Tag: Pipeline 5

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.

Courtroom Showdown Coming Friday over Line 5 Shutdown

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

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

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

By Jim Olson

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

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

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

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

 

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

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

Growing Pile of Evidence against Line 5

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

Courtroom Context on May 22

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

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

A Powerful Mix of Duty, Integrity, Courage on Display

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

Enbridge’s Attempt to Get into Federal Court Is Two Years Too Late

Published on December 16th, 2021 by - Blog Posts, News, Reports & Media Releases

Since June 2019, Enbridge has agreed that  state court is the proper venue for litigating Michigan Attorney General Dana Nessel’s lawsuit that seeks to shut down Line 5 in the Straits of Mackinac under public trust and state environmental laws. That was until Wednesday, when the Canadian pipeline company filed a legal notice suddenly seeking to remove that lawsuit to federal court.

“The statutory deadline for removing this case to federal court passed over two years ago,” said Zach Welcker, Legal Director at FLOW, the Great Lakes law and policy center based in Traverse City. “Enbridge is making a frivolous argument that a federal court’s recent jurisdictional ruling in a separate case should give it another bite at the apple, but the apple is long gone as a matter of civil procedure.”

It’s yet another example of Enbridge, which is actively defying Gov. Gretchen Whitmer’s lawful order to shut down Line 5, flouting the law.

“This is Enbridge’s most egregious delay tactic to date. We hope the court rejects this maneuver and quickly puts an end to Enbridge’s gamesmanship.,” said FLOW Executive Director Liz Kirkwood, an environmental attorney. “ Line 5 is a ticking time bomb that threatens the Great Lakes, shoreline communities, the drinking water supply, and thousands of jobs that depend on clean water and tourism.”

Background from FLOW:

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

Why Do Canadians Seem to Care So Little about Protecting the Great Lakes from Line 5?

Published on October 5th, 2021 by - Blog Posts, News

Dr. Daniel Macfarlane, Institute of the Environment and Sustainability

By Daniel Macfarlane

As a Canadian living in Michigan, I’ve never seen a state or province that identifies with the Great Lakes the way Michigan does: their silhouette adorns t-shirts, water bottles, and bumper stickers everywhere. At the same time, I would say that the Great Lakes-St. Lawrence system is woven into the nationalisms and founding mythologies of the Canadian nation-state, especially in central Canada, in a way that isn’t true of the United States. You might even say that the Great Lakes are in the DNA of the territory now called Canada.

The Great Lakes and St. Lawrence River are the historic Canadian heartland—the equivalent of the East Coast of the United States. All three founding nations of Canada (Indigenous, British, and French) crowded the shores of these sweetwater seas and the St. Lawrence River. Nowadays, the Great Lakes-St. Lawrence basin hosts the political, financial, and industrial hubs of Canada, and about half the country’s population.

But if the Great Lakes are so important to Canadians, why do they seem to care so little about protecting them? Specifically, I’m talking about Enbridge’s Line 5 pipeline.

Line 5, a hydrocarbon pipeline, runs through Michigan’s Upper Peninsula, across the state’s venerated Straits of Mackinac, and then through lower Michigan to Sarnia, Ontario. Built nearly 70 years ago, and in a deteriorating condition, Line 5 daily transports about 23 million gallons of oil and natural gas liquids from the Canadian West.

Line 5 is a ticking time bomb, especially at the Straits, where Enbridge is proposing a tunnel for this decaying and dangerous dual pipeline—but if you read the fine print, it will take a decade to build and taxpayers will be on the hook for the risky endeavor.

If the Great Lakes are so important to Canadians, why do they seem to care so little about protecting them? Specifically, I’m talking about Enbridge’s Line 5 pipeline.

In November 2020, Michigan Governor Gretchen Whitmer revoked the 1953 easement granted to the Lakehead Pipe Line, now Enbridge, for the Straits crossing. Enbridge ignored the Governor’s May 12 deadline to shut down Line 5, with backing from the Canadian government, and the matter was sent for mediation. But in early September, the State of Michigan moved to break off this “unproductive” dialogue.

On October 4, 2021, the Canadian government officially invoked a bilateral 1977 Pipeline Transit Treaty that applies to pipelines that cross from one country into the other and back. Governor Whitmer said she was “profoundly disappointed” with the Trudeau government. And she should be, since Ottawa is essentially shilling for a private oil company. 

The status quo is going to end in disaster. Canada is a climate villain, marching itself and the rest of the world to “global weirding.” Backing the likes of Enbridge is not only bad for the planet, it is bad economics. 

