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Enbridge Attempts to Resuscitate a Terminally Flawed ‘Line 5’ Oil Tunnel Deal

By Jim Olson, FLOW President and Founder

The lawsuit filed by Enbridge in the Michigan Court of Claims on Thursday, June 6, is an attempt to resuscitate a Line 5 oil tunnel law and related agreements that are so riddled with entanglements by the former Governor Snyder Administration with Enbridge, a private corporation, that it cannot be upheld. Here’s why:

  1. The 2018 lame-duck oil tunnel law was a deceit on the public in violation of the state constitution.

The 2018 lame-duck oil tunnel law was a deceit on the public in violation of the state constitution because the title of the law represented the project would be entirely owned and controlled by the public. But when you read the law, it is a state deal or “partnership” with a private corporation primarily for the benefit of Enbridge.

  1. The tunnel and related agreements call for private occupancy and takeover of the public trust bottomlands.

The tunnel and related agreements call for private occupancy and takeover of the public trust bottomlands in the Straits of Mackinac by private easement and 99-year lease controlled by Enbridge.  

  1. The agreements and tunnel deal sought to suspend and waive the laws and constitution of Michigan.

The agreements and tunnel deal sought to suspend and waive the laws and constitution of Michigan that protect citizens, communities,  and our Great Lakes; a governor and private corporation can never enter into agreements that escape the rule of law.

  1. There are alternatives to the existing Line 5 that do not require a tunnel.

Despite the posturing and rhetoric of Enbridge’s media scheme, there are alternatives to the existing Line 5 that do not require a tunnel; these include delivering propane for those pockets of customers in the Upper Peninsula, the use of excess capacity in other Enbridge pipelines that run across southern Michigan and northern Indiana to Canada and Detroit, and lack of necessity for a 99-year tunnel and pipeline in light of plummeting demand for crude oil as the world economy rapidly shifts to renewable energy.

  1. This lawsuit is a diversion.

This lawsuit is a diversion from the reality that the 540,000 barrels of oil are pulsating through a 66-year old pipeline, which is peppered with design flaws, gouges, dents, and cracks, and unavoidably threatened with another anchor strike at any time.

Jim Olson, President and Founder

 


A ‘Line 5’ Oil Tunnel Won’t Protect the Great Lakes from Enbridge, Climate Change

Above: FLOW’s Liz Kirkwood speaking in opposition to a proposed oil tunnel in the Straits of Mackinac, during a November 8, 2018, hearing in St. Ignace.


In the world of public relations, there are facts, exaggerations, and untruths. Right now, Enbridge is bombarding the people of Michigan with hazy PR claims that it has safely operated the Line 5 oil pipelines in the open waters of the Straits of Mackinac for the last 66 years.

The Canadian energy pipeline giant, however, conveniently fails to tell the public that it has allowed the pipelines to deteriorate badly, bending and grinding on the lake bottom in the fierce currents. Enbridge also neglects to mention that on April Fools’ Day 2018, Line 5 threatened to dump its oil into the Great Lakes when a tugboat anchor struck, and risked breaching, the underwater pipelines. 

Rather than seizing on this near-disaster to decommission the decaying pipeline infrastructure built in 1953, the Snyder administration instead spent its final eight months in office cementing a private pact with Enbridge. The backroom deal would leave Line 5 vulnerable to another anchor strike or rupture for up to a decade while Enbridge explores the feasibility of building an oil tunnel under the Straits.

Michigan’s new attorney general, Dana Nessel, in late March correctly determined that the tunnel law passed hastily in the waning days of the 2018 lame-duck legislature was unconstitutional. Gov. Gretchen Whitmer later that same day directed all state departments to halt work on tunnel permitting. But Gov. Whitmer’s recent opening of negotiations with Enbridge seeking to speed up the stalled tunnel process contradicts her own directive and circumvents a transparent public process.

Trying to hasten a bad idea won’t make it any better. While seeking to revive Snyder’s 99-year tunnel deal with Enbridge risks undermining Gov. Whitmer’s own goal to combat climate change risks and impacts.

