Search Results for: Line 5

FLOW Deeply Disappointed in Court Decision Today Leaving State of Michigan’s Lawsuit to Shut Down ‘Line 5’ in Federal Court, Denying the State’s Request

Editor’s Note: The following is a media release issued by FLOW on November 16, 2021; please contact Executive Director Liz Kirkwood at (570) 872-4956 or Liz@FLOWforWater.org or Senior Legal Advisor Jim Olson at (231) 499-8831 or Jim@FLOWforWater.org.

Judge Neff’s decision today addresses only the narrow, procedural issue of whether a state or federal court should decide if the State of Michigan lawfully ordered the shutdown of the Line 5 oil pipelines in the Straits of Mackinac. Although the federal court’s decision to exercise jurisdiction over this matter is disappointing, it does not resolve the validity of the State’s action to protect the public’s legally revered interests in the Great Lakes. Canadian energy transport giant Enbridge continues to defy the order to shut down Line 5.

The decision is legally deficient for multiple reasons, most notably because it failed to consider express provisions of federal law that affirm Michigan’s sovereign right to apply and enforce its own laws to protect its waters and environment. The court also did not properly consider the State’s sovereign interests as required when making a jurisdictional determination. 

“The court overlooked the sovereign public interests of Michigan, an omission that seriously threatens not only Michigan’s sovereignty over its navigable water, but every state in the nation,” said FLOW Founder and Senior Legal Advisor Jim Olson

The decision also threatens the sovereign interests of states by setting an extremely low bar for removing state-court lawsuits to federal court. This could result in the weaponization of federal jurisdiction by foreign corporations seeking to litigate disputes involving state law in federal court.

“Fortunately,” said Liz Kirkwood, Executive Director of FLOW, “until decided by a court, Governor Whitmer’s revocation of Line 5 stands firm. FLOW stands in solidarity with the State of Michigan as Attorney General Nessel defends the public waters of the Great Lakes in this nationally significant litigation.” 

Background from FLOW:

Key Context on Federal Lawsuit:

Recent  Line 5 Analysis:

State’s Line 5 Shutdown Deadline:

Reality Check:

Gov. Whitmer’s Line 5 Shutdown Order & Reaction:

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

FLOW’s Blog Coverage: Line 5 blogs providing news & analysis.

Line 5’s Clock is Ticking Ever Louder in the Great Lakes

Photo at the Straits of Mackinac by Beth Price.

Editor’s note: The following op-ed originally appeared Nov. 3, 2021, in the Traverse City Record-Eagle

By Liz Kirkwood, FLOW Executive Director

FLOW Executive Director Liz Kirkwood

Regarding Enbridge’s recent op-ed in the Traverse City Record-Eagle, we at FLOW agree with just these first four words: “The clock is ticking.”

That “tick, tick, tick” sound, however, isn’t coming from Enbridge’s proposed tunnel. It is coming from an environmental ticking time bomb called Line 5—Enbridge’s twin pipelines pumping oil nearly 20 years past their intended lifespan in raging currents at the bottom of the Straits of Mackinac.

Since 2018, three anchors and cables have struck these patched and propped up pipelines. Each strike could have delivered a $6 billion blow to Michigan’s economy, jobs, and natural resources, according to an MSU economic study, with oil coating beaches as California has recently experienced.

Thankfully Gov. Gretchen Whitmer hears the Line 5 ticking time bomb. That’s why in November 2020, after a comprehensive review, she ordered Line 5 shut down by May. Enbridge, however, is defying that lawful order and public trust law too. Why stop now, when every day Line 5 pumps oil through the Great Lakes, it deposits another $1.5 million or more into Enbridge’s pocket?

Plus the unlawful tunnel deal Enbridge struck in the dying days of the Snyder administration allows Line 5 to keep running until the tunnel is built, which might never happen considering the lack of public need for the tunnel and risk to the Great Lakes and climate during and after construction.

In July 2010 Enbridge testified before Congress that leak detection and response “can be almost instantaneous.” Ten days later, the Canadian company failed to hear another pipeline ticking, and its Line 6B crossing southern Michigan dumped more than one million gallons of heavy tar sands oil into the Kalamazoo River.

Line 6B leaked for 17 hours while Enbridge employees in Western Canada shut off alarms they thought were false and repeatedly restarted the line. The spill sickened more than 300 Michiganders and cost 150 people their homes and properties. An unknown amount of oil remains in the environment, but Enbridge is done cleaning it up.

