Tag: Straits of Mackinac

FLOW Praises Gov. Whitmer for Upholding Public Trust Law on Line 5 by Revoking and Terminating Easement

Published on November 13th, 2020 by - Blog Posts, News, Reports & Media Releases

paddleboarders protesting

Today’s announcement by Governor Whitmer and Department of Natural Resources (DNR) Director Eichinger that the State of Michigan, under the public trust doctrine, is revoking and terminating the 1953 easement allowing Enbridge to operate dual pipelines in the Straits of Mackinac—due to repeated violations of the easement—represents a clear victory for the Great Lakes and the citizens and tribes of Michigan, said FLOW executive director Liz Kirkwood today.

“As public trustees of our waters, the State of Michigan is affirmatively upholding the rule of law and protecting the public’s treasured Great Lakes from the clear and present danger of an oil spill catastrophe from Enbridge’s Line 5 pipeline.”

“This is an historic day of state leadership by the Whitmer administration brought about by many years of dedicated action by environmental groups, Indian tribes, communities, businesses, faith communities, families, and individuals. People of diverse backgrounds have come together to work tirelessly on a common purpose—protecting the Great Lakes, drinking water, fishing rights, the economy, coastal communities, and a way of life from the most dangerous oil pipeline in America.

“While this is a moment to celebrate, we must remain vigilant until the oil stops flowing for good in May 2021 because Line 5 remains exposed to uncontrollable and powerful forces, including exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion. These forces dramatically increase the risk of this elevated, outdated pipeline collapsing and causing the unthinkable: a catastrophic oil spill in the heart of the Great Lakes.”

Since 2013, FLOW has filed extensive legal and technical reports with the State of Michigan, including most recently in November 2019, citing extensive evidence of Enbridge operating Line 5 illegally and risking the public’s water. For more information, see FLOW’s original news archive.

To view the State of Michigan documents relating to today’s announcement, click the links below:

Line 5 Oil Tunnel in the Great Lakes: Is the Die Cast for the Next 99 Years?

Published on October 28th, 2020 by - Blog Posts, H2Olson, News

Photo: Jim Olson, FLOW’s Founder and Legal Advisor, makes arguments in a Sept. 30, 2020, court hearing conducted online. The hearing considered motions made by Enbridge regarding the proper scope of the Michigan Public Service Commission’s review of the proposed Line 5 oil tunnel.

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By Jim Olson

There was good news and bad news in a state administrative law judge’s October 23 ruling that addressed legal arguments over what the Michigan Public Service Commission (MPSC) can and cannot evaluate when deciding whether to permit the siting of Enbridge’s proposed oil pipeline tunnel project under the Straits of Mackinac, where Lake Michigan meets Lake Huron. 

First, the good news: Judge Dennis Mack rejected Enbridge’s attempt to escape accountability by restricting the MPSC’s review to the impacts associated with the mere installation of a new Line 5 oil pipeline into the tunnel after it is built. The MPSC must consider the impacts from construction to nearby surface waters, wetlands, and the overall safety of the location and construction of both the pipeline and the tunnel that would house it.

Now, the bad news: The judge granted the Canadian energy pipeline giant’s bid to exclude evidence from the MPSC’s review that the oil pipeline tunnel would worsen the climate crisis and cause other environmental harm. The judge also excluded from the MPSC’s consideration of the public necessity to transport up to 8 billion gallons of oil a year for 99 more years in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy. 

Absent a successful appeal by FLOW or other intervening parties in the case to the three-member MPSC to overturn the ruling, as Julius Caesar said when he crossed the Rubicon, Alea iacta est—the die is cast.

Clockwise from top-left: Dennis Mack (Administrative Law Judge); Spencer Sattler representing MPSC staff; Assistant Attorney General Robert Reichel representing the Michigan Department of the Attorney General; Chris Bzdok, representing Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians; Christopher Clark representing Bay Mills Indian Community; Margrethe Kearney, ELPC attorney representing the Environmental Law & Policy Center and Michigan Climate Action Network.