And Enbridge and the former Snyder administration’s claims that the proposed oil tunnel would serve a public purpose by also housing electrical and other utilities is a ruse that masks an enormous risk of explosion, as experts advising FLOW determined in prior research.  

Just today, in fact, an electrical supplier to the Upper Peninsula – American Transmission Company or “ATC” – issued a letter indicating that it has no intention of running its 138,000-volt electric lines through the proposed oil tunnel. “A tunnel of uncertain timing, later in the decade, does not serve the public,” the letter stated. “ATC does not believe that installing high voltage electric lines in close proximity to high pressure oil or gas lines is a good idea.”

It’s never been clearer that Enbridge is pretending there’s a public purpose to their private oil tunnel in order to gain access to the public waters and bottomlands of the Great Lakes. The Great Lakes Submerged Lands Act requires there be a “public purpose,” no impairment or interference with fishing and other public trust uses and rights of citizens and communities, and a showing of no feasible and prudent alternative for transporting Canadian oil back to Canada. The state of Michigan must restore the rule of law and transparency by requiring Enbridge to apply to build a tunnel in the Straits under the law, not negotiate occupancy of public bottomlands behind closed doors.

The real solution to the Line 5 threat must protect the Great Lakes, which define Michigan, drive our economy, and provide drinking water to half the state’s population. Gov. Whitmer must heed her campaign promise to shut down Line 5, while implementing a common-sense backup plan for propane transport in the Upper Peninsula using truck, train, or a small new pipe that doesn’t cross the Straits of Mackinac.

Let’s cut through Enbridge’s PR-fog and get the facts straight. Line 5 is not vital energy infrastructure for Michigan. More than 90 percent of the oil in Line 5 comes from and flows back to Canada.

Not only does Enbridge lack adequate insurance to cover the impacts of a catastrophic spill estimated from $1.87 billion to as much as $45 billion, the company’s oil spill response plan was held to be inadequate in late March by the U.S. District Court for the Eastern District of Michigan.

Liz Kirkwood, Executive Director

Enbridge’s dismal track record is underscored by its 2010 Line 6B Kalamazoo River disaster – known as the largest inland tar sands oil spill in U.S. history – and extends to Line 5, which has leaked in total over a million gallons of oil in Michigan and Wisconsin from at least 33 known spills since 1968.

Infrastructure needs abound in Michigan – ranging from our failing drinking water and wastewater infrastructure to the aging Soo Locks and a long-term clean energy plan for the U.P and the state as a whole.  Let’s shut down Line 5 and create jobs focused on those real needs, instead of protecting Enbridge’s private interest in our public waters.


FLOW’s Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline

FOR IMMEDIATE RELEASE:                                                                                              April 17, 2019

Liz Kirkwood, Executive Director                                                                 Email: Liz@FLOWforWater.org
Office: (231) 944-1568                                                                                     Cell: (570) 872-4956

Jim Olson, President, Cell: 231-499-8831                                                   Email: olson@envlaw.com
FLOW (For Love of Water), Traverse City, MI                                           Web: www.FLOWforWater.org


FLOW Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline


Traverse City, Mich. –  FLOW (For Love of Water) issued the following statement on the disclosure that Gov. Gretchen Whitmer and Enbridge Energy will discuss expediting construction of an oil tunnel beneath the Straits of Mackinac while the company’s troubled Line 5 pipelines continue operation in the Straits:

“We are concerned about this development. Every day that the Line 5 pipelines continue to operate is a risk to our precious Great Lakes,” said FLOW executive director Liz Kirkwood. “State government’s efforts should first and foremost be devoted to shutting the pipeline down, not negotiating its continued operation while a tunnel is explored and possibly built.

“Now that the Governor has chosen to engage in this process, we hope and trust it will be a transparent one. It is unfortunate that her predecessor engaged in secret talks on agreements with Enbridge, and the lame-duck Legislature was so eager to benefit Enbridge that it passed a sloppy statute that the Attorney General ruled unconstitutional. We are confident this Governor will operate differently,” Kirkwood said.

