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.
The location of the tunnel is in the heart of the largest and most valuable fresh surface water system in the world.
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.
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
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.
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.
The State Historic Preservation Office has given notice that the recently disclosed evidence of potential submerged prehistoric sites requires a full evaluation.
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.
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.
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.
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.
The State of Michigan’s decision last Friday to revoke and terminate the 67-year-old easement across the Straits of Mackinac granted to Enbridge for the Line 5 petroleum product pipelines was more than that day’s news—it was an event that will be remembered in the state’s environmental history.
Governor Gretchen Whitmer, Department of Natural Resources (DNR) Director Dan Eichinger, and Attorney General Dana Nessel announced the decision based on Enbridge’s consistent track record of deception, subterfuge, and poor stewardship, which put at risk a large area of the Great Lakes and the people, industries, aesthetics, and public uses dependent on them. Legally, it was a sound decision under the Public Trust Doctrine, but politically it was difficult. The same is true of most of the milestones in our environmental past. Dedicating Northern Michigan lands to building a public forest out of ravaged land in the early 1900s, standing up to developers who wanted to despoil the Porcupine Mountains in the 1950s and 1960s, and laying down the law on flagrant polluters in the 1960s and 1970s all took political guts, supported by law.
The Line 5 shutdown announcement brought to mind the epic fight over protection of the Pigeon River Country State Forest in the 1970s and early 1980s. This northern Lower Peninsula gem had fed the imagination of a young Ernest Hemingway and had been cobbled together by P.S. Lovejoy, considered Michigan’s equivalent of Aldo Leopold. Lovejoy dubbed the preserve “The Big Wild” and said it “should be left plenty bumpy and bushy and some so you go in on foot—or don’t go at all.”
The discovery of petroleum reserves under the Pigeon River Country State Forest in 1970 fueled an unwise decision by the DNR to offer drilling leases to petroleum companies. Determined to fight for the Big Wild, a legion of individuals, conservation and environmental groups, and editorial writers turned the battle into a test of state priorities. Specifically, weren’t there some publicly owned areas of the state that should be off limits to resource exploitation because of their beauty and significance, and the risk of a catastrophic accident? Governor William Milliken, urged on by First Lady Helen Milliken, took the side of the protectors.
The contest rose all the way to the Michigan Supreme Court, which ruled in 1979, under the Michigan Environmental Protection Act, that drilling could result in unacceptable destruction of the Forest’s herd of 255 elk. Coupled with another Supreme Court decision the same month on a separate drilling appeal in the Forest, the decision effectively barred drilling there.
It was a monumental victory for the forest protectors, but it also sowed the seeds of a partial defeat. Michigan’s economy was struggling and oil companies wooed lawmakers with visions of riches from petroleum development. Rather than lose everything, some members of the coalition of forest guardians compromised on a limited, phased development plan. And out of the controversy rose the idea of dedicating revenues from petroleum development on state lands to public land acquisition. That idea grew into the constitutionally protected Michigan Natural Resources Trust Fund, which has now spent more than $1 billion to give the public access to state and local parks, Great Lakes shoreline, scenic wonders, hunting and fishing recreation, public forestland, and more.
The parallel to Line 5 is not exact except in its lesson that a persistent, well-organized, and well-informed citizen coalition is critical to protecting the best of Michigan. And it shows that public officials who look beyond the moment can take action with significance for decades to come.
Last week’s announcement was one of the finest hours in Michigan’s conservation history. The battle is far from over, but it is headed toward protection of our Great Lakes. I am proud that FLOW and its public trust law and advocacy were a big part of it.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action.
The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.
Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.
Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case.
That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person.
Line 5 passed that threshold many years ago.
To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.
Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries.
There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.
A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.
This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount.
Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.
Today’s announcement by Governor Whitmer and Department of Natural Resources (DNR) Director Eichinger that the State of Michigan, under the public trust doctrine, is revoking and terminating the 1953 easement allowing Enbridge to operate dual pipelines in the Straits of Mackinac—due to repeated violations of the easement—represents a clear victory for the Great Lakes and the citizens and tribes of Michigan, said FLOW executive director Liz Kirkwood today.
