Enbridge continues to operate Line5 in direct violation of Governor Gretchen Whitmer’s lawful shutdown order, with the Canadian pipeline company claiming that “shutting down Line5 even temporarily, would have immediate and severe consequences on the economies of Michigan, Ohio, Ontario, and elsewhere.”
“Pervasive organizational failures at Enbridge” caused one of the nation’s largest inland oil spills in July 2010 when its Line 6B pipeline burst near Marshall, Michigan, and for 17 hours dumped 1.2 million gallons of heavy tar sands oil into the Kalamazoo River watershed. It took four years and over $1.2 billion to clean it up to the extent possible.
Enbridge Line 6B was 41 years old when it failed; Enbridge Line5 is 68 years old and counting.
Story published May 24, 2021. UPDATED June 2, 2021
Editor’s note: This article has been updated to reflect Enbridge’s 2020 Securities and Exchange Commission (SEC) filings
By FLOW staff
Gov. Gretchen Whitmer and the State of Michigan have taken legal action to shut down Line5 in the Straits of Mackinac to prevent a catastrophic oil spill in the Great Lakes from the dangerous and decaying, 68-year-old pipeline. Meanwhile, Line5-owner Enbridge and its enablers continue to engage in a Chicken Little “sky is falling” campaign, with the Canadian company claiming that, “shutting down Line5 would cause shortages of crude oil for refineries in Michigan, Ohio, Pennsylvania and eastern Canada, as well as propane shortages in northern Michigan. Enbridge also alleges a Line5 shutdown would boost shipments of oil by rail or trucks, without providing any evidence.
Enbridge’s misinformation campaign has been building for a few years, for example, conspiring with DTE and others in 2020 to oppose electrification, renewable energy, and climate change mitigation measures.
In fact, none of Enbridge’s predictions of an energy shortage materialized when both legs of the dual Line5pipelines in the Straits were shut down for more than a week in June 2020 and one leg remained closed until about mid-September following damage that the U.S. Coast Guard said likely was caused by an Enbridge-contracted vessel. Research conducted by former Dow Chemical engineer Gary Street found that gasoline prices and supply were unaffected in Michigan and Canada after more than 50 days of a court-ordered Line5 shutdown in the summer of 2020.
The research results are consistent with these studies forecasting little, if any, change in energy costs after Line5 shuts down for good:
The shutdown of Line5 won’t lead to fuel shortfalls because 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 competitors.
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 competitors without threatening our public waters and Pure Michigan economy, according to FLOW’s experts.
Shutting down Line5 is unlikely to significantly impact gasoline prices (an increase of less than once cent per gallon is forecast), according to a 2018 study conducted by London Economics International, LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
Shutting down Line5 would add just five cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study conducted by London Economics International, LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
The Upper Peninsula has viable options to Line5 for its propane supply and economy, according to FLOW’s research.
Another claim regarding the impact of a Line5 shutdown emerged last year from management of the PBF refinery in Toledo, Ohio. Likely at Enbridge’s behest, PBF warned of a refinery shutdown and loss of a thousand jobs if the supply provided by Line5 is no longer available. The Toledo refinery, PBF suggested, has no other source of petroleum.
This assertion immediately raised the question: What kind of refinery management would leave itself vulnerable by receiving crude from only one source? It also directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts. They emphasize that PBF refinery has several sources of supply and can adjust them depending on market conditions.
“The [PBF] refinery only processes light/medium and sweet crude and gets most of its WTI crude through pipeline from Canada, the mid-Continent, the Bakken region and the U.S. Gulf Coast,” an analyst says. Another credits PBF with using “its complex crude processing capacity to source the lowest cost input.” PBF says in its 2020 filing with the Securities and Exchange Commission that crude is delivered to its facility through three primary pipelines, Enbridge from the north, Patoka from the west, and Mid-Valley from the south. Crude is also delivered to a nearby terminal by rail and from local sources by a truck-to-truck unloading facility in the refinery property.
