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.
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.”
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?”.
“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.
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.
“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.”
Formal comments filed today to assist State of Michigan’s Line 5 review, citing new and ongoing legal violations by Enbridge, rising risk to the Great Lakes, jobs, and drinking water
FLOW today called on the State of Michigan 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 shut down of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane.
FLOW’s request came in formal comments to the state following 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.
FLOW’s comments are directed to the Michigan Department of Natural Resources (“DNR”) and Michigan Department of Environment, Great Lakes, and Energy (“EGLE”), and intended specifically to aid in the DNR’s “comprehensive review of Enbridge’s compliance with the 1953 easement and other factors affecting its validity,” as ordered by Governor Gretchen Whitmer on June 27.
“It’s time for the State of Michigan to restore the rule of law on Line 5. We call on the Whitmer administration to commence the shutdown of the dual oil pipelines and direct Enbridge, if it wishes to continue operating its 66-year-old pipelines in the Straits, to apply for permission under public trust law and the Great Lakes Submerged Lands Act,” said FLOW executive director Liz Kirkwood. “Enbridge must prove that its use and operation, including the substantial change in design with hundreds of elevated spans and significant other matters, complies with and is entitled to authorization.”
Until the shutdown is complete, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit, a reduction of 40% from current flow. State officials also should implement more stringent requirements for a mandatory emergency shutdown, including 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 $5 billion.
FLOW’s comprehensive review of eight violations of the state-granted easement — related to design, operation, and maintenance — demonstrates convincingly that Enbridge has committed, and continues to commit through its conduct, omissions, and breaches of the 1953 easement that are beyond correction. It is also clear that there are major “other factors affecting the validity” of the 1953 easement and Enbridge’s continued use and operation of the cracked-and-dented Line 5 dual oil pipelines in the open waters and on the bottomlands of the Great Lakes in the Straits of Mackinac, including the failure of Enbridge to obtain from previous directors of the DNR (and its predecessor Department of Conservation) the authorizations required by the common law of public trust and/or the Great Lakes Submerged Lands Act (“GLSLA”).
Enbridge’s ongoing violations related to anchors and pipeline design threaten the very safety and health of the Great Lakes, and thus trigger the state’s duty to enforce its conditional occupancy agreement with Enbridge. The State continues to have substantial legal and factual cause to terminate the agreement with Enbridge to stop the oil flow.
In support of these comments, FLOW also submitted the multiple reports and comments that FLOW and others have previously submitted to the DNR, DEQ (now “EGLE”), the Attorney General’s office, and Governor’s office over the past six years. It is clear that the Director of the DNR and executive team, as trustees of the Great Lakes and soils beneath them, have the authority and duty to invalidate, direct compliance with, terminate, and/or revoke the 1953 Easement.
The 200-plus anchor supports (constituting 3 miles of elevated pipelines in the water column) represent a substantial change in design from the dual pipelines designed and built pursuant to the specifications of the 1953 easement. Although DEQ (now “EGLE”) approved anchor supports of the elevated lines over the past 18 years, the anchors have been issued only as permits to “place other materials on bottomlands,” and not as a conveyance or agreement for occupancy or use of the bottomlands and waters for the substantial change in the dual pipelines themselves. The Affidavit of Dr. Edwin Timm filed in the consolidated contested cases against the State of Michigan demonstrates seriously increased risks, a total lack of review of applicable risk standards for elevated multiple-span pipelines, and new or substantially changed pipeline that has not been assessed by the state.
“The only real solution now is to apply the law and shut down the 66-year-old Line 5 pipelines permanently to protect the Straits, and nearly 400 other water crossings in Michigan, from the next Enbridge oil spill,” said Kirkwood. “The Canadian oil, which Enbridge does not own, can be sent through other pipelines operated by Enbridge and its competitors. Michigan has no obligation to guarantee Enbridge a shortcut to Ontario oil refineries and the overseas export market.”
On August 1, a natural gas pipeline operated by an Enbridge subsidiary exploded in Kentucky. The blast killed one person, injured six others, and blew 30 feet of pipeline out of the ground, resulting in a crater that is 50 feet long, 35 feet wide and 13 feet deep. About 66 million cubic feet of natural gas was released by the explosion, with the resulting fire destroying multiple structures and burning vegetation over approximately 30 acres of land.
Although public attention has rightly focused on the risk of a catastrophic oil spill from Enbridge’s Line 5 pipelines at the Straits of Mackinac, FLOW board member Rick Kane points out that the risk of a similar explosion is also possible because of the natural gas liquids (NGLs) running the length of Line 5’s 645-mile transit through Wisconsin and Michigan.Here is Kane’s analysis.
Enbridge’s Line 5, a legacy hazardous liquids pipeline, poses a major explosion and fire safety risk to citizens and property along its entire length while it transports natural gas liquids (NGLs). This risk is particularly high for the Line 5 segments north and south of the Straits of Mackinac. Why is this issue not being investigated as part of the proposed tunnel project so that citizens and first responders living along the Line 5 hazard zone know the current risk and likelihood that permitting and replacing the pipeline will pose in the future?
The severe consequences of a Line 5 failure and crude oil release into the Straits have been widely publicized. Construction of a tunnel with a new pipeline is now being pursued as a risk reduction approach against a major crude oil spill disaster. However, a tunnel does not reduce the risks posed by Line 5 across the Upper Peninsula and Lower Peninsula where a rupture could release crude oil into hundreds of lakes, rivers and streams, some even leading to the Great Lakes. Nearly absent from the studies and debate are the threats and catastrophic consequences to human safety and property posed by Line 5 while it transports NGLs.
Pipelines are the safest transportation mode for crude oil, NGLs and especially natural gas. However, there are a wide range of pipeline design specifications, materials transported, pipeline ages, physical conditions and operating environments. Line 5 is a legacy pipeline, well past its designed retirement age, operating in an extremely sensitive environment and transiting through several populated areas. Unlike wine, a vintage pipeline does not get better with age; government and industry statistics show that failure rates increase dramatically for legacy-class pipelines. Several major incidents in recent years call into question the reliability of pipeline industry failure prevention programs to justify the continued operation of these pipelines.
