Tag: Pipeline and Hazardous Materials Safety Administration

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

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.

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


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.

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

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

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

The Honorable Cynthia I. Quarterman

Administrator Pipeline and Hazardous Materials Safety Administration

U.S. Department of Transportation

East Building, 2nd Floor

1200 New Jersey Ave.,SE

Washington, DC 20590

Director Linda Daugherty

Pipeline and Hazardous Materials Safety Administration

Office of Pipeline Safety

Central Region Office

901 Locust Street, Suite 462

Kansas City, MO 64106

July 7, 2014

RE: Water Crossing Survey of Michigan Pipelines

Dear Administrator Quarterman and Director Daugherty:

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

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

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

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

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

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

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

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

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

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

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

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


Bruce Pregler President Anglers of the Au Sable

Nic Clark Michigan Director Clean Water Action

Robert Burns Detroit Riverkeeper

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

Rebecca Fedewa Executive Director Flint River Watershed Coalition

Liz Kirkwood Executive Director FLOW (For Love of Water)

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

Carl J Wehner President Friends of The Boyne River

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

Wendy Ogilvie Director of Environmental Programs Grand Valley Metro Council

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

Nick Schroeck Executive Director Great Lakes Environmental Law Center

Susan Houseman Vice President Gull Lake Quality Organization

Laura Rubin Executive Director Huron River Watershed Council

G.K. Herron Treasurer Les Cheneaux Watershed Council

James Clift Policy Director Michigan Environmental Council

Hans Voss Executive Director Michigan Land Use Institute

Erica Bloom Policy Manager Michigan League of Conservation Voters

John Walters Vice Chairman Michigan Trout Unlimited

Gregory Walz President Miller-Van Winkle Chapter Trout Unlimited

Gary A. Noble Executive Director Muskegon River Watershed Assembly

Andy Buchsbaum Director, Great Lakes Office National Wildlife Federation

Matt Wandel Founder & Managing Director respectmyplanet.org

Alexandra Thebert Executive Director Save the Wild U.P.

Anne Woiwode State Director Sierra Club Michigan Chapter

Brenda Archambo President Sturgeon For Tomorrow

Christine Crissman Executive Director The Watershed Center ~ Grand Traverse Bay

Gail Gruenwald Executive Director Tip of the Mitt Watershed Council

Carol Moncrieff Rose Chair Upper Black River Council

Nancy Warren Acting President Upper Peninsula Environmental Coalition

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

Mike Meyer President Saginaw Field and Stream Club

cc: Rick Snyder, Governor, State of Michigan

Dan Wyant, Director, Michigan Department of Environmental Quality

Bill Schuette, Attorney General,

State of Michigan State of Michigan Congressional Delegation

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

Harold Winnie, CATS Manager, PHMSA