“We are also hopeful that the Governor will restore and apply the rule of law to Enbridge’s operations in the Straits. Any easement or lease of Great Lakes bottomlands and any private control for a 99-year tunnel by a private company like Enbridge for a private operation must be authorized under the Great Lakes Submerged Lands Act (GLSLA),” said Jim Olson, President of FLOW.

“The GLSLA ensures a public review, analysis, participation, and a determination under standards that protect the public trust in the waters of the Great Lakes and the soils beneath them from privatization and impairment. It also ensures a thorough evaluation of feasible and prudent alternatives, including ones that do not involve use or control of the Great Lakes. No agreement between the executive branch and a private company can override this fundamental law,” Olson said.


Snyder Administration Knowingly Violates State Law, Constitution in Race to Seal ‘Line 5’ Oil Tunnel Deals


FOR IMMEDIATE RELEASE:                                                                                         December 18, 2018
Liz Kirkwood, Executive Director                                                               Email: Liz@FLOWforWater.org
FLOW (For Love of Water), Traverse City, MI                                        Web: www.FLOWforWater.org Office: (231) 944-1568, Cell: (570) 872-4956

Wednesday’s meeting in St. Ignace of tunnel authority board is a sham process that increases risk of a Great Lakes oil spill

Traverse City, Mich. – In a rush to give away public land, water, and taxpayer resources to the private Canadian pipeline company Enbridge before departing office in 13 days, Gov. Rick Snyder and his administration are knowingly taking steps that trample Michigan law and openly violate the state constitution, while locking in at least a decade of increasing risk of a pipeline oil spill into the Great Lakes and the drinking water supply for millions of people, said FLOW (For Love of Water) today in formal public comments sent to state officials.

FLOW’s letter comes at the deadline of a meager 3-business-day public comment period set last Thursday by the state to review a complex set of proposed legal agreements between and among the State of Michigan, Enbridge, and the just-formed Mackinac Straits Corridor Authority.

Members of the public can submit comments by today (Dec. 18) to DNR-StraitsTunnelComment@michigan.gov or by telephone at 833-367-6713. In addition, on Monday in response to a request from FLOW, the state released the already executed easement from the Michigan Department of Natural Resources to the Mackinac Straits Corridor Authority and the assignment to Enbridge, without public review and public trust application.

“The agreements and proposed actions that the State of Michigan is seeking to ram through represent an abandonment of the requirements and duties imposed upon the state as trustees of our public trust resources, including publicly owned Great Lakes waters and bottomlands,” said Liz Kirkwood, executive director of FLOW, the Great Lakes law and policy center based in Traverse City. “This is a critical moment in the history of the State of Michigan and the Great Lakes.  We urge the Snyder administration to pause, engage the public and these critical concerns meaningfully, and reflect on what is at stake for this and future generations.  There need not be a rush to judgment when 20 percent of the available surface freshwater of the world is at stake.”

The Snyder administration is hastily drafting and signing laws and legal and fiscal agreements designed to last 99 years, racing the clock before Snyder’s term ends on December 31 and a new governor and attorney general take office who oppose the oil tunnel and the continued operation of Enbridge’s decaying Line 5 oil pipelines in the Straits of Mackinac. The agreements are predicated on the newly passed Public Act 359 (was Senate Bill 1197) to authorize a private oil tunnel that would be owned by the State of Michigan and leased for 99 years to Enbridge. P.A. 359 amends the 1952 law establishing an authority to build the Mackinac Bridge as a time machine to go back before the state Constitution of 1963 and modern public trust and environmental laws – including the 1955 Great Lakes Submerged Lands Act.

The governor-appointed Mackinac Straits Corridor Authority board will meet for the first time on Wednesday, December 19, in St. Ignace to rubber-stamp the state’s agreements with Enbridge, which were released on December 13. FLOW, and the Oil & Water Don’t Mix campaign that FLOW helps direct, have called the authority board and tunnel approval process a sham.

FLOW and our allies have condemned the rushed and slipshod crafting of the legislation creating the governing authority, the unconstitutional nature of the law itself in forming a public body for a primarily private purpose – the private transport of oil from western to eastern Canada, the law’s explicit attempt to tie the hands of the next governor and attorney general, the secret drafting of public agreements with a private foreign company, the real risk to taxpayers and the fiscal integrity of the Mackinac Bridge, a taxpayer-supported legal defense fund for Enbridge’s proposed tunnel, and the complete lack of a meaningful public comment and engagement process.