September Court-Zoom Drama

Judge Mack’s ruling on the scope of evidence the MPSC can consider followed sharply divided legal arguments on September 23 in a Zoom call from lawyers for Enbridge, the Michigan Public Service Commission, the Michigan Department of Attorney General, Native American tribes, FLOW, and several other public interest organizations. The judge heard a wide range of legal arguments over the scope of the MPSC’s review of impacts, necessity, and alternatives to Enbridge’s proposed utility tunnel and tunnel pipeline. The tunnel would extend the life of Line 5 and facilitate the transport of as much in total as 800 billion gallons of crude oil through Michigan and under the bottomlands and waters of the Straits of Mackinac for almost another century. Nothing less than the authority of the MPSC to protect the people of Michigan, the environment, the climate, and the future public interest of the citizens of Michigan is at stake, according to arguments made orally and also filed by FLOW and others.

Lawyers for Enbridge, in court and in their filing, pushed to strip the MPSC of its authority to review anything but a simple replacement of old plumbing with new plumbing for Line 5 in the Straits. In short, Enbridge argued that the MPSC could not evaluate any impacts from the massive tunnel, the need for the tunnel in a rapidly declining market for crude oil, or the billions of dollars in damage and cost from rising Great Lakes water levels, flooding, and collapsing of infrastructure in Michigan tied directly to the burning of fossil fuels and climate change. Rather, lawyers for Enbridge argued the MPSC could look at only the physical impacts of removing old dual pipelines and replacing them with a new pipeline put in a new tunnel in the bedrock and mixture of rock and soil under the lakebed.

In contrast, the lawyers for intervening parties in the case—including on behalf of Michigan Attorney General Dana Nessel, Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, FLOW, Environmental Law and Policy Center, Michigan Climate Action Network, Michigan Environmental Council, National Wildlife Federation, Tip of the Mitt Watershed Council—argued for a broader scope of review concomitant with the magnitude of the proposed 99-year $500 million+ tunnel and new pipeline. They argued that the tunnel and pipeline are inseparable, and that it is a single project that would commit the state of Michigan to the environmental and public health impacts of the transport of up to 8 billion barrels of crude oil a year, carried from Canada under the Straits of Mackinac and back into Canada to Sarnia’s Chemical Valley cluster of refineries and chemical plants.

Public Need, Public Interest, Public Trust, and a Private Tunnel

Lawyers challenging Enbridge pointed out that Act 16, the law that defines the MPSC’s scope of review, imposes three standards and findings before a utility project like this can be legally approved: (1) the demonstration of need to realize a true public need; (2) safety and consistency with the public interest; and (3) the project is a reasonable alternative. Lawyers for FLOW and the other groups and tribes also pointed out that the MPSC has a duty under the Michigan Environmental Protection Act (MEPA) to prevent and minimize likely impairment to the air, water, and natural resources, and the public trust in those resources, and to find there is no feasible and prudent alternative to the project. 

The question of a public need for the project faces the reality of rapidly falling demand for oil and a sea change in investment toward renewable energy and a conservation economy. There are alternatives to continuing to risk the Great Lakes and our water-based economy, including the obvious use of excess capacity in Enbridge’s greatly expanded oil pipeline across southern Michigan to Sarnia that replaced the corporation’s aged line that ruptured and caused the devastating 2010 Kalamazoo River oil spill disaster. Lawyers for the tribes made clear that the environmental impacts of the proposed oil tunnel pose serious threats to tribal fishing and sovereignty over their treaty waters. Feasible and prudent alternatives clearly exist that are more consistent with the public interest of the citizens of Michigan, and the Michigan Supreme Court has made it abundantly clear that the state has a duty to comprehensively consider the likely effects and range of alternatives in deciding the necessity of a project like the century-spanning tunnel and pipeline. [Highway Comm’n v Vanderkloot, 392 Mich 159 (1974)]

The public interest in this proceeding includes our environment, protected by the MEPA, but it is also defined by what the public trust in the air, water, and environment of our Great Lakes—an ancient, irrevocable legal principle that protects the overarching rights of the public to enjoy the Great Lakes for navigation, fishing, drinking water, sustenance, boating, and swimming. [Obrecht v National Gypsum Co., 361 Mich 399 (1960); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892)] This public trust imposes an affirmative and perpetual duty on governmental agencies, like the MPSC, to protect these legal-beneficiary rights of citizens.