A Line 5 failure during the transport of NGLs could have consequences beyond the Kentucky failure and other too-typical natural gas pipeline failures:
Natural gas (methane) is transported as a compressed gas. The NGLs in Line 5 are mostly propane with some ethane and butane that are gases compressed to a liquid state when transported by pipeline.
When a natural gas pipeline failure occurs, a rapidly, vertically expanding gas cloud ignites, creating a huge flaming torch. Many people reported that the fire from the Kentucky explosion reached 300 feet high.
When an NGLs pipeline fails, liquid is expelled quickly, forming a large vapor cloud that moves with the wind until it finds an ignition source. Then the vapor cloud ignites, and an explosion and fireball occur with a shock wave, flame front and radiative heat wave moving out from the explosion area.
The potential energy (explosion and heat) from an NGLs explosion can be much greater than from a natural gas break as NGLs have a higher caloric value and the quantity of energy released can be much higher.
The risk study developed by Dynamic Risk Systems, Inc. for the State of Michigan in 2017 contained an NGLs deep water release scenario in the Straits that would result in a flame front of almost one mile. Contrast this with a ground level release upstream or downstream of the Straits where the release quantity could be much higher as the distance between pumping stations and shutoff valves is greater at ground level and near populated areas and valuable property. Computer modeling of potential release scenarios near populated areas would provide estimates of fatalities, property damage and important evacuation zones for law enforcement and first responders.
The Kentucky pipeline explosion is still being investigated but preliminary information indicates that the pipeline is similar in size, age and construction to Line 5. Corrosion is believed to be the cause of the failure, and as in other similar incidents, Enbridge is trumpeting the touted pipeline loss prevention program and the reliability of inspections with “smart pigs” to justify continued operation of legacy pipelines.
Issues and Questions
The entirety of Line 5 will need to be replaced at some point if the tunnel project proceeds. Does the State of Michigan understand the risks for transporting NGLs in legacy hazardous liquid pipelines, and have assessments been conducted and verified by third-party experts? Are citizens living in the potential impact zone aware of the risk they face?
Do property owners and citizens know that a flurry of permit requests for Line 5 “maintenance replacement” will be issued if the tunnel project is given the green light, as was done with Line 6B/78 after the Kalamazoo River disaster in 2010? A similar piecemeal, preventative maintenance and capacity expansion approach is currently being used on Line 3 in Minnesota—a pipeline with an increasing number of failures that Enbridge says needs to be replaced and is 10 years younger than Line 5.
Importantly, emergency response organizations along the Line 5 route should complete pre-modeling of NGLs release scenarios to understand potential explosion overpressure and flame envelops and have evacuation scenarios ready to use. The modeling required is more complex than typically done by first responders for hazardous materials spills; they could underestimate the size of an evacuation zone.
The State of Michigan regulates gas pipelines but not hazardous liquid pipelines such as Line 5. Why not? Cost is not the answer: other states have taken on the task after disasters occurred; the cost is covered by inspection and audit fees charged to the pipeline companies. State inspections can supplement and provide local control rather than depending on the overwhelmed federal regulators from Pipeline and Hazardous Materials Safety Administration (PHMSA).
What about a “National Emphasis Program” focused on pipeline safety starting with the largest operator, Enbridge? After a spate of major refinery and chemical facility accidents several years ago, the Occupational Safety and Health Administration (OSHA) implemented a National Emphasis Program (NEP) that focused on certain segments of the industry based on risk and accident history. Comprehensive inspections and audits addressed not only regulatory requirements but a company’s adherence to industry standards and requirements applicable through the General Duty Clause.
Accidents will continue as long as the pipeline industry uses its own standards for acceptable levels of pipeline failures and relies on current loss prevention and inspection programs for legacy pipelines. The industry is currently deciding the risk tolerance for citizens. A large NGLs pipeline rupture near a local city or village could happen again, just as Line 6B/78 dumped crude oil into the Kalamazoo River nine years ago.
Rick Kane, FLOW Board Member
Rick is the former Director of Security, Environment, Transportation Safety and Emergency Services for Rhodia, North America. He is certified in environmental, hazardous materials, and security management, and is a graduate of the University of Michigan and University of Dallas.
Photo: FLOW Deputy Director Kelly Thayer speaks to the Grand Traverse County Board in opposition to a pro-oil tunnel resolution.
By Kelly Thayer
Confronted at 8 a.m. on a Wednesday by a full audience passionately and unanimously against a proposed Line 5 oil tunnel in the Straits of Mackinac, the Grand Traverse County Board of Commissioners voted today to temporarily table a misguided and error-filled resolution supporting the oil tunnel. (Click here to view a video of the meeting, once posted by the county).
Some commissioners also could be heard chatting among themselves before the meeting about the voluminous amount of emailed comments against the oil tunnel that they also received in the hours leading up to the session, as local citizen groups spread the word of the pending vote.
While the outcome was received as a temporary victory in the moment by many in attendance, vigilance still is required.The resolution, which had been expected to gain quick approval, will likely come back for reconsideration — perhaps at a tentatively scheduled 8 a.m., August 14, study session — and then a possible vote at the Grand Traverse County Board’s next regular meeting at 8 a.m. on Wednesday, August 21, at the Governmental Center at 400 Boardman Ave. in Traverse City.
“I was elected to work for the public interest and the people of Grand Traverse County, not the bottom line of a foreign oil company with a troubling safety record and equally troubling transparency practices,” said Commissioner Betsy Coffia after the meeting, who was prepared to oppose the symbolic resolution. “Enbridge pays a lot of lobbyists and lawyers to carry water for them. I don’t think it’s the job of the Grand Traverse County Commission to do that work for them.”
Only one county in Michigan—Dickinson in the Upper Peninsula—to date has approved the model resolution that bears close resemblance to talking points that Line 5-owner Enbridge has circulated for many months. The resolution tabled by Grand Traverse County Commissioners proposes to send “this resolution to all counties of Michigan as an invitation to join in expressing support” for the oil tunnel owned by Canadian-based Enbridge.
