Tag: Straits of Mackinac

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

Published on September 12th, 2022 by - Blog Posts

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

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

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

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

Kelly Thayer, FLOW Deputy Director

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

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

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

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

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

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

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

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

The alternatives analysis must include, at a minimum:

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

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

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

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

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

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

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

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

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

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

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

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

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

Published on June 7th, 2022 by - Blog Posts

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

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

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

Thank you for the opportunity to comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Background from FLOW:

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

Paddling for Change, from the Mackinac Bridge to Lansing

Published on June 28th, 2021 by - Blog Posts, News

By Jacob Wheeler

FLOW Communications Coordinator

Childhood friends William Wright and Chris Yahanda wanted to do their part to protect the Great Lakes and, in particular, to urge Michigan Governor Gretchen Whitmer to shut down the Line 5 oil pipelines under the Straits of Mackinac by terminating the easement of Canadian pipeline company Enbridge.

FLOW and other environmental groups have long made the case that the turbulent waters under the Mackinac Bridge, where Lakes Michigan and Huron meet, represent the most dangerous place in the Great Lakes for a catastrophic Line 5 oil spill. Enbridge has a shoddy track record in Michigan. The company’s Line 6B pipeline rupture into the Kalamazoo River in 2010 caused one of the worst inland spills in U.S. history.

FLOW and our partners in the Oil & Water Don’t Mix campaign have long pressured Michigan state government to shut down Line 5. Gov. Whitmer announced on November 13, 2020, that she would revoke and terminate Enbridge’s pipeline easement, effective May 12, 2021. The pipeline company continues to fight the order in court.

“We thought, maybe we can tell a story through a paddle journey in the places that we love and show how we can protect them,” said Wright. “The Line 5 issue spurred our desire to take this journey.”

Watch our interview with William Wright and Chris Yahanda and footage of their journey thus far.

Wright and Yahanda are currently paddling 425 miles over approximately 45 days, from the Straits of Mackinac, down the west coast of Michigan, up the Grand River through Grand Rapids, and ultimately to the State Capitol in Lansing. Their friend Davis Huber, a filmmaker based in Los Angeles, is capturing their journey and plans to make a film about their effort.

On June 9 the paddleboarders left Mackinac Island where the Michigan governor has a guest mansion, and headed for the Mackinac Bridge, itself. Sometime in late July or early August, they will bookend their trip when they arrive at the governor’s office.

“We go in support of her effort to shut down Line 5,” said Wright.

For Yahanda, paddling under the Mackinac Bridge, where Lakes Michigan and Huron meet, inspired awe and respect for nature.

“I’ve been over the Bridge many times, but to see it from underneath, to be so close to the water and really see the magnitude of the convergence of that water, it’s different,” he said. “You can definitely feel the energy of the transfer of water. Even the air feels different. How quickly it could turn on a dime.

“We couldn’t help but think of how important that place is to protect and how disastrous it would be if millions of gallons of oil were poured into it.”

Paddling southwest toward the Leelanau Peninsula, Wright and Yahanda encountered days with headwinds that prevented them from making much distance. But they also experienced calm days that allowed them to paddle for 20 miles or more at a time. On June 17 they paddled 28 miles, from Norwood, just south of Charlevoix, to Leland—their best day yet.

“We learned pretty quickly about the power of the water,” said Wright. “There have been times when we came out of a bay and had the wind direction change on a dime. The weather out there can really impact us on paddleboards since we’re small and catch wind pretty easily. We have learned firsthand the respect we need to have for Mother Nature.”

On June 20 they paddled down the Leelanau coast, past the Sleeping Bear Dunes National Lakeshore’s majestic dunes, and spent the night at Point Betsie in Benzie County.

“We had a perfectly clear day with low wind while seeing the bluff and the sand come straight to the water,” said Wright. “That coastline is so beautiful, from Pyramid Point and down the coast of Sleeping Bear.”

They are currently camping in Ludington State Park.

Wright and Yahanda are collaborating with FLOW, M22, the northern Michigan outdoor apparel brand, Oil & Water Don’t Mix, and Mawby Sparkling Wine—which recently unveiled a “Shut Down Line 5” sparkling wine.

“We are stoked to partner with FLOW. From the very beginning of our project, Liz Kirkwood, FLOW’s executive director, has helped us develop a deeper understanding of the water issues plaguing the Great Lakes,” said Wright.