“As public trustees of our waters, the State of Michigan is affirmatively upholding the rule of law and protecting the public’s treasured Great Lakes from the clear and present danger of an oil spill catastrophe from Enbridge’s Line 5 pipeline.”
“This is an historic day of state leadership by the Whitmer administration brought about by many years of dedicated action by environmental groups, Indian tribes, communities, businesses, faith communities, families, and individuals. People of diverse backgrounds have come together to work tirelessly on a common purpose—protecting the Great Lakes, drinking water, fishing rights, the economy, coastal communities, and a way of life from the most dangerous oil pipeline in America.
“While this is a moment to celebrate, we must remain vigilant until the oil stops flowing for good in May 2021 because Line 5 remains exposed to uncontrollable and powerful forces, including exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion. These forces dramatically increase the risk of this elevated, outdated pipeline collapsing and causing the unthinkable: a catastrophic oil spill in the heart of the Great Lakes.”
Photo: Jim Olson, FLOW’s Founder and Legal Advisor, makes arguments in a Sept. 30, 2020, court hearing conducted online. The hearing considered motions made by Enbridge regarding the proper scope of the Michigan Public Service Commission’s review of the proposed Line 5 oil tunnel.
There was good news and bad news in a state administrative law judge’s October 23 ruling that addressed legal arguments over what the Michigan Public Service Commission (MPSC) can and cannot evaluate when deciding whether to permit the siting of Enbridge’s proposed oil pipeline tunnel project under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
First, the good news: Judge Dennis Mack rejected Enbridge’s attempt to escape accountability by restricting the MPSC’s review to the impacts associated with the mere installation of a new Line 5 oil pipeline into the tunnel after it is built. The MPSC must consider the impacts from construction to nearby surface waters, wetlands, and the overall safety of the location and construction of both the pipeline and the tunnel that would house it.
Now, the bad news: The judge granted the Canadian energy pipeline giant’s bid to exclude evidence from the MPSC’s review that the oil pipeline tunnel would worsen the climate crisis and cause other environmental harm. The judge also excluded from the MPSC’s consideration of the public necessity to transport up to 8 billion gallons of oil a year for 99 more years in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy.
Absent a successful appeal by FLOW or other intervening parties in the case to the three-member MPSC to overturn the ruling, as Julius Caesar said when he crossed the Rubicon, Alea iacta est—the die is cast.
Clockwise from top-left: Dennis Mack (Administrative Law Judge); Spencer Sattler representing MPSC staff; Assistant Attorney General Robert Reichel representing the Michigan Department of the Attorney General; Chris Bzdok, representing Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians; Christopher Clark representing Bay Mills Indian Community; Margrethe Kearney, ELPC attorney representing the Environmental Law & Policy Center and Michigan Climate Action Network.
September Court-Zoom Drama
Judge Mack’s ruling on the scope of evidence the MPSC can consider followed sharply divided legal arguments on September 23 in a Zoom call from lawyers for Enbridge, the Michigan Public Service Commission, the Michigan Department of Attorney General, Native American tribes, FLOW, and several other public interest organizations. The judge heard a wide range of legal arguments over the scope of the MPSC’s review of impacts, necessity, and alternatives to Enbridge’s proposed utility tunnel and tunnel pipeline. The tunnel would extend the life of Line 5 and facilitate the transport of as much in total as 800 billion gallons of crude oil through Michigan and under the bottomlands and waters of the Straits of Mackinac for almost another century. Nothing less than the authority of the MPSC to protect the people of Michigan, the environment, the climate, and the future public interest of the citizens of Michigan is at stake, according to arguments made orally and also filed by FLOW and others.