Dozens of people representing themselves, families, Indian tribes, businesses, environmental groups, and others attended and many spoke up against the oil tunnel and for protection of the Great Lakes, drinking water, public trust and tribal rights, and the Pure Michigan tourist economy.
FLOW and its team of lawyers, scientists, engineers, and an international risk expert since 2013 have studied the increasing threat from Line 5 in the Straits of Mackinac and, more recently, the proposed Line 5 oil tunnel.
FLOW Deputy Director Kelly Thayer read a statement calling on the county board to reject the oil tunnel resolution, which in its first sentence, incorrectly states the age of the decaying pipeline and claims an admirable safety record that is at odds with the reality that Line 5 has leaked at least 33 times, spilling a total of 1.1 million gallons of oil in Michigan and Wisconsin.
“It is critical for the Grand Traverse Board of County Commissioners to understand that—with the proposed resolution in your packet—the Board is being asked to interfere in ongoing litigation between the State of Michigan and Enbridge,” Thayer said. “In addition, there are at least four other active lawsuits against Enbridge and Line 5. Therefore, this type of resolution is misguided and not in Grand Traverse County’s, nor the public, interest.”
In March, Michigan Attorney General Dana Nessel found that the tunnel bill that became law was unconstitutional.In early June, Enbridge sued the State of Michigan to resuscitate the tunnel legislation. And in late June, the State of Michigan sued Enbridge to revoke the 1953 easement that conditionally authorized Enbridge to pump oil through the twin pipelines.
Attorney General Nessel’s lawsuit alleges that Enbridge’s continued operation of Line 5 in the Straits violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act based on potential pollution, impairment, and destruction of water and other natural resources.
“Why would the current Grand Traverse County Board, which—to our knowledge—has never studied nor discussed the threat from Line 5, take a leap of faith in supporting a Canadian oil pipeline company’s alternative that diverts attention from the real problem—the bent, cracked, and encrusted oil pipelines in the Straits?,” Thayer asked.
Enbridge wants the right to bore a tunnel in the next 5-10 years for Line 5 through State of Michigan public trust bottomlands under the Straits, where Lake Michigan meets Lake Huron.
Enbridge also wants to keep pumping up to 23 million gallons of oil and natural gas liquids a day through the decaying, 66-year-old Line 5 pipelines in the Straits during tunnel feasibility studies and construction. An oil tunnel also would fail to address the risk posed by Line 5’s more than 400 stream and river crossings in the Upper and Lower Peninsulas and would conflict with Michigan Gov. Gretchen Whitmer’s plans to combat climate change.
The City of Mackinac Island, Grand Traverse Band of Ottawa and Chippewa Indians, and the Straits of Mackinac Alliance citizen group also have filed a contested case challenging Enbridge’s claim that installing hundreds of anchor supports to shore up the decaying Line 5 is mere maintenance, rather than a major redesign requiring an application and alternatives analysis under the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes. Line 5-related lawsuits against the U.S. Coast Guard and against Enbridge in Wisconsin also continue.
FLOW and other Great Lakes advocates have long called for shutting down Line 5, which primarily serves Canada’s, not Michigan’s, needs and threatens the Great Lakes. FLOW research shows that viable alternatives exist to deliver propane to Michigan and oil to regional refineries, and Gov. Whitmer has formed an Upper Peninsula Energy Task Force to identify energy supply options. The system can adjust with smart planning.
Today represents a historic turning point for all Michiganders. Attorney General (AG) Dana Nessel took decisive legal action on Pipeline 5 in the Straits of Mackinac when she filed suit in Ingham County Circuit Court to revoke the 1953 Easement that conditionally authorized Enbridge to pump oil through twin pipelines.
Nessel’s lawsuit alleges that Enbridge’s continued operation of the Straits Pipelines violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution, impairment, and destruction of water and other natural resources. Simultaneously, Governor Whitmer and the natural resources and environmental protection agencies have taken action through the AG to dismiss Enbridge’s June 6 lawsuit to defend the public’s rights and waters of the Great Lakes.
“I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes,” said the Attorney General. “Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay.”
Gov. Gretchen Whitmer also ordered the Michigan Department of Natural Resources to review violations of the Line 5 easement. As the state’s top leader and public trustee, Whitmer has the express legal authority to revoke the easement to start decommissioning the pipeline.
“The governor’s primary goal has always been and remains to get the Line 5 dual pipelines out of the Straits of Mackinac as soon as possible,” said Whitmer’s press secretary Tiffany Brown today in a statement. “The risk of a catastrophic oil spill in the Great Lakes, and the harm that would follow to Michigan’s economy, tourism, and our way of life, is far too great to allow the pipelines to continue to operate indefinitely. As a recent National Transportation Safety Board report documented, any doubt as to the risk posed by Line 5 was erased in April 2018 when a barge dragging a 12,000-pound anchor nearly caused disaster.”
FLOW (For Love of Water) commends Attorney General Nessel’s and Governor Whitmer’s legal actions against Enbridge. It’s about time Michigan’s government is standing up for our public waters — waters located in arguably the worst possible place in the Great Lakes for an oil spill to happen.
“Today, Attorney General Nessel returns Michigan and the protection of its citizens, taxpayers, and the Great Lakes to the rule of law,” said Jim Olson, president and founder of FLOW. “Governor Whitmer’s action on behalf of the state to nullify the lame-duck tunnel agreements also returns Michigan to the rule of law. They should be thanked. No, they should be applauded.”
Nessel’s move comes three weeks after Enbridge sued the State of Michigan on June 6 to claim its right to continue operating Line 5 and to build and operate a tunnel under the Great Lakes for the next 99 years. It comes just over six months after former Governor Snyder, former Attorney General Schuette and lawmakers gifted Enbridge a one-sided law and set of agreements during their last days in office that handed control of Great Lakes waters and soils beneath the Straits of Mackinac to a private Canadian company for its private gain.
