Tag: Straits of Mackinac

Comment by Oct. 19 on Permits for Risky Line 5 Oil Tunnel

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On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed 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 meets Lake Huron.

It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed 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. 

Below is guidance from FLOW on what to include in your written comments and how to submit them online by Monday’s deadline. EGLE expects to issue its final decision on the oil tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December.

Points to Make in Public Comments by Oct. 19

FLOW is providing this content for you to draw from and supplement with your own information and perspective in your comment to EGLE on the proposed Line 5 tunnel permits:

  • Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
  • Not good for the climate or Gov. Whitmer’s goals  — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum 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.
  • Not good for public health, safety, and welfare — EGLE is required to 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 Natural Resources and Environmental Protection Act, “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.”
  • Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.

How to Submit Your Comments to EGLE by Oct. 19

Be sure to submit your comments on Enbridge’s proposed Line 5 oil tunnel by the Monday, Oct. 19 deadline. The public can submit comments either by email to EGLE-Enbridge-Comments@Michigan.gov — referencing Application Number HNY-NHX4-FSR2Q — or via two EGLE web pages for commenting separately on each of the permits. Click on each link below and follow the instructions provided by the state:  

  • EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
  • EGLE public comment page for National Pollutant Discharge Elimination System (NPDES) wastewater impacts.

How to Learn More about Line 5 and the Risky Oil Tunnel

To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:

Thank you for speaking up for the Great Lakes, drinking water, and a way of life here in the Great Lakes State!

Speak Up for the Great Lakes at EGLE’s Line 5 Tunnel Hearings Starting Tuesday

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Starting Tuesday, Sept. 29, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will host four online public hearings and receive public comment on the expected wetland and wastewater impacts of constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The tunnel would house a new Line 5 pipeline to continue 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 meets Lake Huron.

It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to sign up ASAP to comment at these online public hearings using the links below because public comment during the meetings likely will be first-come, first-served.

To assist you, FLOW is providing guidance below on the public hearing schedule that runs from Sept. 29 to Oct. 8, how to sign up to comment, key points to consider making, and a template email you can tailor and submit as your written comment too by the Oct. 19 written comment deadline.

Hearing Schedule—Click a link below to register via Zoom and select “Yes” where it asks, “Would you like to make an official comment at this hearing?”:

Points to Make in Public Comments at the Public Hearings — FLOW is providing this content for you to draw from and supplement with your own information and perspective. EGLE will provide up to 3 minutes for each public comment. Start by stating your name, where you live, and if you are representing an organization, indicate which one. Here’s our guidance:

Not in Support:

  • I urge EGLE and the state of Michigan to deny Enbridge’s wetlands resource and NPDES wastewater permit requests to build a tunnel for the Line 5 oil pipeline through the public trust bottomlands of the Straits of Mackinac for the following reasons: 1. Enbridge’s application and project description is too narrow, and does not consider the cumulative effects, the existence of alternatives to the tunnel and wetlands related project purpose pursuant to Sections 303011(1) and 30311(4)(b) of the Wetland Protection Act.

Not Lawful:

  • Not authorized — The new easement (December 2018) granted by the former Snyder administration to the Mackinac Straits Corridor Authority and assigned to Enbridge for the proposed tunnel is invalid because it has not been authorized based on the required determinations of the Part 325 of the Great Lakes Submerged Lands Act and/or section 2129 of the public utility easement in bottomlands of Great Lakes law, MCL 324.2129.

Not a Solution, nor the Best Alternative:

  • It is clear that taking 5-10 more years to study, seek permits, and build a crude oil tunnel under the Straits of Mackinac is not a solution because it fails to address Line 5’s immediate threat to the Great Lakes and Pure Michigan economy and the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. 
  • Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk.

