Tag: Straits of Mackinac

Once More: Line 5 and the Public Trust

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned.  Rather, this commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


Perhaps if they hear it often enough, they’ll act.

Michigan’s Pipeline Safety Advisory Board, established by Governor Snyder in September 2015, heard Monday from FLOW Executive Director Liz Kirkwood about the state’s public trust responsibilities.

It was FLOW that identified these responsibilities as the debate over unsafe Enbridge Line 5 at the Straits of Mackinac intensified several years ago.  Simply put, the public owns the lakebed under the Straits that Line 5 crosses – and state government, as the trustee, has the authority and the obligation to assure that any party granted an easement to use the public’s lakebed is not compromising the public uses protected by the trust.  The Legislature passed a law in 1953 granting Enbridge an easement across the Straits – subject to the public trust.

Enbridge has clearly fallen short of that standard with shoddy maintenance, concealment of damaging information and a track record of failure, culminating in the mammoth spill into the Kalamazoo River watershed in 2010. 

FLOW’s message Monday – Enbridge can comply with public trust interests and state law only if the state compels it to submit an application for the entire massive overhaul of Line 5 it seeks to undertake, and only with simultaneous consideration of feasible and prudent alternatives – including using other means to deliver the petroleum currently served up by Line 5.

Here are a few of Liz’s comments from Monday: 

“We are approaching the hour of decision on the fate of Line 5.  This process has been an epic example of how not to protect a world-class resource.  Transparency, corporate integrity and the rule of law have all been casualties. But there is one last chance to make it right.

“Enbridge has never applied for and DEQ has never comprehensively reviewed, considered, or authorized the new design with 128 screw anchors elevating the Line 5 pipelines off the lakebed.  This new design was not contemplated in 1953.  Moreover, the Great Lakes Submerged Lands Act does not authorize ‘activity’ permits that actually constitute a new design, permanent structures, and improvements on bottomlands or suspended in water areas above the bottomlands; rather, a new application is required in conformance with the public trust.

“The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust, and the U.S. Supreme Court has held states have the power to resume the trust whenever the State judges best.  The state owes Enbridge nothing.  Enbridge owes the people of Michigan the respect they deserve by ending its efforts to skirt statutes and the public trust.”


Public Trust Tuesday: Shutting Down Line 5

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned.  Rather, this commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


The public trust doctrine is at the heart of FLOW’s efforts to shut down the antiquated Line 5 oil and gas pipelines that span the lakebed at the Straits of Mackinac.  Enbridge, the pipeline owner and operator, has access to the lakebed only because the State of Michigan provided an easement to the company’s predecessor in 1953, subject to the requirements of the public trust doctrine.

Under the terms of that easement, the State, acting as a trustee of the public interest in the Great Lakes, cannot allow impairment of public uses of the affected Great Lakes waters and submerged land.  Further, the State authorized the easement subject to Enbridge exercising “the due care of a reasonably prudent person for the safety and welfare of all persons and of all public and private property.”  Multiple disclosures by Enbridge of shoddy stewardship of Line 5 have demonstrated the lack of due care.

Last week, FLOW submitted to the State six pages of comments and additional exhibits making the case that Enbridge’s patchwork approach to maintaining Line 5 has fallen well short of that standard.  Further, FLOW argued that the major changes in structural support for the pipeline contemplated by Enbridge constitute a new project for the purposes of review by the state.  This requires the State to insist that Enbridge demonstrate the absence of feasible and prudent alternatives to the proposed pipeline support changes – including alternate routes for the transport of oil and gas.

FLOW concluded, “the burden rests with Enbridge – not the State of Michigan or its citizens – to establish that there are no unacceptable risks or likely effects to waters, fishing, navigation, commerce, and public and private uses, and that no feasible and prudent alternatives to Line 5 based on existing or feasible capacity of overall pipeline system in the Great Lakes; the required scope of this showing of no alternatives includes determination of whether existing or improved pipeline infrastructure within the Enbridge system into and out of Michigan are a feasible and prudent alternative.”

You can read the full comment letter here.