Formerly the PBF refinery was supplied in part by the Caplinepipeline. However, the energy market is shifting dramatically and the Caplinepipeline is being reversed, demonstrating that the system is flexible and can adapt to changing markets without shutting down the refinery.
The fact is that multiple alternative pipelines, rail, and truck sources are and will be available to enable PBF to continue refining petroleum as it is today. No credible evidence points to job loss in Toledo from a Line5 shutdown. And PBF itself said in a September 2017 news story challenging EPA regulations because of alleged job losses that the Toledo refinery employed 550, not 1,000, workers.
After Line5 is shut down, the small percentage of its light crude coming to U.S. refineries could be supplied by other sources currently serving the region, including the Patoka and Mid-Valley pipelines, along with crude from Northern Michigan oil wells.
Fanning the fears of employees and communities with false and inflated claims is the latest in a series of tactics deployed by Enbridge and its enablers. Their goal is to pressure Michigan officials into letting the company continue to occupy the public bottomlands of the Straits of Mackinac with its antiquated Line5pipeline, and later, a proposed oil pipeline tunnel under the lakebed.
PBF also claims that a feared Toledo refinery shutdown, which research cited above dispels, would seriously impinge on the supply of jet fuel at Detroit Metropolitan Airport, driving up fares or reducing flights, or both. The claim is that 40% of the jet fuel used at the airport comes from refined Line5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day, and again alternative pipeline sources can more than make that up.
It is worth noting that prior to PBF’s claims made in 2019, the impacts of a Line5 shutdown on Metro Airport jet fuel had never before been raised as an issue in the Line5 debate. Now Canadian officials are singing the same tune to bring political pressure on the Whitmer administration, claiming that Line5 “is the single largest supply for gasoline, ultimately, in southern Ontario; for aviation fuel out of the Detroit airport; for heating fuel in northern Michigan; for the refineries in northern Ohio that fuel much of the Midwest U.S. economy.”
Enbridge and fossil-fuel industry allies have a track record of false and unsubstantiated claims and a lack of transparency.
The numbers are inflated:
Enbridge and refineries and some politicians are misleading the public. They falsely claim that the two Toledo refineries and one Detroit refinery, and by extension the jobs there, are fully and wholly dependent on Line5. The refineries supposedly affected are: Marathon-Detroit; BP-Husky-Toledo — which carries no Line5 feedstock because it’s a tar sands refinery that takes feedstock from Line 78 (formerly Line 6B), and PBF-Toledo. PBF states in its 2020 filing with the Securities and Exchange Commission that it “processes a slate of light, sweet crudes from Canada, the Mid-continent, the Bakken region and the U.S. Gulf Coast.”
The Patoka pipeline and the Mid-Valley pipeline supply PBF with oil and the refinery receives oil from rail and truck.
The refineries rely on multiple pipelines and suppliers, and they say so in writing.
Marathon refinery primarily uses dilbit, which Line5 doesn’t currently carry.
Detroit Metropolitan Airport
In a letter to Michigan Gov. Gretchen Whitmer, Ohio Gov. Mike DeWine claimed, “our refineries supply the majority of aviation fuels to Detroit Metro Airport” and asserted that the shutdown of Line5 would lead to airline schedule disruptions.
But 2020 jet fuel consumption at Detroit Metro will total 1,658,000 gallons per day, according to a 2010 estimate by the airport. Based on numbers published by PBF, BP Husky and Marathon Refineries, Line5 appears to supply only about 10% of the jet fuel at Detroit Metro Airport, not 40% as claimed by Ohio Gov. DeWine. Both Marathon and PBF have other crude oil sources, and therefore other pipelines could provide feedstock to satisfy regional jet fuel needs. Alternatively, other nearby refineries in Illinois, Indiana, and Ohio could make up this shortfall.
Bottom line: Shutting down Line5 will protect hundreds of thousands of jobs. A Line5 shutdown would not significantly impact jobs at Toledo, Ohio, refineries. There is absolutely no evidence that a shutdown would impair operations at Detroit Metropolitan Airport.
Photo (from left): Winona LaDuke, Holly Bird, and FLOW’s Liz Kirkwood on May 13 at the Straits of Mackinac. Photo by Beth Price.
