By Jim Olson and Nora Baty
Jim Olson is FLOW’s Founder and Legal Advisor
In recognition of the critical importance of the Great Lakes and the rule of law, the United States Army Corps of Engineers (USACE) announced June 23 that the federal agency will conduct an environmental impact statement (EIS) for Enbridge’s Line 5 oil tunnel proposed for the Straits of Mackinac–handing citizens and communities battling the existential threat of climate change an important victory.
These evaluations delve into critical questions of risks, impacts, and alternatives—particularly a “no action” alternative when it comes to the falling demand for crude oil and the blazing heat waves across North America. Because of the depth of this evaluation and based on past practice, the EIS process will likely take three-and-a-half years to complete. While this may result in no tunnel or delay a tunnel, if it is ever built, the decision points to an even more critical action: It’s time to double-down on an orderly shutdown of the perilous Line 5 Pipelines in the Straits of Mackinac.
“The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs.”
Nora Baty is a Milliken Law and Policy Intern at FLOW.
Governor Whitmer and the Department of Natural Resources, under their solemn public trust duty to exercise prudence to protect the Great Lakes from a massive oil spill that would cost more than $6 billion, had little choice but to revoke the 1953 easement and close the 70-year old hazard. With the falling demand for crude oil, and capacity in other pipelines that criss-cross the continent, adjustments in oil transport can meet Canadian demand and the relatively minor need for crude oil from Line 5 for Michigan.
Finally a Full and Comprehensive Environmental Impact Statement
Under the National Environmental Policy Act (NEPA), an EIS is required for major projects “significantly affecting the quality of the human environment.” The law, as contemplated, established rules to ensure that the federal government considers the health and environmental effects and alternatives to actions proposed by corporations seeking permits. Under the NEPA rollbacks by the Trump Administration, agencies and citizens had little chance to trigger an EIS under NEPA, despite the magnitude of the action and environmental risks.
Now under the Biden Administration, “The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs,” according to a press release. The USACE’s decision to require an environmental impact statement and its commitment to the rule of law are important to ensure there is a robust record examining the impacts of the proposed project, using scientific data and expert opinions, and that alternatives to the project are adequately considered.
Courts and agency decisions have rejected projects with incomplete scientific data or that fail to assess alternatives to avoid environmental impacts. Earlier this year, Michigan Administrative Law Judge Daniel Pulter denied the Back-Forty permit for a massive mining project in Michigan’s Upper Peninsula because the underlying hydrogeologic information, wetland impacts, and the potential alternatives were not adequately evaluated.
FLOW’s legal team aided in this effort in December 2020 by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority, Clean Water Action—Michigan, FLOW, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350. The comments demonstrated a serious gap in Enbridge’s incomplete evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that the company at one point characterized as solid bedrock.
This EIS decision marks a return to NEPA’s mandate that the federal government review major projects to the “fullest extent possible.” This is particularly important for Line 5 in light of the decreasing demand for crude oil and the shift in Canada and the U.S. to renewable energy (wind, solar, conservation), and a “no action” alternative to the tunnel is more likely than ever.
Line 5 Is No Longer Necessary
The no action alternative for a proposed project, such as Enbridge’s proposed oil tunnel, looks at the effects of not approving the action under consideration. Here, Enbridge will need to prove, first, that the tunnel and Line 5 are even needed, and second, if there is a need, that there are no other routes or existing lines into Ohio, Michigan, and into Canada. 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 competition without threatening our public waters, including Enbridge’s Line 78 across southern Michigan.
Unfortunately for Enbridge, and fortunately for the climate, the energy landscape is shifting and renewable energy growth is accelerating. At the same time, the beginning of Line 5 tunnel construction looks farther and farther away. One study found that such federal reviews, known as environmental impact statements, take an average of nearly 3-and-a-half years to complete, and then permits and construction would take years longer after that.
The tunnel may or may not be constructed. While Enbridge continues to operate Line 5 in the Straits, violating the law, and threatening the Great Lakes and the region’s economy, the existing dual pipelines pose an unacceptable risk of massive harm to the Great Lakes, communities, citizens, and businesses. The reality is that we can no longer wait for Line 5 to be shut down. It is time for the court process and the State and citizens of the Great Lakes Basin to bring the State’s revocation of Enbridge’s 68-year old easement and pipeline to a close.