In any case, the 1977 treaty is a diplomatic agreement not to interfere with or levy any fees or duties on hydrocarbons that are already flowing—“in transit” to use the treaty language—and should have no applicability on the bigger question of whether a state or province wants a foreign pipeline in their territory. In other words, the intention of this treaty was not to stop a state (or province) from exercising its sovereignty over its own public waters or deciding whether or not to revoke permission for a foreign pipeline crossing its territory; the point was to stop an arbitrary or gouging bait-and-switch where a political jurisdiction acting as the middle man gives consent to a pipeline and then jacks up the price.

Many Canadians have been boisterously loud about stopping new and existing pipelines within Canada. But why are Canadians so seemingly ignorant, or ambivalent, about Line 5? A major reason is certainly that most of the fossil fuels sent through Line 5 ends up in Ontario and Quebec. Of course, Canada is also a type of petro-state, addicted to the profits and efficiencies of fossil fuels; many have a vested interest in maintaining the status quo.

Just imagine how Canadians would react if the situation were reversed, and the U.S. refused to stop a pipeline that a province didn’t want. Moreover, if Canada is serious about reconciliation, it needs to stop pipelines. Many pipelines in Canada threaten the territories of numerous bands and First Nations, often without their consent and in conflict with the spirit of treaties and agreements.

But the status quo is going to end in disaster. Canada is a climate villain, marching itself and the rest of the world to “global weirding.” Backing the likes of Enbridge is not only bad for the planet, it is bad economics. 

A recent report stated that close to 85% of Canada’s fossil fuels need to stay in the ground if the country wants to have a decent chance of meeting the 1.5 degree Celsius goal in the Paris Agreement.  According to another analysis, building the Line 5 tunnel and continuing the pipeline could contribute an additional 27 million metric tons of greenhouse gases to the atmosphere annually, generating $41 billion in climate damages between 2027 and 2070.

Those climate damages are going to haunt Canada as well as the U.S. Moreover, the models show that a Line 5 spill at the Straits of Mackinac would likely flow into the Canadian part of Lake Huron. Enbridge’s track record doesn’t exactly inspire confidence. I live and teach in Kalamazoo, where in 2010 Enbridge’s Line 6B had a catastrophic failure into the eponymous river. A pipeline rupture would be all but impossible to rectify quickly in the Straits when there is ice cover in winter. 

Just imagine how Canadians would react if the situation were reversed, and the U.S. refused to stop a pipeline that a province didn’t want. Moreover, if Canada is serious about reconciliation, it needs to stop pipelines. Many pipelines in Canada threaten the territories of numerous bands and First Nations, often without their consent and in conflict with the spirit of treaties and agreements.

There are alternatives for getting energy to the areas of Canada served by Line 5. These can be used in the short-term. But, make no mistake, the goal here is not to just shift fossil fuels to a different pipeline. The end game is an energy transition, and a just one at that.  In the long run, stopping Line 5, and other pipelines, could actually be doing Canadians a favor: weaning them off of fossil fuels and their infrastructure, and protecting the Great Lakes and the climate.  What could be more neighborly? 

Daniel Macfarlane is an Associate Professor in the Institute of the Environment and Sustainability at Western Michigan University. He is also a senior fellow at the Bill Graham Center for Contemporary International History, University of Toronto, and President of the International Water History Association. His research and teaching focus on the Great Lakes-St. Lawrence basin, and he is the author or co-editor of four books, including Border Flows: A Century of the American-Canadian Water Relationship, and he is completing a book on Canada-U.S. environmental and energy relations.

Coordinated Cross-Border Protests Call on Canada to Support Line 5 Shutdown

Published on September 1st, 2021 by - Blog Posts, News

More than 40 protestors assembled on the Detroit Riverwalk Wednesday morning to call on the Canadian government to support Michigan Governor Gretchen Whitmer in seeking to decommission the Enbridge Line 5 oil pipelines in the Straits of Mackinac. The Detroit protest—staged near the Canadian consulate—occurred in solidarity with simultaneous demonstrations across the Detroit River in Windsor, Ontario, as well as in Chicago and Milwaukee. At each protest site, organizers sent Canadian Prime Minister Justin Trudeau jars of fresh Great Lakes water as a symbol of what’s at risk if Line 5 continues to operate.

Speakers at the Detroit protest included Sean McBrearty from the Oil & Water Don’t Mix campaign, Christy McGillivray from Sierra Club, Jamie Simmons from Michigan Climate Action Network, and Andrea Pierce from the Michigan Democratic Party’s Anishinaabek Caucus and Little Traverse Bay Bands of Odawa Indians.

