U.S. Senate Hearing Sets the Stage for Turning Off Dangerous Enbridge Line 5 in Great Lakes

Line 5 Pipeline

Michigan Senator Gary Peters, ranking member of a Senate committee overseeing hazardous pipelines, held a public hearing in Traverse City, Michigan Monday, ground zero in a race to turn off Enbridge’s 65-year old Line 5 before it spills millions of gallons into the Straits of Mackinac and blackens the water, life, and economy of the Upper Great Lakes. Senator Peters called the hearing to open an investigation and find solutions to reform a patchwork of ineffective federal regulations that lack authority and power to shut down pipelines that threaten the health and safety of residents, businesses, schools, and communities across the country. What better place to start than Line 5 in the heart of the Straits and Great Lakes?

Senator Peters convened two panels: one made up of an Enbridge upper-level executive and federal officials from the Pipeline Hazardous Materials Safety Administration (PHMSA), the Coast Guard emergency response team, and National Oceanic and Atmospheric Administration (NOAA); the other filled with representative leaders from conservation, labor, and business across the region. After their testimony and questioning from a well-prepared, sometimes passionate Senator Peters, and applause from a sympathetic audience, the message was clear—we need legal reforms, and we need them now, to fix the holes and fragmentation in current regulations.

Monday’s public hearing may well be the tipping point to turn off the rush of 23 million gallons a day through a pipeline that is outdated and failing the dictates of its original design. It may also be the year of reckoning for the Snyder Administration’s and Attorney General Schuette’s game of footsie with Enbridge that has, in my opinion, imprudently gambled the soul of our state’s water, life and economy by helping Enbridge keep Line 5 open for gushing crude oil from Alberta to Sarnia far too long. Here’s why.

After four years of state task forces, boards, studies and exercises to clean up a mock spill, nothing has happened except permission to Enbridge to keep Line 5 going at full tilt. During this same time, National Wildlife Federation, FLOW, the Grand Traverse Band of Ottawa and Chippewa Indians, and other tribes and organizations have filed compelling scientific, technical, and legal analyses and reports that have more than documented what is now obvious: Crude oil in Line 5 in the Straits and over or near tributaries that flow to Lake Michigan and Lake Huron constitutes what is known in the hazardous risk industry as a “Tier 1″ risk. It must be avoided, and reasonable alternatives exist– that is, Line 5 in the Straits or waters of the Great Lakes is not essential for Canada, Enbridge, or Michigan and its residents.

A “Tier 1″ risk means that the magnitude of harm is so devastating or grave, that principles of risk management require those responsible to implement both a temporary and a long-term solution that removes and avoids the risk entirely. In plain terms, this means that if there is an alternative to a pipeline that is unacceptable under any circumstances, the alternative must be implemented, as long as it reasonably achieves the overall purpose of avoiding the risk and allowing a means through some other route to continue transporting crude oil.

In the last four years, it has become clear, as reinforced by Senator Peters at the start of the hearing, that the Straits is “the worst place for an oil pipeline in the Great Lakes,” and that we must find a way to take hold of this unacceptable risk and end it. For example, strong currents have continuously scoured the rocks and soil under the heavy pipeline designed to lay on the bottom of the lakebed; in an attempt to patch a failing design, Enbridge, with the help of Michigan’s DEQ, has been able to install anchor supports to elevate the line above the lakebed since 2001 as a “repair,” with little to no notice to the public. There are now 150 supports holding up the line, and an application to the DEQ for 48 more. That means nearly three miles or one-third of the original design has been totally changed, and the stage is set for more and more “repairs” without any application, determination, and legal authorization as required for altered and new pipeline designs or structures on the bottomlands of the Great Lakes under our Great Lakes Submerged Lands Act. If our leaders forced Enbridge to apply for new authorization of this serious, never-before-reviewed change, Enbridge would have to show no “Tier 1″ risk and no alternative– finally, the substance and risk and fate of the Straits and Great Lakes and citizens would be under the rule of law.

Also, in the last four years, strategic organizing from Oil and Water Don’t Mix, a consortium of organizations like Groundwork Center, Michigan Environmental Council, Sierra Club, the tribes, Northern Michigan Environmental Action Council, and many others have fostered tens of thousands of letters, public comments, all urging state leaders to end this catastrophic risk that puts oil above the state’s and its citizens’ paramount interest and public trust in water and the Great Lakes.