By Liz Kirkwood, FLOW Executive Director
May 13 marked an inflection point in FLOW’s water and climate work to shut down Line5. It was a day of action and a show of force to evict Enbridge as an occupier—a rogue Canadian pipeline company pumping oil through our public waters and lands of the Great Lakes. It was a day highlighting the power of community and solidarity, and the power of indigenous leadership in protecting the source of all life: water.
Just the day before, Enbridge blatantly defied and violated Michigan Governor Gretchen Whitmer’s deadline ordering the shutdown of the Line5pipelines. Defending our waters in her usual bold style, Governor Whitmer warned that Enbridge’s failure to obey would result in intentional trespass and disgorgement of 100 percent of Enbridge’s oil profits gained every day from illegally operating Line5 in the Straits of Mackinac. (Read Gov. Whitmer’s reasons for shutting down Line5 in her own words).
Organized by the first peoples of North America and the Oil & Water Don’t Mix campaign, this day-long event drew over 400 allies to deliver an eviction notice to Enbridge, to participate in a water walk and ceremony, and to hear from leaders about the urgent need to tackle climate change and shift to a clean energy economy. As water protectors, women tribal members led the group in traditional water ceremonies and told stories of our relationship to water. Tribal President Whitney Gravelle from the Bay Mills Indian Community conveyed that her tribe had voted to formally banished Enbridge and its pipeline from their legally recognized treaty waters. (Read coverage here of tribal protests that began the day prior at the Straits and continued into May 13).
Nationally recognized indigenous voice, author, and anti-pipelineorganizer Winona LaDuke, who directs Honor the Earth in Minnesota, spoke passionately about the danger posed by Line5 to the Straits, which have played a key role in both tribal and non-tribal heritage and culture for centuries.
“This rogue Canadian corporation is basically holding the Great Lakes hostage,” LaDuke told FLOW in an interview after her speech. “In state after state, they are scaring officials. But here in Michigan, your governor, your attorney general have stood up for the people and for the water. We don’t need a Canadian multinational holding us all hostage. And that’s right now what they’re doing.”
“The question I would ask is, ‘Who gets the honor of being the last Tar Sands pipeline? Who gets that honor?’ It’s kind of like being the last guy to die in Vietnam, isn’t it? Who wants to tell that soldier he’s the last man to die for an unjust war? Who wants to tell some Ojibwe that they’re the last people to have their water contaminated so that Enbridge can make a buck?”
Demonstrating the deep commitment and solidarity among indigenous nations, tribal members from Minnesota, where they are fighting another Enbridge pipeline—Line 3, actively participated in the May 13 event.
I joined the event on behalf of FLOW, representing our eight years of effort making the case that public trust principles and law give the State of Michigan the authority—and the duty—to expel Line5 from the Straits in order to protect the world’s greatest freshwater system. Enbridge’s track record of pipeline mismanagement and deception—leading to the largest and most devastating oil spill in Michigan’s history in the Kalamazoo River watershed in 2010—bodes ill for the Straits, their ecology and the jobs that depend on them.
I am proud that it was FLOW that first identified the public trust doctrine as the basis for protecting these waters from the pipeline. Now Governor Whitmer and Attorney General Dana Nessel have explicitly invoked that doctrine in seeking to shut down the pipeline.
The following is a media release issued by FLOW on May 12, 2021.
In refusing to shut down Line5 by the state-ordered deadline today, Enbridge is flatly rejecting the authority of the State of Michigan to regulate and safeguard its own public trust waters and bottomlands —the very same state authority that Enbridge has recognized and relied upon since 1953 for conditional permission to occupy the Straits of Mackinac in the first place.
Enbridge’s brazen disregard for Gov. Gretchen Whitmer’s lawful order and the Great Lakes is outrageous and indicative of the Canadian company’s troubling track record. In acting last November, the governor fulfilled her duty under public trust law and article 4, section 52 of the state constitution to uphold the “paramount public concern” for protecting Michigan’s air, water, and other natural resources from “pollution, impairment and destruction.” That’s when she gave Enbridge six months to plan for alternatives and stop the oil flowing through the battered and propped up pipelines at the bottom of the Great Lakes. Line5 is a clear-and-present danger in the Straits, a location local tribes hold as a “sacred wellspring of Anishinaabe life and culture.”
