Tag: Straits of Mackinac

Legal Fact from Legal Fictions

Published on October 9th, 2018 by - Blog Posts, H2Olson, Public Trust Tuesday

A Preface

When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.

The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.

The Michigan-Enbridge “Second Agreement”

Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.

  1. This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
  2. Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the [1953] Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
  3. Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
  4. The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
  5. The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
  6. The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
    • Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
    • There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
    • The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
  7. There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
  8. Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
  9. It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the [1953] Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.

Jim Olson, President and Legal Advisor

So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.

Paddle Protests & Water Celebration: Weekend Wrap-Up

Published on September 5th, 2018 by - Blog Posts

Saturday, September 1 was a day of action for citizens of Michigan. The fourth annual Pipe Out Paddle Protest was held in the Straits of Mackinac, followed by the inaugural Water Is Life Festival. Organized by Jannan Cornstalk, both events drew participants from all over the mitten, coming together to protect our waters. The family friendly Water Is Life Festival featured musicians, panels, and celebrations of water.

“The 2018 Paddle Protest and Water is Life Festival were a powerful showing of our collective commitment to protecting our Great Lakes and decommissioning Line 5,” said FLOW Executive Director Liz Kirkwood, who participated in the event. “The voices of our Indigenous leaders with sovereign treaty rights were bold and clear: water is sacred and the Great Lakes should not continue as an oil corridor for Enbridge corporate profit.”

In addition to the events at Mackinaw City, the first sister paddle protest was held in Traverse City, MI. Paddling together down the Boardman River, participants “spilled” into West Bay, and joined into a flotilla to protest the continued operation of Line 5.

Co-organizer of the TC paddle Karen Bunting said, “We were thrilled with the community turnout for the sister Pipe Out Paddle Protest! We left the Union Dam area cleaner than we found it, paddled together down the Boardman River, and raised awareness about the dangers of Line 5. Other paddlers joined us in West Bay, and we formed a flotilla of about 50 water protectors to demand that Line 5 be decommissioned before it’s too late.”  She added,“Our most sincere appreciation to all those who showed up for this important event and our sponsors: FLOW, The River Outfitters, Paddle TC, Oryana, Image360 and Tee See Tee. We made a difference on Saturday and couldn’t have done it without all of you!”

All three events highlighted concerns about Line 5, elevating local voices and putting forth a unified effort and belief that protecting our Great Lakes is more important than preserving a risky 65-year-old pipeline.

 

Water is on the Ballot, Too

Published on August 8th, 2018 by - Blog Posts

Now that the primary election is behind us, Michiganders will pay increasing attention to this fall’s all-important electoral choices.  FLOW is contacting the nominees for Governor, Attorney General, and northwest Michigan House and Senate seats this week to inform them of the water and public trust issues we think they should tackle.  We are looking for them to provide voters their views on these issues before the November election.

Here are the key challenges we believe the Great Lakes State faces in protecting its public trust assets:

Shut down Line 5 at the Straits of Mackinac.  These antiquated 65-year-old pipelines convey almost 23 million gallons per day of petroleum products along the public bottomlands of the Straits.  They pose an unacceptable risk of a spill that could cause ecological devastation and deliver a more than $6 billion blow to Michigan’s economy.  The Legislature should amend Public Act 10 (1953) to require any utility easement authorized under this Act to reapply under the Great Lakes Submerged Lands Act and public trust laws governing occupancy of our public waters and bottomlands.

End Nestlé’s profiteering off public water and secure public water benefits.  At a cost of $200 per year in state fees, Nestle is making hundreds of millions of dollars in profit annually by pumping, bottling and selling groundwater that would otherwise feed wetlands and streams.  In effect, Nestle is selling back to the public its own water at a markup of more than 2000%.  The Legislature should subject all private capture and sale of municipal water and groundwater to state regulation, impose royalties to benefit public water needs, and prohibit withdrawals that have unacceptable impacts on sensitive water resources.  

Prevent and remediate Michigan’s groundwater contamination.  About 45% of Michigan’s population drinks water from groundwater supplies. Unfortunately, there are 6000 legacy groundwater contamination sites for which there is no state cleanup funding, an estimated 130,000 failing septic systems, thousands of private water wells contaminated with dangerous nitrate, thousands of sites that pose a risk of indoor toxic vapor intrusion, and a staggering number of potential sites (estimated at 11,000) where groundwater is contaminated with PFAS compounds.  The Legislature should enact laws to address ongoing threats to groundwater quality and create a fund of at least $500 million to clean up legacy contamination sites.