Nearly 70 communities have passed resolutions calling for decommissioning or ending the flow of oil in Line 5, as have approximately 15 tribes and tribal organizations. This has led to a Pipeline Advisory Board questioning the lack of action by the state, conflicts of interest in a risk study, and questioning whether Line 5 should be allowed to continue in light of reasonable adjustments and alternatives elsewhere within Enbridge’s larger system.

Then, last fall, Governor Snyder announced he’d signed an agreement with Enbridge that allows Enbridge to pick an option to replace Line 5 with a new line in the Straits. In other words, Enbridge was given the green light to replace Line 5, continue Line 5 in the Straits until the replacement was operational in seven years, and avoid the rule of law.

No wonder Senator Peters held the hearing to launch a process to find out why the federal regulatory framework hasn’t done more. As urged by the Senator and agreed to by other panelists at the hearing, the Straits and Great Lakes demand a far more responsive legal framework than PHMSA safety code inspections and wrist slapping or Coast Guard after-the-fact response and cleanup actions. And it’s not just the Great Lakes. There are thousands of miles of crude oil pipelines and thousands of communities, lakes, streams, groundwater, drinking water and other sensitive environments that have been damaged or are threatened.

We need go no farther than the 2010 Enbridge Kalamazoo River rupture and disaster or the Deep Horizon debacle in and along the beaches of the Gulf of Mexico.

Based on the testimony of the panelists and careful questioning of Senator Peters, here is what the record looks like and what we might expect to address Line 5 and many other oil pipeline risks across the United States and, hopefully, beyond our borders.

First, after accidents like the anchor strike that broke the utility line, released pollutants into the Straits and was reported by Enbridge to have dented Line 5, inspections by PHMSA review the company’s evaluation and self-reporting, and the Coast Guard completes assessments of conditions and response actions only after a spill of pollutants. As it turned out, PHMSA did not independently inspect the dents. The Coast Guard has no jurisdiction except to respond to the spill of the pollutant from the utility line. Fortunately, an assessment and inspection performed 2.5 weeks later revealed a “gouge,” not just a dent.  

Second, while PHMSA has legal authority to force shutdown of a pipeline, it has never ordered one decommissioned and removed. The state, through its public trust authorities, has the power to do so, but so far, it seems, has done everything possible not to shut down Line 5.

Third, Enbridge and others maintain that the Great Lakes and Line 5 are not “offshore” hazardous or crude oil pipelines, and are not regulated as strictly as offshore lines and oil wells. The U.S and Michigan supreme courts have consistently ruled that the Great Lakes are seas, like the oceans, and subject a high-degree of protection under the public trust doctrine.

Fourth, PHMSA has not certified the Great Lakes as a critical “environmentally sensitive” area that would impose, at least, stronger safety measures, inspections, or assessments.

Fifth, inspections and assessments are not “hands-on” and are often delayed or too late to quickly determine the gravity of the condition of a pipeline.

Sixth, there is no legal process under federal law or regulations that comprehensively regulates, assesses, and determines whether to shut down high risk pipelines– those that have failed or those in sensitive areas like the Great Lakes. So, while most states, like Michigan, have the authority to locate or terminate high risk pipelines, particularly where they are old, failing, and alternatives exist, the federal government has no framework to do much at all.

Senator Peters has done a great service, and his Senate Commerce Committee needs to carry the day by continuing, as directed by the senator, to record and investigate. The goal should be to establish a framework for the Senate, with the help of experts and citizens, to find a way to overhaul these laws and rules that are supposed to protect the public. For starters, here are some suggestions:

  1. Amend federal laws, such as the Clean Water Act or the PHMSA authorizing law, to establish an authority for the certification of oil and other hazardous liquid or materials pipelines.
  • New pipelines would have to go through an application, hearing, full transparent information and disclosure, evaluation and study process to determine the risk, potential impacts and damage based on a true “worst case scenario,” and the full range of feasible and prudent alternatives.
  • Old pipelines, say older than 40 years, or less if beyond their “useful safe lifeline” would have to apply for certification, showing that they do not involve high risks or catastrophic harm or serious impacts based on a worst case scenario, and if the risk is high, they must be shut down if there exists a feasible and prudent alternative or the operation if continued could result in a high-magnitude of harm to the public health, safety, and welfare.
  • New pipelines proposed for the Great Lakes or equivalent paramount public trust waters or natural resources are prohibited.
  • Owners and operators of old pipelines in, over, or under the Great Lakes or equivalent public trust waters and natural resources must apply for certification and a determination that there is no feasible and prudent alternative with reasonable adjustments to other routes, design capacities, and locations within the overall crude oil pipeline system and logistics; if there is no feasible and prudent alternative, there would be a determination of remaining “useful life” and that the risks are less than a “Tier 1″ based on a competent credible worst case scenario.
  1. All applications, and supporting materials would be public records and made available, all applications would be subject to public hearings, comments, and testimony by all interested persons and members of the public, and there would be direct citizen suit enforcement similar to that in the Clean Water Act.
  1. All applications would be subject to the National Environmental Policy Act environmental impact statement process.
  1. Federal agencies involved would cooperate with state agencies, including shared jurisdictional and information agreements, and the federal process would not preempt or supplant the state process. State proceedings involving use or potential impact to their sovereign water and other natural resources, or public trust interests in those resources, would not be preempted and could impose more stringent standards or otherwise reserve the state’s property power and public trust in its waters and natural resources to prohibit any existing or proposed new pipeline (which is the law in Michigan and other states today).

Jim Olson, President and Founder

In short, thank you, Senator Peters and the Senate Commerce committee, and those panelists who participated in the hearing Monday: It is far better to remove these regulatory holes with a comprehensive approach to prevent unacceptable risks entirely than to face the catastrophe of a gaping hole in Line 5 in the Great Lakes or other high-risk lines across the country.

End Enbridge Stonewalling

Observations by some that the State of Michigan has no regulatory authority over hazardous liquid pipelines is correct to the extent that it is understood in the context of  safety regulations — standards, inspection and enforcement; safety code enforcement is covered by the federal PHMSA law, regulation and agency.  However, it is not true that Michigan does not have authority to demand the information Enbridge keeps under its control, and it is not true that Michigan does not have enforcement authority.

As concluded by the Michigan Petroleum Pipeline Task Force Report, 2015, Michigan has authority under the 1953 Easement, including the continuing obligation of Enbridge to conduct itself with prudence at all times, and it has authority under:

(1) its sovereign ownership of bottomlands and waters of the Great Lakes since statehood in 1837 under “equal footings” doctrine. Michigan took title in trust to protect the basic rights of citizens as beneficiaries of a public trust imposed on the state.  This means the state has authority and duty to take actions to protect the public trust as a matter of its “property and public trust power,” whether or not it passes regulations on hazardous liquid pipelines or not.  Under public trust authority and principles, the state cannot transfer or shift control over waters and bottomlands held in trust to any private person or corporation; the retention of information by Enbridge that is required to protect the public trust or to determine whether the public trust is threatened with high unacceptable harm or risk violates this public trust principle, and the Attorney General can demand and take all action necessary to compel Enbridge to turn it over, indeed, even the easement recognizes and is subject to this public trust.

(2)  The Michigan Public Service Commission has authority over siting and locations of crude oil pipelines like Enbridge’s and others.  Anytime Enbridge or some other corporation applies for a change or improvement to the structure it regulates as to siting, including its consideration of risks to property and health or environment and alternatives, the MPSC has authority to demand all relevant information needed to  make a decision on the application for such change.  Unfortunately, the MPSC has not insisted on the full range of information it could demand, including alternative pipeline routes and capacity to Line 5 in the Straits of Mackinac when it doubled capacity for Enbridge’s new replacement for the failed Line 6B that ruptured into the Kalamazoo River in 2010.

(3) Finally, the Michigan Environmental Protection Act, Part 17,  NREPA, imposes a duty to prevent and minimize harm to air, water, and natural resources, and this includes the right to take action where necessary when a corporation’s actions are contrary to this duty to prevent and minimize harm; the MEPA, as it’s  often called, is derived from Art 4, Sec. 52 of the Michigan Constitution.

So while Michigan ponders the aging or new pipeline infrastructure for hazardous liquids and crude oil, the state, including the Attorney General, have the authority to take immediate action to prevent the high risk of Line 5 or other pipelines.  And, where that risk involves the devastating harm that undoubtedly may occur in the Straits, action should be taken immediately pending the coming one to two years of pondering.  In short, there is no legal excuse or justification for Governor Snyder, Attorney General Bill Schuette, or the Department of Environmental Quality to put up with Enbridge’s self-serving stonewalling on disclosure of all information related to its Line 5 hazardous crude oil pipeline.  And, there is no excuse or justification for our state leaders to delay action to eliminate the unacceptable harm from the Straits or other Michigan waters from Line 5.