Act 359 and the agreements during the 2018 lame-duck session were designed to allow Enbridge to continue the dangerous and unacceptably grave risks of a failing Line 5 design until the company builds a tunnel to lease for the next 99 years, with massive potential liabilities for the State and citizen taxpayers.
“The deal was approved by a lame-duck session law that was based on dubious constitutional and legal grounds, and sought to suspend the rule of law in Michigan, binding citizens and the state to the control of part of the Great Lakes for the next century,” said Olson. “The Snyder administration helped Enbridge run around our state constitution and evade the rule of law that protects the public’s ownership and rights in the Great Lakes.”
New year, new administration
After taking office on Jan. 1, Governor Whitmer’s first move was to direct Attorney General Nessel to examine the legality of the lame-duck tunnel deal. AG Nessel ruled in March that Act 359 violated Michigan law and openly violated the state constitution. Whitmer quickly ordered the executive branch to adhere to Nessel’s opinion, preventing the implementation by state agencies of the unlawful deal.
On June 6, Enbridge reacted by filing a lawsuit against the State in an attempt to resuscitate the lame-duck law and agreements, claiming easements and the right to continue using the existing Line 5 in the Straits indefinitely—or until it gets a 99-year tunnel and new pipeline to transport crude oil from Alberta and through Michigan into Ontario.
The Attorney General telegraphed her decision to stand with the Great Lakes. At the Mackinac Policy Conference in late May she told WWMT-TV in West Michigan, “I’m tired of it and we can’t have a private company be more important than the natural resources and residents of our state. They don’t own us, they don’t own the natural resources in this state and I think it’s time that we had elected leaders in office that recognize that.”
On the campaign trail in 2018, Nessel ran on a message to shut down Line 5.
“No state can cede the Great Lakes or soils under them to a person or private corporation,” said Olson. “These lakes and the soils under them are held in public trust for fishing, boating, drinking water, recreation, bathing, swimming for all citizens. This trust cannot be suspended by private agreements. The use of these trust waters and soils can only be authorized under law with transparent findings that there is no private deal or gain and no risk of impairment of current and future generations.”
Our freshwater seas are of paramount importance to Michiganders, and citizens throughout the Great Lakes basin. They uphold our economy and represent our very way of life. According to the Great Lakes Commission, Michigan has more than 3,000 miles of freshwater coastline and 11,000 inland lakes that provide residents, businesses, and visitors with access to nearly 20 percent of the world’s surface freshwater. More than 800,000 Michigan jobs and $62 billion in resulting annual wages are directly linked to the Great Lakes.
An oil spill in the turbulent Straits of Mackinac between Lakes Michigan and Huron, where the currents create a washing machine effect, could jeopardize all that we are as Michiganders.
“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. “Attorney General Nessel and Governor Whitmer made strong campaign promises to shut down Line 5, and now our elected leaders are making good on their commitment to protect the Great Lakes.”
Reactions from local leaders — both in city hall and in the private sector — were strong.
“Shutting down Line 5 is a priority to those in northern Michigan who rely on the economic benefits of the natural resources we have in our Great Lakes,” said Traverse City Mayor Jim Carruthers. “Our Attorney General is right for supporting the immediate shut down of this aging Enbridge Pipeline under our Straits, to ward off the devastating effects of a breach that will destroy all that is important to life ‘up north’. As the mayor of Traverse City, I wholeheartedly support these actions to protect the waters around my city for all to enjoy and benefit from.”
Business owners like Brian Schwartz of eightyfive MILES, a lifestyle apparel and accessory brand company, reflected on the economic value and significance of the Great Lakes.
“I am the owner of a Great Lakes’ inspired start-up and former hedge manager, and I don’t see Enbridge’s enthusiasm or desire to fund a $500 million tunnel project,” he said. “We believe it’s a faulty plan and the time is now to shut down Line 5. We support Attorney General Dana Nessel in the State’s battle to shut down this aging pipeline. Our company contributes a share of revenues to support Great Lakes’ conservation and it would be an ecological disaster and economic catastrophe to Michigan if the pipe were to burst. There’s no need to put the State’s livelihood and environment at risk.”
“Despite the posturing and rhetoric of Enbridge’s media scheme, there are alternatives to the existing Line 5 that do not require a tunnel,” said Olson. “These include delivering propane for those pockets of customers in the Upper Peninsula, and the use of excess capacity in other Enbridge lines that run across southern Michigan and northern Indiana to Canada and Detroit. We don’t need a 99-year tunnel and pipeline in light of plummeting demand for crude oil as the world economy rapidly shifts to renewable energy.”
“The Enbridge lawsuit is a diversion from the reality that the 540,000 barrels of oil are pulsating through a 66-year old pipeline, which is peppered with design flaws, gouges, corrosion, and unavoidably threatened with another anchor strike at any time.”
Enbridge has failed to prove itself as a trustworthy and transparent partner. Time and time again, Enbridge has withheld information, attempting to hide Line 5’s design flaws, pipeline coating, cracks, gouges, corrosion, and the April 1, 2018 anchor strike that nearly caused a calamitous spill, anchor strikes, and more. Enbridge’s operational track record is dismal. Its Line 6B Kalamazoo River disaster in 2010, one of the largest inland oil spills in U.S. history, cost $1.3 billion in damages. Line 5 has suffered 33 known spills, leaking approximately 1.1 million gallons of oil into Michigan’s environment.
An increasingly desperate Enbridge is enlisting allies to engage in what can only be deemed a deceitful Chicken Little campaign. The Canadian company wildly alleges that “shutting down Line 5, even temporarily, would mean lost union jobs, refinery closures, gas price spikes and greater harm to the regional economy every year.” The campaign is designed to scare officials into giving the company what it wants — a 99-year lease to use the people’s waters and lakebed to transport refined dirty tar sands oil from western Canada primarily to Sarnia, Ontario.