Lawyers for Enbridge, in court and in their filing, pushed to strip the MPSC of its authority to review anything but a simple replacement of old plumbing with new plumbing for Line 5 in the Straits. In short, Enbridge argued that the MPSC could not evaluate any impacts from the massive tunnel, the need for the tunnel in a rapidly declining market for crude oil, or the billions of dollars in damage and cost from rising Great Lakes water levels, flooding, and collapsing of infrastructure in Michigan tied directly to the burning of fossil fuels and climate change. Rather, lawyers for Enbridge argued the MPSC could look at only the physical impacts of removing old dual pipelines and replacing them with a new pipeline put in a new tunnel in the bedrock and mixture of rock and soil under the lakebed.
In contrast, the lawyers for intervening parties in the case—including on behalf of Michigan Attorney General Dana Nessel, Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, FLOW, Environmental Law and Policy Center, Michigan Climate Action Network, Michigan Environmental Council, National Wildlife Federation, Tip of the Mitt Watershed Council—argued for a broader scope of review concomitant with the magnitude of the proposed 99-year $500 million+ tunnel and new pipeline. They argued that the tunnel and pipeline are inseparable, and that it is a single project that would commit the state of Michigan to the environmental and public health impacts of the transport of up to 8 billion barrels of crude oil a year, carried from Canada under the Straits of Mackinac and back into Canada to Sarnia’s Chemical Valley cluster of refineries and chemical plants.
Public Need, Public Interest, Public Trust, and a Private Tunnel
Lawyers challenging Enbridge pointed out that Act 16, the law that defines the MPSC’s scope of review, imposes three standards and findings before a utility project like this can be legally approved: (1) the demonstration of need to realize a true public need; (2) safety and consistency with the public interest; and (3) the project is a reasonable alternative. Lawyers for FLOW and the other groups and tribes also pointed out that the MPSC has a duty under the Michigan Environmental Protection Act (MEPA) to prevent and minimize likely impairment to the air, water, and natural resources, and the public trust in those resources, and to find there is no feasible and prudent alternative to the project.
The question of a public need for the project faces the reality of rapidly falling demand for oil and a sea change in investment toward renewable energy and a conservation economy. There are alternatives to continuing to risk the Great Lakes and our water-based economy, including the obvious use of excess capacity in Enbridge’s greatly expanded oil pipeline across southern Michigan to Sarnia that replaced the corporation’s aged line that ruptured and caused the devastating 2010 Kalamazoo River oil spill disaster. Lawyers for the tribes made clear that the environmental impacts of the proposed oil tunnel pose serious threats to tribal fishing and sovereignty over their treaty waters. Feasible and prudent alternatives clearly exist that are more consistent with the public interest of the citizens of Michigan, and the Michigan Supreme Court has made it abundantly clear that the state has a duty to comprehensively consider the likely effects and range of alternatives in deciding the necessity of a project like the century-spanning tunnel and pipeline. [Highway Comm’n v Vanderkloot, 392 Mich 159 (1974)]
The public interest in this proceeding includes our environment, protected by the MEPA, but it is also defined by what the public trust in the air, water, and environment of our Great Lakes—an ancient, irrevocable legal principle that protects the overarching rights of the public to enjoy the Great Lakes for navigation, fishing, drinking water, sustenance, boating, and swimming. [Obrecht v National Gypsum Co., 361 Mich 399 (1960); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892)] This public trust imposes an affirmative and perpetual duty on governmental agencies, like the MPSC, to protect these legal-beneficiary rights of citizens.