The proposed tunnel, to be completed in 7 to 10 years, means Enbridge will continue to pump 23 million gallons of oil a day through an extremely risky Line 5 pipeline in the Straits of Mackinac—just one more anchor strike or failure of the decaying pipelines from an oil spill catastrophe.  The tunnel does nothing to address the current, unacceptably high risk and estimated $2 billion to $6 billion in damages to the Great Lakes, the shoreline communities, tourism and businesses, and property owners, as well as a potential $45 billion blow to the nation’s Gross Domestic Product after just 15 days, if a Line 5 oil spill shuts down the shipping of iron ore for the steel industry, according to a report FLOW commissioned.

This is a critical moment in the history of the State of Michigan and the Great Lakes.   Our leaders must put the interests of the Great Lakes and its people and of the tribes first by avoiding a catastrophic oil spill and by planning for our energy transition without Line 5 in the Straits and 400 other Michigan water crossings. The Canadian oil, which Enbridge does not own, can be sent through other pipelines operated by Enbridge and its competitors. Michigan has no obligation to guarantee Enbridge a shortcut to Ontario oil refineries and the overseas export market.


Departing Governor and Lame Duck Legislature Speed toward 99-Year Oil Tunnel Scheme, Leaving Mackinac Straits at Risk from Line 5 Pipelines




FLOW Executive Director Liz Kirkwood testifying Dec. 11, 2018, at the Michigan House of Representatives Government Operations Committee.
FLOW Deputy Director Kelly Thayer testifying Dec. 11, 2018, at the Michigan House of Representatives Government Operations Committee.

In coordinated fashion, the Michigan’s lame-duck legislature on Tuesday and governor today opened the flood gates to a 99-year deal for a Canadian oil tunnel under the Great Lakes.

Their vision would lock in a century of oil transport through the Mackinac Straits when scientists agree that the world has a decade or so to change to renewable energy sources or face intensifying rounds of extreme storms, heat, floods, and drought from a changing climate.

Despite reasoned and compelling appeals (see video at 10:56 mark here) from businesses, environmental advocates, and current and former members of the Mackinac Bridge Authority, state lawmakers on Tuesday rushed the tunnel bill in just hours through committee and full House on a 74-34 vote and Senate 25-12, with behind strong lobbying for the tunnel by Enbridge, the Michigan Chamber of Commerce, and groups representing labor, energy, and infrastructure. (See how state Senators voted here on page 2118 and state House members here on page 2536.)

Representatives of FLOW testified against Senate Bill 1197, and were joined in Lansing by tribal leaders and leaders of Oil & Water Don’t Mix, Great Lakes Business Network, Michigan Environmental Council, Clean Water Action, Mackinac Straits Alliance, National Wildlife Federation, Groundwork Center, Friends of the Mackinac Bridge, Michigan League of Conservation Voters, Michigan League of Women Voters, Sierra Club, and more.

Today (Wednesday), Gov. Snyder signed the legislation, and then appointed the three members to the Mackinac Straits Corridor Authority Board created in the new law. The law calls for either the Mackinac Bridge Authority or the MSCA by December 21 to receive from Gov. Snyder a draft agreement with Enbridge for the authority board to sign by December 31, leaving just days to negotiate the details regarding legal, fiscal, and liability concerns tied to the state owning the tunnel and leasing it for 99 years to Canada's Enbridge.

The Governor’s latest draft agreement with Enbridge is expected to authorize the company to continue operating its decaying oil pipelines in the Straits for 10 years or more while Enbridge considers whether or not to build the tunnel. The Line 5 pipelines threaten the drinking water source for half of Michigan residents and risk a $45 billion blow to shipping and the steel industry. Line was built in 1953 and is 15 years past its life expectancy and carrying 80 percent more oil than called for in the the original design. 