Enbridge makes the absurd claim that the PBF refinery in Toledo, Ohio, would lose a thousand jobs if Line 5 is shut down. But that directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts, emphasizing the refinery has several sources of supply and can adjust them depending on market conditions. PBF also claims that 40% of the jet fuel used at Detroit Metropolitan Airport comes from refined Line 5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day. Alternative pipeline sources can more than make that up. Impacts of a Line 5 shutdown on Metro Airport jet fuel have never before been raised as an issue in the Line 5 debate or when Line 6B ruptured and closed in 2010. Its introduction at the 11th hour after more than five years of controversy over the fate of Line 5 is a transparent effort to alarm the public.
Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Mackinac Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.
Enbridge has a track record of misleading the public and governments about its performance, and its recent efforts are consistent with the company’s apparent philosophy of saying anything to keep Line 5 petroleum — and profits — flowing.
FLOW applauds Michigan’s top leaders — Gov. Whitmer and AG Nessel — for their leadership in defending the people’s rights and public waters of the Great Lakes.
FLOW Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline
Traverse City, Mich. –FLOW (For Love of Water) issued the following statement on the disclosure that Gov. Gretchen Whitmer and Enbridge Energy will discuss expediting construction of an oil tunnel beneath the Straits of Mackinac while the company’s troubled Line 5 pipelines continue operation in the Straits:
“We are concerned about this development. Every day that the Line 5 pipelines continue to operate is a risk to our precious Great Lakes,” said FLOW executive director Liz Kirkwood. “State government’s efforts should first and foremost be devoted to shutting the pipeline down, not negotiating its continued operation while a tunnel is explored and possibly built.
“Now that the Governor has chosen to engage in this process, we hope and trust it will be a transparent one. It is unfortunate that her predecessor engaged in secret talks on agreements with Enbridge, and the lame-duck Legislature was so eager to benefit Enbridge that it passed a sloppy statute that the Attorney General ruled unconstitutional. We are confident this Governor will operate differently,” Kirkwood said.
“We are also hopeful that the Governor will restore and apply the rule of law to Enbridge’s operations in the Straits. Any easement or lease of Great Lakes bottomlands and any private control for a 99-year tunnel by a private company like Enbridge for a private operation must be authorized under the Great Lakes Submerged Lands Act (GLSLA),” said Jim Olson, President of FLOW.
“The GLSLA ensures a public review, analysis, participation, and a determination under standards that protect the public trust in the waters of the Great Lakes and the soils beneath them from privatization and impairment. It also ensures a thorough evaluation of feasible and prudent alternatives, including ones that do not involve use or control of the Great Lakes. No agreement between the executive branch and a private company can override this fundamental law,” Olson said.
If the 66-year-old Enbridge Line 5 pipelines fail in the Straits of Mackinac, who will pay for the oil spill clean-up costs and damages to residents, coastal communities, businesses, and our public waters?
Michigan citizens may believe they are protected, at least at some level, by the insurance Enbridge should be required to have in place to pay the costs of cleaning up an oil spill disaster in the Straits, where Lake Michigan meets Lake Huron.
Unfortunately, that may not be the case.
A FLOW investigation has revealed potential holes in Michigan’s financial protections against a Line 5 pipeline rupture into the Great Lakes. The potential shortcomings could prove ruinous to communities, residents, and businesses that suffer losses at the hands of a Line 5 oil spill in the Straits.
The problems can be traced to last year when environmental regulators were largely sidelined by the Snyder administration, which negotiated four Line 5 agreements directly with Line 5-owner Enbridge from the executive offices of the governor.
Now FLOW’s findings come as Governor Gretchen Whitmer has issued an executive order and new directives aimed at strengthening the state’s regulatory and administrative oversight capabilities for the Great Lakes, although Republican legislators are seeking to overturn the governor’s order in favor of delegating oversight in part to the businesses being regulated by the state.
A Rush to Cut a Deal
The Snyder Administration’s inexplicable, rushed effort to sign agreements with Enbridge to replace Line 5, the dual 20-inch pipelines transporting crude oil and natural gas liquids through the Straits of Mackinac, has left the State of Michigan with potential catastrophic and unfunded financial liabilities.
The recent agreements between Governor Snyder and Enbridge allow the continued operation of the existing Line 5 pipeline for a period of 7 – 10 years, the estimated construction time required to design and build a tunnel to house a proposed new oil pipeline across the Straits of Mackinac.
Under the “Second Agreement,” the potential damages resulting from a disastrous pipeline break are supposed to be addressed by liability insurance Enbridge carries that would, if an oil spill occurred, pay for economic harm, clean-up and restoration costs, and natural resource damages.
The Snyder AdministrationFailed to Conduct a Risk Management Review
In its haste to sign agreements with Enbridge, the state failed to conduct a study that would evaluate the financial capacity of Enbridge to address a worst-case scenario for damages and claims that may result from an existing Line 5 failure. The purpose of a detailed quantitative and qualitative assessment of Enbridge’s capacity to perform in the event of a pipeline failure is make sure that Enbridge has the ready financial capacity to:
Immediately address and remediate environmental damages over the next seven to ten years;
Pay for economic damages that citizens, businesses, and affected coastal communities may incur as a result of a spill; and
Ensure that the State of Michigan is protected from future liabilities and expenses that third parties may bring against the state.
An appropriate examination of measures necessary to manage the risks and exposure state and local governments may face from pipeline failures is an essential precaution necessary to evaluate the risks posed by pipeline failures.
Minnesota and Wisconsin Expert Reviews Found Enbridge’s Insurance Coverage Deficient
Recently, the State of Minnesota and Dade County, Wisconsin, retained insurance experts to determine the adequacy of the financial assurances Enbridge has in place for pipeline related projects in their states.
Both expert analyses determined that the insurance Enbridge carried was deficient. The General Counsel to Minnesota’s Department of Commerce stated that they “found no meaningful coverage for damages caused by oil spills.” The Wisconsin analysis revealed Enbridge did not carry Environmental Impairment Liability (EIL) insurance, explaining:
An EIL policy designed specifically to cover claims arising from pollutants provides broader coverage for environmental losses than a GL [General Liability] policy does. A good quality EIL insurance specifically insures Cleanup Costs, Emergency Response Costs, Restoration Costs and Natural Resources Damages within the insuring obligations of the policy. GL policies do not reference these important elements of coverage which will always come into play as a source of damages in a pipeline spill.