Enbridge’s Narrow View of Public Oversight
Enbridge tried unsuccessfully to avoid or narrow the MPSC’s review of the crude oil tunnel project last April, when it asked the MPSC to rule that the tunnel proposed today was covered by its ruling existing 67 years ago on the existing Line 5 pipelines in the Straits. Agreeing with FLOW and others, the MPSC rejected the attempt, and issued an order on June 30, as FLOW chronicled, that concluded, “the Commission finds that the Enbridge’s Line 5 Project involves significant factual and policy questions and complex legal determinations that can only be resolved with the benefit of discovery, comprehensive testimony and evidence, and a well-developed record.” [MPSC Order, June 30, 2020, Case No. U-20763]
The October 23 ruling by Administrative Law Judge Mack rejected Enbridge’s argument that the authority of the MPSC was restricted to replacing the old dual lines with a new single line in a tunnel. The judge ruled definitively, as argued by the organizations and tribes, that the tunnel is inseparable from the pipeline, and the impacts and operation of both must be considered. On the other hand, the judge interpreted more narrowly the MPSC’s June 30 order that signaled a desire for a “well-developed record” on all of the complex issues involved in the oil pipeline tunnel project. The judge’s decision rejected arguments by the Attorney General, organizations, and tribes that the MPSC must undertake a comprehensive evaluation of the need, safety, impacts, and alternatives, including the inherent commitment by the state to permit the transport of nearly a trillion gallons of oil over the next 99 years, the lack of need for this oil, and the devastating effects of climate change.
Context is King: Construction Project or Climate Change Nightmare?
All of the parties in the case will be evaluating the effect of the judge’s decision to allow consideration of the impacts of the tunnel and pipeline construction, but exclude consideration of overall necessity, impacts, and alternatives of the century-spanning tunnel and pipeline project. Any party has a right to request a full review and decision by the three members of the MPSC itself. The parties, conversely, could choose to proceed in a hearing set for February 12, 2021, with testimony and evidence limited by the judge to just the impacts of building the tunnel and moving the pipeline. If the latter course is taken, then indeed Michigan will have crossed the Rubicon on the climate crisis and protecting the Great Lakes and ourselves from the worst of it.
Citing inadequate legal authorization, an incomplete application, and lack of a comprehensive state review, FLOW and two Straits-area citizen groups called today in formal comments on the State of Michigan to deny pending permits sought by Enbridge to construct and operate a roughly four mile-long tunnel under the Great Lakes.
The Canadian corporation’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.
The comments by FLOW, the Straits of Mackinac Alliance (SMA), and the Straits Area Concerned Citizens for Peace, Justice, and the Environment (SACCPJE) came at today’s deadline in legal and technical comments directed to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and Michigan Department of Natural Resources (DNR). The groups’ comments identify critical deficiencies in the project’s construction permit application filed in April, its legal authorization, and the review by state environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction.
“Enbridge’s attempted private takeover of the public’s bottomlands under the Straits of Mackinac for the tunnel project is not authorized by the state, not good for the climate or Gov. Whitmer’s goals, not good for public health, safety, and welfare, and not consistent with public need as the nation and world turn to clean energy for survival,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City.
“We share the public’s deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks it would pose to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life,” said Kirkwood. “The biggest consequence right now of this proposed project is that it distracts the government from its duty to shut down the current Line 5 oil pipelines that pose a clear-and-present danger to the Great Lakes.”
To date, more than 2,600 members of the public—including individuals, families, business owners, community leaders, organizational leaders, and others—have filed comments with EGLE urging the agency to reject Enbridge’s proposed tunnel permits. 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.
The comments Enbridge’s proposed oil pipeline tunnel submitted today by FLOW, SMA, and SACCPJE determined that EGLE:
Cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 easement and tunnel lease have been authorized under the Public Trust Doctrine (PTD) and Great Lakes Submerged Lands Act (GLSLA);
Must undertake an analysis of the lifetime greenhouse gas emissions attributable to the proposed tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
Availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity; and
Is required to comprehensively and independently consider and determine whether the tunnel project is consistent with protection of Michigan’s natural resources under the Michigan Environmental Protection Act (MEPA). The state must determine whether extending the life of an oil pipeline that will emit approximately tens of million tons of greenhouse gases annually for the next 99 years, under the state NREPA, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
EGLE expects to issue its final decision on the oil pipeline tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December. While Enbridge takes an estimated 5-10 years to study, seek permits, and build an oil tunnel, the 67-year-old Line 5 oil pipelines in the Straits would continue to decay and endanger the Great Lakes, jobs, and the drinking water supply for half of Michiganders.
