Tag: Shut Down Line 5

Federal Court Hears Arguments from Bad River Band and Enbridge in Appeal of Line 5 Pipeline Shutdown Order

Published on February 8th, 2024 by - Blog Posts

Traverse City, Mich.— On February 7, 2024, the U.S. Court of Appeals for the Seventh Circuit in Chicago heard oral arguments in the Line 5 case involving northern Wisconsin’s Bad River Band of Lake Superior Chippewa and Enbridge, Inc., a Canadian multinational pipeline and energy company headquartered in Calgary, Alberta, Canada. The panel of Appellate Judges was Frank H. Easterbrook, Michael Y. Scudder, Jr., and Amy J. St. Eve. Line 5 is a 71-year-old pipeline, threatening the Great Lakes with a catastrophic spill to deliver oil and gas to Canada.

In 2019, the Bad River Band initiated this litigation to evict Enbridge’s 12-mile stretch of Line 5 oil pipeline from their territory based on claims of trespass, nuisance, unjust enrichment, and injunctive. The band then filed for emergency injunctive relief in May 2023, following massive spring flooding events that caused alarming rates of erosion along the Medicine River and threatened to destabilize and rupture the pipeline. On June 16, 2023, U.S. Western District Court of Wisconsin Judge Conley issued a remarkable decision, finding Enbridge in “conscious and willful trespass” and ordering shut down by June 2026 of a Line 5 section running through the tribe’s sovereign territory, and pay the tribe $5.1 million. This is the first time a date has been set to shut down Line 5. 

On appeal, Enbridge’s attorney Alice Loughran argued the Seventh Circuit should vacate Judge Conley’s order, relying on two key arguments: (1) the Bad River Band was not acting pursuant to the “best efforts” clause of the 1992 easement agreement; and (2) Judge Conley’s order violated the 1977 Pipeline Treaty between the U.S. and Canada, which limits the authority of each country to impede the flow of oil and natural gas through pipelines between the nations. 

In response, the Bad River Band’s lawyer, Paul Clement, urged the appellate court to affirm the lower court’s order requiring Enbridge to stop trespassing, and require immediate compliance, not three more years on top of ten years of trespass. Clement also argued that Enbridge must turn over the Line 5 profits realized since its reservation easements expired in 2013. Three additional years of ongoing trespass is unreasonable, Clement said, particularly given the upcoming spring flooding threat, like last year’s, which eroded the land to within 11 feet of the pipeline.

The judges probed why federal agencies were not working faster to approve Enbridge’s proposed 41-mile pipeline re-route around the Bad River reservation. They also questioned why the tribe has not taken precautionary measures like using sandbags to mitigate the risk created by Enbridge. Clement countered that it is unreasonable and unfair to expect the tribe to take affirmative steps that sanction and reinforce the trespasser’s illegal and intentional occupation of the tribe’s land. 

The hearing concluded with Judge Easterbrook announcing that the court would not decide this case until at least next month, after the court receives a briefing on the federal government’s position. 

Next month on March 21, the U.S. Court of Appeals for the Sixth Circuit will hear oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Multiple anchor strikes have occurred, threatening to rupture the line and causing a catastrophic oil spill in the Great Lakes. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.

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FLOW is an independent, 501(c)(3) nonprofit that serves as a Great Lakes water law and policy center dedicated to ensuring the waters of the Great Lakes Basin are healthy, public, and protected for all. The enduring idea of the commons and legal principles of the public trust offer unifying adaptive solutions to address basin-wide threats. FLOW’s staff of legal and policy experts, journalists, and community-builders makes FLOW an authoritative resource for Great Lakes advocates. FLOW builds a knowledge base for communities, state agencies, and legislators to inform policy and advocacy for water issues. Learn more at www.ForLoveOfWater.org.

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FLOW Welcomes Court Order in Michigan Attorney General’s Case to Shut Down Line 5

Published on February 22nd, 2023 by - Blog Posts, News, Reports & Media Releases

Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan, in response to a federal district court’s certification on Tuesday of questions for interlocutory review by the U.S. Court of Appeals for the Sixth Circuit. The decision comes in the case of Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019, in the Michigan Circuit Court for the County of Ingham, to shut down the Line 5 oil pipelines in the Great Lakes. Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or by cell at 231.620.7911.

“This is a welcome development in Attorney General Dana Nessel’s effort to return to state court her state-law claims seeking the shutdown of Enbridge’s dual oil pipelines on state-owned bottomlands in the Straits of Mackinac. FLOW credits her petition for mandamus—filed just two business days before the certification order—for prompting the federal district court to finally take action on a motion that the Attorney General filed more than five months ago.