The rapid-fire political moves come as departing Gov. Snyder and state lawmakers race to lock in agreements and laws to limit the choices and powers of incoming Gov. Gretchen Whitmer and Attorney General Dana Nessel, who have publicly opposed the tunnel and Line 5 continuing to pump oil through the Mackinac Straits.

Enbridge's dual Line 5 pipelines in the Mackinac Straits push up to 23 million gallons of oil and natural gas liquids daily through in the Straits of Mackinac, where Lake Michigan meets Lake Huron. Line 5, which begins in Superior, Wisconsin, and ends in Sarnia, Ontario, is a link in Enbridge's vast North America network.

Line 5 has leaked more than 30 times, spilling more than 1.1 million gallons of oil across Michigan's Upper and Lower Peninsulas. Enbridge in 2010 also caused the 1.2 million gallon spill of heavy tar sands oil into the Kalamazoo River and its watershed in southwest Michigan.

Hoping That We Won’t “Notice”… Bridge-and-Oil Tunnel Bill Moving in Michigan House on Tuesday, Dec. 11


Giving the 18-hour bare minimum amount of public notice allowed by law, the Michigan House Government Operations Committee at 8:30 a.m. on Tuesday will take up the Enbridge oil tunnel bill.

A number of lawmakers in both parties – as well as thousands of individuals, groups, businesses, tribes, and local communities – have previously raised concerns about Senate Bill 1197’s potential harm to the Mackinac Bridge, Michigan taxpayers, and the Great Lakes.

We urge you to contact the Government Operations Committee Chair, Rep. Lee Chatfield, and other members of the committee with your concerns, using the bulleted list of issues and contact information below. In addition, if your state Representative is not on that committee, you can contact your lawmaker using this lookup, in anticipation of the bill in some form clearing committee and reaching the full state House, perhaps later on the same day.

Members of the Michigan House Government Operations Committee to contact about Senate Bill 1197 right now:

  1. Lee Chatfield (R-Levering) Committee Chair, 107th District, PHONE: 517-373-2629, EMAIL: LeeChatfield@house.mi.gov
  2. Dan Lauwers (R-Brockway Township) Majority Vice-Chair, 81st District, PHONE: 517-373-1790, EMAIL: DanLauwers@house.mi.gov
  3. Tom Barrett (R-Charlotte) 71st District, PHONE: 517-373-0853, EMAIL: TomBarrett@house.mi.gov
  4. Sam Singh (D-East Lansing) Minority Vice-Chair, 69th District, PHONE: (517)-373-1786, EMAIL: samsingh@house.mi.gov
  5. Christine Greig (D- Farmington Hills), 37th District, PHONE: (517) 373-1793, EMAIL: christinegreig@house.mi.gov
Background and Concerns

After a flood of public opposition to the proposed oil tunnel being owned and run by the same state authority board that owns and operates the beloved Mackinac Bridge, the Senate made and approved quick revisions that attempted, but failed, to resolve that concern.

The very first line of the passed bill, with changes indicated in capitals in the original text, says, “An act authorizing the Mackinac bridge authority to acquire a bridge AND A UTILITY TUNNEL….” And then in a new Section 14, the bill states at the outset, “THE MACKINAC BRIDGE AUTHORITY MAY ACQUIRE, CONSTRUCT, OPERATE, MAINTAIN, IMPROVE, REPAIR, AND MANAGE A UTILITY TUNNEL.”

A few paragraphs later, the bill says that these powers over the proposed tunnel eventually will transfer to the Mackinac Straits Corridor Authority, which does not exist yet. To get past that stumbling block, the bill gives all the powers, and likely all the liability too, to both the existing Mackinac Bridge Authority and the anticipated one, and declares the problem solved.