“In refusing to shut down Line5, Enbridge’s flagrant disregard for the law exposes a deep-rooted and reckless corporate culture of exceptionalism. Michiganders have not forgotten Enbridge’s epic failure and legacy of the million-gallon, Line 6B oil spill disaster into the Kalamazoo River that drove about 150 families permanently from their homes and properties.” said Liz Kirkwood, executive director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan. “The scale and impact of a Line5 oil spill would be an unprecedented ecological and economic disaster in the Great Lakes, threatening some 20 percent of the planet’s fresh surface water. Enbridge is courting disaster with the drinking water supply for Mackinac Island, St. Ignace, and dozens of other communities that draw from the Great Lakes.”
“Given the evidence, we firmly support the Governor’s position that Line5 violates the public trust and poses an unacceptable grave risk to the future of Michigan’s economy and environment.” said Kirkwood, an environmental attorney.
The State of Michigan says Line5 is an “environmental ticking time bomb.” Built in 1953 to last 50 years, Line5 has pumped oil for nearly 70 years through the open waters of the Straits of Mackinac. The steel pipes risk failure from periodic anchor strikes and bending in the fierce currents.
Enbridge’s repeated and ongoing legal violations on Line5 are both pervasive and well documented. They include at least three known anchor strikes against the underwater pipelines, a vulnerable engineering design not designed to withstand the powerful lakebed currents, a lack of adequate insurance to hold the state and its people harmless, 33 documented known Line5 oil spills in Michigan alone, and much more. After extensive legal review of Enbridge’s incurable violations in public trust waters, the Governor and the Department of Natural Resources took decisive legal action to defend the Great Lakes from a catastrophic oil spill under the state’s sovereign public trust law.
Line5 also threatens our climate and water security in an increasingly hot and thirsty world. The greenhouse gas emissions from Line5’s oil and natural gas liquids, at more than 57 million metric tons a year, are greater than the annual yield from the combined operation of the nation’s three largest coal plants. Line5 is a recipe for ruin.
“Enbridge’s refusal to respect the State’s order is an arrogant attempt to control and take over the paramount rights of the citizens and sovereignty of the State and Tribes of Michigan in the Great Lakes,” said Jim Olson, FLOW’s Founder and Senior Legal Advisor. “In effect a private, foreign corporation wants to control us, our democracy, and ignore the rule of law. It is simply unacceptable that Enbridge is trying to privatize the Great Lakes and the public trust.”
“Enbridge is not above the law of Michigan, the public trust law and rights of people in the Great Lakes, and the rights of our Native Americans,” Olson said. “Enbridge is not above the overarching duty that Michigan has to shut down Line5 to prevent the most catastrophic damage to 20 percent of the world’s freshwater.”
For more information, see FLOW’s Line5 fact sheets and blogs:
This morning along East Grand Traverse Bay, the drinking water source for Traverse City, Liz Kirkwood explains why Enbridge’s decision to ignore the law amounts to privatizing the Great Lakes and the Public Trust.
Sixty-eight years ago, Enbridge’s predecessor, Lakehead Pipeline Company, chose this vulnerable location as the shortest distance to transport Canadian oil back to Canada. In 1953, the public, political leaders, and pipeline operators had not yet experienced catastrophic oil spills like the Exxon Valdez in Alaska, BP Deepwater Horizon in the Gulf of Mexico, or Enbridge’s own Line 6B Kalamazoo River disaster in southern Michigan.
Now, despite the well-documented and lasting economic and ecological harm of oil pipeline disasters across the globe, we are witnessing intense, orchestrated opposition from Canada’s Enbridge and its allies to shutting down a clear-and-present danger to Michigan’s waters and way of life. A Line5 oil spill would be an unprecedented ecological and economic disaster in the Great Lakes, threatening 84% of North America’s surface fresh water and some 20 percent of the planet’s fresh surface water, devastating coastal communities, and causing billions of dollars of damages to the environment and local and regional economy.