Public Comment to Michigan Pipeline Safety Advisory Board

Line 5 Pipeline

Good evening, and thank you for the opportunity to comment on what is unfortunately
a deeply flawed final Line 5 alternatives study. The people of Michigan are ill-served
by this study. It cannot serve as a basis for an informed and intelligent decision about
the fate of this profound threat to the Great Lakes.

Members of the Advisory Board who represent citizens, businesses, tribes, and
conservation agree that this final report is flawed and demanded this past Monday by
resolution a more robust and comprehensive study on existing pipeline infrastructure
and Michigan’s (not Enbridge’s) energy needs.

Here are only a few of our major concerns with this final report:

  • 1: Assumes that the state must guarantee that Enbridge is able to deliver 23
    million gallons of oil daily through Line 5. The legal agreement to occupy our
    public waters is not a covenant to keep oil pipelines operating indefinitely and at full
    capacity. This bias results in the tunnel option appearing as a favored report
    alternative.
  • 2: Dismisses the most credible alternative of existing pipeline infrastructure. As
    documented in FLOW’s 2015 expert report, existing pipeline infrastructure, including
    Enbridge’s newly doubled capacity in Line 6B, is a practical alternative for
    Michigan’s energy needs. The report acknowledges that excess pipeline capacity
    exists on Enbridge Line 6B (renamed 78) now and that the Mid-Valley Pipeline could
    supply much of the remaining needs of the Detroit and Toledo refineries. (5-2; 4-18).
  • 3: Operates from a bias in favoring a tunnel in the Straits of Mackinac. A tunnel
    will not eliminate the risk to the public trust waters of the Great Lakes. Line 5
    traverses 245 other water crossings, including ones that are tributaries of Lakes
    Michigan, Superior, and Huron. A tunnel is no gift to Michiganders. It threatens
    economic and ecological disruption to the region and contravenes Michigan’s policy
    ban against directional drilling for oil and gas in the Great Lakes; And fundamentally,
    why would Michigan want a Canadian company’s tunnel located under the planet’s
    largest fresh system water systems and potentially usher in heavy tar sands transport
    back to Canada? This makes no sense.
  • 4: Continues to underestimates the economic damage of a Line 5 spill at a $100-200 million. This number defies logic in light of Enbridge’s 2010 $1.2 billion Kalamazoo disaster and the potential catastrophic harm for affected shoreline communities, tourism revenue, drinking water, fisheries, etc.

So where does this leave us? Though this report fails on many levels, it does substantiate the fact that Line 5 can be decommissioned with little disruption and minimal increased costs to Michigan consumers and businesses.

The report affirms that there are feasible and prudent alternatives readily available that both meet Michigan’s energy needs currently served by Line 5 and completely eliminate the risk to the Great Lakes.

The time for studies has ended. It is time for action as the PSAB Resolution affirmed on Monday. That action should start with shutting down Line 5 immediately and ultimately end with state’s revocation of the easement and the decommissioning of Line 5.

The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust- and the U.S. Supreme Court agrees. The public is the ultimate decision-maker.

Governor Snyder tried to circumvent them through private agreement with Enbridge. Michigan citizens deserve better.

Thank you.
Liz Kirkwood, Executive Director


Failed Leadership and Line 5


Our State’s leadership in the handling of Enbridge’s Line 5 in the Straits of Mackinac has gone from bad to worse. In light of disclosures by Enbridge of a failed pipeline design and the refusal on the part of our State leaders to take action to prevent devastating harm to the Great Lakes, it is time for leaders to either step up or step aside and let the voters or courts decide.

Enbridge has revealed previously withheld documentation showing bending of pipelines from extreme currents, delaminating protective cover, and numerous sections of bared steel open to corrosion. What Enbridge doesn’t understand is this: The State is trustee for citizens who are legally recognized beneficiaries of the public trust in the Great Lakes. The State trustee has a duty to prevent unacceptable harm or risks to the Great Lakes and the boating, fishing, swimming, and drinking water that depend on them. The decision does not belong to Enbridge but to our State’s leaders as trustees of these public paramount waters. Risk is a function of magnitude of harm; the higher the harm, the greater the risk. So it doesn’t matter what Enbridge executives think or say, or what their studies say after consultants have admitted conflicts of interest and withheld critical information on the failed condition of the lines.