Not Fully Disclosed:

  • Enbridge has indicated that the size of the proposed tunnel will increase from a 10 ft diameter to an 18-21 foot diameter, yet Enbridge continues to use the original estimate of $500 million. Since consumers will ultimately pay for the tunnel, it is important to determine the new estimated cost.  
  • The announcement by EGLE that it will defer to other agencies or the MPSC to consider the likely effects and alternatives of the proposed tunnel project is contrary to the law of Michigan under the Michigan Environmental Protection Act (MEPA). MCL 324.1701 and applicable court decisions.

Not Acceptable — Wastewater and Wetland Impacts:

  • Enbridge is requesting to release up to 5 million gallons/day of treated wastewater back into Lake Michigan on the south shore and up to 14 million gallons daily during storm events. What chemicals will be used in the tunneling process and how will the wastewater be treated to remove those chemicals? 
  • If the waters of the Straits are contaminated, there would be extremely negative impacts to fish populations, tribal fishing rights, and communities who rely on drinking water from the lake and tourism business. How can EGLE consider this permit without having the full details about treatment plans and what chemicals will be used?
  • Doubling the tunnel diameter also results in quadrupling the volume, with four times as much excavated materials to be removed, staged, and disposed of. What are the increased environmental risks associated with the excavation, staging and disposition of these materials?
  • Michigan courts have consistently recognized that the Michigan Environmental Protection Act (MEPA) imposes additional environmental review requirements that are supplemental to existing administrative and statutory requirements. Is EGLE conducting a thorough review under MEPA?

Not in the Public Interest:

  • A permit under Part 303 Wetland Protection “shall not be approved unless the department determines that the issuance of a permit is in the public interest… In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity.” Clearly this project is not in the public interest when considering the impacts to public surface waters, public bottomlands, public drinking water supplies, the climate, and economy.
  • A permit under Part 303 Wetland Protection Act “shall not be approved” unless the applicant demonstrates the “need” for the project; clearly, this project is not needed given the obvious decline in demand for oil in the U.S. and world, and because Enbridge’s and Michigan’s future needs for crude oil can be satisfied by the existing crude oil pipeline system in North American and the U.S; and, because the design capacity of Line 6b (now 78) across southern Michigan from Indiana to Sarnia and Detroit or Toledo was doubled when replaced in 2012-2014, which can reasonably handle all of the volume of crude oil and natural gas liquids transported by Line 5 and Straits dual pipelines.

Not Good for the Climate nor Economy:

  • Line 5 conveys approximately 8.4 billion gallons of oil and natural gas liquids per year, and when burned, yield over 57 million metric tons of CO2 annually. How can EGLE authorize the tunnel in the face of the incontrovertible evidence of environmental and economic harm caused by climate change? 
  • Oil when burned, releases carbon dioxide, carbon monoxide, nitrogen oxides, particulate matter, and unburned hydrocarbons, impairing air quality and having monetizable environmental and health impacts. EGLE must compare the social costs against the benefits.
  • Continued capital investment in fossil fuel infrastructure is fundamentally at odds with addressing the existential threat of climate change.
  • Federal agencies must determine the carbon emissions attributable to projects under the National Environmental Policy Act (NEPA); EGLE and the MPSC must undertake the same analyses under MEPA.
  • The construction of Enbridge’s proposed tunnel and pipeline project for the next 99 years is contrary to Governor Whitmer’s Executive Order on Building a Carbon Neutral Economy.  

Not the Best Alternative:

  • Under Part 303, EGLE must consider “the availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.” EGLE must evaluate the following:
    • To what extent did the 2010 catastrophic failure and oil spill from Enbridge Line 6B into the Kalamazoo River watershed and the more recent temporary, full and then partial closure of Line 5 result in constriction of supply, market disruption, or price increases to end users?
    • Does Enbridge Line 6B in southern Michigan, now reconstructed with a larger diameter as Line 78, have the capacity to meet market demand if the tunnel is not built and Line 5 closes?
    • Is the carrying capacity of the existing network of North American pipelines sufficient to meet future needs? According to FLOW’s experts, available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and Pure Michigan economy.
    • Would cessation of Line 5 result in a new pipeline system equilibrium capable of meeting existing and future demand for oil and natural gas liquids?
    • What is the potential for the tunnel project to become a stranded asset and liability to the State of Michigan in the event market trends play out as predicted?