“Although the district court’s order does not guarantee that the Sixth Circuit will agree to resolve the certified questions, we are hopeful that the Court will recognize that interlocutory review is necessary to protect the fundamental state rights that are undermined by the district court’s erroneous procedural and jurisdictional rulings. 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster,” said FLOW Legal Director Zach Welcker 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster.” 

Additional Resources:

Petition for Writ of Mandamus in Nessel v. Enbridge-2023-2-17 

Opinion and Order Granting Motion to Certify-Nessel v. Enbridge-2023-2-21

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Hundreds Attend Army Corps Hearing, Strong Majority Speaks Out against Proposed Oil Pipeline Tunnel under the Great Lakes

Published on September 12th, 2022 by - Blog Posts

Above: Hundreds of people attend a public comment session held by the U.S. Army Corps of Engineers on the oil pipeline tunnel proposed by Enbridge under the Straits of Mackinac, on Sept. 8, 2022, at Little Bear East Arena in St. Ignace, Michigan. Photos by Kelly Thayer.

By Kelly Thayer, FLOW Deputy Director

Katie Otanez, Regulatory Project Manager for the U.S. Army Corps of Engineers, Detroit District, delivers a presentation on Sept. 8, 2022, in St. Ignace, Mich., while Army Corps staff look on.

Five-and-half hours into a marathon federal hearing that lasted seven hours on Thursday, September 8, in St. Ignace, Michigan, more than 4 out of 5 people who spoke said that an oil pipeline tunnel proposed under the Great Lakes was a dangerous idea that would rob future generations by threatening the most precious thing on earth — fresh water — and worsening the climate crisis.

The U.S. Army Corps of Engineers held the public comment session to help set the scope of its environmental impact statement study of a proposal by Enbridge, Inc., of Canada, to build an oil tunnel under the Straits of Mackinac to house its Line 5 oil pipeline, which carries oil from western Canada primarily to refineries in Sarnia, Ontario. The Army Corps study is expected to continue through at least 2023.

U.S. Army Corps welcome sign on Sept. 8, 2022, in St. Ignace, Mich.

Hundreds of people attended the meeting at Little Bear East Arena, a local hockey facility just north of the Mackinac Bridge in the eastern Upper Peninsula, with each commenter taking up to three minutes to address the Army Corps staff seated up front. Most people expressed deep concern for the harm that construction or a potential explosion or spill from the operation of an oil pipeline tunnel could have on their children and grandchildren’s future, local residents, the Great Lakes, drinking water, tourist economy, and jobs — as well as tribal rights, tribal member survival, cultural heritage, the fishery, ecology of the Straits of Mackinac, and the climate.

Whitney Gravelle, president of the Bay Mills Indian Community, was the first to speak at the Army Corps meeting against the tunnel proposal and sought to change the narrative promoted by Enbridge in its multimillion-dollar advertising campaign. “Line 5 is not about Enbridge. It is not about jobs. It is not about profit. It is about the continued existence of my people here in the State of Michigan.”

Whitney Gravelle, President of the Bay Mills Indian Community

“Line 5 is not about Enbridge. It is not about jobs. It is not about profit. It is about the continued existence of my people here in the State of Michigan.” — Whitney Gravelle, president of the Bay Mills Indian Community

“We rely on all of those natural resources to be able to live, to be able to support our families and just exist as Anishinaabe people,” said President Gravelle, emphasizing that more than half of Bay Mills tribe members depend on their treaty rights to hunt, fish, and gather for subsistence.

Ian Bund, venture capitalist

Ian Bund, a venture capital investor who attended the hearing on his birthday to oppose the tunnel project, said, “There’s no evidence that Enbridge’s board of directors has approved the tunnel. Is it a PR stunt? Enbridge is largely uninsured, uninsurable, and un-bondable…. There’s no evidence how Enbridge would finance the tunnel project. One wonders if they might look to taxpayers.”

Enbridge, in fact, lacks adequate liability insurance, according to a report released by the Attorney General Dana Nessel’s office revealing that Enbridge’s subsidiaries, not its parent company, hold Line 5’s 1953 easement and signed the proposed tunnel agreement; the assets of the subsidiaries’ parent Enbridge are inadequate to cover the costs and economic damages in the event of a moderate spill.

Many Troubling Aspects of the Tunnel Proposal

Enbridge wants to blast and bore an oil tunnel under the Straits of Mackinac just west of the Mackinac Bridge. Credit: Flickr

Enbridge is proposing to bore and blast a 20-foot-in-diameter tunnel under the Straits of Mackinac to house a new Line 5 pipeline. The Canadian company’s goal is to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through Line 5 and State of Michigan public trust bottomlands where Lake Michigan meets Lake Huron, just west of the Mackinac Bridge.