Assure access to clean, safe, affordable water for all Michigan citizens.  It is simply wrong that in a water-abundant state, thousands of households are priced out of access to basic water services in communities like Flint and Detroit.  The Legislature should provide seed money and mandate public utility water pricing that assures all citizens can afford basic domestic water services.

We also expect them to address funding for drinking water and sewage treatment infrastructure; bringing the public back into state environmental decision making; and supporting Blue Communities.  For a copy of our full list of concerns, click here.

When we cast votes in November, we should remember that more than candidates are on the ballot.  In a very real way, so are water and the public trust.

 

Attorney General Bill Schuette has Ample Legal Authority to Pursue a Shutdown of Line 5

Published on July 9th, 2018 by - Blog Posts

Line 5 Pipeline

By: FLOW Chair, Skip Pruss

Taking Legal Action

Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago.”

The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.

But Sellek’s comment obscures the more important issue:  Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5.  What is more, there is legal precedent for such action.

The Precedent

In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America.  The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.

The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.

Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.

The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine.  These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.

In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5.  The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people.  And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.

Bill Schuette has that duty, and he has acknowledged that Line 5 presents an unacceptable risk stating that “you wouldn’t site, and you wouldn’t build and construct pipelines underneath the Straits today.”  Schuette’s assessment implies that a state-of-the-art, 21st Century pipeline presents an unacceptable risk, yet he has not initiated any legal proceedings despite the growing evidence that the integrity of Line 5 may be dangerously compromised.

Line 5 is showing a number of red flags.  Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims: 

  • Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
  • Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
  • Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
  • Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
  • As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
  • Anchor strikes that have dented the pipeline in three locations.

These facts support a finding that Line 5 poses an imminent risk.  Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm.  A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron.  And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.

Line 5, if it continues to operate, will fail eventually.  It is unscientific and reckless to suggest that it can function indefinitely.  While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.

The Result

So, what was the result of Attorney General Kelley’s action in 1986?

The Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources” but denied the state’s request to void the lease for state bottomlands.  Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.

Skip Pruss, FLOW Chair

The result:  A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF. 

As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands.  It is time for Schuette to act on Line 5, not make excuses.

Latest Enbridge Reports Underscore Line 5’s Vulnerability to 400 Michigan Waterways

Published on June 29th, 2018 by - Reports & Media Releases

FOR IMMEDIATE RELEASE                                                                           June 29, 2018
Contact:  Liz Kirkwood                                                                      Email: Liz@FLOWforWater.org
Executive Director                                                                                           Office: (231) 944-1568
FLOW (For Love of Water)                                                                               Cell: (570) 872-4956

Latest Enbridge Reports Underscore Line 5’s Vulnerability to 400 Michigan Waterways and Ongoing Unacceptable Risk to the Straits

TRAVERSE CITY, MI – Enbridge today released three reports required as part of the November 2017 agreement with the Governor concerning Line 5. The reports examine possible methodologies to mitigate potential leaks from Line 5 in the Straits of Mackinac and at nearly 400 water crossings throughout Michigan.

“These reports from Enbridge provide a stack of evidence supporting the public’s call for Gov. Snyder and Attorney General Schuette to shut down Line 5 right now before there is a catastrophic oil spill in the Mackinac Straits,” said For Love of Water (FLOW) Executive Director Liz Kirkwood, an environmental attorney and a co-leader of the Oil & Water Don’t Mix campaign. “Enbridge acknowledges that Line 5 lacks the latest safety technology, remains at risk of more anchor strikes, and threatens not only the Mackinac Straits but also many Great Lakes tributaries, wetlands, and other aquatic resources along its 554-mile-long route in Michigan.

“The governor and attorney general need to stop promoting their long-term dream of a Canadian oil pipeline tunnel under the Straits and across nearly 400 waterbodies in Michigan alone, and finally confront this danger to the Great Lakes, our drinking water, and our jobs tied to the Pure Michigan economy.”