Written Comment Also Accepted — The public also can comment in writing at any time until EGLE’s comment deadline on Oct. 19. Here’s the:

  • Oil & Water Don’t Mix campaign’s public comment form for you to personalize — drawing from FLOW’s guidance provided above — and send, or you can use the EGLE links below.
  • EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
  • EGLE public comment page for NPDES wastewater impacts.

Background — To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:

Tribes and Environmental Groups Will Help Decide Fate of Proposed Line 5 Oil Tunnel in the Great Lakes

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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.

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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.

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See FLOW’s recent coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel here:

An Enbridge Oil Spill on My Grandparents’ Farm

Photo: The clean up on the Zinn family farm in Marshall, Michigan, after Enbridge’s Line 6B failed a decade ago on July 25, 2010, eventually contaminating nearly 40 miles of the Kalamazoo River and its watershed with a million gallons of tar sands oil, sickening more than 300 people, permanently driving more than 150 people from their homes and properties, and destroying wildlife and habitat.

_________________________________________________________________________________________________

By Frank D. Zinn

Ten years ago, my uncle answered an early morning phone call. He lives in Ann Arbor, about 60 miles east of Marshall, the location of the Zinn family farm. The call was from a Marshall neighbor who reported that something was happening on the Zinn property — there was a gas or oil leak, and things looked and smelled really bad.

The Zinn farm in 2008 before the Enbridge Line 6B oil spill.

My aunt and cousin drove to the farm the next day to check things out. Things did indeed look and smell bad — there was a thick layer of oil sludge on the surface of Talmadge Creek, a tributary of the Kalamazoo River, which runs across the north end of the property. At that point it was clear that a pipeline had ruptured — but the extent of the spill and damage was not yet known.

Several days later, I joined my uncle and father to visit the property again. We met with a lawyer who represented Enbridge, the owner-operator of the Line 6B pipeline. We learned that the rupture occurred a few yards from our property line and that Enbridge was starting the process of cleaning it up and would therefore require access to our property. The lawyer told us that things were not as bad as they looked, and that Enbridge had everything under control. He said “a year from now, you won’t even know this happened” and reassured us that Enbridge would restore the land to be better than it was before the spill.

The 6-foot gash on Enbridge Line 6B that gushed more than 1 million gallons of heavy tar sands oil into the Kalamazoo River watershed when it failed on July 25, 2010.

The scene was a difficult one for my family. The farm had been in the family since about 1930 when my great-grandfather bought part of the property. My grandparents moved their young family there in 1947, so it was where my father and his siblings spent much of their childhoods. After my grandfather died in 1996, my aunt and uncle restored the 440-acre property to indigenous prairie to honor the legacy of his environmentally minded parents. During the two years before the spill, my family collaborated with a Chicago-based developer to design an eco-friendly project for the farm — one that combined a vineyard and winery with housing. We had planned to launch the project in the fall.

At the start of the clean-up process, my family gave Enbridge the benefit of the doubt and remained hopeful that we could proceed with our plans. However, after a few weeks it became clear that the extent of the damage was such that the eco-development project would no longer be feasible. We learned, for example, that Enbridge was immediately notified by its pressure sensors that there was a problem, but did not shut the line down for 17 hours, allowing approximately one million gallons of oil to escape (ignoring the company’s much-touted “policy” that a pipeline would be shut down within 10 minutes if the cause of an alarm could not be determined).

Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010

Moreover, the cleanup was not well designed or implemented, and, as a consequence, nine months into the process, Enbridge was ordered by the U.S. Environmental Protection Agency (EPA) to go back and do it again. Enbridge had failed to account for the fact that the heavy, tar sands crude oil broke down to be heavier than water, and therefore could not be simply skimmed off the surface of the water. At the end of the cleanup, the EPA and Enbridge admitted that at least 5% (about 50,000 gallons) would never be recovered.