FLOW and our partners have identified critical deficiencies in the project’s construction permit application, its legal authorization, and the review by State of Michigan environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction. FLOW has expressed continuing concerns about the impact to the Great Lakes and lack of public necessity for the project, which would worsen climate change by adding greenhouse gas emissions each year equivalent to almost seven new coal-fired power plants or nearly 6 million new cars to the road, according to experts.

FLOW’s position, as expressed at the hearing in St. Ignace, is that the Army Corps’ environmental study of the tunnel proposal and alternatives must include, at a minimum:

  1. A no action alternative that would use existing capacity in other pipelines and, if necessary, other transportations solutions–such as rail and truck transport of natural gas liquids–in lieu of building new pipeline infrastructure.
  2. An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes. (See FLOW’s fact sheet on alternatives).
  3. A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits in the event of an explosion or similar event.

Tribal Nations, agencies, communities, organizations, citizens, and other stakeholders can comment on the tunnel proposal through Oct. 14, 2022, via mail, through the Army Corps project website, or at the Army Corps’ Oct. 6, 2022, online meeting. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also is collecting and forwarding comments to the Army Corps using an email template that suggests key points to make.

Oil & Water Don’t Mix Campaign Mobilizes Great Lakes Advocates

The Oil & Water Don’t Mix campaign chartered two buses that gathered people in Ann Arbor, East Lansing, and Traverse City to attend the Army Corps’ September 8 meeting, with FLOW, the Sierra Club Michigan Chapter, and several other allied groups helping organize the effort. Many riders wore the campaign’s black t-shirts with white letters proclaiming “No Line 5 Oil Tunnel.” At the session, Enbridge and some allied trade unions also wore bright blue or orange shirts expressing support for the proposed tunnel or labor to show their solidarity.

Kim Gribi of Traverse City

Lana Pollack, former U.S. Chair of the International Joint Commission

Several people, including Lana Pollack, former U.S. chair of the International Joint Commission, called Enbridge a “bad actor” with a long history of oil spills from Line 5, which runs through the Straits, and Line 6B in southern Michigan that burst in 2010 into the Kalamazoo River watershed.

Kim Gribi, a concerned citizen from Traverse City, also pointed to Enbridge’s “bad track record.” Gribi said that with her professional background in human resources and evaluating applicants for jobs, when it comes to the tunnel project and Enbridge, “I wouldn’t hire them.”

Barbara Stamiris of the Northern MI Environmental Action Council

Barbara Stamiris of the Northern Michigan Environmental Action Council and others questioned whether the tunnel proposal was a delay tactic by Enbridge to allow the Canadian energy-transport giant to keep running its Line 5 oil pipelines indefinitely in the open waters of the Straits of Mackinac, despite a standing order issued in November 2020 by Gov. Gretchen Whitmer to shut down the risky 69-year-old pipeline segment.

A number of people in their public remarks in St. Ignace requested that the Army Corps extend the 60-day comment period on the proposed tunnel and hold additional in-person meetings downstate to reach more people on such a critical matter as the future of the Great Lakes and the drinking water supply.

FLOW: There’s No Alternative to Fresh Water

FLOW Board member Barbara Brown, a St. Ignace resident who served for 14 years on the Mackinac Bridge Authority, pointed to what the region must protect above all else: our freshwater heritage. “We are rapidly moving toward alternative forms of energy. Enbridge already has, in Line 78 [in southern Michigan], an alternative route of delivery… What we do not have is an alternative to water.”

FLOW Board Member Barbara Brown, a resident of St. Ignace, Mich., addresses the Army Corps staff.

“We are rapidly moving toward alternative forms of energy. Enbridge already has an alternative route of delivery… What we do not have is an alternative to water,” said Barbara Brown, FLOW Board Member and St. Ignace resident

In fact, the North American energy pipeline system operated by Enbridge and its competitors has available capacity and flexibility to meet energy demand in the Great Lakes region without threatening public waters and the economy, according to multiple studies. One of Enbridge’s own experts has concluded gasoline prices will rise by about only half a penny in Michigan if the Line 5 oil pipeline shuts down.

“We are sitting today at the very heart of 20% of the world’s fresh surface water,” Brown said. “With much of humanity and the animal world on the brink of death for want of water, and we being at the center of the largest body of fresh surface water on the planet, it is bordering on the immoral to even entertain the unnecessary, continued operation of Line 5 through the Great Lakes whether by pipe or tunnel.”