“The unique characteristics of the Straits of Mackinac make the area incredibly susceptible to disruption and destruction if EGLE approves the permits for Enbridge’s proposed tunnel,” said Patty Peek, Chair of the Straits of Mackinac Alliance. “The surrounding wetlands, shorebirds, waterfowl, and aquatic species will be in jeopardy from the millions of gallons of wastewater to be discharged daily into the surface waters of the Great Lakes. Local drinking water wells may be polluted and/or drilling operations may imperil the aquifer. Missing information and a lack of specificity on applications cannot be acceptable. The risk to our precious waters is too great to allow this tunnel project to move forward.”
MPSC seeks public comments online and at August 24 public hearing
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
Good news arrived recently for citizens concerned about Enbridge’s dangerous Line 5 pipelines that convey millions of gallons of petroleum each day, and the proposed massive new tunnel pipeline in the Straits of Mackinac — the very heart of the Great Lakes.
Administrative Law Judge Dennis W. Mack, who is handling the contested case for the Michigan Public Service Commission (MPSC) on Enbridge’s application for the Line 5 tunnel and tunnel pipeline, issued a ruling August 13 granting intervention to participate in the case to several federally recognized Indian tribes in Michigan and key environmental groups, including FLOW, that petitioned to bring special knowledge and expertise to the case.
The Administrative Law Judge (ALJ) granted intervention to a total of 13 entities, including four tribes — Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and the Nottawaseppi Huron Band of the Potawatomi, providing the first three tribes listed with an opportunity to formally assert their treaty rights this way for the first time. The Nottawaseppi Huron Band, based in Calhoun County, will bring their knowledge and experience gained by living near the site of Enbridge’s disastrous Line 6B pipeline spill in 2010 into the Kalamazoo River watershed.
The ALJ also granted intervention to five environmental organizations — the Environmental Law & Policy Center with the Michigan Climate Action Network, For Love of Water (FLOW), Michigan Environmental Council, National Wildlife Federation, and the Tip of the Mitt Watershed Council — with reach across the state of Michigan, Great Lakes region, and nation. The Mackinac Straits Corridor Authority, Michigan Attorney General, Michigan Laborers’ District Council, and Michigan Propane Gas Association & National Propane Gas Association also were allowed to intervene in the case.
Enbridge filed a 17-page objection to the intervention by the organizations’ and tribes’ participation as parties in the case, taking the extreme position that since the MPSC granted approval in 1953 for the existing Line 5 in the Straits of Mackinac, Enbridge doesn’t need approval now for the proposed half-billion-dollar tunnel and tunnel pipeline.
FLOW and other organizations filed replies to Enbridge’s objection to their intervening in the case, pointing out that the MPSC in June had already rejected the company’s attempt to cut off further review and obtain immediate approval of the project without a comprehensive review of necessity, public interest at stake, impacts, and alternatives to the massive project. Over Enbridge’s objections, Judge Mack recognized the significant interests and rights and the unique perspective and expertise these organizations and sovereign tribes will bring to the case.
The comprehensive review and proceeding before the MPSC will continue in stages addressed by a scheduling memorandum entered August 13 by Administrative Law Judge Mack. Legal questions involving the nature and scope of the review required by the MPSC governing laws and regulations, the Michigan Environmental Protection Act (MEPA), and public trust principles that govern the Straits of Mackinac will be argued and decided between now and late October. After that, the case will proceed with discovery and exchange of information, direct testimony, rebuttal testimony, and cross examination of the testimony and evidence from late November until next summer, with a decision by the MPSC expected in early fall of 2021.