“Michigan and independent researchers have studied this intensively and shutting down the Line 5 pipeline without replacing it is feasible. It’s the only way to truly protect our Great Lakes and it’s the only way forward at this point in the climate crisis,” Simmons said.

Line 5 Oil Tunnel: U.S. Army Corps Environmental Study Marks a Return to the Rule of Law

Published on July 14th, 2021 by - Blog Posts, H2Olson, News

By Jim Olson and Nora Baty

Jim Olson is FLOW’s Founder and Legal Advisor

In recognition of the critical importance of the Great Lakes and the rule of law, the United States Army Corps of Engineers (USACE) announced June 23 that the federal agency will conduct an environmental impact statement (EIS) for Enbridge’s Line 5 oil tunnel proposed for the Straits of Mackinac–handing citizens and communities battling the existential threat of climate change an important victory.

These evaluations delve into critical questions of risks, impacts, and alternatives—particularly a “no action” alternative when it comes to the falling demand for crude oil and the blazing heat waves across North America. Because of the depth of this evaluation and based on past practice, the EIS process will likely take three-and-a-half years to complete. While this may result in no tunnel or delay a tunnel, if it is ever built, the decision points to an even more critical action: It’s time to double-down on an orderly shutdown of the perilous Line 5 Pipelines in the Straits of Mackinac.

“The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs.”

Nora Baty is a Milliken Law and Policy Intern at FLOW.

Governor Whitmer and the Department of Natural Resources, under their solemn public trust duty to exercise prudence to protect the Great Lakes from a massive oil spill that would cost more than $6 billion, had little choice but to revoke the 1953 easement and close the 70-year old hazard. With the falling demand for crude oil, and capacity in other pipelines that criss-cross the continent, adjustments in oil transport can meet Canadian demand and the relatively minor need for crude oil from Line 5 for Michigan.

Finally a Full and Comprehensive Environmental Impact Statement

Under the National Environmental Policy Act (NEPA), an EIS is required for major projects “significantly affecting the quality of the human environment.” The law, as contemplated, established rules to ensure that the federal government considers the health and environmental effects and alternatives to actions proposed by corporations seeking permits. Under the NEPA rollbacks by the Trump Administration, agencies and citizens had little chance to trigger an EIS under NEPA, despite the magnitude of the action and environmental risks.

Now under the Biden Administration, “The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs,” according to a press release. The USACE’s decision to require an environmental impact statement and its commitment to the rule of law are important to ensure there is a robust record examining the impacts of the proposed project, using scientific data and expert opinions, and that alternatives to the project are adequately considered. 

Courts and agency decisions have rejected projects with incomplete scientific data or that fail to assess alternatives to avoid environmental impacts. Earlier this year, Michigan Administrative Law Judge Daniel Pulter denied the Back-Forty permit for a massive mining project in Michigan’s Upper Peninsula because the underlying hydrogeologic information, wetland impacts, and the potential alternatives were not adequately evaluated. 

FLOW’s legal team aided in this effort in December 2020 by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority, Clean Water Action—Michigan, FLOW, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350. The comments demonstrated a serious gap in Enbridge’s incomplete evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that the company at one point characterized as solid bedrock.

This EIS decision marks a return to NEPA’s mandate that the federal government review major projects to the “fullest extent possible.” This is particularly important for Line 5 in light of the decreasing demand for crude oil and the shift in Canada and the U.S. to renewable energy (wind, solar, conservation), and a “no action” alternative to the tunnel is more likely than ever.

Line 5 Is No Longer Necessary

The no action alternative for a proposed project, such as Enbridge’s proposed oil tunnel, looks at the effects of not approving the action under consideration. Here, Enbridge will need to prove, first, that the tunnel and Line 5 are even needed, and second, if there is a need, that there are no other routes or existing lines into Ohio, Michigan, and into Canada. According to FLOW’s experts, available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competition without threatening our public waters, including Enbridge’s Line 78 across southern Michigan.

Unfortunately for Enbridge, and fortunately for the climate, the energy landscape is shifting and renewable energy growth is accelerating. At the same time, the beginning of Line 5 tunnel construction looks farther and farther away. One study found that such federal reviews, known as environmental impact statements, take an average of nearly 3-and-a-half years to complete, and then permits and construction would take years longer after that.