As FLOW’s Deputy Director, I (the author of this article) helped coordinate the bus from Traverse City and in my comments, said, “The Straits of Mackinac is the worst possible place to build and operate an oil pipeline tunnel. Any rupture, explosion, or other event resulting in a major oil spill in the Straits would contaminate the very heart of the Great Lakes, which hold 95% of the fresh surface water in the United States.”

As a result, “the Army Corps’ Environmental Impact Statement or ‘EIS’ review of the project should be scoped to eliminate the risk of a pipeline-related oil spill into the Great Lakes.” (Click to read Kelly Thayer’s full comment delivered on behalf of FLOW).

Regional and Binational Perspectives

Beth Wallace of the National Wildlife Federation

Michelle Woodhouse of Environmental Defence in Canada

Michelle Woodhouse, representing Environmental Defence Canada, came from Toronto to convey that many Canadians want to move rapidly away from oil extraction as a key driver of the economy in order to cope with the “climate emergency.” Woodhouse also pointed to indigenous cultural artifacts in the Straits of Mackinac that could be damaged by the tunnel proposal and said “clear alternatives exists” that would not harm the Great Lakes.

Beth Wallace of the National Wildlife Federation, Great Lakes Regional Center, spoke next and emphasized that Enbridge’s history of nearly three dozen oil spills from Line 5 and the 2010 oil spill disaster from Line 6B in Marshall, Michigan, are forewarnings of what could happen in the Straits of Mackinac.

Maya Ponton Aronoff pointed to better ways for Enbridge and trade workers to aid the residents of Michigan than building an oil pipeline tunnel under the Great Lakes.

“[Enbridge] could be replacing every lead-lined water pipe in Michigan that’s poisoning our children and our communities. They could be investing in renewable energy, creating jobs in solar and wind. They could be doing anything with their billions of dollars. But they’re making us believe this lie that we have to choose between jobs and our future,” said Maya Ponton Aronoff

“[Enbridge] could be replacing every lead-lined water pipe in Michigan that’s poisoning our children and our communities,” Ponton Aronoff said. “They could be investing in renewable energy, creating jobs in solar and wind. They could be doing anything with their billions of dollars. But they’re making us believe this lie that we have to choose between jobs and our future.”

Army Corps Process to Continue through at Least 2023

Enbridge’s has applied for a Army Corps permit under the Rivers and Harbors Act of 1899 and the Clean Water Act, seeking federal approval to discharge dredged or fill materials into waters of the United States, as well as the construction of structures or work that may affect navigable waters. The Army Corps also will conduct an ethnographic/traditional cultural landscape study as part of the environmental impact statement under the National Historic Preservation Act. After considering public comment and issuing the draft EIS likely by fall 2023, the Army Corps will seek additional public feedback, release a final study, and then issue a “record of decision” regarding whether to issue, issue with modification, or deny the Department of the Army permit altogether — consistent with the National Environmental Policy Act.

The Army Corps, Detroit District, to date has identified general concerns in the following categories:

  • Potential direct effects to waters of the United States including wetlands; water and sediment quality; aquatic species and fisheries; threatened and endangered species;
  • Archaeological and cultural resources, including the Straits as a Traditional Cultural Landscape; Tribal treaty rights and interests;
  • Recreation and recreational resources; waste management; aesthetics; noise; air quality; climate change, including greenhouse gas emissions and the social cost of greenhouse gases;
  • Public health and safety during construction and operations; navigation; erosion; invasive species; energy needs; environmental justice; needs and welfare of the people; and cumulative effects.

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 evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that Enbridge has characterized as solid bedrock.

Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.

FLOW to U.S. Army Corps: Oil Tunnel in the Great Lakes Is Not a Solution

Published on September 12th, 2022 by - Blog Posts

Editor’s note: The following are comments made by FLOW Deputy Director Kelly Thayer on September 8, 2022, in St. Ignace, Michigan, at a public meeting of the U.S. Army Corps of Engineers (Army Corps). The Army Corps, Detroit District, held the session to help set the scope of its environmental impact statement (EIS) study of a proposal by Enbridge, Inc., of Canada, to build an oil tunnel under the Straits of Mackinac to house its Line 5 oil pipeline, which carries oil from western Canada primarily to refineries in Sarnia, Ontario.

Tribal Nations, agencies, communities, organizations, citizens, and other stakeholders can comment on the tunnel proposal through Oct. 14, 2022, via mail, through the Army Corps project website, or at the Army Corps’ Oct. 6, 2022, online meeting. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also is collecting and forwarding comments to the Army Corps using an email template that suggests key points to make.

Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.

Good evening. My name is Kelly Thayer. I am Deputy Director of the nonprofit organization For Love of Water or “FLOW”, the Great Lakes law and policy center located in Traverse City, Michigan.