Comment Now or at MPSC’s Aug. 24 Virtual Public Hearing
The Michigan Public Service Commission has invited public comments on Enbridge’s tunnel proposal through written submissions, as well as by telephone during an online public hearing scheduled for August 24, 2020. Oil & Water Don’t Mix, which FLOW co-leads with allied tribal and environmental groups, has created this easy tool for you to submit your comment to the MPSC opposing an Enbridge oil tunnel through the public bottomlands in the Straits of Mackinac.You also can sign up here or here to comment at the MPSC public hearing.
Enbridge’s request for federal approval of a Line 5 replacement oil pipeline in a proposed tunnel in the Straits of Mackinac should be rejected to protect the Great Lakes from the continued risk of a catastrophic oil spill and a pipeline that is no longer needed, 10 leading environmental and tribal groups said Tuesday in comments to the U.S. Army Corps of Engineers.
Citing a federal court orderon July 6 involving the Dakota Access pipeline that also involves Enbridge, the groups told the Army Corps it cannot give rubber-stamp permit approval to Enbridge’s massive Great Lakes oil pipeline tunnel construction project without conducting an environmental impact statement (EIS) as required by the National Environmental Protection Act (NEPA).
“The biggest consequence right now of this proposed project is that it distracts the government from its duty to shut down a risky oil pipeline in the Great Lakes. Instead, we are talking about a proposed oil tunnel that may or may not ever be built,” said Liz Kirkwood, executive director of FLOW. “However, if Enbridge insists on this, then a full environmental review of this tunnel proposal is required. That’s what a federal court told the Army Corps, and that’s what we are telling the Army Corps. There’s no shortcut when it comes to potential risks to the Great Lakes.”
In their 22-page comment to the Army Corps, FLOW, Sierra Club, Clean Water Action, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350.org, Straits Area of Concerned Citizens for Peace Justice and the Environment, Chippewa Ottawa Resource Authority (“CORA”), and Michigan League of Conservation Voters (“MLCV”) requested a public hearing on the proposed permit and a thorough review of the tunnel project under the National Environmental Policy Act. So far the Army Corps has failed to set a public hearing or undertake an environmental assessment of the proposal. A federal judge in July ordered the shutdown of the Dakota Access pipeline in Missouri after ruling in March that the Army Corps failed to conduct a full environmental review of the proposed pipeline project. Enbridge also has an ownership stake in the Dakota Access pipeline.
In separate comments filed with the Army Corps, five Michigan tribes with treaty rights to the Straits, said the massive proposed tunnel project is a threat to the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch.
“Whether it is a 67-year-old pipeline aging under pristine freshwater, or a proposed tunnel creating pollution and causing disruption to tribal fishing industries for years, Enbridge should not be allowed to cut corners and bypass a full environmental review, something that Line 5 has never had,” said Bryan Newland, president of the Bay Mills Indian Community. “We’ve seen the exemptions made and lack of thorough pipeline equipment reviews result in surprises of corrosion, dents and the most recent screw anchor damage. With the company’s lack of transparency and poor track record, moving forward with a tunnel is putting pipelines and profits above the safety of Michiganders and the environment, allowing a potential oil spill to continue threatening our Great Lakes.”
In their comments, the environmental groups cited numerous concerns with Enbridge’s tunnel proposal and said oil and propane supplies that are needed can be delivered by other means. Major concerns with the proposal include impacts on drinking water quality from millions of gallons of wastewater discharge and a potential oil spill, significant impacts on the local tourism economy, rental housing, public safety and health systems from a multi-year construction project. Additional risks include pipeline safety and financial exposure to the state from a tunnel abandonment by Enbridge or collapse, including the potential for an explosion involving hazardous liquids. Tunnel safety was cited in a 2019 letter by the American Transmission Company withdrawing any potential participation in the proposed tunnel project.
“This project tunnel project is a massive undertaking with huge water quality, coastal wetlands, drinking water contamination, and other impacts for the Great Lakes and Michigan,” said Anne Woiwode, Chair of the Sierra Club Michigan Chapter. “This involves a waterbody of international importance that is protected under the Clean Water Act and we expect the Army Corps to follow the law.”