Enbridge’s Narrow View of Public Oversight

Enbridge tried unsuccessfully to avoid or narrow the MPSC’s review of the crude oil tunnel project last April, when it asked the MPSC to rule that the tunnel proposed today was covered by its ruling existing 67 years ago on the existing Line 5 pipelines in the Straits. Agreeing with FLOW and others, the MPSC rejected the attempt, and issued an order on June 30, as FLOW chronicled, that concluded, “the Commission finds that the Enbridge’s Line 5 Project involves significant factual and policy questions and complex legal determinations that can only be resolved with the benefit of discovery, comprehensive testimony and evidence, and a well-developed record.” [MPSC Order, June 30, 2020, Case No. U-20763]

The October 23 ruling by Administrative Law Judge Mack rejected Enbridge’s argument that the authority of the MPSC was restricted to replacing the old dual lines with a new single line in a tunnel. The judge ruled definitively, as argued by the organizations and tribes, that the tunnel is inseparable from the pipeline, and the impacts and operation of both must be considered. On the other hand, the judge interpreted more narrowly the MPSC’s June 30 order that signaled a desire for a “well-developed record” on all of the complex issues involved in the oil pipeline tunnel project. The judge’s decision rejected arguments by the Attorney General, organizations, and tribes that the MPSC must undertake a comprehensive evaluation of the need, safety, impacts, and alternatives, including the inherent commitment by the state to permit the transport of nearly a trillion gallons of oil over the next 99 years, the lack of need for this oil, and the devastating effects of climate change.

Context is King: Construction Project or Climate Change Nightmare?

All of the parties in the case will be evaluating the effect of the judge’s decision to allow consideration of the impacts of the tunnel and pipeline construction, but exclude consideration of overall necessity, impacts, and alternatives of the century-spanning tunnel and pipeline project. Any party has a right to request a full review and decision by the three members of the MPSC itself. The parties, conversely, could choose to proceed in a hearing set for February 12, 2021, with testimony and evidence limited by the judge to just the impacts of building the tunnel and moving the pipeline. If the latter course is taken, then indeed Michigan will have crossed the Rubicon on the climate crisis and protecting the Great Lakes and ourselves from the worst of it.

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

Published on October 14th, 2020 by - Blog Posts

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On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life. 

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

Points to Make in Public Comments by Oct. 19

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

  • Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
  • Not good for the climate or Gov. Whitmer’s goals  — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with  the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
  • Not good for public health, safety, and welfare — EGLE is required to determine whether extending the life of an oil pipeline that will emit approximately tens of  million tons of greenhouse gases annually for the next 99 years, under the state Natural Resources and Environmental Protection Act, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
  • Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.

How to Submit Your Comments to EGLE by Oct. 19

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

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

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

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

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

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

Published on September 28th, 2020 by - Blog Posts, News

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60

Starting Tuesday, Sept. 29, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will host four online public hearings and receive public comment on the expected wetland and wastewater impacts of constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The tunnel would house a new Line 5 pipeline to continue carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

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

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

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

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

Not in Support:

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

Not Lawful:

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

Not a Solution, nor the Best Alternative:

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

Not Fully Disclosed:

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

Not Acceptable — Wastewater and Wetland Impacts:

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

Not in the Public Interest:

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

Not Good for the Climate nor Economy:

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

Not the Best Alternative:

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

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

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

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

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

Published on August 21st, 2020 by - Blog Posts, H2Olson, News

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MPSC seeks public comments online and at August 24 public hearing

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

By Jim Olson

Good news arrived recently for citizens concerned about Enbridge’s dangerous Line 5 pipelines that convey millions of gallons of petroleum each day, and the proposed massive new tunnel pipeline in the Straits of Mackinac — the very heart of the Great Lakes.

Administrative Law Judge Dennis W. Mack, who is handling the contested case for the Michigan Public Service Commission (MPSC) on Enbridge’s application for the Line 5 tunnel and tunnel pipeline, issued a ruling August 13 granting intervention to participate in the case to several federally recognized Indian tribes in Michigan and key environmental groups, including FLOW, that petitioned to bring special knowledge and expertise to the case.