Learn more about, and support, Wright and Yahanda’s journey by visiting their website, www.TroubledWaterFilm.com or follow them on Instagram.

Eviction Day for Enbridge Line 5

Published on May 19th, 2021 by - Blog Posts, News

Photo (from left): Winona LaDuke, Holly Bird, and FLOW’s Liz Kirkwood on May 13 at the Straits of Mackinac. Photo by Beth Price.

By Liz Kirkwood, FLOW Executive Director

May 13 marked an inflection point in FLOW’s water and climate work to shut down Line 5. It was a day of action and a show of force to evict Enbridge as an occupier—a rogue Canadian pipeline company pumping oil through our public waters and lands of the Great Lakes. It was a day highlighting the power of community and solidarity, and the power of indigenous leadership in protecting the source of all life: water.  

Just the day before, Enbridge blatantly defied and violated Michigan Governor Gretchen Whitmer’s deadline ordering the shutdown of the Line 5 pipelines. Defending our waters in her usual bold style, Governor Whitmer warned that Enbridge’s failure to obey would result in intentional trespass and disgorgement of 100 percent of Enbridge’s oil profits gained every day from illegally operating Line 5 in the Straits of Mackinac. (Read Gov. Whitmer’s reasons for shutting down Line 5 in her own words).

Organized by the first peoples of North America and the Oil & Water Don’t Mix campaign, this day-long event drew over 400 allies to deliver an eviction notice to Enbridge, to participate in a water walk and ceremony, and to hear from leaders about the urgent need to tackle climate change and shift to a clean energy economy. As water protectors, women tribal members led the group in traditional water ceremonies and told stories of our relationship to water. Tribal President Whitney Gravelle from the Bay Mills Indian Community conveyed that her tribe had voted to formally banished Enbridge and its pipeline from their legally recognized treaty waters. (Read coverage here of tribal protests that began the day prior at the Straits and continued into May 13). 

Nationally recognized indigenous voice, author, and anti-pipeline organizer Winona LaDuke, who directs Honor the Earth in Minnesota, spoke passionately about the danger posed by Line 5 to the Straits, which have played a key role in both tribal and non-tribal heritage and culture for centuries.

“This rogue Canadian corporation is basically holding the Great Lakes hostage,” LaDuke told FLOW in an interview after her speech. “In state after state, they are scaring officials. But here in Michigan, your governor, your attorney general have stood up for the people and for the water. We don’t need a Canadian multinational holding us all hostage. And that’s right now what they’re doing.”

“The question I would ask is, ‘Who gets the honor of being the last Tar Sands pipeline? Who gets that honor?’ It’s kind of like being the last guy to die in Vietnam, isn’t it? Who wants to tell that soldier he’s the last man to die for an unjust war? Who wants to tell some Ojibwe that they’re the last people to have their water contaminated so that Enbridge can make a buck?” 

Demonstrating the deep commitment and solidarity among indigenous nations, tribal members from Minnesota, where they are fighting another Enbridge pipeline—Line 3, actively participated in the May 13 event.

I joined the event on behalf of FLOW, representing our eight years of effort making the case that public trust principles and law give the State of Michigan the authority—and the duty—to expel Line 5 from the Straits in order to protect the world’s greatest freshwater system. Enbridge’s track record of pipeline mismanagement and deception—leading to the largest and most devastating oil spill in Michigan’s history in the Kalamazoo River watershed in 2010—bodes ill for the Straits, their ecology and the jobs that depend on them.

I am proud that it was FLOW that first identified the public trust doctrine as the basis for protecting these waters from the pipeline.  Now Governor Whitmer and Attorney General Dana Nessel have explicitly invoked that doctrine in seeking to shut down the pipeline.

Photos by Beth Price Photography

 

 

FLOW’s 2020 Annual Report

Published on March 10th, 2021 by - Blog Posts, Reports & Media Releases

By Liz Kirkwood, Executive Director, and Mike Vickery, Board Chair

Being in, on, or near water brings us into balance, restores clarity, and grounds us in understanding what matters most. Water is life. These elemental connections to water and nature were profoundly important to all of us in the tumultuous year of 2020, as the coronavirus upended our lives and economy.

