (For Love of Water).
In a convoluted request, Enbridge on April 17 applied to the MPSC to approve a tunnel pipeline project under the Straits of Mackinac to replace the existing four-mile Line 5 pipeline on the lakebed. At the same time, Enbridge filed a request for a declaratory ruling from the MPSC that no approval is actually necessary, claiming the massive tunnel project is just “maintenance” of the 67-year-old dual oil pipelines already approved by the MPSC in a 1953 Order.
“Enbridge wants to circumvent the law by arguing that the 1953 Easement and Order authorized the construction of a tunnel and subterranean pipeline,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “The truth is this proposed pipeline tunnel infrastructure intended to transport oil for another 99 years beneath the Great Lakes, the world’s greatest supply of fresh surface water, despite the plummeting demand for oil and the climate crisis, bears absolutely no resemblance in design or location to the original pipeline project approved in 1953.”
The MPSC on April 22 issued an order putting Enbridge’s application on hold and opened a public comment period that ended May 13 on the request for the declaratory ruling. The MPSC also set May 27 as the deadline for any replies to comments received regarding the declaratory ruling request.
FLOW’s comments cite several reasons why the MPSC should deny Enbridge’s request and go forward with a full and comprehensive review and determinations of the necessity, alternatives, and overarching public interest of Enbridge’s proposed tunnel and tunnel pipeline infrastructure project under the Great Lakes. The reasons for denial include:
Not maintenance – Enbridge’s proposal is not maintenance of a previously approved project but, under state law, a “new” oil pipeline to be located in a new tunnel that constitutes a “structure or facility” related to the pipeline in an entirely new horizontal and deep subterranean, vertical location.
Bear no resemblance – The location, magnitude, and nature of the proposed tunnel and oil pipeline infrastructure for the Straits bear no resemblance to the specific location and design incorporated into the former Public Utility Commission’s 1953 Order that approved the existing dual Line 5 pipelines 67 years ago. The 1953 Easement from the State of Michigan and the corresponding 1953 MPSC Order authorizes the dual pipeline infrastructure siting limited to the exact location on the lakebed floor, not a deep subsurface tunnel and tunnel pipeline proposed to be sited 60 to 250 feet below the Straits.
Not the legal successor – The Enbridge subsidiary Enbridge Energy, Limited Partnership, is not the legal successor in interest to the original 1953 Easement Agreement between Lakehead Pipe Line Company and the State of Michigan and the 1953 MPSC Order, and cannot rely on these legal documents to avoid a certificate of necessity review by the MPSC.
Inseparable – The tunnel and tunnel pipeline are inseparable in Enbridge’s own descriptions and assertions in this and other applications, and one cannot be applied for, nor approved, without the other.
Not authorized – Enbridge lacks a lawfully authorized property interest to locate or construct the tunnel and oil pipeline under the Straits of Mackinac. Because the bottomlands under the Straits are owned and held by the State in public trust, Enbridge is required to obtain authorization for a public utility easement from the Michigan Department of Natural Resources and then obtain authorization for the conveyance and 99-year lease from the Michigan Department of Environment, Great Lakes, and Energy under the Great Lakes Submerged Lands Act.
“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.”
“We’re talking about water, climate, and the plummeting demand for crude oil,” Olson said. “The MPSC by law 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.”