FLOW signs-on to Letter Requesting Survey of Pipelines Crossing Michigan’s Waters

A letter sent to the Pipeline and Hazardous Materials Safety Administration included with the authorized signatures of…

Anglers of the Au Sable • Clean Water Action • Detroit Riverkeeper • Dwight Lydell Chapter Izaak Walton League of America • FLOW (For Love of Water) • Friends of the AuGres-Rifle Watershed • Flint River Watershed Coalition • Friends of The Boyne River • G.R.E.A.T (Grand River Environmental Action Team) • Grand Valley Metro Council • Great Lakes Council of the International Federation of Fly Fishers, Inc. • Great Lakes Environmental Law Center • Gull Lake Quality Organization • Huron River Watershed Council • Les Cheneaux Watershed Council • Michigan Environmental Council • Save the Wild U.P. • Michigan Land Use Institute • Michigan League of Conservation Voters • Michigan Trout Unlimited • Miller-Van Winkle Chapter Trout Unlimited • Muskegon River Watershed Assembly • Saginaw Field and Stream Club • National Wildlife Federation • respectmyplanet.org • • Sierra Club Michigan Chapter • Sturgeon For Tomorrow •The Watershed Center ~ Grand Traverse Bay • Tip of the Mitt Watershed Council • Upper Black River Council • Upper Peninsula Environmental Coalition • West Michigan Environmental Action Council

The Honorable Cynthia I. Quarterman

Administrator Pipeline and Hazardous Materials Safety Administration

U.S. Department of Transportation

East Building, 2nd Floor

1200 New Jersey Ave.,SE

Washington, DC 20590

Director Linda Daugherty

Pipeline and Hazardous Materials Safety Administration

Office of Pipeline Safety

Central Region Office

901 Locust Street, Suite 462

Kansas City, MO 64106

July 7, 2014

RE: Water Crossing Survey of Michigan Pipelines

Dear Administrator Quarterman and Director Daugherty:

The undersigned organizations hereby request that the United States Department of Transportation, Pipeline and Hazardous Materials Safety Administration (PHMSA) conduct a water crossing study to evaluate the risk of ruptures and leaks in all sections of pipeline that cross Michigan’s rivers, streams, and lakes.

The Great Lakes represent one-fifth of the world’s fresh surface water. Forty million people rely on the Great Lakes for their drinking water, and millions more benefit from the commerce and business that depend on the waters of the Great Lakes.

Michigan is the Great Lakes state with more freshwater coastline than any other state in the nation. Our lakes, rivers, and streams define not only our boundary but also provide a path to environmental, economic, and social progress. The health of the people of Michigan, our economy, and our quality of life depends on clean water. The Great Lakes ecosystem provides unparalleled recreational and economic opportunities to the 10 million people that call Michigan home. Studies show that the Great Lakes provide Michigan with 823,000 jobs that represent nearly 25 percent of Michigan’s payroll. Additionally, Great Lakes tourism generates billions of dollars each year from those who spend leisure time around our lakes and streams.

Pipelines crossing Michigan’s rivers, streams, and Great Lakes put these resources at risk – threatening our health and economic viability. These treasures demand increased attention from the Pipeline and Hazardous Material Safety Administration to accomplish its pipeline safety mission by ensuring the safety of pipeline crossings in Michigan waterways.

We request that PHMSA conduct a water crossing survey of Michigan pipelines to:

  • Develop a comprehensive map of pipeline waterway crossings;
  • Determine the status of all existing pipelines running underneath Michigan’s water bodies;
  • Evaluate the pipeline integrity and risk of ruptures and leaks at each pipeline crossing; and
  • Outline what should be done to prevent future pipeline failures.

We request that PHMSA review all the documentation necessary to determine the status of all pipelines running under Michigan’s rivers, streams, and lakes. PHMSA should analyze and critique the structural integrity of each pipeline and the standards required at the time of installation of each pipeline to assess the risk of ruptures and leaks. The review should include a variety of factors including each pipeline’s age, thickness, and degree of corrosion; the condition and operation of all shut-off valves; the valve distances from the streams or rivers; what products the pipelines are carrying; the pipeline diameters and burial depth; and what pressures the pipeline products are under. It should also include identification of any critical information gaps that exist in the pipeline network within Michigan.