After many months of getting little or no response from Enbridge to our questions about the extent of contamination and their plans to restore the property, my family felt it had no other option but to file a lawsuit. After a difficult and painful legal process, we finally settled with Enbridge. Enbridge bought the farm. The project we designed to honor my grandparents would not be built.

Cleanup of the Enbridge Line 6B oil spill on the Zinn farm, 2010

When Lakehead Pipeline Co. (Enbridge’s Line 6B predecessor) came to my grandfather in 1969 and offered to purchase an easement under the farm, he refused, citing his concerns about the environmental impact a spill would have. Lakehead took my grandfather to court in order to obtain the easement, and a Lakehead engineer testified under oath to a judge that a significant spill could never occur because three separate monitoring devices would immediately shut down the pumping station in the event of a rupture. Lakehead was awarded the easement on the basis of that testimony.

Enbridge acknowledges that its pipelines had 610 spills that released more than 5.5 million gallons of crude oil into the environment between 1999 and 2008. Enbridge’s inspections of Line 6B identified 140 instances of cracks/corrosion in 2007, and an additional 250 instances in 2009 — only 61 of these were repaired.

On July 15, 2010, just 10 days before Enbridge Line 6B ruptured, Enbridge’s vice president of U.S. operations for Enbridge Liquid Pipelines, Richard Adams, testified before the U.S. House of Representatives Subcommittee on Railroads, Pipelines, and Hazardous Materials. The focus of the hearing was on Enbridge’s Pipeline Integrity Management. In his testimony, Adams lauded the Enbridge Integrity Management Program and, under questioning, testified that the detection of large leaks in Enbridge pipelines were “almost instantaneous” by Enbridge control center personnel and that, if there was any uncertainty, they would shut down the pipeline.

So, the promises made to my family by the Enbridge lawyer a few days after the spill were not kept. The impacts of the spill on the farm are still evident, and the land is not better than it was before the spill. The statement made by the Lakehead engineer in 1969 was not true. Nor was the testimony made to the U.S. House of Representatives by an Enbridge vice president a few days before the spill.

Furthermore, it is clear that the pipeline regulation is not adequate. While the largest fine in history was levied against the company after a blistering accident report was issued by the National Transportation Safety Board (NTSB) in 2012, Enbridge looks to be back to business as usual (here’s a link to the NTSB report).  Many of the claims made by Enbridge about its Line 5 pipeline that runs through the Straits of Mackinac sound eerily similar to the claims it made about Line 6B before the spill a decade ago.

MPSC: Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac Must Undergo Full and Vigorous Public Review

MPSC Chairman Sally A. Talberg

Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.


FLOW E.D. Liz Kirkwood

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.

“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this 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.”


See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:

Decision Time Coming on Line 5 Oil Tunnel

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Thousands urge MPSC to bring Enbridge under rule of law to protect Great Lakes

By Emma Moulton, FLOW Milliken Intern for Communications

By Emma Moulton, FLOW Milliken Intern for Communications

During a three-week comment period that ended in mid-May, the Michigan Public Service Commission (MPSC) received a flood of more than 3,100 public comments, with a strong majority firmly opposed, on Enbridge’s request to bypass the legal review process and plow forward with other permitting required to replace and relocate the decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a new pipeline.

MPSC spokesman Matt Helms called the volume of comments “definitely a high amount” even for an agency whose utility rate-setting cases sometimes draw intense public scrutiny. The submissions poured in from individuals, families, tribes, environmental groups, elected officials, business owners, political groups, and many others opposed to the Canadian company’s attempted legal maneuver.

Many comments, including from FLOW, highlighted deep concerns over due process, the rule of law, and tribal treaty rights in response to Enbridge’s request for a declaratory ruling that no approval from the MPSC is even necessary. The Canadian pipeline company justifies its request by claiming that a new, roughly 4-mile long tunnel through the bedrock and loose soil of the public trust bottomlands should be considered mere “maintenance” on the old Line 5 pipelines in the open waters that the MPSC approved 67 years ago.