Unlike our sister states dealing with Enbridge, there is no evidence that the State of Michigan conducted a risk management and insurance review of any kind, nor does it appear that the State sought any assistance from qualified experts to determine whether the financial assurances Enbridge has proffered would, in fact, protect the State of Michigan and its natural resources as well as coastal communities, citizens, property owners, and businesses.
FLOW’s communications with the experts who conducted the Minnesota and Wisconsin reviews has raised the concern that the Line 5 pipeline may never have been adequately insured. Even worse, Line 5 may be potentially uninsurable. Given its age and known condition — anchor strikes, coating loss, abrasion, dents, cracks, bending, and deformities — Environmental Impairment Liability insurance may be unavailable in the international insurance market.
Inadequacies of Enbridge’s Financial Assurances to the State of Michigan
A preliminary review raises many questions regarding the adequacy of Enbridge’s financial assurances that are supposed to mitigate the economic harm if Line 5 fails:
Enbridge’s General Liability insurance may not cover clean-up costs, restoration costs, natural resource damages, or claims by third-parties who have been injured by a spill.
Enbridge does not carry “environmental impairment liability” insurance that would cover clean-up costs, natural resources damages and claims by injured third-parties.
Enbridge’s financial assurances are capped at $1.878 billion dollars, far less that the $6.3 billion estimate of worst-case damages determined by a study by Michigan State University, and a potential $45 billion loss to the nation’s Gross Domestic Product in after just 15 days from disrupting Great Lakes commercial shipping and steel production.
Enbridge Inc., the parent company, is not a signatory to the agreement relating to financial assurances; instead three Enbridge subsidiaries signed the agreement. It is unknown whether these subsidiaries are insured.
The State of Michigan may not be named as an “additional insured” on the insurance policies. If not, then the State of Michigan would have no direct right of recovery against an insurer, but instead would only have a derivative right to a recovery through Enbridge or one of its subsidiaries, assuming the subsidiary was an insured party.
An expert risk management review would have analyzed, quantitatively and qualitatively, the adequacy of Enbridge’s financial assurances and determined whether they afforded real economic protections to Michigan’s coastal communities, property owners and businesses. It is imperative that an expert review be conducted immediately.
FLOW’s Recommendations for the State of Michigan
Based upon the preliminary review of the financial assurances intended to mitigate the present economic risks posed by a Line 5 failure and the ensuing questions and issues that have been identified by FLOW and independent insurance experts, the State of Michigan should:
Retain qualified experts to determine the adequacy of Enbridge’s financial assurances and to make appropriate recommendations regarding mitigating the magnitude of the financial risks posed by Line 5;
Determine to what extent the State of Michigan is bound by the indefinite and inadequate terms and provisions of the “Second Agreement;”
Require Enbridge, Inc., to name the State of Michigan as an “additional insured” and/or “named insured” on its insurance coverage for Line 5; and
Seek the termination of operation of Line 5 until all financial assurance deficiencies are fully cured and satisfied.
The Snyder Administration appears to have placed the people of the State of Michigan at great risk by its failure to exercise due diligence and assess the financial assurances proffered by Enbridge.
The Whitmer Administration and Attorney General Nessel have the opportunity to correct this critical omission.
After last year’s election, newly chosen leaders and the old guard with a few weeks left in Lansing rushed in opposite directions. The Snyder administration and legislators intensified their unprecedented, legally questionable attacks on water, the environment, and public health during a lame-duck feeding frenzy.
The new guard, Governor Gretchen Whitmer and Attorney General Dana Nessel, meanwhile formed transition teams and appointed cabinet members, new department heads, and staff to reestablish Michigan’s constitutional mandate that the state shall protect the paramount public concern in the Great Lakes, groundwater, and public health from pollution and harm arising out of water crises like statewide PFAS surface and well water contamination, Detroit drinking water shutoffs, lead and Legionnaire’s Disease in Flint water, and the Enbridge Line 5 oil pipelines in the Straits of Mackinac.
The combination of these crises manifests a far deeper crisis in state government—a breach of trust in the oath of office of state officials to uphold the constitution and rule of law. State leaders under the Snyder Administration and many elected officials deliberately ignored the constitutional and legal mandates and instead chose to serve special private interests.
FLOW’s Commitment: Protecting Public Waters from Pollution and Private Control
Here at FLOW, we are increasing our efforts and projects to protect the paramount public trust concern in water, the environment, and public health through our Campaign for Fresh Water launched last fall. One of these projects is to bring an end to the high risk of extreme damage to the Great Lakes, tribal fishing, drinking water, property, businesses, citizens, and Michigan’s economy from the continued operation of the decaying, 66-year-old Line 5 oil pipelines in the Straits of Mackinac.
FLOW has redoubled our efforts in concert with a large public outcry and movement to decommission or end Line 5, collaborating with Oil & Water Don’t Mix and many local and statewide environmental groups, like National Wildlife Federation and Groundwork Center, individuals, families, businesses, communities, elected officials, and the leadership and legal challenges brought by Michigan’s Indian tribes with treaty rights in the Straits, Straits of Mackinac Alliance, and the City of Mackinac Island.
The former Snyder Administration and state environmental and natural resource agencies, former Attorney General Schuette, and a core of pro-Enbridge legislators in a flurry of agreements, laws, and actions, suspended the state Constitution and rule of law to convey and appropriate public trust lands and waters for Enbridge to build a private oil tunnel for a new Line 5 in the Straits of Mackinac for another 99 years. Worse, these state officials and leaders purported to guarantee Enbridge to keep operating and using Great Lakes bottomlands for its dangerous existing Line 5 for another 10 years—without the required authorization and occupancy or use agreements required by the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law. The administration and legislature signed off on a covert deal that would let Enbridge Energy continue pumping 540,000 barrels of oil a day (bbl/day; 1 barrel equals 42 U.S. gallons) through the dual lines laid in 1953 in the Straits and Great Lakes with a catastrophic worse-case damage scenario in the tens of billions of dollars. Unaccountably, the administration and legislature did so despite Great Lakes law in Michigan that prohibits the transfer or occupancy of the state-owned waters and the soils beneath them for private purposes.