In addition, PHMSA should work directly with pipeline operators to complete the water crossing survey. PHMSA should request any and all information related to structural integrity and potential risks from pipeline operators whose infrastructure crosses a river, stream, or lake. PHMSA should also require that companies fill any critical information gaps found during the analysis. This may prompt operators to perform in-depth studies/analyses on all their major pipeline water crossings. All of this information can then be used to make recommendations to prevent any future failures that damage Michigan’s pristine rivers, streams, and lakes.

The state has various programs related to the regulation of pipelines. However, the Michigan Public Service Commission (MPSC) is the only state agency with direct regulatory authority over safety of pipelines. The MPSC’s authority is restricted to natural gas pipelines. All other safety-related authority, including jurisdiction of hazardous liquid pipelines, rests with PHMSA and preempts state regulation of safety factors. Therefore, it is incumbent upon PHMSA to fulfill its mandate and conduct a study to ensure the protection of Michigan’s citizens and environment from the risks that are inherent in the transportation of hazardous materials by pipeline.

The Great Lakes and inland waters are Michigan’s natural resource treasures; they shape our state, our lives, and our economy. The waters of Michigan have already suffered as a result of a July 26, 2010 pipeline rupture that released an estimated 843,000 gallons of crude oil into Talmadge Creek and the Kalamazoo River, a Lake Michigan tributary. It is imperative that history not be repeated elsewhere in Michigan. It is critical to ensure the integrity of pipelines at major water crossings that affect rivers, streams, and lakes in Michigan. To do this, PHMSA must compile a comprehensive inventory of pipelines at water crossings and determine if they are currently safe.

Therefore, the undersigned organizations formally request that the United States Department of Transportation, Pipeline and Hazardous Materials Safety Administration conduct a water crossing survey of Michigan pipelines.

If you have any questions regarding this request or would like to discuss further, please contact Jennifer McKay at Tip of the Mitt Watershed Council at (231) 347-1181 or by email at jenniferm@watershedcouncil.org.


Bruce Pregler President Anglers of the Au Sable

Nic Clark Michigan Director Clean Water Action

Robert Burns Detroit Riverkeeper

Duane De Vries President Dwight Lydell Chapter Izaak Walton League of America

Rebecca Fedewa Executive Director Flint River Watershed Coalition

Liz Kirkwood Executive Director FLOW (For Love of Water)

Jacque Rose Co-Founder Friends of the AuGres-Rifle Watershed

Carl J Wehner President Friends of The Boyne River

Kenny Price President G.R.E.A.T (Grand River Environmental Action Team)

Wendy Ogilvie Director of Environmental Programs Grand Valley Metro Council

Jim Schramm President Great Lakes Council of the International Federation of Fly Fishers, Inc.

Nick Schroeck Executive Director Great Lakes Environmental Law Center

Susan Houseman Vice President Gull Lake Quality Organization

Laura Rubin Executive Director Huron River Watershed Council

G.K. Herron Treasurer Les Cheneaux Watershed Council

James Clift Policy Director Michigan Environmental Council

Hans Voss Executive Director Michigan Land Use Institute

Erica Bloom Policy Manager Michigan League of Conservation Voters

John Walters Vice Chairman Michigan Trout Unlimited

Gregory Walz President Miller-Van Winkle Chapter Trout Unlimited

Gary A. Noble Executive Director Muskegon River Watershed Assembly

Andy Buchsbaum Director, Great Lakes Office National Wildlife Federation

Matt Wandel Founder & Managing Director respectmyplanet.org

Alexandra Thebert Executive Director Save the Wild U.P.

Anne Woiwode State Director Sierra Club Michigan Chapter

Brenda Archambo President Sturgeon For Tomorrow

Christine Crissman Executive Director The Watershed Center ~ Grand Traverse Bay

Gail Gruenwald Executive Director Tip of the Mitt Watershed Council

Carol Moncrieff Rose Chair Upper Black River Council

Nancy Warren Acting President Upper Peninsula Environmental Coalition

Nicholas Occhipinti, MPP Policy and Community Activism Director West Michigan Environmental Action Council

Mike Meyer President Saginaw Field and Stream Club

cc: Rick Snyder, Governor, State of Michigan

Dan Wyant, Director, Michigan Department of Environmental Quality

Bill Schuette, Attorney General,

State of Michigan State of Michigan Congressional Delegation

Allan Beshore, CATS Manager, PHMSA Harold Winnie, CATS Manager, PHMSA

Harold Winnie, CATS Manager, PHMSA