Line5’s original design intended the dual pipelines to lie upon the lakebed and was subject to a detailed and comprehensive engineering evaluation of 20 specific areas, including written determinations of fitness that were certified by consulting engineers. Now, after decades of patchwork repairs to shore up the decaying infrastructure, as much as 3 miles of pipelines are elevated above the lakebed floor and prone to physical hazards such as anchor strikes in the busy shipping channel of the Straits of Mackinac.
After extensive legal review of Enbridge’s incurable violations in public trust waters, the governor and the Department of Natural Resources took decisive legal action to defend the Great Lakes from a catastrophic oil spill under the state’s sovereign public trust law. Leaders in 16 states and the District of Columbia and four tribes have taken Michigan’s side in its fight to have a state court, not a federal judge, decide whether the state has the authority to shutter Enbridge’s Line5 oil pipeline in the Straits of Mackinac.
In refusing to shut down Line5 per the Governor’s order, Enbridge’s flagrant disregard for the law exposes a deep-rooted and reckless corporate culture of exceptionalism that includes the following:
Engaging in a targeted, sophisticated misinformation media strategy through Enbridge’s front group affiliate Consumer Energy Alliance.
Gov. Whitmer on Tuesday pledged in a letter to seize any profits that Enbridge makes from operating Line5 after today’s midnight shutdown deadline, alleging it would constitute trespass and unjust enrichment. Also on Tuesday, several federally recognized tribes in Michigan took legal steps under tribal law to limit Enbridge and the threat from Line5. Bay Mills Indian Community in the Upper Peninsula, as well as a five-tribe organization including Bay Mills that manages the fishery in the Straits of Mackinac, voted to banish Enbridge’s Line5 from its territory. Banishment is a legal action that is considered a punishment of last resort in tribal law.
“This was the first, necessary step in banishing Enbridge from these waters,” said Bay Mills chairperson Whitney Gravelle, who said the move applies to the reservation and treaty-ceded waters. “We’re calling on the state and the United States to enforce this banishment.”
Michiganders have not forgotten Enbridge’s epic failure and legacy of the million-gallon, Line 6B oil spill disaster into the Kalamazoo River in 2010 that drove dozens of families permanently from their homes and cost an estimated $1.2 billion in cleanup costs, damages, and restoration.
“The Enbridge Kalamazoo River spill of 2010 was a real thing — people remember it,” said David Holtz, spokesman for the Oil & Water Don’t Mix campaign. “They understand that oil still lies at the bottom of that river, and that a million gallons were spilled. They understand that could happen again times 10 in the Straits of Mackinac — no matter what Enbridge says in its million-dollar ad buys.”
As part of “a sophisticated public affairs strategy,” Enbridge and its ally Consumer Energy Alliance—a national oil industry front group—continue to claim that shutting down Line5 could lead to propane and oil shortages and increased prices harming Michigan consumers. However, the vast majority of the liquids shipped via Line5 do not supply Michigan, and an independent analysis found that shutting down Line5 was unlikely to significantly impact consumer prices at the pump (less than one cent per gallon) and that Michigan’s energy needs could be met without Line5. Research conducted by former Dow Chemical engineer Gary Street found that in August 2020, after more than 50 days with at least one leg of Line5 closed due to damage from an cable strike, gasoline prices and supply were unaffected in Michigan and Canada.
But not everyone is waiting around. In fact,several oil companies seeking alternatives to Line5 have contingency plans put in place. Suncor Energy purchased a stake in the Portland-Montreal pipeline to import oil from Maine to Montreal if Line5 is shut down. Toronto’s Pearson Airport has stated that its fuel sources are “diversified and consequently not at risk.”
Line5 also threatens our climate and water security in an increasingly hot and thirsty world. Each year, Line5 pumps out more than 57 million metric tons of greenhouse gas emissions, which is equivalent to the combined operation of the nation’s three largest coal plants. Dismissing the climate emergency, Enbridge and its political allies in the U.S. and Canada promote energy security alone and insist that “the operation of Line5 is non-negotiable.”