Our State’s leaders must put an end to this now. Statements by Governor Snyder, DEQ Director Grether, and Attorney General Schuette about “serious concern” or “disappointment” do not go far enough. The proper response to the serious risk of unthinkable harm to the Straits and Great Lakes is not mere feeling; it is leadership and action. Governor Snyder’s recent agreement has belied even his disappointment. He expressly short circuited the his own advisory board and a citizen process established by his own Executive Order. The agreement expressly narrows a comprehensive alternative study to find a way to avoid crude oil pipelines in the Great Lakes, by expressly agreeing to a replacement of Line 5 in the Straits of Mackinac and the St. Clair River. So much for disappointment, he’s handing Enbridge a large Christmas present.

The Governor and DEQ should have required Enbridge to prove that there is no alternative to crossing under the Great Lakes for pipeline transport to Canada. It is unlikely Enbridge could prove that a non-Great Lakes pipeline alternative does not exist, given the fact that Enbridge recently doubled its design capacity in Line 6b across southern Michigan to Sarnia from 400,000 to 800,000 barrels. To win approval from the Public Service Commission to double its capacity across southern Michigan after the Kalamazoo disaster, Enbridge repeatedly testified if approved the doubled capacity would fulfill the company’s current and future needs, as well as those of Canada and the smaller needs of Michigan.

Our leaders must suspend the transport of crude oil through Line 5, and order Enbridge to start over by revoking the easement the state granted in 1953 and making the company comply with the laws and public trust that protect the Great Lakes. A bank trustee would have been replaced a year ago for such inaction as our state’s. If our leaders, the sworn trustees of our Great Lakes, don’t take action, they, too, should be replaced. Hopefully, it won’t come to that. If it does, then our third branch of government—the courts—should step in as they would in a receivership where management has failed.

It will not have to come to this if our leaders put a stake in the ground and suspend transport of oil. It will finally after three years of “cat and mouse” place the burden where it belongs: on Enbridge. Enbridge must be forced under rule of law to prove no catastrophic harm or acceptable risk and that it has no alternative to a pipeline in the Great Lakes. The truth is Line 5 under the Straits violates “reasonably prudent person” standard in the Easement, a common sense covenant that the company agreed to when it was granted the 1953 easement. It is no longer prudent to risk the Great Lakes with a crude oil spill of tar balls, dead fish, and oily wildlife and beaches.

The message and course of action for our Great Lakes State leaders is clear: Step up or step aside. If not, the courts or voters will do it for you.


Flint and the Straits of Mackinac

What do the Flint drinking water catastrophe and the recent agreement regarding the Enbridge pipeline at the Straits of Mackinac have in common?  Both are the result of a gubernatorial administration with fundamental mistrust of the public it serves.

In Flint, the Snyder Administration appointed an emergency manager to short-circuit democratic processes and act paternally on behalf of a community it deemed incapable of self-government.  The result was appalling damage to the health and well-being of the community.

This week, the Snyder Administration appointed itself emergency manager of the imminent danger posed to the Great Lakes by Enbridge, apparently deciding the public, the Governor’s own Pipeline Safety Advisory Board, and the DEQ under the State’s Great Lakes protection laws were incapable of contributing to a rational decision.  Astonishingly, the public engagement process the Governor himself set in motion with an executive order more than two years ago was essentially discarded in favor of a pact secretly negotiated with Enbridge.  The thousands of people and hundreds of organizations and communities who took the time to comment on the future of the pipeline were ignored in favor of assurances from a company responsible for the worst inland oil spill in U.S. history.

Democracy and public participation are under attack at many levels, and the result is poor public policy. The Governor’s agreement with Enbridge puts the Great Lakes at risk.


Illuminating Information in the Straits of Mackinac

Deep beneath the Straits of Mackinac, where twin petroleum pipelines cross the lakebed, sunlight has difficulty penetrating. But there’s more illumination at that depth than there is on key information involving the safety of the pipelines, thanks to deplorable tactics of state agencies and the pipeline owner, Enbridge. The recent disclosure of state-company collusion to circumvent the Freedom of Information Act (FOIA) should concern all citizens.