Reward for Failure: After Enbridge’s 2010 Kalamazoo Pipeline Disaster, Michigan Officials Doubled Enbridge’s Oil Pumping across Michigan, and then Locked in an Oil Tunnel Deal for 99 Years
How is it that the State ended up rewarding Enbridge for a spill from Line 6B of a million gallons of crude oil and billions of dollars of damage to the Kalamazoo River system? While the State worked with Enbridge to address the damage from its unprecedented 2010 spill, it granted Enbridge a gigantic windfall by incrementally approving, from 2012 to the present, the doubling of Enbridge’s pipeline capacity and oil transport through the Great Lakes. In effect, while Canadians continued to block pipeline projects to transport crude oil to the country’s coasts, and citizens in the U.S. derailed the Keystone XL in the West, the Snyder Administration and former Attorney General Schuette orchestrated a “Great Lakes XL” that is even larger.
And then in 2018, Snyder, in his term’s waning months, and the lame-duck legislature gave away and endangered the Great Lakes to Enbridge, by locking in a 99-year sweetheart deal for Enbridge to build an oil tunnel to convey Line 5 under the Straits and granting Enbridge the cover to keep operating the existing failing Line 5 that threatens tens of billions in damages. On top of this deal, the Administration totally failed to even consider climate change impacts and risks and the rapid shift toward the new renewable energy economy that will leave the state with a billion-dollar dinosaur.
Here’s how the calculated actions of Snyder, Schuette, and their cohorts bypassed legal requirements in seven sweeping steps, along with some advice from FLOW to Michigan’s new leadership at the start of their journey to reestablish the rule of law and rollback the mess:
Bit by Bit, Doubling the Oil Flow on Line 6b after Enbridge’s Kalamazoo River Disaster
First, from approximately 2011 to 2014, the Michigan Public Service Commission (MPSC) approved a series of Enbridge applications to replace short segments, rather than a single application to replace the whole portion, that had the effect of doubling the design capacity of most of Line 6b pipeline from 400,000 to 800,000 barrels (bbl)/day. Allowing the MPSC to review shorter pipeline segments avoided the alternative analysis on the entire Line 6b from Indiana to Sarnia, Canada.
MPSC rules and decisions, and Michigan’s environmental laws, require a review of likely impacts and alternatives to the entire length of the pipeline. Had this rule been followed, the MPSC would have been required to look at all of the Enbridge lines in Michigan, and determine the overall needs of the public necessity and needs of the company, short and long term, and the alternative or best route or location that would best meet that need with the least impact and risk to water, environment, and communities. That would have included a review of the need for Line 5, including the risks to the Straits of Mackinac and Great Lakes. It also would have required a consideration of the future need for crude oil through Enbridge’s system in Michigan in light of falling crude oil demands caused by the rapid and imminent shift to renewable energy to reduce the effects of climate change.
Increasing Line 5’s Oil Flow in the Straits by 80 Percent
Second, during the same time frame, the MPSC approved the location and installation of new and changed pump stations and anti-friction fluid injection facilities for Line 5, including the Straits segment, so Enbridge could implement its final increment to result in the increase the oil transport capacity of Line 5 from 300,000 to 540,0000 bbl/day. Again, the MPSC did not evaluate the need, impacts, risks, or alternatives to this overall 80-percent increase in flow volume of crude oil. Once more, the State allowed Enbridge to avoid the law that required a full evaluation of the purpose. Had the rule of law been followed in the doubled Line 6B and expanded flow volume in Line 5, the State through proper notice, public input, and evidence would have been required to look at overall impacts, risks, and alternatives and need for the Enbridge system, and Line 5 could have been decommissioned in an orderly manner in exchange for the doubling of Line 6B.
Saddling, Elevating, and Damaging Line 5 in the Straits
Third, although not disclosed by Enbridge until 2016, Enbridge installed saddle supports screwed into the lakebed to support a failing design of Line 5 in the Straits. The original design specified in the 1953 easement and built in the Straits called for the heavy steel dual lines in the Straits segment to be laid on the bottom on the lakebed. If wave action and currents scoured more than 75 feet of soils beneath a segment of the pipes, the company was required to stabilize the line by closing the existence of the spans.
While not disclosed until 15 years later, when filling or grout bags failed, Enbridge in 2001 started installing saddle supports screwed into the lakebed to elevate the heavy dual pipes above the lakebed. Initially, there were 16 supports, more and more were added, and between 2016 and 2018, the Michigan Department of Environmental Quality (DEQ) permitted Enbridge to install more than 70 saddle supports, bringing the total to 200 supports, which has resulted in a suspension of three miles of an aged line above the lakebed.
The DEQ shrouded Enbridge’s failing Line 5 risks and redesign by characterizing the supports as a “repair” and “maintenance.” This not only covered up the redesign but confined the legally required impact and alternative analysis to a 50-foot radius of lakebed around each support. As a result, the DEQ ignored and allowed Enbridge to escape the comprehensive review of potential impacts and alternatives to the failing condition of the outdated line required by the Great Lakes Submerged Lands Act.
In addition, Enbridge’s installation of the saddles has damaged Line 5’s anti-corrosion protective coating, a fact that the company hid from Michigan officials for three years during its negotiations to install additional anchor supports.