Of particular concern, information in the three reports released Friday by Line 5-owner Enbridge reveals that:

  • Water Crossings Report: This report reveals that Line 5 crosses nearly 400 Michigan waterways, almost double the number of lakes, rivers, streams and wetlands Line 5 was thought to cross. This should shine a light on the fact that not only are the Straits of Mackinac at risk to a potential catastrophic oil spill, but so are 400 waterbodies in our state. According to NWF’s FOIA review, since 1968, Enbridge’s Line 5 has ruptured at least 29 times on land, rupturing over 1.1 million gallons of oil into Michigan’s environment.
  • Technology Reports: (1) Underwater Leak Detection Report: This report examined three external leak detection technologies and concluded that not one of them could provide continuous real-time monitoring that was practical, cost-effective, or operationally proven. With costs ranging between $4 and $40 million, the report used a net present cost assuming a 20-year operating and maintenance period. Both of the optical camera options would require 1,800 cameras on the dual pipelines. (2) Coating Technologies Report: As a part of the leak detection report, the coating technology report ignored the fact that Enbridge’s screw-anchor engineering efforts caused coating pipeline loss in over 80 locations, and does not address how Enbridge will attempt to remedy this major design defect as they work this summer to install another 22 anchors and then possibly 48 more. These anchor permits are currently being challenged at the administrative level by a citizens’ group (Straits of Mackinac Alliance) and the tribes (Grand Traverse Band of Chippewa and Odawa Indians).
  • Anchor Strike Mitigation Report: This report noted that the probability of a failure of an anchor strike to the existing dual pipeline is two to three times higher than the values provided in the November 2017 Dynamic Risk alternative analysis report. Enbridge’s report concludes that the most effective option to mitigate anchor strikes to the dual Line 5 pipelines in the Straits is to cover both lines with a protective barrier consisting of approximately 360,000 cubic yards of gravel and rock. However, this protective barrier would not allow for visual inspection of the pipeline and would impede any external maintenance to Line 5 within the Straits. The protective barrier option also poses environmental risks including disturbance to fish habitat, disturbance to lake vegetation, impacts to water clarity, and potential exposure to toxins during its estimated 2-3 year construction timeline. Notably, this report omitted any mention or analysis of the recent anchor strike that caused an estimated 600 gallons of dielectric fluid to enter the waters of Lake Michigan and dented Line 5 underwater pipelines in three locations.

Fundamentally, the question remains: Why didn’t the State of Michigan require a comprehensive engineering study evaluating the anchor hooking risks as well as the currents, gravitational and thermal stresses of the new elevated pipeline with its 128 screw anchors as compared to the original lakebed support design?

The three reports released today but dated June 30 can be found at: https://mipetroleumpipelines.com/document/enbridge-reports-november-2017-agreement

Public comments will be accepted before July 15 regarding the action the state should take to address the future of Line 5.

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It’s Time for the State of Michigan to Put Protection of our Great Lakes and Citizens First

Published on June 28th, 2018 by - Blog Posts

Almost three years ago, with the release of Michigan Petroleum Pipeline Task Force’s report on July 14, 2015, Attorney General Bill Schuette announced that the days of Line 5 were numbered. The public also believed that the State of Michigan planned to seek two independent studies on Line 5 to evaluate risk and alternatives.

It’s been over 1,000 days and despite plenty of distracting PR, Attorney General Schuette, the Governor, and the State of Michigan have done virtually nothing to make Line 5 in the Straits of Mackinac safer from a catastrophic oil spill.

Over these 1,000-plus days, while the debate has raged on with an incomplete alternatives study and a back door deal between the Governor and Enbridge, Line 5 has:

  • lost its protective pipeline coating in over 80 locations;
  • suffered more cracking and corrosion, and even dents from an anchor strike in three locations; and
  • continued to violate its legal occupancy agreement with the State of Michigan because it is shifting dangerously on the bottomlands. 

Designed to last for only 50 years, Line 5 is now 65 years old and continues to pump 23 million gallons of oil every day from Canada and back into Canada using the Great Lakes as a high-risk shortcut. And there is no end in sight.

On April 1 of this year, the unthinkable happened; a tugboat anchor struck and dented Line 5 in three locations. Miraculously, Line 5 did not rupture, but the emergency response to transmission cables ruptured by the anchor underscored how difficult if not impossible cleaning up toxic oils and fluids can be in the wild currents of the Straits.