The tunnel may or may not be constructed. While Enbridge continues to operate Line 5 in the Straits, violating the law, and threatening the Great Lakes and the region’s economy, the existing dual pipelines pose an unacceptable risk of massive harm to the Great Lakes, communities, citizens, and businesses. The reality is that we can no longer wait for Line 5 to be shut down. It is time for the court process and the State and citizens of the Great Lakes Basin to bring the State’s revocation of Enbridge’s 68-year old easement and pipeline to a close.

Our Great Lakes – Hostage to the ‘Most Destructive Industrial Project in Human History’

Published on June 3rd, 2021 by - Blog Posts, News

Photo: The Alberta tar sands. Source: Garth Lenz

By Skip Pruss

FLOW Legal Advisor Skip Pruss formerly served as chair of FLOW’s board of directors and as director of the Michigan Department of Energy, Labor, and Economic Growth.

Some 800 miles north of the Montana border, past vast prairie grasslands, clear, untroubled lakes, and pristine boreal forests, lies a place of profound devastation and desolation. Just north of Fort McMurray in Northeast Alberta, Canada, one encounters an abrupt alteration of the landscape—a ravaged wasteland of disturbed lands and metallic lakes of oil-sheened process waste. 

A handful of Canadian tar sands. Source: Suncor.

Welcome to the place where bitumen—a thick, viscous, oil-containing soil having the consistency of coffee grounds—extracted for later upgrading and refining into tar sands oil, is ultimately destined to cross the Great Lakes watershed by pipeline.

This miasma of environmental ruin lies proximate to the confluence of five rivers—the Clearwater, the Christina, the Hangingstone, the Horse, and the Athabasca—the last designated as a Canadian Heritage River for its historical and cultural significance. 

Visible from space, the Alberta tar sands have been labeled “the largest and most destructive industrial project in human history.”  The oil-sheened tailing ponds, unlined and vulnerable to breach in heavy rains, cover 220 square kilometers. The Guardian reports that, “A failure of a single tailings dyke could result in contaminated waterways from Alberta’s Athabasca region through to the Arctic Ocean, that would make even the Exxon Valdez disaster look mild by comparison.” 

Effacing Nature

It is here, in Alberta, where primordial forces endowed the region with vast underground seams of bituminous sands.  The deposits are a mixture of sand, clays, water, and bitumen from which oil can be extracted. Unlike conventional oil wells, where pumps or underground pressure brings oil to the surface, extracting oil from sands and clay requires a series of processing steps and vast amounts of energy.  

The two methods of extracting tar sand oil involve in-situ treatment—a process of heating the bitumen with steam pumped under high pressure underground to extract the oil or strip mining the bitumen when the deposits are closer to the surface. In situ extraction is more energy intensive, yielding more greenhouse gas emissions.  Strip mining uses about 10 times as much water as in situ processing.

Both methods of bitumen extraction are energy intensive, resulting in cumulative greenhouse gas emissions from the extraction, processing, and transportation, 4-5 times greater than emissions attributable to the production of conventional oil. More recent scientific measurement efforts indicate that CO2 emission intensities attributable to tar sands mining are much larger than those previously reported.

Pipelines to the Great Lakes

An elaborate two-way system of pipelines stretching across the continent has been constructed to deliver Alberta’s tar sand oil to refineries for additional processing. After the extraction process, raw bitumen’s high viscosity is resistant to flow. To pump it through pipelines, it must be diluted with a thinning agent—typically natural gas condensates produced from other oil and gas wells that are transported by pipelines to Alberta. The “diluents,” once blended with the bitumen, yield a substance called “dilbit,” which is then upgraded to crude oil and pumped by pipelines for further refining.

Enbridge pumps heavy tar sands oil through Line 6B (recently renamed Line 78) across southern Michigan enroute to Sarnia, Ontario, while Enbridge Line 5 carries light crude oil and light synthetic crude upgraded from dilbit through the Straits of Mackinac and eventually also to Sarnia.

Pipeline failures are routine. In the last two decades alone, the Pipeline and Hazardous Materials Safety Administration (PHMSA) reports more than 12,500 pipeline incidents resulting in $10 billion dollars in damages and almost 1,500 injuries and fatalities. Accidents involving dilbit are particularly problematic.

It was the catastrophic failure of Enbridge’s pipeline 6B that poured more than 1.2 million gallons of dilbit from the Alberta tar sands into into Talmadge Creek, a tributary of the Kalamazoo River, sickening more than 300 people, permanently driving more than 150 people from their homes and properties, and destroying wildlife and habitat. The disaster scarred the landscape and left oily residue to this day.  Following the spill, the volatile hydrocarbon diluents evaporated, leaving the heavier bitumen to sink in the water column, vastly complicating remedial efforts to remove the tar sands crude from the environment. The investigation following the massive spill by the National Transportation Safety Board found “pervasive organizational failures” within Enbridge, including deficient integrity management procedures and inadequately trained personnel.