Signing Side Deals for Another 99 Years of Line 5 in the Straits
Fourth, Governor Snyder, DEQ and the Department of Natural Resources (DNR) signed two agreements with Enbridge between October and the end of December 2018 that purported to transfer state public trust bottomlands and soils of the Straits so Enbridge can build a tunnel for a new 99-year pipeline. The tunnel and new line will take 10 years or more to construct. Until the new line is operating, Enbridge is authorized to continue operating the failing design of the existing aged line.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses. The two agreements that commit leasing, easements, or use of waters and soils beneath the Straits do not require Enbridge to obtain authorization or findings under the GLSLA. In other words, the Governor and his agencies agreed to transfer state public trust lands for the tunnel and the private 99-year new line, and at the same time allow the continued use of public bottomlands for the existing line, without obtaining the authorization required by law.
Ramming through a New Law to Transfer State Public Lands to Canada’s Enbridge without Proper Authorization
Fifth, when the Legislature ram-rodded the passage of Public Act 359 and Governor Snyder signed it into law in late December, they created a corridor authority to sign the tunnel agreement, easements, leases and other commitments for Canadian-based Enbridge to take over the public’s state-owned waters and soils and build the tunnel and its new pipeline. On its face, Act 359 transfers or commits to the authority these state public trust bottomlands without requiring authorization of the conveyance under the GLSLA. Under U.S. Supreme Court and Michigan Supreme Court decisions, any disposition, occupancy, or use must obtain authorization based on findings of no private purpose and no impairment of waters, soils, fishing, navigation or other public rights. Otherwise, it is prohibited.
Bypassing State Law and Alternatives to Risking the Great Lakes
Sixth, the easement for a public utility, after approval by the MPSC, such as the tunnel or the 99-year lease, or the continued operation of the existing Line 5 in the Straits, must be obtained from the state DNR in addition to the authorization under the Great Lakes Submerged Lands Act. Because the easements involve public trust bottomlands, they cannot be granted unless authorized by the GLSLA or unless based on the standards of the common law of public trust, which requires the comprehensive review of potential impacts and alternatives to the total or substantial change of the outdated dual lines in the soils and open waters of the Great Lakes.
Appropriating Public Property for Enbridge’s Private Purpose
Seventh, the Michigan Constitution, Art IV, Sec. 30, prohibits the appropriation of public property of the State for private or local purposes. An appropriation occurs where the disposition or transfer of state property, like the public trust waters and soils of the Great Lakes, is granted without findings or full and fair compensation—that is, where the transfer is for free, little consideration, or less than the full public trust value of these waters and soils.
In short, our former Governor, DEQ and DNR Directors, the MPSC, and former Attorney General suspended wholesale the rule of law for the benefit of Enbridge’s massive increase in the volume of crude oil through our Great Lakes State for private gain.
Restoring the Rule of Law and the Paramount Place of the Water and the Great Lakes in Michigan’s Future Prosperity
The first order of business for our new leaders—Governor Whitmer and Attorney General Nessel—is to restore the rule of law on Line 5 in Michigan, and they are off to a good start. The high risks and more than $6 billion catastrophe from a release of crude oil in the Great Lakes and an estimated additional $45 billion in damage to shipping, steel production, and jobs are unacceptable by any sane measure.
The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Governor Whitmer should direct her new directors of the DEQ and DNR and Attorney General Nessel should direct her lead attorneys on Line 5 and the Great Lakes to conduct a thorough and careful review and reevaluation of the Snyder Administration’s and former Attorney General Schuette’s failure to follow the public trust, GLSLA, and Michigan Constitution in the handling of the entire Enbridge Line 5 controversy.
Buoyed by the work of so many organizations, tribes, communities, individuals and families, and the majority of citizens who elected them, the Governor and Attorney General Nessel and their administrations have a mandate and opportunity to restore water, environment, and public health as paramount in Michigan. The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Jim Olson, President and Founder
Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.
FLOW Supports Gov. Whitmer’s Request for an Opinion from Attorney General on Legality of Hastily Crafted Law and Side Agreements on ‘Line 5’ Oil Pipelines and Proposed Tunnel in Mackinac Straits
The following statement can be attributed to Jim Olson, environmental attorney, founder, and president of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:
“This first and immediate step by Gov. Gretchen Whitmer in a letter asking Attorney General Dana Nessel for an opinion on Public Act 359 is critical in unpacking the layers of problems with the newly enacted law, any tunnel agreement, and most importantly the massive threat posed by the existing Line 5 in the Straits of Mackinac, a threat that must be ended in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes.”
“In the last three weeks of 2018, then-Gov. Rick Snyder, the Department of Environmental Quality, and Department of Natural Resources signed agreements to enable Enbridge to construct a tunnel that the state would own and lease to Enbridge for 99 years for a new crude oil pipeline under the waters and in the soils of the bottomlands of the Straits of Mackinac. In order to finalize the deal before the end of the year, the Republican-controlled legislature during the lame-duck session rushed through a law—Public Act 359—that set up a Mackinac Straits Corridor Authority to sign the tunnel deal with Enbridge and guarantee the transfer of publicly owned and controlled Great Lakes bottomlands and other financial benefits to Enbridge for private gain, the 99-year privately owned pipeline.
“During this same time, Governor Snyder, the DEQ, DNR, and Enbridge without public review finalized a separate agreement that would give Enbridge the right to continue using its existing dangerous and flawed Line 5 pipelines in the open waters of the Mackinac Straits for another 10 years, or as long as it takes to complete the tunnel and install the new pipeline.
“Everyone agrees that the release of oil to the Great Lakes would cause massive harm to those waters, as well as businesses, communities, property owners, tribal fishing rights, and the public’s paramount rights for fishing, boating, and recreation protected by the public trust doctrine – an ancient principle that prohibits the transfer of public lands and waters without compliance with laws that assure a public purpose and no imprudent risks to health, environment, and property.
“Public Act 359, coupled with the State’s public entanglement with Enbridge, puts private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes. The law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes. Act 359 and these agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.
“Public Act 359 and the agreements are peppered with other serious problems, most of which are covered by the questions the Governor has asked the Attorney General to answer. These include:
Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
Violating provisions of the state constitution that prohibit fostering private or special purposes, the comingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.
“We hope this critical first step by the Governor and Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Mackinac Straits, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the Great Lakes.”