In a partial victory for Michigan’s waters and the rule of law, a state government administrative law judge ruled on Monday that legal challenges to permits issued by the state for the Enbridge Line5 oil pipeline project in the Straits of Mackinac can move forward. Judge Daniel Pulter ruled that Enbridge failed to show that the installation of 73 anchors along the 67-year-old pipeline would not harm the Great Lakes.
The Grand Traverse Band of Ottawa and Chippewa Indians, the City of Mackinac Island, and the Straits of Mackinac Alliance brought the legal challenge. In addition, FLOW has submitted several scientific and legal analyses to the State on its legal responsibility to assess and establish no serious risks to protect the Great Lakes for several years.
FLOW advised the Michigan Department of Environmental Quality back in 2016 that the applications filed by Enbridge to place anchor supports under Line5 require a comprehensive evaluation of potential impacts and options to avoid those impacts.Line5’s original design underestimated the currents in the Straits of Mackinac when the 1953 easement to occupy public bottomlands in the Straits was granted, with recent evidence showing the currents are stronger than previously assumed.
On Monday, Judge Pulter confirmed that such an evaluation is required, and Enbridge and the Michigan Department of Environment, Great Lakes, and Energy (EGLE) are going to have to show the perilous lines pose no more than minimal potential harm to the Great Lakes.
They also must show there are no feasible and prudent alternatives to the dangerous lines. In fact, there is potential for devastating harm, and Enbridge, as well as its competitors, has plenty of excess capacity elsewhere in its massive system, including the extra design capacity in its new line across southern Michigan.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
It’s disappointing the judge ruled he didn’t have jurisdiction over the claims that the 3 miles of spans with anchors already installed constitute a total change in design, and need new authorization under the laws that protect the Great Lakes. But the upside is Michigan Governor Gretchen Whitmer, EGLE, and the Department of Natural Resources are now free to (and should) demand Enbridge obtain the authorization to occupy the waters of the Great Lakes for this new or total change in design, one that is even more risky than the original.
The lines are sitting smack in the force of the currents and risk being hooked by another anchor strike like the one that struck and gouged Line5 on April 1, 2018. This is a catastrophe waiting to happen. It’s time for the governor to bring this risky pipeline and Enbridge under the rule of law that protects our water, citizens, towns, and businesses that are in harm’s way.
Formal comments filed today to assist State of Michigan’s Line5 review, citing new and ongoing legal violations by Enbridge, rising risk to the Great Lakes, jobs, and drinking water
FLOW today called on the State of Michigan to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line5 to occupy the Straits of Mackinac, triggering the orderly shut down of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane.
FLOW’s request came in formal comments to the state following recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders.
FLOW’s comments are directed to the Michigan Department of Natural Resources (“DNR”) and Michigan Department of Environment, Great Lakes, and Energy (“EGLE”), and intended specifically to aid in the DNR’s “comprehensive review of Enbridge’s compliance with the 1953 easement and other factors affecting its validity,” as ordered by Governor Gretchen Whitmer on June 27.
“It’s time for the State of Michigan to restore the rule of law on Line5. We call on the Whitmer administration to commence the shutdown of the dual oil pipelines and direct Enbridge, if it wishes to continue operating its 66-year-old pipelines in the Straits, to apply for permission under public trust law and the Great Lakes Submerged Lands Act,” said FLOW executive director Liz Kirkwood. “Enbridge must prove that its use and operation, including the substantial change in design with hundreds of elevated spans and significant other matters, complies with and is entitled to authorization.”
Until the shutdown is complete, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line5 to its original limit, a reduction of 40% from current flow. State officials also should implement more stringent requirements for a mandatory emergency shutdown, including a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of $5 billion.
FLOW’s comprehensive review of eight violations of the state-granted easement — related to design, operation, and maintenance — demonstrates convincingly that Enbridge has committed, and continues to commit through its conduct, omissions, and breaches of the 1953 easement that are beyond correction. It is also clear that there are major “other factors affecting the validity” of the 1953 easement and Enbridge’s continued use and operation of the cracked-and-dented Line5 dual oil pipelines in the open waters and on the bottomlands of the Great Lakes in the Straits of Mackinac, including the failure of Enbridge to obtain from previous directors of the DNR (and its predecessor Department of Conservation) the authorizations required by the common law of public trust and/or the Great Lakes Submerged Lands Act (“GLSLA”).
Enbridge’s ongoing violations related to anchors and pipeline design threaten the very safety and health of the Great Lakes, and thus trigger the state’s duty to enforce its conditional occupancy agreement with Enbridge. The State continues to have substantial legal and factual cause to terminate the agreement with Enbridge to stop the oil flow.