“This investigation identified a complete breakdown of safety at Enbridge. Their employees performed like ‘Keystone Kops’ and failed to recognize their pipeline had ruptured and continued to pump crude into the environment.”

— Deborah A.P. Hersman, former NTSB Chairman

Crossing the Great Lakes

By any objective measure, the Great Lakes are a magnificent and unique natural endowment—the most valuable freshwater system on earth, harboring 84 percent of all fresh surface water in North America and 95 percent of all fresh water in the United States. The Great Lakes Region, home to 40 million Canadian and U.S. citizens, constitutes the 3rd largest economy in the world with an annual GNP exceeding $6 trillion.

Line 5, Enbridge’s 68-year old pipelines, cross in the open waters of the Straits of Mackinac, the intersection of Lakes Michigan and Huron. Line 5 has a record of recurrent failure, with 33 separate leaks of over 1.1 million gallons of oil reported by PHMSA since 1968—roughly the same amount as Enbridge’s 2010 spill into the Kalamazoo River watershed. Dispersion modeling by the University of Michigan has shown that a Line 5 failure could spread crude oil and irreparably damage more than 700 miles of U.S. and Canadian coastlines, and thousands of square miles of open water and aquatic resources, wreaking billions of dollars of economic and environmental havoc on property owners and coastal communities. 

The vulnerability of Line 5 to a catastrophic accident could not be more clear. Due to strong, alternating currents that flow both east and west under the Straits, the bottomlands have eroded under multiple stretches of the pipelines.

Enbridge has responded to the pervasive lakebed scouring and erosion with a media blitz that glosses over the endangered conditions and patchwork of incremental, remedial actions that have now elevated approximately 3 miles of the pipelines over the lakebed using over 200 saddle anchors as supports. The new configuration has made the pipelines vulnerable to rupture or failure from anchor strikes and cable drags from ships navigating the narrow, busy shipping lane in the Straits.

A Catastrophic Accident Is Inevitable   

Predictably, the pipelines have been repeatedly struck by wayward anchors from passing vessels. An anchor strike in April 2018 gashed and dented the pipelines. The most recent impacts to the pipeline, discovered last year, severely damaged a pipeline support and was likely attributable to vessels under contract to Enbridge that were conducting pipeline maintenance and geophysical work for an ill-conceived, replacement tunnel proposed to house the pipelines.

The reality is that maritime accidents do happen. Great Lakes freighters have been known to lose power, have steerage failures, or drop anchors unexpectedly. In the narrow Straits of Mackinac, high vessel traffic and the proximity of the Mackinac Bridge may require ship captains to drop anchors unexpectedly to avoid collisions with the bridge or other vessels. In such circumstances, the navigation hazard of the now elevated underwater pipelines is an afterthought.

Line 5—An Unacceptable Risk

Enbridge is rolling the dice every day on Line 5 in the Great Lakes. The fact that Enbridge hasn’t already had a catastrophic rupture of the pipeline is sheer, dumb luck. A Line 5 oil spill could deliver a more-than $6 billion blow in economic impacts and natural resource damages to Michigan’s economy and could trigger a domino effect of damage disrupting Great Lakes commercial shipping and steel production, slashing jobs, and shrinking the nation’s Gross Domestic Product by $45 billion after just 15 days, according to a study commissioned by FLOW and conducted by ecological economist Robert Richardson of Michigan State University.

Seven years ago, then Michigan Attorney General Bill Schuette commented that the Enbridge Line 5 underwater pipelines presented an unacceptable risk, stating that “you wouldn’t site, and you wouldn’t build and construct, pipelines underneath the straits today.” Yet Enbridge continues to operate the aging  pipelines in direct defiance of an order from Governor Gretchen Whitmer to shut them down.

The bottom line is that the grim and appalling environmental and economic legacy that is the Albertan tar sands now presents the greatest threat to the Great Lakes, the world’s largest and most valuable fresh surface water system. Enbridge is using its considerable economic and political clout to maintain an imminent risk and clear and present danger to coastal communities, the region’s globally unique coastal shorelines, as well as to the health and economic vitality of the entire region.   

Protection of public water for present and future generations is a categorical imperative. Line 5 must be shut down now.