The pipelines, part of the Line 5 route, qualify as a matter of significant public interest because they were laid down 64 years ago and have been poorly maintained by Enbridge. An August 30 underwater inspection of the pipelines revealed that the screw-anchors used to shore up the pipeline are themselves causing damage to the pipeline coating and creating bare metal gaps in the cathodic protection. Seven bare areas on the pipeline the size of dinner plates were identified. This is the latest in a long list of disclosures that reveal Enbridge to be cavalier in its stewardship responsibilities – and its most important duty – to prevent a catastrophic oil spill fouling a vast area of the Great Lakes.

Why, then, would state government agencies want to collaborate with Enbridge or the contractors hired with their money in eluding public scrutiny of information related to the pipeline risks? But that’s what they did.

Instead of obtaining copies of documents that citizens could request under FOIA, state officials accessed a website controlled by a private contractor, Det Norske Veritas, where they could view but not download the information. This was not pedestrian material. It included “figures depicting hypothetical migration of oil in the environment” from a spill. Michigan citizens, not just state officials, have every right to view that information.

This is not the first time the state has participated in a scheme to keep information about Line 5 from the public. In 2014, when Enbridge originally provided information to the state as part of the Line 5 review, the company set up a password protected portal for the state to review information but not to download. The logic was similar to that of the most recent subterfuge: that because the information was not downloaded, it was not in the possession of the state, and therefore not subject to FOIA. It took the state two years to release Enbridge’s information, in April 2016.

The state ultimately fired Det Norske Veritas for undisclosed conflicts of interest. But the firm’s effort to circumvent FOIA – and the state’s willing cooperation – were equally egregious. Access to information is one of the core tenets of government accountability. 

Statutes like FOIA are nicknamed “sunshine laws.”  They were written for a reason, to assure protection of the public’s right to know about matters like a potential oil spill affecting public waters.  It’s time for the state to clearly and unhesitatingly affirm its commitment to letting the sun shine on everything pertaining to a grave threat to the Great Lakes.


Ecological disasters do not wait for political elections.


Ecological disasters do not wait for political elections.

And Line 5 at the Straits of Mackinac seems oblivious to the campaign calendar.

To date, the Band-Aid fix-it approach for line 5 has only resulted in Band-Aid size – oh, I mean dinnerplate size -- bare metal spots on the pipeline itself.

The law is clear. Public trust waters are the paramount interest and must be the priority of state protection and action.

Enbridge's ongoing violations on Line 5 are blindingly obvious. And they have continued to mount over the last three years while the state has delayed a safe solution through endless study. A quick sampling of violations includes: lack of adequate anchor supports, loss of protective coating, bent pipeline, bare metal, lack of a credible emergency oil spill response plan, deficient liability insurance, and so on.

Time and time again, Enbridge has asked the public and the state to trust them. And we have only later found out that Enbridge has misled the citizens of Michigan and the state government about the true condition of their aging 64-year-old dual pipelines.

Enbridge has an outstanding permit request to install 22 additional anchors. But the state is in no position to authorize these permits because the anchors themselves have caused the bare metal exposure on the pipeline.

Now the state has decided to engage university experts to spend months finishing a risk study put on hold last summer due to contractor conflicts of interest. A risk study only further delays meaningful state action on Line 5 to avoid a pipeline oil spill. We already know that the risk of any oil spill in the heart of the Great Lakes is unacceptable. Thus, we are merely asking ourselves: How fast will the Titanic sink? 1 hour or 3 hours.

Any credible risk study will simply conjure a more realistic disaster scenario than Enbridge would like us to imagine. It appears that the state is committed to completing the risk study; however, it should at the very least recommend that the state temporarily shut down the flow of oil while the risk study marches on.

No one today would ever authorize oil pipelines to pump 23,000,000 gallons of oil daily in the open waters of the Great Lakes. While consultants completes a risk analysis, the state at a bare minimum should temporarily shut down the flow of oil.

So let's be clear ourselves. Line 5 must be decommissioned and we, the citizens of Michigan, demand that this process starts immediately.