Liz Kirkwood

   

Mike Vickery

In reflection, as we recount in our Annual Report released today, November 2020 marked an extraordinary milestone for the Great Lakes—and for FLOW. After seven long years of advancing public trust law as the legal basis to shut down Line 5, FLOW watched Governor Gretchen Whitmer and DNR Director Daniel Eichinger assert public trust law as the cornerstone of the state’s action to advance critical legal action to protect the Great Lakes from a catastrophic oil spill.

Equitable and affordable access to clean drinking water remained at the forefront of our work in 2020 as we partnered with frontline Detroit and Flint groups to successfully persuade Governor Whitmer, and then the legislature, to extend a moratorium on water shutoffs through March 2021. We also partnered to form Water for All of Michigan to evaluate equitable and just financing and funding strategies to assure safe, affordable water for all communities. FLOW’s model legislation, Public Water, Public Justice, is a key part of this work.

FLOW also worked to spotlight and protect the Sixth Great Lake, Michigan’s groundwater, unveiling a groundwater story map in March and a June webinar to highlight the implications of a preliminary state decision approving Nestlé’s permit to increase withdrawals for commercial bottled water. And we chronicled a baffling decision in November by the State of Michigan to dismiss the citizen-led contested case challenging the Nestlé permit.
In a year dominated by a global pandemic, a reckoning with racial injustice, record-high Great Lakes water levels, an unprecedented national election, and profound challenges to our most important institutions, FLOW stood firm as a fair witness to, and advocate for, the power and value of the public trust in moving forward. Working alongside our partners, allies, supporters, and friends, FLOW planted new seeds from which will grow a more just, diverse, inclusive, equitable, prosperous and resilient water future for generations to come.

Your support and passion for the Great Lakes, groundwater, and drinking water for all inspires us and helps drive us forward. Thank you for our shared successes. We hope you enjoy reading about the fresh waters and public trust rights that we have protected together in our Annual Report 2020.

O&WDM: Groups, Tribes Ask U.S. Army Corps to Reject Proposed Enbridge Oil Tunnel

Published on December 7th, 2020 by - Blog Posts, Reports & Media Releases

Editor’s note: This is an Oil & Water Don’t Mix (O&WDM) media release.

Twelve organizations and Michigan tribal representatives today (Dec. 7, 2020) called on the U.S. Army Corps of Engineers to reject the Enbridge Line 5 Straits of Mackinac oil tunnel project. If not dismissed now, the Army Corps risks a repeat of a July court ruling that threw out a permit in another major federal pipeline case.

In their submission of comments, the groups told the Army Corps that the permit for the tunnel should not be approved without a full review that evaluates the consequences of an oil tunnel for the Great Lakes, coastal wetlands, historic archeological finds, and navigation within the Straits of Mackinac.

“Enbridge’s proposed tunnel is a major federal action demanding a full environmental impact statement under the National Environmental Policy Act (NEPA),” said Liz Kirkwood, Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City. “A review of Enbridge’s incomplete application reveals a highly controversial project with extraordinary impacts to coastal wetlands, millions of gallons a day of surface wastewater discharges and water treatment additives, underwater archeological sites, incomplete geotechnical studies for tunnel construction, lack of a credible estimate of project cost, and unprecedented climate change impacts to extend the life of Line 5 for the next 99 years.”

Official comments from the organizations come as the Army Corps holds a single public hearing today on Enbridge’s proposal for a federal Clean Water Act permit to construct the oil tunnel.  The Army Corps public comment period ends on Dec. 17.  It comes as the Michigan Public Service Commission and the state Department of Environment, Great Lakes and Energy also evaluate permit applications from Enbridge and follows a decision by Gov. Whitmer to revoke Enbridge’s operating agreement for the existing Line 5, citing the company’s history of failures and ongoing, incurable violations of the agreement.

“Line 5 will transport 540,000 barrels of oil that when burned will emit over 57 million metric tons of atmospheric carbon annually – more carbon than is emitted by the nation’s three largest coal plants combined,” said Kirkwood.  “Let’s not forget what’s at stake – a proposal to build a mega tunnel in the heart of the largest and most valuable fresh surface water system in the world.  It’s difficult to conceive of a project more worthy of a full environmental impact statement under federal law.”