When the State of Michigan revoked the easement and sued Enbridge in November 2020 to shut down 68-year-old Line 5, it rightly did so in state court. The State’s ownership of Great Lakes public trust waters and bottomlands imposes a duty on it to revoke and enforce the shutdown of Line 5.

Enbridge, though, removed the lawsuit to federal court to delay judicial enforcement of the State’s order. Nearly a year later, a federal judge is still considering the State’s motion to return the case to a state court room where it belongs. Enbridge has further interfered with judicial proceedings by spurring Canada to invoke formal treaty negotiations with the U.S. that could take years to resolve.

Meanwhile the Line 5 clock is ticking ever louder in the Great Lakes. Don’t count on Enbridge to hear it, let alone defuse it or clean it up. It’s up to the State, its citizens, tribes, and the courts to protect the Great Lakes from Enbridge.

Why Do Canadians Seem to Care So Little about Protecting the Great Lakes from Line 5?

Dr. Daniel Macfarlane, Institute of the Environment and Sustainability

By Daniel Macfarlane

As a Canadian living in Michigan, I’ve never seen a state or province that identifies with the Great Lakes the way Michigan does: their silhouette adorns t-shirts, water bottles, and bumper stickers everywhere. At the same time, I would say that the Great Lakes-St. Lawrence system is woven into the nationalisms and founding mythologies of the Canadian nation-state, especially in central Canada, in a way that isn’t true of the United States. You might even say that the Great Lakes are in the DNA of the territory now called Canada.

The Great Lakes and St. Lawrence River are the historic Canadian heartland—the equivalent of the East Coast of the United States. All three founding nations of Canada (Indigenous, British, and French) crowded the shores of these sweetwater seas and the St. Lawrence River. Nowadays, the Great Lakes-St. Lawrence basin hosts the political, financial, and industrial hubs of Canada, and about half the country’s population.

But if the Great Lakes are so important to Canadians, why do they seem to care so little about protecting them? Specifically, I’m talking about Enbridge’s Line 5 pipeline.

Line 5, a hydrocarbon pipeline, runs through Michigan’s Upper Peninsula, across the state’s venerated Straits of Mackinac, and then through lower Michigan to Sarnia, Ontario. Built nearly 70 years ago, and in a deteriorating condition, Line 5 daily transports about 23 million gallons of oil and natural gas liquids from the Canadian West.

Line 5 is a ticking time bomb, especially at the Straits, where Enbridge is proposing a tunnel for this decaying and dangerous dual pipeline—but if you read the fine print, it will take a decade to build and taxpayers will be on the hook for the risky endeavor.

If the Great Lakes are so important to Canadians, why do they seem to care so little about protecting them? Specifically, I’m talking about Enbridge’s Line 5 pipeline.

In November 2020, Michigan Governor Gretchen Whitmer revoked the 1953 easement granted to the Lakehead Pipe Line, now Enbridge, for the Straits crossing. Enbridge ignored the Governor’s May 12 deadline to shut down Line 5, with backing from the Canadian government, and the matter was sent for mediation. But in early September, the State of Michigan moved to break off this “unproductive” dialogue.

On October 4, 2021, the Canadian government officially invoked a bilateral 1977 Pipeline Transit Treaty that applies to pipelines that cross from one country into the other and back. Governor Whitmer said she was “profoundly disappointed” with the Trudeau government. And she should be, since Ottawa is essentially shilling for a private oil company. 

The status quo is going to end in disaster. Canada is a climate villain, marching itself and the rest of the world to “global weirding.” Backing the likes of Enbridge is not only bad for the planet, it is bad economics. 

In any case, the 1977 treaty is a diplomatic agreement not to interfere with or levy any fees or duties on hydrocarbons that are already flowing—“in transit” to use the treaty language—and should have no applicability on the bigger question of whether a state or province wants a foreign pipeline in their territory. In other words, the intention of this treaty was not to stop a state (or province) from exercising its sovereignty over its own public waters or deciding whether or not to revoke permission for a foreign pipeline crossing its territory; the point was to stop an arbitrary or gouging bait-and-switch where a political jurisdiction acting as the middle man gives consent to a pipeline and then jacks up the price.