Enbridge’s Proposed Oil Tunnel Would Significantly Affect and Endanger Human Environment

Published on December 9th, 2020 by - Blog Posts, News

Source of tunnel graphic: Enbridge’s 2020 application to the U.S. Army Corps of Engineers.

FLOW Executive Director Liz Kirkwood made the following statement during a U.S. Army Corps of Engineers public hearing on Monday, December 7, regarding the environmental impact of Enbridge’s proposed oil tunnel under the Straits of Mackinac.

The National Environmental Policy Act mandates Environmental Impact Statements (EISs) for all major projects that significantly affect the environment.

The proposed tunnel is, categorically, a major project and it will significantly affect and endanger the human environment. The scale, wetlands fill, landscape alternation, nearshore habitat, massive water withdrawal and chemical discharge of wastewater, and spoils represent both a major project and significant effects to the human environment.  I want to enumerate eight reasons why a full EIS is required to evaluate this proposed project.

  1. The location of the tunnel is in the heart of the largest and most valuable fresh surface water system in the world.
  2. The proposed project meets all 10 of the “intensity” factors indicating “severity of impact” under 40 C.F.R. § 1508.27.  Meeting just one of these intensity factors can necessitate an EIS.
  3. The applicant indicates that the construction of the project will use 5 water treatment additives for slurry conditioning, including bentonite, soda ash, carbon dioxide, sulfuric acid, and a flocculant/coagulant for removing suspended solids.  Enbridge notes that “additional polymer-based additives may be needed.”  The Corps must determine the composition of these additives and the risk posed by the use of all of these chemicals
  4. The proposed project will fill coastal wetlands – among the most biologically productive areas in the world – over 90 percent of the roughly 200 fish species that occur in the Great Lakes are dependent on coastal wetlands.
  5. Independent experts who studied Enbridge’s proposed tunnel plan concluded that it “raises serious concerns regarding the feasibility, integrity, and planning for the construction of the tunnel.”  More than 75 percent of the tunnel boring area is in “very poor” or “poor” quality rock conditions, the experts warned, also citing the potential for explosions because of the presence of methane gas.
  6. The State Historic Preservation Office has given notice that the recently disclosed evidence of potential submerged prehistoric sites requires a full evaluation.
  7. At this point in time, Enbridge has yet to issue a credible estimate of project cost.  The original estimate of $500 million was for a tunnel with a 10 ft diameter.  The proposed project would have an 18 – 21 ft diameter requiring the excavation and disposition of four times the material compared to the original proposal.
  8. Enbridge is explicit in indicating that the proposed project would extend the life of Line 5 for 99 years.  It will transport 23 million gallons of oil and natural gas liquids daily, that when burned, will yield over 57 million metric tons of atmospheric carbon annually – more carbon than is emitted by the nation’s 3 largest coal plants combined.  This long-term investment in fossil fuel infrastructure is directly at odds with the broad scientific consensus that immediate steps must be taken to decarbonize the economy to avoid the most catastrophic effects of climate change.

It is difficult to conceive of a project more worthy of a full environmental statement.

O&WDM: Groups, Tribes Ask U.S. Army Corps to Reject Proposed Enbridge Oil Tunnel

Published on December 7th, 2020 by - Blog Posts, Reports & Media Releases

Editor’s note: This is an Oil & Water Don’t Mix (O&WDM) media release.

Twelve organizations and Michigan tribal representatives today (Dec. 7, 2020) called on the U.S. Army Corps of Engineers to reject the Enbridge Line 5 Straits of Mackinac oil tunnel project. If not dismissed now, the Army Corps risks a repeat of a July court ruling that threw out a permit in another major federal pipeline case.

In their submission of comments, the groups told the Army Corps that the permit for the tunnel should not be approved without a full review that evaluates the consequences of an oil tunnel for the Great Lakes, coastal wetlands, historic archeological finds, and navigation within the Straits of Mackinac.

“Enbridge’s proposed tunnel is a major federal action demanding a full environmental impact statement under the National Environmental Policy Act (NEPA),” said Liz Kirkwood, Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City. “A review of Enbridge’s incomplete application reveals a highly controversial project with extraordinary impacts to coastal wetlands, millions of gallons a day of surface wastewater discharges and water treatment additives, underwater archeological sites, incomplete geotechnical studies for tunnel construction, lack of a credible estimate of project cost, and unprecedented climate change impacts to extend the life of Line 5 for the next 99 years.”