In support of these comments, FLOW also submitted the multiple reports and comments that FLOW and others have previously submitted to the DNR, DEQ (now “EGLE”), the Attorney General’s office, and Governor’s office over the past six years. It is clear that the Director of the DNR and executive team, as trustees of the Great Lakes and soils beneath them, have the authority and duty to invalidate, direct compliance with, terminate, and/or revoke the 1953 Easement.
The 200-plus anchor supports (constituting 3 miles of elevated pipelines in the water column) represent a substantial change in design from the dual pipelines designed and built pursuant to the specifications of the 1953 easement. Although DEQ (now “EGLE”) approved anchor supports of the elevated lines over the past 18 years, the anchors have been issued only as permits to “place other materials on bottomlands,” and not as a conveyance or agreement for occupancy or use of the bottomlands and waters for the substantial change in the dual pipelines themselves. The Affidavit of Dr. Edwin Timm filed in the consolidated contested cases against the State of Michigan demonstrates seriously increased risks, a total lack of review of applicable risk standards for elevated multiple-span pipelines, and new or substantially changed pipeline that has not been assessed by the state.
“The only real solution now is to apply the law and shut down the 66-year-old Line5pipelines permanently to protect the Straits, and nearly 400 other water crossings in Michigan, from the next Enbridge oil spill,” said Kirkwood. “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.”
Court accepts amicus briefs supporting enforcement of State of Michigan public trust duties in Enbridge’s lawsuit
Jim Olson, President and Founder
By Jim Olson
The Michigan Court of Claims has issued orders accepting FLOW’s and the City of Mackinac Island’s amicus briefs advancing key legal arguments in Enbridge’s Line5 oil tunnel lawsuit against the State, rejecting opposing arguments by the Canadian oil pipeline company.
The ruling in Lansing by Judge Michael Kelly in late September means that vital issues raised by FLOW’s brief and the city’s brief will be considered by the Michigan Court of Claims, including the public trust rights of citizens to draw drinking water from and otherwise use the Great Lakes, and the soils and bottomlands beneath them, unimpaired by private interests.
FLOW’s Amicus Curiae Brief was prepared and submitted by Great Lakes environmental and public trust law experts Jeff Hyman, senior staff attorney at the Conservation Law Center in Bloomington, Indiana,and FLOW’s president and legal advisor Jim Olson. The brief traces the history of the public trust doctrine in Michigan and demonstrates the failure of Enbridge and the State to make the determinations required for authorization of the occupancy and use of waters and soils beneath the Great Lake by a private corporation under public trust law and the Michigan’s Great Lakes Submerged Lands Act (GLSLA).
“This is an important step in restoring the rule of law on Line5,” said FLOW executive director Liz Kirkwood. “The Great Lakes belong to all of us and cannot simply be handed over to a private corporation through a hurried backroom deal by a lame-duck legislature. If Enbridge really wants a tunnel, it will have to apply under state law and demonstrate no potential risk of adverse impacts and no other alternative pipelines to transport crude oil that avoid the Great Lakes.”
Background on Amicus Briefs
On Sept. 10, FLOW filed a motion to submit an amicus brief before the Court of Claims in Enbridge v. Michigan on important questions involving violations of the public trust doctrine. FLOW noted that the future of the public trust rights of citizens and communities in the Great Lakes were violated by the 2018 “lame duck” agreements that would have contracted away the legally required review of impacts of a tunnel pipeline to the Great Lakes, fishing, drinking water, health, and the economy imposed by the constitution and law of Michigan.
In Michigan, people, organizations, and communities have a right as beneficiaries of the public trust in the Great Lakes to demand that government apply the rule of law. Where this interest would be seriously affected by the questions presented in a pending lawsuit, citizens and local governments may motion the court to file an amicus curiae brief—“friend of the court” written arguments submitted to aid the court regarding the questions and how the law should be applied.
The City of Mackinac Island, meanwhile, filed a motion and amicus brief submitted by Traverse City environmental attorneys Scott Howard and Rebecca Millican. The arguments in the city’s brief pinpointed for the Court the grave consequences to the city’s drinking water source, emergency and health services, ferry services, and tourist economy, in addition to the wellbeing of guests and residents from the continued operation of the decaying Line5 oil pipelines in the Straits. The city’s amicus brief focuses on the invalidity of the 2018 agreements between the State and Enbridge, which purported to grant Enbridge the right to continue using and occupying the waters and soils of the Great Lakes without any authorization under the public trust or GLSLA requirements.
FLOW’s position remains that the attempt by the Snyder administration to allow Enbridge to continue operating the existing perilous Line5 in the Straits while Enbridge spends 5 to 10 years or more designing, obtaining required authorizations under public trust law and constructing a tunnel is not a solution. An oil pipeline tunnel 10 years or more down the road does not address Line5’s immediate threat of massive harm to the Great Lakes nor address the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. In addition, Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel poses an explosion risk. Oral arguments in the case have not been scheduled, so stay tuned to FLOW’s website and Facebook for periodic updates. At stake are the integrity of the State of Michigan constitution, state law, public trust doctrine, and protection of the Great Lakes, public health, and the rights of its citizen to use their public waters.