This strident reaction from Canadian politicians stems in part from the fact that Canadians have rejected building any new pipelines in the last decade in their own country going east or west to the coasts for export. In this pipeline battle, the Anishinabek Nation says the Canadian government isputting the oil and gas industry ahead of the Great Lakeswith its support for the Line5pipeline. The Great Lakes are international water bodies, and Canadians should be just as concerned for their protection as the United States.
The Great Lakes support over 1.3 million jobs that generate $82 billion in U.S. wages annually, with 350,000 of those jobs in Michigan alone. More than 48 million Americans and Canadians draw their drinking water from the Great Lakes. Line5 represents an unacceptable risk to the jobs and economy of the Great Lakes region, drinking water, and tribal treaty and fishing rights. While Enbridge might refuse for now to stop Line5’s oil flow or collaborate in the global energy transition, for the future prosperity of Michigan, the Great Lakes, and the planet, we all must transition away from Enbridge.
About the authors:
Liz Kirkwood is FLOW’s executive director. Nora Baty is a third-year law student at the University of Michigan Law School and currently serving as FLOW’s Milliken Law and Policy Intern.
The United States and Canada are not only close friends and neighbours, but are also committed to resolving their differences with civility and common purpose. The 112-year-old International Joint Commission (IJC), which prevents and resolves disputes over boundary waters, is an example of this special relationship. So is the groundbreaking agreement among Ontario, Quebec and the eight Great Lakes states to ban water diversions from these shared and treasured waters.
The two nations, however, are clashing over energy policy and the effects of Line5, the Canadian petroleum pipelines in the open waters of theStraits of Mackinac, a major shipping lane and important whitefish spawning ground where Lake Michigan meets Lake Huron. If both Canada and the U.S. take a hard look at these issues together, they will swiftly realize that co-operation, not confrontation, is in the best interests of both — and, significantly, the interests of the planet.
The current discord between the two nations is over the decision in November by Michigan Gov. Gretchen Whitmer to exercise her state’s sovereign constitutional authority to revokethe 68-year-old easementthat Enbridge has relied upon to transport petroleum by pipeline from Alberta to Sarnia, Ont., across the public bottomlands of the straits separating Michigan’s upper and lower peninsulas.
The governor took this action in light of the clear and present danger from Enbridge’s appalling track record of easement violations in operating Line5, including lake-bed erosion undermining support of the dual pipelines in the fierce currents where Lake Michigan meets with Lake Huron. Enbridge alsolacks adequate liability insuranceand has steadfastly refused to provide any of thefinancial assurancesthat Gov. Whitmer has demanded.
Enbridge knew at least 20 years ago that the original design of the Straits of Mackinac pipelineswas failing. Year after year, the company quietly sought approval from the state of Michigan to shore up the pipeline, passed off as “repairs,” by installing supports — now 228 of them — in effect lifting about three miles of the dual pipelines into the water column. Government officials, however, never required Enbridge to get approval for such a radical change that poses a whole set of new and serious risks.
Many families, communities, tribes and businesses understandably are skeptical of Enbridge’s safety assurances. Enbridge calls Line5 “as good as new” and says it can last “forever,” even though Line5 hasfailed at least 33 timessince 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. In 2010, the company was the culprit in one of the largest petroleum spills in U.S. history. A leak in an Enbridge pipeline in southwest Michigandumped 1.2 million gallonsof heavy tarsands oil into the Kalamazoo River watershed, harming human health and damaging fish and wildlife habitat. The spill cost Enbridge over $1 billion to clean up to the extent possible. The U.S. agency that investigated the spill likened the Enbridge response to the spill to the “Keystone Kops” and cited “pervasive organizational failures at Enbridge.”
Many Canadians are concerned about the possible distortion of their energy supply. They shouldn’t be.Available capacity and flexibilityto meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to experts from the Great Lakes protection groupFLOW. They argue that when Line5 shuts down,regional domestic energy needs and supplies for refinerieswill still be able to be met. The estimated increased cost to consumers would be afraction of a cent per gallon of gasoline, according to a study commissioned by the National Wildlife Federation.