The time to act is now.


Liz Kirkwood is FLOW's Executive Director, an environmental lawyer with seventeen years of experience working on water, sanitation, energy, and environmental governance issues both nationally and internationally. She oversees the direction of the organization, prioritizing policy research and corresponding educational initiatives to ensure their consistency and high quality. 

Statement to Pipeline Safety Advisory Board

Line 5 Pipeline

 

The state pipeline safety advisory board met Monday to discuss next steps on Line 5 at the Straits of Mackinac, in the wake of new revelations about shoddy Line 5 maintenance by Enbridge. FLOW's statement at the meeting said enough is known about the pipeline's condition and poor maintenance for the state to immediately revoke the pipeline's easement to traverse the Straits.


 

FLOW Comments on the Draft 2017 Lake Huron Lakewide Action and Management Plan

Line 5 Pipeline

Tuesday, FLOW submitted comments regarding the draft 2017 Lakewide Action and Management Plan (LAMP) for Lake Huron.  We are concerned about the LAMP’s failure to address a major threat to the waters and ecosystem of Lake Huron: the Enbridge Corporation’s Line 5 pipelines traversing 4.6 miles on the bottomlands of the Straits of Mackinac.  

You can read our full comments here.

FLOW Comments on Draft 2017 LAMP

A Disappointing Distraction: FLOW’s Statement on the Line 5 Alternatives Study

On June 29, the State of Michigan released for public comment a consultant’s study on alternatives to Line 5, the risky 64-year-old dual oil pipelines that cross the lakebed of the Straits of Mackinac.  The state is now holding public meetings on the study.

The study is a major disappointment and contributes little of value to the discussion on the fate of the oil pipelines operating in the Great Lakes since 1953. 

FLOW’s position is unchanged:  the State of Michigan must terminate the easement allowing Enbridge to use Lake Michigan’s lakebed for the pipelines.  The state has the authority and the responsibility to do so to prevent a catastrophic oil spill.  In light of Enbridge’s consistent record of disregard for maintenance of Line 5, the state must do so.

* FLOW rejects the alternatives study as fatally tainted by the authors’ blatant conflict of interest. The consulting firm’s vice president has an extensive history of working alongside of, and in support of, Enbridge.  The state’s process is now revealed for what it always has been – a distraction from its responsibility to protect the Great Lakes by shutting down Line 5 now.

* Substantively, the alternatives study can’t be taken seriously because it:

  1. Completely ignores the most suitable alternative to Line 5, which is existing infrastructure. The state asked consultant Dynamic Risk to analyze it. Failure to do so skews the analysis. Since the state and consultant won’t do their jobs and analyze the existing infrastructure, FLOW will continue to analyze it by updating our 2015 independent expert report on that alternative in the near future.
  2. Assumes the best-case scenario for a spill. The consultant uses assumptions of risk that are woefully inadequate and are not credible. It estimates that:
  • Only 20 miles of shoreline would be impacted by a spill. This is just 3% of the 720-mile area the University of Michigan found vulnerable to a spill in its 2016 study.
  • An oil spill would cost $100 million to $200 million, when Enbridge’s cleanup costs for its Line 6B pipeline oil spill into the Kalamazoo River watershed in 2010 cost more than $1.2 billion.
  1. Inflates the impact of shutting down Line 5 to the U.P.’s propane supply. The report estimates an impact to propane supply much greater than what FLOW’s independent experts have determined would be necessary to provide the Upper Peninsula’s Rapid River facility with an alternative supply. The flawed report finds that up to 35 railcars per week or 15 truckloads per day would be necessary to replace the Line 5 supply of natural gas liquids, while FLOW’s expert studies have found it would take only one railcar or 3 – 4 truckloads per day.

FLOW is a leader in the Oil & Water Don’t Mix campaign uniting citizens, businesses, groups, governments, tribes, and faith communities in support of shutting down Line 5 to avoid a catastrophic Great Lakes oil spill.

Please submit your comments on the State of Michigan’s Line 5 alternatives study by August 4 by visiting the Oil & Water Don’t Mix website here: www.OilandWaterDontMix.org.