Enbridge is delighted that the conversation has now shifted to the option of a tunnel to replace the failing pipeline. It is the perfect distraction. It drags public attention into the weeds of whether or not constructing a tunnel is feasible from a highly technical perspective. And it steers the public, Michigan lawmakers and leaders, and candidates away from asking the right questions:

  • What is the State of Michigan as a trustee of the public interest doing right now to protect and defend the Great Lakes against the most dangerous pipeline in American?
  • How does Line 5 actually benefit Michigan’s current and future energy needs?
  • What are the feasible and most prudent alternatives to transporting oil that do not threaten the Straits of Mackinac and the 245 other water crossings in Michigan also protected by the state’s public trust duty?
  • Why is Enbridge in charge of investigating the feasibility of a tunnel when the state demanded an independent review?

Make no mistake: a conversation about a tunnel is folly and it fails to meet our state government’s legal obligation to put the public interest ahead of Enbridge’s pure profit. Dutch water expert Henk Ovink observed “If we only respond to the past, we will only get answers that fit the past.” This is exactly where we are as Enbridge tries to hijack the Line 5 conversation and bring the tunnel option center stage.  

Liz Kirkwood, Executive Director

We must demand that our leaders ask the right questions and seek truthful answers. Right now, the State of Michigan can revoke the Line 5 public trust easement and ensure protection of our drinking water, economy, fishing, and way of life.

Line 5 is a Great Lakes issue, a Michigan issue that affects us all. This is not about which side of the aisle you stand on. Rather, Line 5 is about our future and our children’s future, and they will never forgive our elected leaders if Line 5 ruptures on our watch.

Water unites us. Let’s let the decommissioning of Line 5 do the same.

Saving the Straits of Mackinac

Published on May 23rd, 2018 by - Blog Posts, H2Olson

Saving the Straits of Mackinac

Yesterday, May 22, 2018, marks the day that our state’s citizens, threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac, took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to start applying state law that is supposed to protect the Great Lakes, and stop the flow of oil through Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair, a shift that will finally bring state officials and Enbridge under the rule of law. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.

A Brief History

In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?

Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “Sure it’s days are numbered, but that number could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that establishes a framework for the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. If not contested under rule of law that protects the public trust in the lakebeds and waters of the Great Lakes, the investment in replacement could all but seal the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan has become the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain. Why does the governor and not the law of the Great Lakes and the citizens of Michigan through our elected officials or under rule of law decide the fate of crude oil in and out of the Great Lakes basin?

But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General unwittingly if not unlawfully cooperated with Enbridge to keep the oil flowing through pipelines in the Straits, pipelines whose design is failing. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet suspended in the water column above the lakebed and exposing the lines to powerful currents that could whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the for the company fastened 16 saddles to the pipelines, supporting the saddles and lines by leg supports crewed into the lakebed. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended in the water like a bridge over the lakebed.

A New or Changed in Design

The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures.  Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!

How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General staff stonewalled the tribe’s and citizens groups’ patently obvious charge that miles of suspended pipelines were a new or substantial change in design, not “repair” or “maintenance,” subject to required comprehensive review under the GLSLA and public trust in the lakebed and waters of the Straits.

This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed.  If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will snag anchors dragging over them from a passing ship.

So what does the GLSLA say about these permits for “repair” or “maintenance?”  Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and permit for the new pipeline design and structures. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations also require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.

Taking Matters Into Their Own Hands

In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines that have been substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, and if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is unlawful. For three years, government officials could have taken charge.

But they haven’t. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.

Jim Olson, President and Founder

I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention. I urge our Governor, Director of DEQ, and Attorney General to join the side of citizens and tribes and invoke the available rule of law under the GLSLA to protect the Great Lakes.

FLOW Demands State Reject Latest Enbridge Ploy

Published on May 14th, 2018 by - Blog Posts, Reports & Media Releases

In comments submitted to state officials Friday, FLOW is urging state regulators to deny a bid by Enbridge Energy to install 48 new anchor supports on dangerous Line 5 at the Straits of Mackinac while evading scrutiny of alternatives that would protect the environment.

Enbridge’s latest request, if approved, would bring the number of anchor brackets to 198 that the governments have allowed the company to install since the early 2000s — completely changing the pipelines’ design. 

Structurally, this means that approximately 3 miles of pipeline are elevated in public trust waters above the bottomlands. But the design approved by the state in the 1950s had the pipeline resting in a trench on the lake bottom. 