It’s 2020, Not 1953, and A Momentous Decision Awaits

An overarching theme of the comments was that this is no longer 1953, when Dwight Eisenhower was president and color TV was new to America. Now climate change, water scarcity, privatization, and oil spills must be taken into account when considering this massive, new fossil-fuel infrastructure. The public comments demand that MPSC’s decision be based on actual necessity in light of societal clean-energy goals and public interest in a sustainable future. Line 5 only grows more dangerous with age, and it is decision time for Michigan’s leaders.

“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”

Groups Point to Risks, Legal Tactics, Lack of Public Necessity

In their comments, many environmental groups spoke to the unacceptable risk a tunnel would pose to natural resources in Michigan. Several submissions cited the major catastrophe that would be unleashed by an oil spill under and gushing into the Great Lakes, including the damage to drinking water supplies, public health, jobs and the economy, public and private property, aquatic life and habitat, current and future generations, and a way of life in the Great Lakes State.

And the groups directly addressed the criteria the MPSC considers in weighing Enbridge’s request for a declaratory ruling. The Sierra Club, for instance, insisted that the MPSC deny Enbridge’s request, as it, “asks the Commission to ignore that its proposal is in fact to replace the dual Line 5 pipelines by building a new single pipeline, of a different size, in a new location”—noting that Sierra Club members from Michigan rely on the Great Lakes for their clean water and their livelihoods.

The citizen-led Straits of Mackinac Alliance questioned the necessity of the tunnel given the economic downturn here and beyond, writing, “Any projection of tunnel use beyond the next decade is highly speculative” due to Michigan’s change in oil demand. “Michigan’s need for oil products in 2020 is totally different than it was in 1953… Current demands for oil have dropped dramatically and industry projections for shale oil sources do not look promising. The shale oil producers may not be in business when the tunnel project is completed.”

On behalf of multiple groups and tribes, including the Michigan Environmental Council, the Grand Traverse Band of Ottawa and Chippewa Indians, Tip Of The Mitt Watershed Council, and National Wildlife Federation, attorney Christopher Bzdok highlighted Enbridge’s thin reasoning in support of its request for a declaratory ruling and noted that the MPSC “reserved jurisdiction and authority over Line 5, and the right to issue subsequent orders as the Commission deemed necessary. That reservation gives the Commission ample authority to require a new approval for the project and a new contested case.”

Tribes Voice Concerns over Treaty Rights and Survival

Throughout the comments, there is a powerful presence of tribal organizations voicing their critical position on the request, most often citing the 1836 Treaty of Washington, which preceded Michigan’s statehood in 1837 reserved the tribes’ rights to hunt, fish, and gather throughout the territory, and asserted the need for an environment in which fish can thrive.

In addressing tribal rights, attorney Bzdok highlights the lack of tribal collaboration in the MPSC’s original 1953 decision on Line 5: “The Tribes – at least two of which will be intervening in this case – were the original occupants of the property that will be occupied by the project. They retain certain reserved rights to natural resources in the project area under the Treaty of Washington.”

On behalf of the Little Traverse Bay Bands of Odawa Indians, Tribal Chairperson Regina Gasco-Bentley states that the reserved treaty rights “remain central to our culture, economy, and physical and spiritual well-being. The Straits of Mackinac are the life blood of our Tribe. An oil spill or geologic mishap from tunneling under the Straits would devastate our Tribe beyond any economic valuation.”

Next Steps from the MPSC on a Line 5 Oil Tunnel

The MPSC through May 27 accepted any replies on the public comment that was submitted by the May 13 deadline. The public body expects to decide on Enbridge’s request for a declaratory ruling at a June or July meeting, or shortly after, according to spokesman Helms.