Kelly Thayer, FLOW Deputy Director

Thank you to Commander Boyle and the U.S. Army Corps of Engineers, Detroit District, for this opportunity to comment. FLOW has supporters throughout the Great Lakes Basin, including right here in St. Ignace. They rely on us to ensure that the Great Lakes remain healthy, public, and protected for all.

Simply put, the Straits of Mackinac is the worst possible place to build and operate an oil pipeline tunnel. Any rupture, explosion, or other event resulting in a major oil spill in the Straits would contaminate the very heart of the Great Lakes, which hold 95% of the fresh surface water in the United States.

Simply put, the Straits of Mackinac is the worst possible place to build and operate an oil pipeline tunnel. Any rupture, explosion, or other event resulting in a major oil spill in the Straits would contaminate the very heart of the Great Lakes, which hold 95% of the fresh surface water in the United States.

In the best case scenario, Enbridge-contracted, oil spill response teams would be able to remove no more than 30% of the oil from such a spill.

With this in mind, the Army Corps’ Environmental Impact Statement or “EIS” review of the project should be scoped to eliminate the risk of a pipeline-related oil spill into the Great Lakes.

Unfortunately, the draft purpose and need statement limits the range of risk-elimination options by focusing only on connecting Enbridge’s existing North Straits Facility and Mackinaw City pump station. The purpose and need statement should be revised to eliminate these geographic constraints and focus more generally on liquid-petroleum product transportation solutions to approximate the existing capacity of Line 5.

The draft purpose and need statement’s language regarding the minimization of environmental risks is not specific enough in the context of project-related oil spills. The statement should be revised to include both minimizing environmental risks and avoiding any risk of a pipeline-related oil spill into the Great Lakes.

The environmental study’s focus “should be revised to include both minimizing environmental risks and avoiding any risk of a pipeline-related oil spill into the Great Lakes.”

The alternatives analysis must include, at a minimum:

  1. A no action alternative that would use existing capacity in other pipelines and, if necessary, other transportations solutions–such as rail and truck transport of natural gas liquids–in lieu of building new pipeline infrastructure.
  2. An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes.
  3. A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits in the event of an explosion or similar event.

The relative risks of the proposed oil tunnel project don’t matter when Enbridge is unlawfully operating the existing oil pipelines in the Straits.

In performing this alternatives analysis, the EIS must evaluate the environmental risks of the proposed project independently of Enbridge’s existing oil pipeline infrastructure in the Straits.

Nearly two years ago, the State of Michigan revoked and terminated the 1953 Easement that allegedly authorizes Enbridge to occupy state bottomlands. The relative risks of the proposed oil tunnel project don’t matter when Enbridge is unlawfully operating the existing oil pipelines in the Straits.

FLOW looks forward to submitting written comments by the October 14, 2022, deadline, in addition to these preliminary, verbal comments.

In short, we recommend that the Army Corps scope its EIS review of the oil tunnel project to eliminate the risk of a pipeline-related oil spill into the Great Lakes, which provide drinking water for millions of people in the United States and Canada, drive our economy, and define our way of life. Thank you.

FLOW: Today’s Line 5 Court Decision is Bad for the State of Michigan, Bad for State Courts, and Bad for Plaintiffs

Published on August 18th, 2022 by - Blog Posts, Reports & Media Releases

Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based, in response to U.S. District Judge Janet Neff’s 13-page decision today to deny the motion to remand the case to state court in Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019. Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or by cell at 231.620.7911.

“The U.S. District Court’s decision today to exercise federal jurisdiction over the State of Michigan’s Line 5 oil pipeline lawsuit, which Line 5-owner Enbridge had previously chosen to litigate in state court for more than 2 years, is bad for the State of Michigan, bad for state courts, and bad for plaintiffs.

“State-court defendants who have a plausible basis for federal jurisdiction are no longer obligated to seek removal within the statutory timelines established by Congress, but can now play their removal card at the time of their choosing. This gives defendants nearly unfettered discretion to seek refuge in federal court when things are not going their way in state court.

“The effect is that the State of Michigan now will have to expend precious resources relitigating matters it has already litigated in state court for more than two years and, more generally, that federal courts are free to pull the rug out from under state-court proceedings at the whim of opportunistic defendants like Enbridge.”