In addition to risking the Mackinac Bridge, Michigan Senate Bill 1197:
  • Provides the key vehicle for the ill-conceived and unconstitutional Republican-led race to guarantee a private oil tunnel for Enbridge under the Mackinac Straits before January 1, when incoming Governor Gretchen Whitmer and Attorney General Dana Nessel – both of whom are Democrats and tunnel opponents – take office.
  • Gives a shareholder-owned foreign company free access to the public’s Great Lakes water and bottomlands, untold millions of taxpayer dollars for state oversight (Gov. Snyder has requested $4.5 million in public funds so far) and a legal defense fund, and some cover from liability as the state takes on ownership of infrastructure that poses a risk to leak and/or explode and cripple the regional economy, while polluting the drinking water for Mackinac Island, St. Ignace, and half of all Michiganders.
  • Anticipates draining $500,000 a year from Mackinac Bridge revenue, which is earned by allowing fiber optics to cross the bridge that instead would be moved to the tunnel.
  • Increases the odds of a catastrophic oil spill in the Mackinac Straits, where Lake Michigan meets Lake Huron, by allowing the cracked and dented Line 5 pipelines at least another decade of non-stop oil pumping through 2028, when Line 5 would be 75 years old, while Enbridge considers, but is not required to build, a tunnel.
  • Requires the as-yet non-existent Mackinac Straits Corridor Authority to approve by December 31– just 3 weeks from now – a series of agreements being negotiated by the Snyder administration in private with Enbridge for building the tunnel, deeding it to the state, and then leasing the tunnel back for 99 years. The secret process shuts out lawmakers, citizens, businesses, and tribes from the opportunity to review, understand, and oppose or strengthen the pacts to benefit the public. 

Presto! Another Tunnel Bill Appears, as Michigan Lawmakers Rush to Save Enbridge from the Public’s Will

In response to an outpouring of bipartisan public pressure to save the Mackinac Bridge from Enbridge, the shareholder-owned Canadian corporation, Michigan Senate Republicans today released yet another rushed version of their Senate Bill 1197 that makes matters worse for the Mighty Mac, the Great Lakes, and Michigan taxpayers.

Specifically, in a race to guarantee a private oil tunnel for Enbridge under the Mackinac Straits before January 1, when incoming Governor Gretchen Whitmer and Attorney General Dana Nessel – both of whom are Democrats and tunnel opponents – take office, Michigan Senate Bill 1197 (Click here for SB 1197, Substitute 2, Draft 3):

  • Gives a shareholder-owned foreign company free access to the public’s Great Lakes water and bottomlands, untold millions of taxpayer dollars for state oversight and a legal defense fund, and some cover from liability as the state takes on ownership of infrastructure that poses a risk to leak and/or explode and pollute the drinking water for Mackinac Island, St. Ignace, and half of all Michiganders.
  • Incredibly, still risks the Mackinac Bridge by creating a new state body to own and govern the proposed tunnel that would be housed as a sub-authority – the Mackinac Straits Corridor Authority – within the Mackinac Bridge Authority, continuing to extend liability for the private oil tunnel to the Mackinac Bridge. Exact language, with the newly proposed text underlined: “An act authorizing the Mackinac bridge authority to acquire a bridge and a utility tunnel connecting the Upper and Lower Peninsulas of Michigan…”. The bill also anticipates draining $500,000 a year from bridge revenue for allowing fiber optics access that would be moved to the tunnel.
  • Increases the odds of a catastrophic oil spill in the Mackinac Straits, where Lake Michigan meets Lake Huron, by allowing the cracked and dented Line 5 pipelines at least another decade of non-stop oil pumping through 2028, when Line 5 would be 75 years old, while Enbridge considers, but is not required to build, a tunnel.
  • Requires the as-yet non-existent Mackinac Straits Corridor Authority to approve by December 31 – less than four weeks from now – a series of agreements being negotiated by the Snyder administration in private with Enbridge for building the tunnel, deeding it to the state, and then leasing the tunnel back for 99 years. The secret process shuts out lawmakers, citizens, businesses, and tribes from the opportunity to review, understand, and oppose or strengthen the pacts to benefit the public. 

“Michiganders know it takes more time to buy a house than the Snyder administration and Senate Republicans are allowing for drafting, reviewing, and signing this bill and the secret contracts,” said Liz Kirkwood, FLOW’s Executive Director. “The intended winner from this fast-and-loose process: Enbridge, a private foreign corporation. The loser: the Mackinac Bridge, the Great Lakes, and Michigan taxpayers. It makes you wonder who lawmakers are really representing.”