The groups and tribal representatives warn that approving Enbridge’s proposed application would violate the same federal law that prompted the U.S. District Court in July to block a final permit for the Dakota Access pipeline in the Dakotas.  In the Dakota Access case, the court said the Army Corps must conduct a full review under the National Environmental Policy Act because it was a major federal project with widespread potential impacts, including threats to drinking water sources for the Standing Rock Sioux tribe.

The Army Corps has yet to decide whether Enbridge’s permit application for the tunnel should be subjected to a full federal review that could include looking at other alternatives, including existing oil pipelines within Enbridge’s massive North America pipeline system.

Concerns with the tunnel proposal cited by the groups and shared with the Army Corps include:

  • Drinking water threat. Enbridge proposes withdrawing 4 million gallons a day of water and discharging 5 million gallons a day of water and slurry into the Straits of Mackinac. Nearby communities of Charlevoix, Mackinac Island, St. Ignace, Alpena, East Tawas, and Tawas City rely on Lake Michigan and Lake Huron for drinking water.
  • Geotechnical problems. Independent experts who studied Enbridge’s proposed tunnel plan concluded that it “raises serious concerns regarding the feasibility, integrity, and planning for the construction of the tunnel.”  More than 75 percent of the tunnel boring area is in “very poor” or “poor” quality rock conditions, the experts warned, also citing the potential for explosions because of the presence of methane gas.
  • Sovereign tribal and fishing rights. The Straits of Mackinac are the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch, which could be negatively impacted by the tunnel project and continued operation of Line 5 in the Straits.
  • Northern Michigan economy. Emmet, Cheboygan, and Mackinac counties would be heavily impacted by the tunnel project, straining police, fire, health emergency services, and rental housing that would typically go to seasonal tourism workers who constitute an annual $153 million payroll. Dust, noise, and intense trucking and machinery activity will also stress local communities.

    “Michigan deserves more than a rubber-stamp permit approval from the Army Corps,” said Sean McBrearty, Oil & Water Don’t Mix coordinator.  “What we need is for the Army Corps to follow the law and prioritize protecting the Great Lakes, our drinking water, and our climate. A Canadian company’s oil profits shouldn’t be more important than Michigan’s future.”

    Those submitting joint comments include For Love of Water (FLOW), League of Women Voters of Michigan, Sierra Club, Clean Water Action, Michigan Environmental Council, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350, the Chippewa Ottawa Resource Authority (CORA), the Michigan League of Conservation Voters, and the Straits Area Concerned Citizens for Peace, Justice, and the Environment.

    Oil & Water Don’t Mix is a citizens’ movement committed to protecting the Great Lakes and decommissioning Enbridge’s dangerous Line 5 oil pipelines in the Straits of Mackinac. More information: https://www.oilandwaterdontmix.org/about.

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

    Published on November 25th, 2020 by - Blog Posts, H2Olson, News

    Jim Olson is FLOW’s Founder, President, and Legal Advisor

    By Jim Olson

    The federal lawsuit Enbridge filed Tuesday is an attack on the State of Michigan’s sovereign title and authority to protect the public trust in the Straits and Great Lakes from Line 5. The federal government can regulate safety, but it can never control the location and use of the State of Michigan’s own public trust waters and bottomlands of the Great Lakes, except as it relates to navigation.

    Michigan has never surrendered and could never surrender its public trust authority and responsibility to protect the waters of the Great Lakes from the clear and present danger presented by Enbridge’s old and failing Line 5 oil pipeline system. The public rights in navigable waters, according to Michigan’s Supreme Court, “are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain.” 

    State of Michigan Conducted an Exhaustive Review of Enbridge’s Line 5 Easement Violations

    After a comprehensive, 15-month review of Line 5’s operations and potential for catastrophic harm from a rupture or leak in the heart of the Great Lakes, the State of Michigan determined on November 13 that Enbridge’s easement to use the bottomlands of Lake Michigan must be revoked and terminated because of “longstanding, persistent, and incurable violations of the Easement’s conditions and standard of due care.” The action represents a major milestone in Michigan’s environmental history.