‘A Step toward Victory for the Public and the Great Lakes’

Published on July 7th, 2022 by - Blog Posts, Reports & Media Releases

Editor’s Note: The following is a statement from Jim Olson, Senior Legal Advisor at FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City. The statement is in response to the decision today by the Michigan Public Service Commission (MPSC) at its regular meeting to reopen the record to gather more information on the safety and engineering of a 21-foot-diameter tunnel intended to house a new segment of the Line 5 pipeline, as proposed by Canadian oil-transport giant Enbridge. Enbridge proposes to bore and blast a tunnel through the public bottomlands in the Straits of Mackinac, where Lake Michigan meets Lake Huron at the very heart of the Great Lakes. The MPSC also requested additional information on the safety of the existing Line 5 oil pipelines in the open waters of the Straits, which Enbridge continues to operate in defiance of a shutdown order issued in November 2020 by Gov. Gretchen Whitmer. FLOW also filed a formal comment today with the MPSC.

“Today’s approval by the Michigan Public Service Commission of an order to reopen the record and gather more information on the safety and engineering of the oil pipeline tunnel that Enbridge proposes to construct through the public bottomlands of the Straits of Mackinac before making any final decision is a step toward victory for the public and the Great Lakes.

Jim Olson, FLOW’s Founder and Senior Legal Advisor

“The MPSC also wisely requested more information on the safety of the dangerous, nearly 70-year-old Line 5 oil pipelines in the open waters of the Great Lakes. The MPSC has once more demonstrated its strong sense of responsibility to address Line 5’s inevitable, adverse effects on the Great Lakes, communities, and the rights of the public and environment in the Great Lakes and Straits of  Mackinac.

Today’s approval by the Michigan Public Service Commission of an order to reopen the record and gather more information on the safety and engineering of the oil pipeline tunnel that Enbridge proposes… is a step toward victory for the public and the Great Lakes.

“More than two years after Enbridge applied for the MPSC’s approval to construct a massive, 21-foot-diameter oil tunnel under the Great Lakes, it’s clear that Enbridge has failed to demonstrate the safety and feasibility of the $1 billion-plus project and even more questions are being raised about the Line 5 oil pipelines that continue to endanger the Great Lakes, our economy, and way of life.

Screenshot of MPSC commissioners meeting July 7, 2022, in Lansing, Mich. From left: Katherine Peretick, Chairman Dan Scripps, & Tremaine Phillips.

“FLOW and other interested parties have identified critical deficiencies in the tunnel project’s construction permit application, 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. FLOW also has deep concerns about the lack of public necessity for the project, which would worsen climate change and related impacts to the Great Lakes.

FLOW has deep concerns about the lack of public necessity for the project, which would worsen climate change and related impacts to the Great Lakes.

Screenshot of Marshall Clabeaux, of Lansing, expresses opposition to the proposed Line 5 oil tunnel during public comment at the July 7, 2022, MPSC meeting in Lansing.

“The MPSC’s decision to seek more safety information upholds its solemn, legal responsibility under Michigan’s constitution and environmental and public trust laws to protect people, communities, the Great Lakes, and the environment from the effects of climate change from this massive project that would facilitate the continued production and consumption of 8.3 billion gallons of oil a year for the next 99 years. 

“No one disputes the obligations of the State and MPSC to protect the public rights of citizens in the Great Lakes. Based on Michigan Supreme Court decisions, the MPSC  is one of the ‘sworn guardians’ of the Great Lakes and the public trust rights of all citizens in Michigan. The threat of devastating physical impacts to the Straits, the fish habitat, risks to the environment, the rights of citizens for fishing, boating, swimming, drinking water and health, and the tribal culture and fishing rights are real. The effects from climate change to the Great Lakes, infrastructure, communities, health, and environment are devastating and undeniable.

The threat of devastating physical impacts to the Straits, the fish habitat, risks to the environment, the rights of citizens for fishing, boating, swimming, drinking water and health, and the tribal culture and fishing rights are real.

“The MPSC on April 21, 2021 ordered a full and complete hearing record on climate and environmental effects and the rights of  citizens under the Michigan Environmental Protection Act (MEPA). Today’s Order is consistent with that decision and the duties of the MPSC under the MEPA and public trust law.  Under MEPA, given these likely effects, the Enbridge Line 5 tunnel project was properly remanded for a more thorough investigation of these matters. This includes consideration of reduction of greenhouse gases through alternatives to Line 5 and the Tunnel Project. 

With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.

“Moreover, the tunnel and tunnel pipeline have never been authorized by the Department of Environment, Great Lakes, and Energy as required by  the Great Lakes Submerged Lands Act and public trust law. Under these laws, the company must obtain authorization to use, not just construct, the public trust waters and submerged lands of Michigan. Enbridge has never obtained this authority. 

“With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”

Background: See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here: https://forloveofwater.org/?s=MPSC.