Lame-Duck Disaster and Side Deals
In December 2018, at the 11th hour of his term, then-Governor Rick Snyder and his department heads of the Department of Natural Resources (DNR) and Department of Environmental Quality (DEQ)—now Department of Environment, Great Lakes, and Energy (EGLE)—signed tunnel agreements by-passing the public trust doctrine and Great Lakes submerged lands law that expressly control agreements for private occupancy and use of the waters and bottomlands of the Great Lakes.
To expedite the tunnel deal before the end of the year, the Governor and Enbridge solicited the help of the lame duck legislature to push through Act 359. That tunnel law amended the Mackinac Bridge Authority’s enabling legislation and created a new authority called the Mackinac Straits Corridor Authority to cede the state’s public trust bottomlands and waters to Canada’s Enbridge.
In late December, the state DNR and DEQ, along with the Corridor Authority signed a series of agreements, including an easement, that illegally assigned the use of the public trust soils under the Great Lakes to Enbridge to locate, build, and operate a new oil tunnel for Line5 under the Straits.
Separately, but related, Governor Snyder, DNR, and DEQ entered into a “third agreement” that sought to assure Enbridge the right to continue indefinitely the use of the bottomlands of the Straits for the existing 66-year-old Line5 oil pipelines. Polls and public testimony show that much of public agrees the cracked and sagging pipelines must be removed as soon as possible. With its failing design, Line5 poses an unacceptable risk of catastrophic harm to fishing, navigation, drinking water, swimming, boating, health and emergency services, Tribal rights, the ecosystem, property values, municipal infrastructure, tourism, and even the steel industry. The attempt to assure Enbridge continued use of the existing Line5 was unlawful and grossly serious breach of the State’s duty to protect the Great Lakes.
New Leaders Apply the Rule of Law to Line5
In early January 2019, newly elected Governor Gretchen Whitmer exercised her executive authority under the state constitution, and requested Attorney General Dana Nessel to issue a formal legal opinion on the constitutionality of Act 359 and the validity of the series of the 2018 agreements purporting to turn over the Straits of Mackinac to Enbridge for its tunnel and to continue using the dangerous Line5. On March 27, Attorney General Nessel ruled that Act 359 and these agreements were unconstitutional, invalid, and unenforceable.
In June, Enbridge filed suit in the Court of Claims in Lansing against the State of Michigan and its departments to resuscitate the oil tunnel deal by seeking a Court order that Act 359 and all of these agreements are constitutional and otherwise valid and enforceable. A.G. Nessel and her staff responded with a motion to dismiss Enbridge’s claim because the law and related agreements are unconstitutional and violate the public trust in the waters of the Great Lakes and the soils beneath them. Enbridge responded that the law was within the powers of the legislature, and that the agreements complied with the public trust doctrine.
Underlying Legal Framework
Under the public trust doctrine, the state owns the bottomlands and waters of the Great Lakes in a trust for the protection of these waters, bottomlands, fish, habitat, and for fishing, navigation, drinking water and sanitation, boating, swimming, and other recreational pursuits. The doctrine prohibits the disposition or agreement for occupancy and use of public trust bottomlands by a private person or corporation without an express determination that the disposition falls within one of two narrow exceptions:
The purpose will improve a public trust interest or use—the water, habitat, fish, or one of the protected public uses (such as a public harbor for boating, or public drinking water works, or swimming beach); or
There is no unacceptable risk of impairment to the waters, ecosystem, or these protected public trust uses.
In 1955, Michigan passed the Great Lakes Submerged Lands Act (GLSLA) to protect the public waters and lands beneath the Great Lakes. Under the GLSLA, no one can use, alter, occupy or control the soils and waters of the Great Lakes, unless authorized by the DEQ (now EGLE) after due findings that the public trust interests (e.g. navigation, fishing, drinking water) would be improved or would not be impaired.
When Governor Snyder and his department heads cut the tunnel deal with Enbridge, they contracted away these legal requirements, basically suspending the rule of law in Michigan.
You might say our leaders suspended the law and granted Enbridge an “open season” license to do what it wanted with the public’s paramount trust interests in the Straits of Mackinac. The Governor, DNR, and then-DEQ failed to require Enbridge to apply for legal authorization to continue using the existing Line or the proposed Tunnel under public trust law or the GLSLA.
As of this writing, there has been no such authorization from the State of Michigan allowing Enbridge to own, control, use, or occupy the public soils and waters of the Straits. And FLOW, the city of Mackinac Island, tribes, and citizens of Michigan aim to keep it that way.