If the MPSC rightly rejects the request, then, according to FLOW’s Jim Olson, the MPSC in its review of Enbridge’s April 17 tunnel application should “fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties” of Enbridge’s tunnel pipeline proposal under the Straits of Mackinac to replace its existing four-mile Line 5 pipeline on the lakebed.

FLOW to U.P. Energy Task Force: Act Fast to Protect Residents, End Reliance on Risky ‘Line 5’ Oil Pipeline

Photo by Kathryn DePauw for FLOW.


To alleviate the rising threat to the safety and economic security of Upper Peninsula residents, a state energy task force at its April 13 online public meeting should act with urgency to adopt, prioritize, and schedule the implementation of the 14 recommendations in its draft propane supply report.  Swift action is needed in order to end reliance on the risky Line 5 pipeline, dismantle the Canadian energy monopoly over the Upper Peninsula, and secure more diverse and renewable energy choices, said FLOW (For Love of Water) in formal public comments sent Monday to state officials.

FLOW’s letter to the U.P. Energy Task Force, which Michigan Gov. Gretchen Whitmer created last June, comes at the deadline for the public to review the March 20 draft report on propane supply options. FLOW is urging the task force to act immediately on both short-term and long-term recommendations for the State of Michigan to resolve the clear and present danger to public health and the Great Lakes posed by Line 5.

FLOW finds that the most reliable, secure, lowest-cost, and lowest-risk alternative for propane supplies in the short term is a combination of the recommendations on rail and truck, plus an increase in propane inventory in the Upper Peninsula. Highest priority should be given to recommendations with a full range of diverse alternatives that are not dependent on the decaying Enbridge Line 5 pipeline, which crosses the Upper Peninsula and the open waters of the Straits of Mackinac.

FLOW also urges the task force to evaluate all of the environmental and health impacts and risks that each alternative poses to air, water, and land resources. The Great Lakes and other natural resources remain at grave risk with the continued daily operation of Line 5, and impacts to these public trust resources must be fully considered in the final propane report.

FLOW also calls on the task force to expedite its work and complete its renewable energy plan in 2020, well ahead of its March 2021 deadline for reporting to the governor. Michigan and the Great Lakes cannot wait another year for more studies as Line 5 continues to age.

“The U.P. Energy Task Force draft propane report concludes that both short-term and longer-term feasible and prudent alternatives exist to decommission Line 5 and to secure reliable, safe, and affordable energy to U.P. residents based on adjustments within the energy system,” said Liz Kirkwood, Executive Director of FLOW, the Great Lakes law and policy center based in Traverse City.  “Given the current propane monopoly and lack of backup alternatives to Line 5, U.P. residents are exposed to substantial financial and safety risks. Moreover, Line 5 also poses unprecedented and devastating economic, environmental, and public health risks to the Great Lakes.”

With the help of the task force to prioritize recommendations and advance much needed energy planning, the State of Michigan can work as expeditiously as possible to decommission the aging Line 5 pipeline and transition to safe and affordable energy alternatives for U.P. residents.

Background

The U.P. Energy Task Force, formed by Gov. Whitmer’s Executive Order 2019-14, is charged with “considering all available information and make recommendations that ensure the U.P.’s energy needs are met in a manner that is reliable, affordable, and environmentally sound.” The Order also directs the Task Force to examine “alternative means to supply the energy sources currently used by U.P. residents, and alternatives to those energy sources.”

The precipitating force behind this urgent energy analysis is Enbridge’s increasingly risky 67-year-old Line 5 pipeline, which has ruptured or otherwise leaked at least 33 times since 1968, and the failure to date to prioritize and assure a backup alternative for delivering propane in the Upper Peninsula. Line 5 is operating far past its life expectancy and continues to threaten the Great Lakes, public health, and drinking water supplies for thousands of Michiganders. With no backup plan for delivering alternative propane supplies to the U.P. in the event of a catastrophic Line 5 pipeline rupture, including in the dead of winter, the outdated pipeline also endangers the safety, security, and energy independence of Upper Peninsula residents who rely on propane to heat their homes.

FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

FOR IMMEDIATE RELEASE:                                                                                                   March 5, 2020

Jim Olson, Founder and President                                                             Email: Jim@FLOWforWater.org
FLOW (For Love of Water), Traverse City, MI                                                     Web: ForLoveofWater.org
Cell: (231) 499-8831                                                                                             FLOW Office: (231) 944-1568


FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law


FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.

The Corridor Authority, which is housed in the Michigan Department of Transportation, will meet Friday, March 6, at 10 a.m. in St. Ignace to discuss past and ongoing planning for the location and construction of the oil tunnel and new pipeline in the state public trust soils beneath the waters of the Great Lakes—the Straits of Mackinac.

The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

“The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” said FLOW Founder and President Jim Olson.

“The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”

The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.

The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.

FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.

For more information, see FLOW’s:


Michigan DNR Takes Steps to Hold Enbridge Accountable

Michigan Department of Natural Resources (DNR) Director Daniel Eichinger today set a 30-day deadline for Enbridge to submit key information regarding its ongoing violations of the state-granted easement conditionally allowing the Canadian company’s 66-year-old Line 5 oil pipelines to occupy the Straits of Mackinac.

Eichinger’s letter to Enbridge, which includes 20 questions to be answered by Feb. 12, is an appropriate step to conclude the DNR’s review ordered by Governor Whitmer last June, according to FLOW, the Great Lakes law and policy center based in Traverse City.

“It’s a welcome sign that Director Eichinger and his staff appear to be wrapping up their Line 5 investigation by asking for all other information and documentation that Enbridge has in its possession or control,” said Kelly Thayer, Deputy Director of FLOW (For Love of Water). “At the conclusion of this process, these serious and continuing violations of the easement by Enbridge should trigger the state to shut down the dangerous dual Line 5 oil pipelines in the Great Lakes before it’s too late.”

FLOW commended the DNR for taking this step to restore the rule of law on Line 5, the oil pipelines running through the open waters of the Straits of Mackinac, which researchers have called the worst possible place for a Great Lakes oil spill due to the powerful underwater currents, strong waves, seasonal ice cover, and extreme difficulty in responding to an oil pipeline failure.

“It’s clear that Line 5’s original design in the Straits is failing, as the powerful currents scour the public bottomlands and undermine the pipelines placed there in 1953,” said Jim Olson, FLOW’s President and legal advisor. “Enbridge’s continuing addition of more than 200 pipeline supports constitutes a risky redesign that never has been evaluated or authorized under the Great Lakes Submerged Lands Act and public trust law.”

The State of Michigan already has documented evidence on Line 5 of anchor strikes, exposed metal surfaces, and deep scouring of bottomlands that undermine the pipelines and even bend some of the newly installed supports. There also has been evidence of bending of Line 5 beyond curvature limits, Enbridge has failed to provide proof of liability insurance and other financial assurances, and missing protective pipeline coating and delamination.

FLOW filed formal comments in mid-November 2019 to assist the State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge and rising risk to the Great Lakes, jobs, and drinking water. In those Nov. 13 comments, FLOW called on the state to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shutdown of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane in the Upper Peninsula (which a state task force is studying).

FLOW’s request followed recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders.

Until Enbridge has applied for and obtains authorization under the rule of law or Line 5 is shut down, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit of 300,000 barrels per day (1 barrel = 42 U.S. gallons of oil). Enbridge currently pumps 540,000 barrels a day through Line 5 in the Straits, which is 80% more than the original design approved by the State of Michigan.

Pending such authorization or shutdown, state officials also should implement more stringent requirements for a mandatory emergency shutdown, including when there is a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of at least $5 billion, based on a study commissioned by FLOW that found that a Line 5 oil spill could deliver a multibillion-dollar blow to natural resource and Michigan’s economy.

Chronicling FLOW’s Accomplishments in 2019

Powered by our supporters, FLOW had quite a year in 2019.