FLOW to Mackinac Straits Corridor Authority: No Enbridge Oil Tunnel Without Authorization Under the Public Trust Doctrine

Published on June 7th, 2022 by - Blog Posts

Editor’s Note: FLOW today resubmitted the following formal comments from February to the Mackinac Straits Corridor Authority in advance of the Authority’s 10 a.m. public meeting in St. Ignace regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac. See the Authority’s June 7, 2022, meeting agenda, and learn about the opportunity to comment in person or online. Members of the media, please contact FLOW Legal Director Zach Welcker at (231) 620-7911 or Zach@FLOWforWater.org with any questions.

June 7, 2022 (Originally submitted on February 14, 2022)

Dear Honorable Members of the Mackinac Straits Corridor Authority (“MSCA”):

Thank you for the opportunity to comment.

FLOW urges the MSCA to suspend further consideration of this ill-conceived oil tunnel project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies.

FLOW urges the MSCA to suspend further consideration of this ill-conceived oil tunnel project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies.

We have previously provided the MSCA with detailed analyses of this issue and hereby incorporate those by reference in lieu of repeating them here. See FLOW’s September 21, 2021 Letter; FLOW’s March 5, 2020 Comments; FLOW’s December 18, 2018 Comments; oral testimony to the MSCA on March 6, 2020, February 3, 2021, and October 13, 2021. Suffice to say, Enbridge has not received authorization from EGLE to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the DNR made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960). Thus, it would be a waste of time and resources for the MSCA to continue considering Enbridge’s proposal at this time.

If the MSCA decides to the peril of Michiganders to disregard Enbridge’s lack of authorization for this project, it must contend with the fact that Enbridge’s proposal to build a new oil pipeline inside a new tunnel underneath the Straits of Mackinac has ballooned into a supersized infrastructure project. In comparison to the original project, the diameter of the tunnel will now require a tunnel boring machine four times the size initially proposed. Correspondingly, the amount of excavated material that must be transported and disposed of has quadrupled.

Testimony from Enbridge’s geotechnical expert, Michael Mooney, before the Michigan Public Service Commission (“MPSC”) indicates that the tunnel must also be bored deeper than the original design, stating: “The depth to rock was determined to be deeper than assumed during the Alternative study and the resulting vertical profile takes the tunnel deeper in order to remain fully within rock. The geotechnical investigation also revealed highly fractured rock in places that would yield high groundwater pressures during construction.” On file with the MPSC, pp. 19-20.

Yet Enbridge’s initial $500 million estimate of the cost of the tunnel has not been revised. Experts have raised a host of related geotechnical and safety concerns. Significantly, Enbridge has also recently informed the Federal Energy Regulatory Commission that climate concerns may limit the expected service life of the proposed tunnel to twenty years. The MSCA must accordingly reevaluate the prudence of moving forward with this project in light of these significant developments.

FLOW to Michigan Public Service Commission: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Published on March 16th, 2022 by - Blog Posts, Reports & Media Releases

Editor’s Note: FLOW submitted the following comments today to the Michigan Public Service Commission in advance of the MPSC’s March 17, 2022, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac. See the MPSC’s March 17 meeting agenda, and learn about the opportunity to comment in person or online. Members of the media, please contact FLOW Legal Director Zach Welcker at (231) 620-7911 or Zach@FLOWforWater.org with any questions.

Dear Honorable Members of the Michigan Public Service Commission (“MPSC”):

Thank you for the opportunity to comment.

FLOW urges the MPSC to suspend further consideration of this ill-conceived oil tunnel project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies. 

We have previously provided the MPSC with detailed analyses of this issue. Suffice it to say, Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960). Thus, it would be a waste of time and resources for the MPSC to continue considering Enbridge’s proposal at this time.

If the MPSC decides, to the peril of Michiganders, to disregard Enbridge’s lack of authorization for this project, it must contend with the fact that Enbridge’s proposal to build a new oil pipeline inside a new tunnel underneath the Straits of Mackinac has ballooned into a supersized infrastructure project. In comparison to the original project, the diameter of the tunnel will now require a tunnel boring machine four times the size initially proposed. Correspondingly, the amount of excavated material that must be transported and disposed of has quadrupled.

Testimony from Enbridge’s geotechnical expert, Michael Mooney, before the MPSC indicates that the tunnel must also be bored deeper than the original design, stating: “The depth to rock was determined to be deeper than assumed during the Alternative study and the resulting vertical profile takes the tunnel deeper in order to remain fully within rock. The geotechnical investigation also revealed highly fractured rock in places that would yield high groundwater pressures during construction.” On file with the MPSC, pp. 19-20.