    The state’s title and public trust interest and duty in the Great Lakes have been established by the Michigan and United States Supreme Courts for more than 125 years. Every state received title to the lands and waters that were navigable at the time of statehood—for Michigan, 1837, including all of the Great Lakes and its inland lakes, rivers, and streams. The state’s public trust title in navigable waters and lands beneath them is a matter of federal constitutional principle. Once the state has title, it is absolute, cannot be alienated or transferred away, and the state as trustee determines the extent and nature of any activity or use of the public trust waters and lands of the Great Lakes.  

    The public rights under the Public Trust Doctrine are protected, according to the Michigan Supreme Court, by a “high, solemn and perpetual trust which it is the duty of the state to forever maintain.” The state’s interest and its public trust responsibilities are held forever. Thus, any authorization, like the Enbridge  Line 5 easement granted by the Department of Conservation in 1953 remains subject to the state’s duty to protect the state’s title as well as Michigan citizens’ paramount rights that are protected by public trust law. The United States Supreme Court explicitly acknowledged a state’s paramount rights in the landmark case,  Illinois Central Railroad Co v Illinois, finding that a grant of property rights in public trust resources “is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time.”

    Catastrophe Does Not Have to Occur Before the State Acts to Protect the Public Trust

    When Enbridge received its easement for its dual lines in 1953, it did so subject to the state’s authority and duty to protect its sovereign public trust title and rights of citizens in the waters and bottomlands of the Straits of Mackinac. No private interest can be granted permission to use these public trust waters and bottomlands for any private or public use without the express authorization by law, and only if the state finds at the time the public’s uses and the public trust will be improved or not impaired.

    Enbridge’s easement is basically a license to use these public trust lands and waters subject to revocation if there are dangers that would violate the public trust. If later it is discovered that conditions exist that were not initially understood or new information comes to light indicating public trust resources are at risk or threaten the public’s rights in fishing, navigation, boating, and drinking water, or recreation, the state has the inherent right to revoke the use.  No state nor its citizens has to wait until a catastrophe occurs before the state can revoke a use to protect this perpetual trust.

    Only the State of Michigan, through its Governor and Department of Natural Resources Director and the Attorney General as trustees and “sworn guardians” of this public trust, has the authority over who, where, and when another person or corporation can use the Straits of Mackinac, such as Enbridge’s use for the dual lines in 1953 and in 2020. Because the circumstances, conditions, and events—anchor strikes, cable strikes, scoured spans under the pipes, and stronger currents—violate the terms of the 1953 easement and endanger the Straits and hundreds of miles of Lake Michigan and Lake Huron, the state has every right to revoke the Enbridge easement. Enbridge’s use of Lake Michigan bottomlands has always been limited by the Public Trust Doctrine and the state’s perpetual authority to revoke the use when the public trust is endangered.

    State of Michigan, not a Federal Agency, Controls the Public Trust Lands and Waters of the Great Lakes

    Enbridge falsely claims that the safety code requirements under the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) supersede the state’s authority and public trust duty to protect the Great Lakes. The claim confuses the federal power to regulate a pipeline’s safety once it is built with the state’s sovereign authority to decide if a corporation or Enbridge can use the public trust lands and waters of the Great Lakes in the first place.

    There is nothing in PHMSA regulations or any federal law that remotely attempts to assert control over the use of a state’s public trust lands and waters, nor could the federal government do so. The authority for use of these public trust lands and waters falls entirely within the authority and duties of the State of Michigan, and there is nothing the federal government, Canadian government, or Enbridge can do to impinge on this paramount public trust title and the rights of the citizens of Michigan in the Great Lakes. 

    The bottom line is that the Great Lakes belong to all of us, and the State of Michigan is doing its duty as trustee to protect our public trust resources so that, now and in the future, we are assured the right to drink from, bathe, fish, and swim in, and boat upon oil-free waters. Alternatives exist for supplying oil and propane without spikes in fuel prices, but our magnificent fresh waters are irreplaceable. Please join FLOW in thanking Gov. Whitmer for standing up to Enbridge and standing up for our Great Lakes.

    Oil and Water, and the Public Trust, Don’t Mix in the Great Lakes

    Published on November 18th, 2020 by - Blog Posts, H2Olson, News

    Jim Olson is FLOW’s Founder, President, and Legal Advisor

    By Jim Olson

    In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action. 

    The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.

    Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.

    Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case. 

    That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person. 

    Line 5 passed that threshold many years ago. 

    To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.

    Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries. 

    There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.  

    A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.

    This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount. 

    Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.