Official comments from the organizations come as the Army Corps holds a single public hearing today on Enbridge’s proposal for a federal Clean Water Act permit to construct the oil tunnel.  The Army Corps public comment period ends on Dec. 17.  It comes as the Michigan Public Service Commission and the state Department of Environment, Great Lakes and Energy also evaluate permit applications from Enbridge and follows a decision by Gov. Whitmer to revoke Enbridge’s operating agreement for the existing Line 5, citing the company’s history of failures and ongoing, incurable violations of the agreement.

“Line 5 will transport 540,000 barrels of oil that when burned will emit over 57 million metric tons of atmospheric carbon annually – more carbon than is emitted by the nation’s three largest coal plants combined,” said Kirkwood.  “Let’s not forget what’s at stake – a proposal to build a mega tunnel in the heart of the largest and most valuable fresh surface water system in the world.  It’s difficult to conceive of a project more worthy of a full environmental impact statement under federal law.”

The groups and tribal representatives warn that approving Enbridge’s proposed application would violate the same federal law that prompted the U.S. District Court in July to block a final permit for the Dakota Access pipeline in the Dakotas.  In the Dakota Access case, the court said the Army Corps must conduct a full review under the National Environmental Policy Act because it was a major federal project with widespread potential impacts, including threats to drinking water sources for the Standing Rock Sioux tribe.

The Army Corps has yet to decide whether Enbridge’s permit application for the tunnel should be subjected to a full federal review that could include looking at other alternatives, including existing oil pipelines within Enbridge’s massive North America pipeline system.

Concerns with the tunnel proposal cited by the groups and shared with the Army Corps include:

  • Drinking water threat. Enbridge proposes withdrawing 4 million gallons a day of water and discharging 5 million gallons a day of water and slurry into the Straits of Mackinac. Nearby communities of Charlevoix, Mackinac Island, St. Ignace, Alpena, East Tawas, and Tawas City rely on Lake Michigan and Lake Huron for drinking water.
  • Geotechnical problems. Independent experts who studied Enbridge’s proposed tunnel plan concluded that it “raises serious concerns regarding the feasibility, integrity, and planning for the construction of the tunnel.”  More than 75 percent of the tunnel boring area is in “very poor” or “poor” quality rock conditions, the experts warned, also citing the potential for explosions because of the presence of methane gas.
  • Sovereign tribal and fishing rights. The Straits of Mackinac are the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch, which could be negatively impacted by the tunnel project and continued operation of Line 5 in the Straits.
  • Northern Michigan economy. Emmet, Cheboygan, and Mackinac counties would be heavily impacted by the tunnel project, straining police, fire, health emergency services, and rental housing that would typically go to seasonal tourism workers who constitute an annual $153 million payroll. Dust, noise, and intense trucking and machinery activity will also stress local communities.

    “Michigan deserves more than a rubber-stamp permit approval from the Army Corps,” said Sean McBrearty, Oil & Water Don’t Mix coordinator.  “What we need is for the Army Corps to follow the law and prioritize protecting the Great Lakes, our drinking water, and our climate. A Canadian company’s oil profits shouldn’t be more important than Michigan’s future.”

    Those submitting joint comments include For Love of Water (FLOW), League of Women Voters of Michigan, Sierra Club, Clean Water Action, Michigan Environmental Council, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350, the Chippewa Ottawa Resource Authority (CORA), the Michigan League of Conservation Voters, and the Straits Area Concerned Citizens for Peace, Justice, and the Environment.

    Oil & Water Don’t Mix is a citizens’ movement committed to protecting the Great Lakes and decommissioning Enbridge’s dangerous Line 5 oil pipelines in the Straits of Mackinac. More information: https://www.oilandwaterdontmix.org/about.

    Enbridge’s Federal Lawsuit Attacks State Authority to Protect the Great Lakes from Line 5

    Published on November 25th, 2020 by - Blog Posts, H2Olson, News

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

    By Jim Olson

    The federal lawsuit Enbridge filed Tuesday is an attack on the State of Michigan’s sovereign title and authority to protect the public trust in the Straits and Great Lakes from Line 5. The federal government can regulate safety, but it can never control the location and use of the State of Michigan’s own public trust waters and bottomlands of the Great Lakes, except as it relates to navigation.

    Michigan has never surrendered and could never surrender its public trust authority and responsibility to protect the waters of the Great Lakes from the clear and present danger presented by Enbridge’s old and failing Line 5 oil pipeline system. The public rights in navigable waters, according to Michigan’s Supreme Court, “are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain.” 