Many Canadians have been boisterously loud about stopping new and existing pipelines within Canada. But why are Canadians so seemingly ignorant, or ambivalent, about Line 5? A major reason is certainly that most of the fossil fuels sent through Line 5 ends up in Ontario and Quebec. Of course, Canada is also a type of petro-state, addicted to the profits and efficiencies of fossil fuels; many have a vested interest in maintaining the status quo.

Just imagine how Canadians would react if the situation were reversed, and the U.S. refused to stop a pipeline that a province didn’t want. Moreover, if Canada is serious about reconciliation, it needs to stop pipelines. Many pipelines in Canada threaten the territories of numerous bands and First Nations, often without their consent and in conflict with the spirit of treaties and agreements.

But the status quo is going to end in disaster. Canada is a climate villain, marching itself and the rest of the world to “global weirding.” Backing the likes of Enbridge is not only bad for the planet, it is bad economics. 

A recent report stated that close to 85% of Canada’s fossil fuels need to stay in the ground if the country wants to have a decent chance of meeting the 1.5 degree Celsius goal in the Paris Agreement.  According to another analysis, building the Line 5 tunnel and continuing the pipeline could contribute an additional 27 million metric tons of greenhouse gases to the atmosphere annually, generating $41 billion in climate damages between 2027 and 2070.

Those climate damages are going to haunt Canada as well as the U.S. Moreover, the models show that a Line 5 spill at the Straits of Mackinac would likely flow into the Canadian part of Lake Huron. Enbridge’s track record doesn’t exactly inspire confidence. I live and teach in Kalamazoo, where in 2010 Enbridge’s Line 6B had a catastrophic failure into the eponymous river. A pipeline rupture would be all but impossible to rectify quickly in the Straits when there is ice cover in winter. 

Just imagine how Canadians would react if the situation were reversed, and the U.S. refused to stop a pipeline that a province didn’t want. Moreover, if Canada is serious about reconciliation, it needs to stop pipelines. Many pipelines in Canada threaten the territories of numerous bands and First Nations, often without their consent and in conflict with the spirit of treaties and agreements.

There are alternatives for getting energy to the areas of Canada served by Line 5. These can be used in the short-term. But, make no mistake, the goal here is not to just shift fossil fuels to a different pipeline. The end game is an energy transition, and a just one at that.  In the long run, stopping Line 5, and other pipelines, could actually be doing Canadians a favor: weaning them off of fossil fuels and their infrastructure, and protecting the Great Lakes and the climate.  What could be more neighborly? 

Daniel Macfarlane is an Associate Professor in the Institute of the Environment and Sustainability at Western Michigan University. He is also a senior fellow at the Bill Graham Center for Contemporary International History, University of Toronto, and President of the International Water History Association. His research and teaching focus on the Great Lakes-St. Lawrence basin, and he is the author or co-editor of four books, including Border Flows: A Century of the American-Canadian Water Relationship, and he is completing a book on Canada-U.S. environmental and energy relations.

Coordinated Cross-Border Protests Call on Canada to Support Line 5 Shutdown

More than 40 protestors assembled on the Detroit Riverwalk Wednesday morning to call on the Canadian government to support Michigan Governor Gretchen Whitmer in seeking to decommission the Enbridge Line 5 oil pipelines in the Straits of Mackinac. The Detroit protest—staged near the Canadian consulate—occurred in solidarity with simultaneous demonstrations across the Detroit River in Windsor, Ontario, as well as in Chicago and Milwaukee. At each protest site, organizers sent Canadian Prime Minister Justin Trudeau jars of fresh Great Lakes water as a symbol of what’s at risk if Line 5 continues to operate.

Speakers at the Detroit protest included Sean McBrearty from the Oil & Water Don’t Mix campaign, Christy McGillivray from Sierra Club, Jamie Simmons from Michigan Climate Action Network, and Andrea Pierce from the Michigan Democratic Party’s Anishinaabek Caucus and Little Traverse Bay Bands of Odawa Indians.

“Michigan and independent researchers have studied this intensively and shutting down the Line 5 pipeline without replacing it is feasible. It’s the only way to truly protect our Great Lakes and it’s the only way forward at this point in the climate crisis,” Simmons said.

Line 5 Oil Tunnel: U.S. Army Corps Environmental Study Marks a Return to the Rule of Law

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.