The Administrative Law Judge (ALJ) granted intervention to a total of 13 entities, including four tribes — Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and the Nottawaseppi Huron Band of the Potawatomi, providing the first three tribes listed with an opportunity to formally assert their treaty rights this way for the first time. The Nottawaseppi Huron Band, based in Calhoun County, will bring their knowledge and experience gained by living near the site of Enbridge’s disastrous Line 6B pipeline spill in 2010 into the Kalamazoo River watershed. 

The ALJ also granted intervention to five environmental organizations — the Environmental Law & Policy Center with the Michigan Climate Action Network, For Love of Water (FLOW), Michigan Environmental Council, National Wildlife Federation, and the Tip of the Mitt Watershed Council — with reach across the state of Michigan, Great Lakes region, and nation. The Mackinac Straits Corridor Authority, Michigan Attorney General, Michigan Laborers’ District Council, and Michigan Propane Gas Association & National Propane Gas Association also were allowed to intervene in the case.

Enbridge filed a 17-page objection to the intervention by the organizations’ and tribes’ participation as parties in the case, taking the extreme position that since the MPSC granted approval in 1953 for the existing Line 5 in the Straits of Mackinac, Enbridge doesn’t need approval now for the proposed half-billion-dollar tunnel and tunnel pipeline.

FLOW and other organizations filed replies to Enbridge’s objection to their intervening in the case, pointing out that the MPSC in June had already rejected the company’s attempt to cut off further review and obtain immediate approval of the project without a comprehensive review of necessity, public interest at stake, impacts, and alternatives to the massive project. Over Enbridge’s objections, Judge Mack recognized the significant interests and rights and the unique perspective and expertise these organizations and sovereign tribes will bring to the case.

The comprehensive review and proceeding before the MPSC will continue in stages addressed by a scheduling memorandum entered August 13 by Administrative Law Judge Mack. Legal questions involving the nature and scope of the review required by the MPSC governing laws and regulations, the Michigan Environmental Protection Act (MEPA), and public trust principles that govern the Straits of Mackinac will be argued and decided between now and late October. After that, the case will proceed with discovery and exchange of information, direct testimony, rebuttal testimony, and cross examination of the testimony and evidence from late November until next summer, with a decision by the MPSC expected in early fall of 2021.

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Comment Now or at MPSC’s Aug. 24 Virtual Public Hearing

The Michigan Public Service Commission has invited public comments on Enbridge’s tunnel proposal through written submissions, as well as by telephone during an online public hearing scheduled for August 24, 2020. Oil & Water Don’t Mix, which FLOW co-leads with allied tribal and environmental groups, has created this easy tool for you to submit your comment to the MPSC opposing an Enbridge oil tunnel through the public bottomlands in the Straits of Mackinac. You also can sign up here or here to comment at the MPSC public hearing.

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

An Enbridge Oil Spill on My Grandparents’ Farm

Published on July 24th, 2020 by - Blog Posts, News

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

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By Frank D. Zinn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Decision Time Coming on Line 5 Oil Tunnel

Published on May 28th, 2020 by - Blog Posts, News

enbridges-line-5-under-the-straits-of-mackinac

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

By Emma Moulton, FLOW Milliken Intern for Communications

By Emma Moulton, FLOW Milliken Intern for Communications

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

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

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

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

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

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

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

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

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

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

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

Tribes Voice Concerns over Treaty Rights and Survival

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

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

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

Next Steps from the MPSC on a Line 5 Oil Tunnel

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

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

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

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

Photo by Kathryn DePauw for FLOW.

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

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

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

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

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

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

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

Background

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

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

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

Published on March 5th, 2020 by - Blog Posts, News, Reports & Media Releases

FOR IMMEDIATE RELEASE:                                                                                                   March 5, 2020

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

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

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

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

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

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

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

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

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

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

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

For more information, see FLOW’s:

Michigan DNR Takes Steps to Hold Enbridge Accountable

Published on January 13th, 2020 by - Blog Posts, News, Reports & Media Releases

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.