    State of Michigan Conducted an Exhaustive Review of Enbridge’s Line 5 Easement Violations

    After a comprehensive, 15-month review of Line 5’s operations and potential for catastrophic harm from a rupture or leak in the heart of the Great Lakes, the State of Michigan determined on November 13 that Enbridge’s easement to use the bottomlands of Lake Michigan must be revoked and terminated because of “longstanding, persistent, and incurable violations of the Easement’s conditions and standard of due care.” The action represents a major milestone in Michigan’s environmental history.

    The state’s title and public trust interest and duty in the Great Lakes have been established by the Michigan and United States Supreme Courts for more than 125 years. Every state received title to the lands and waters that were navigable at the time of statehood—for Michigan, 1837, including all of the Great Lakes and its inland lakes, rivers, and streams. The state’s public trust title in navigable waters and lands beneath them is a matter of federal constitutional principle. Once the state has title, it is absolute, cannot be alienated or transferred away, and the state as trustee determines the extent and nature of any activity or use of the public trust waters and lands of the Great Lakes.  

    The public rights under the Public Trust Doctrine are protected, according to the Michigan Supreme Court, by a “high, solemn and perpetual trust which it is the duty of the state to forever maintain.” The state’s interest and its public trust responsibilities are held forever. Thus, any authorization, like the Enbridge  Line 5 easement granted by the Department of Conservation in 1953 remains subject to the state’s duty to protect the state’s title as well as Michigan citizens’ paramount rights that are protected by public trust law. The United States Supreme Court explicitly acknowledged a state’s paramount rights in the landmark case,  Illinois Central Railroad Co v Illinois, finding that a grant of property rights in public trust resources “is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time.”

    Catastrophe Does Not Have to Occur Before the State Acts to Protect the Public Trust

    When Enbridge received its easement for its dual lines in 1953, it did so subject to the state’s authority and duty to protect its sovereign public trust title and rights of citizens in the waters and bottomlands of the Straits of Mackinac. No private interest can be granted permission to use these public trust waters and bottomlands for any private or public use without the express authorization by law, and only if the state finds at the time the public’s uses and the public trust will be improved or not impaired.

    Enbridge’s easement is basically a license to use these public trust lands and waters subject to revocation if there are dangers that would violate the public trust. If later it is discovered that conditions exist that were not initially understood or new information comes to light indicating public trust resources are at risk or threaten the public’s rights in fishing, navigation, boating, and drinking water, or recreation, the state has the inherent right to revoke the use.  No state nor its citizens has to wait until a catastrophe occurs before the state can revoke a use to protect this perpetual trust.

    Only the State of Michigan, through its Governor and Department of Natural Resources Director and the Attorney General as trustees and “sworn guardians” of this public trust, has the authority over who, where, and when another person or corporation can use the Straits of Mackinac, such as Enbridge’s use for the dual lines in 1953 and in 2020. Because the circumstances, conditions, and events—anchor strikes, cable strikes, scoured spans under the pipes, and stronger currents—violate the terms of the 1953 easement and endanger the Straits and hundreds of miles of Lake Michigan and Lake Huron, the state has every right to revoke the Enbridge easement. Enbridge’s use of Lake Michigan bottomlands has always been limited by the Public Trust Doctrine and the state’s perpetual authority to revoke the use when the public trust is endangered.

    State of Michigan, not a Federal Agency, Controls the Public Trust Lands and Waters of the Great Lakes

    Enbridge falsely claims that the safety code requirements under the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) supersede the state’s authority and public trust duty to protect the Great Lakes. The claim confuses the federal power to regulate a pipeline’s safety once it is built with the state’s sovereign authority to decide if a corporation or Enbridge can use the public trust lands and waters of the Great Lakes in the first place.

    There is nothing in PHMSA regulations or any federal law that remotely attempts to assert control over the use of a state’s public trust lands and waters, nor could the federal government do so. The authority for use of these public trust lands and waters falls entirely within the authority and duties of the State of Michigan, and there is nothing the federal government, Canadian government, or Enbridge can do to impinge on this paramount public trust title and the rights of the citizens of Michigan in the Great Lakes. 

    The bottom line is that the Great Lakes belong to all of us, and the State of Michigan is doing its duty as trustee to protect our public trust resources so that, now and in the future, we are assured the right to drink from, bathe, fish, and swim in, and boat upon oil-free waters. Alternatives exist for supplying oil and propane without spikes in fuel prices, but our magnificent fresh waters are irreplaceable. Please join FLOW in thanking Gov. Whitmer for standing up to Enbridge and standing up for our Great Lakes.