“The fact that the Michigan Department of Environmental Quality and the U.S. Army Corps of Engineers continue to approve Enbridge’s anchor supports on the lakebed of the Lake Michigan as ‘repair’ and ‘maintenance’ is simply untenable,” FLOW says in its comments. “The highly increased risks of and alternatives to a completely modified design under both state and federal permitting laws requires a new agreement of occupancy and permits” under several laws.

“And given the recent anchor dents in the twin lines and rupture of the electrical line and release of toxic fluids, the risks to the Great Lakes are totally unacceptable,” FLOW said.

FLOW called on the state and federal governments to require that Enbridge:

  1. file a full and comprehensive application including a study of potential effects and feasible and prudent alternatives to Line 5 in the Straits in its entirety;
  2. suspend the flow of oil in Line 5 unless and until Enbridge files such application and evidence and obtains proper occupancy agreements, permits, or other approvals for this new or completely modified pipeline design; and
  3. consolidate into one application and examine the risks, impacts, and alternative analyses of the entire 645 miles of Line 5.

Read the full comments here.

Anatomy of A Spill in the Great Lakes

Published on April 16th, 2018 by - Blog Posts

Five years ago this spring, when I first learned about Line 5, I could only imagine what a catastrophic oil spill would look like here in the heart of the Great Lakes.  Two weeks ago, we dodged a bullet as we watched a hazardous liquid spill from two neighboring transmission cables unfold. What we witnessed was an anatomy of a spill — and how truly devastating an oil spill would be.    

Here’s what we know from the April 1st spill in the Straits.  

A release of at least 600 gallons of toxic coolant and insulating fluid from electric cables owned by American Transmission Company (ATC) occurred sometime Sunday afternoon in the Straits of Mackinac.  The dielectric fluid is a mineral oil that contains a benzene compound. ATC, however, did not report the release to the Coast Guard for 24 hours.  By Monday, ATC officials were blaming “extraordinary circumstances” like ice in the water and near the shore that hindered the emergency response.  

No cause was initially identified until days later.  The cause? Vessel anchor strike. News media coverage revealed the chaotic nature of responding to this hazardous liquid spill with Coast Guard helicopters looking for oil sheens and a multi-agency unified command assembling from federal, state, tribal, and local agencies and units.  Reports attempted to allay public fears, indicating that the product was so diluted that it would not pose a threat to drinking water supply intakes. The greatest threat posed was to wildlife and shore birds swimming in possible oil floating on the water’s surface.

On April 3, Enbridge – owner and operator of Line 5 – temporarily shut down the flow of oil in the pipelines to evaluate the leak detection systems.  Ten days after the ATC accident, on April 10, Enbridge notified state and federal officials that their pipelines had suffered three dents, likely due to the same vessel activity that may have caused the damage to the ATC lines.

Hold on.  Vessel anchor strike hitting Line 5?  This was the number one threat that Dynamic Risk identified in their November 2017 alternative report to the Governor-created Michigan Pipeline Safety Advisory Board.  Ironically, the original Bechtel engineers believed that a vessel anchor strike was only “one chance in a million.”

Well, two weeks ago that one chance in a million struck.  

And finally, a growing chorus of federal and state leaders from both sides of the aisle are demanding that Line 5 be shut down until a full visual inspection has taken place.  Tribal leaders like Aaron Payment from the Sault Tribe call for more comprehensive investigation and analysis: “These old pipes need to be shut off, at least until proper investigations and the full analyses are finished.” . . .  “Governor Snyder should not be using this accident as an excuse to fast-track a tunnel.”

Liz Kirkwood, Executive Director

So what can we learn from this?  First, we don’t need to imagine anymore.  We know that it might take up to 24 hours before the spill is even reported.   We know exactly how difficult it would be to deploy emergency responders to contain oil in the open waters.  We know how extreme the conditions are in the Straits, even in spring. We know about the challenges of ice. We know that we can never be 100% prepared in such a dynamic, chaotic, and extreme environment as the open waters of the Great Lakes.  Second, and most important, we can’t take a second chance because of the magnitude of harm and risk that Enbridge is asking citizens of Michigan to shoulder.

Let’s do the right thing. Michigan leaders – it’s time to be proactive and shut down this 65-year-old oil pipeline before it’s really too late.    

Once More: Line 5 and the Public Trust

Published on February 27th, 2018 by - Public Trust Tuesday

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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.”