Our legal advocacy work to restore the rule of law made a big impact at the state level. Michigan’s new Attorney General Dana Nessel filed a public trust lawsuit on June 27 to revoke the 1953 easement that conditionally authorizes Enbridge to operate its 66-year-old Line 5 oil pipelines in the Straits of Mackinac.

“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood about Nessel’s bold legal action.

On December 3, the Michigan Court of Appeals nullified a lower court order that would have allowed the bottled water giant Nestlé to build an industrial booster pump facility to remove millions of gallons of groundwater per year from Osceola Township. The court affirmed that bottled water is neither an “essential public service” nor a “public water supply”.

“Bottled water diversion and export operations can no longer be paraded as public,” said FLOW founder and president Jim Olson. “The purpose of the bottled water industry has only one purpose—maximum profit off the sale of packaged public water.”

Meanwhile, a bill has been introduced in Lansing by Rep. Yousef Rabhi that extends public trust protection to groundwater and mandates that the state protect that water.

Our work has had a national impact as well. In February, the United States Supreme Court reaffirmed that we have a public trust right to walk the Great Lakes shorelines below the natural high water mark of private property, when it declined to hear an Indiana case filed by riparian land owners. Jim Olson was involved in the original case.

 

Education and protective policy

FLOW launched several education campaigns in 2019 including a Groundwater Awareness Week, what it is and why it matters; the Michigan Septic Summit on Nov. 6 that convened parties from public health officials to realtors to watershed nonprofits to generate new partnerships and build political will to pass a statewide septic code; an environmental economics project and four policy briefs by former FLOW board chair Skip Pruss about the benefits of government regulation to protect the environment and public health; and a Public Trust month in July that included a “Great Lakes Passport” and a month-long series of videos that featured the public answering the question: “Who owns the Great Lakes?”.

We advocated for several protective policies in 2019, including a two-pronged proposal to the International Joint Commission (IJC) for an emergency pilot study and urgent action to address the effects of climate change on the Great Lakes, the inclusion of funding for clean water in Michigan Governor Gretchen Whitmer’s budget, and the need for statewide requirements for septic system inspection, particularly given that Michigan is the only state in the nation without any statewide septic code.

The International Joint Commission, which held a public hearing in Traverse City on July 24, also appointed FLOW executive director Liz Kirkwood to its Great Lakes Water Quality Board.

“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said. “Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound.”

FLOW senior policy advisor Dave Dempsey was also invited to present at the Great Lakes Funders Conference in Cleveland in late October.

 

Celebrating water

FLOW held several events in 2019 to recognize the importance of inspiring citizens viscerally and emotionally (as well as cerebrally) to protect the Great Lakes. We launched our “Art Meets Water” webpage to highlight examples of the heartfelt creativity that inspires us to fight for our public waters. “We all know that water is the source of the future,” says Leelanau County writer Anne-Marie Oomen. “But it’s also a part of our souls and our spirits.”

On June 28, cellist Crispin Campbell and “Mad Angler” poet Mike Delp performed at our “In Praise of Water” benefit for FLOW at the Cathedral Barn at Historic Barns Park in Traverse City. “The Mad Angler finds himself upset about the state of affairs that Michigan rivers find themselves in,” said Delp. “When you hear that deep sound coming out of the cello, that’s the heart of where this comes from… I’m right down inside that cello.”

On July 24, Oomen and the Beach Bards storytellers’ troupe presented, “Love Letters to the Lakes” (which she had solicited from writers across Michigan) in a live reading to the International Joint Commission, in hopes that deeply personal prose would impact public policy to protect the Great Lakes. And on October 11, Higher Art Gallery in Traverse City held “Artists for FLOW,” inviting local artists to share water-inspired works for a show that benefits our fight to protect that water.

After all, protecting the Great Lakes is “A Matter of the Heart” writes FLOW supporter Jerry Beasley:

“What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love, there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.”