Yet Enbridge’s initial $500 million estimate of the cost of the tunnel has not been revised. Experts have raised a host of related geotechnical and safety concerns. Significantly, Enbridge has also recently informed the Federal Energy Regulatory Commission that climate concerns may limit the expected service life of the proposed tunnel to twenty years. The MPSC must accordingly reevaluate the prudence of moving forward with this project in light of these significant developments.

FLOW: State of Michigan Takes a Strategic Step Today in the Race to Prevent a ‘Line 5’ Oil Spill

Published on November 30th, 2021 by - Blog Posts, Reports & Media Releases

Editor’s Note: The following is a media release issued by FLOW on November 30, 2021; please contact Executive Director Liz Kirkwood at (570) 872-4956 or Liz@FLOWforWater.org or Legal Director Zach Welcker at (231) 620-7911 or Zach@FLOWforWater.org.

“The State of Michigan took a strategic step today in the race to prevent a catastrophic Line 5 oil spill in the Straits of Mackinac by concentrating its legal efforts in state, not federal, court,” said FLOW Executive Director Liz Kirkwood. “The state’s legal fight and the citizen-led movement to protect the Great Lakes, jobs, and a way of life continue full speed ahead.”

In response to Judge Neff’s November 16, 2021 decision to assume federal jurisdiction over the state’s 2020 case to shut down Line 5, the state has chosen to voluntarily dismiss that case and rely instead on Attorney General Dana Nessel’s 2019 lawsuit against Line 5-owner Enbridge in state circuit court in Ingham County.

This procedural maneuver will shift consideration of the State of Michigan’s legal efforts to shut down Line 5 back to a state-court forum where the matter belongs. The State of Michigan has paramount sovereignty over the Great Lakes that cannot be severed.

While the timing of a decision on the merits is still uncertain, dropping the 2020 case will almost certainly expedite resolution of the State Michigan’s claims because it avoids protracted litigation in federal court, which would be necessary to guarantee the State’s right to appeal Judge Neff’s legally deficient remand decision in the 2020 case.

“It’s vitally important to recognize that the action by Governor Whitmer and Department of Natural Resources Director Daniel Eichinger in November 2020 to revoke and terminate Line 5’s 1953 easement remains valid,” said FLOW Legal Director Zach Welcker. “While Enbridge continues to trespass in state waters and on state bottomlands, the State of Michigan can now move forward on Attorney General Nessel’s case filed on behalf of the citizens of Michigan in 2019 to shutdown the dual pipelines in the Straits.”

Background from FLOW:

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

FLOW Deeply Disappointed in Court Decision Today Leaving State of Michigan’s Lawsuit to Shut Down ‘Line 5’ in Federal Court, Denying the State’s Request

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

Editor’s Note: The following is a media release issued by FLOW on November 16, 2021; please contact Executive Director Liz Kirkwood at (570) 872-4956 or Liz@FLOWforWater.org or Senior Legal Advisor Jim Olson at (231) 499-8831 or Jim@FLOWforWater.org.

Judge Neff’s decision today addresses only the narrow, procedural issue of whether a state or federal court should decide if the State of Michigan lawfully ordered the shutdown of the Line 5 oil pipelines in the Straits of Mackinac. Although the federal court’s decision to exercise jurisdiction over this matter is disappointing, it does not resolve the validity of the State’s action to protect the public’s legally revered interests in the Great Lakes. Canadian energy transport giant Enbridge continues to defy the order to shut down Line 5.

The decision is legally deficient for multiple reasons, most notably because it failed to consider express provisions of federal law that affirm Michigan’s sovereign right to apply and enforce its own laws to protect its waters and environment. The court also did not properly consider the State’s sovereign interests as required when making a jurisdictional determination. 

“The court overlooked the sovereign public interests of Michigan, an omission that seriously threatens not only Michigan’s sovereignty over its navigable water, but every state in the nation,” said FLOW Founder and Senior Legal Advisor Jim Olson. 

The decision also threatens the sovereign interests of states by setting an extremely low bar for removing state-court lawsuits to federal court. This could result in the weaponization of federal jurisdiction by foreign corporations seeking to litigate disputes involving state law in federal court.

“Fortunately,” said Liz Kirkwood, Executive Director of FLOW, “until decided by a court, Governor Whitmer’s revocation of Line 5 stands firm. FLOW stands in solidarity with the State of Michigan as Attorney General Nessel defends the public waters of the Great Lakes in this nationally significant litigation.” 

Background from FLOW:

Key Context on Federal Lawsuit:

Recent  Line 5 Analysis:

State’s Line 5 Shutdown Deadline:

Reality Check:

Gov. Whitmer’s Line 5 Shutdown Order & Reaction:

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

FLOW’s Blog Coverage: Line 5 blogs providing news & analysis.