The threat to the Great Lakes, both U.S. and Canadian waters, is clear. Equally clear is the risk to the planet of another 99 years of transporting carbon-rich petroleum from the Prairies to Sarnia for refining and ultimately releasing massive carbon dioxide emissions. Government promises of a new commitment to action on climate change are hollow if Line5 continues operation indefinitely.
The law in the U.S. and Canada recognizes the waters of the Great Lakes are held in trust to be managed by the governments as guardians for navigation, fishing and other paramount needs of citizens. Unfortunately, the Canadian and Ontario governments have joined forces with Enbridge to forsake this guardianship by pressuring Gov. Whitmer. As the company spends resources on a slick public relations campaign exaggerating the benefits of Line5 to the U.S. while neglecting to mention its history of environmental negligence, the governments dispute Michigan’s concerns about a Great Lakes spill.
In 2016, the IJC urged governments in the Great Lakes region to adopt the public trust doctrine as a legal backstop to assure the majesty of the lakes and bottomlands is not impaired. The IJC recommendation makes sense for present and future generations. If Canada and the U.S. do so, they will inevitably support decommissioning of Line5.
Jim Olson is FLOW’s Founder & Senior Legal Advisor
Straits of Mackinac photo by Barbara Brown
By Jim Olson
In mid-November, Michigan Governor Gretchen Whitmer and Department of Natural Resources Director Dan Eichinger issued a Notice of Revocation of the easement for the crossing of Enbridge’s crude oil dual pipelines on the lakebed of the Straits of Mackinac. The twin pipelines are part of Line5, which carries crude oil and natural gas liquids (including propane) from Canada through the U.S. and back into Canada for Ontario refineries or foreign exports.
Enbridge and the Canadian oil industry have now launched a media campaign to stir up fear in Ontario—and political pressure in Ottawa, Michigan, and Washington, D.C.—about the shutdown of the perilous Line5 at the confluence of Lake Huron and Lake Michigan. The well-oiled media machine of Calgary, Enbridge’s headquarters and ground zero for the Canadian extraction of oil, has unleashed a barrage of stories that claim Michigan and the U.S. need Canadian oil, that thousands of jobs in Sarnia are in jeopardy, and that Sarnia and Ontario oil refineries already plan to implement an alternative by transporting crude oil by rail or ship it up the St Lawrence and on to Sarnia—a scare tactic on Ontario citizens.
Without demeaning the concerns of Ontario residents, this attempt by Enbridge to oppose the shutdown of the Line5 dual pipelines in Lake Michigan and Lake Huron requires a reality check: Both governments, the provinces and states, and the citizens of both countries—40 million of us—depend on the Great Lakes for navigation, fishing, drinking water, health, jobs, and quality of life.
Over the next week, FLOW will offer subsequent reality checks about Line5.
Reality Check No. 1—The State of Michigan Has the Legal Duty and Authority to Revoke the Easement and Shut Down Line5 in the Straits of Mackinac, which the Federal Government Cannot Preempt.
Michigan lawfully revoked the 1953 easement and operation of Line5 on the bottomlands of the Straits of Mackinac to prevent the undeniable risk of unacceptable, devastating harm to Lake Huron and Lake Michigan. In response, Enbridge filed a lawsuit in federal court to block the State of Michigan order that requires a shutdown of the operation of Line5 in the Straits of Mackinac by May 12, 2021. Enbridge then sent a letter to Governor Whitmer that refused to acknowledge and comply with the revocation, claiming Michigan did not have the legal authority to revoke the easement and the operation of Line5 in the Straits of Mackinac. This is flatly wrong.
Like every state, when Michigan joined the Union in 1837, it took sovereign title to all of its navigable waters and lands beneath them. In the words of the U.S. Supreme Court, this title was “conferred upon Michigan by the federal constitution itself” and vested in the states “absolutely.” [PPL Montana v Montana, 565 U.S. 576 (2012)] The State holds this title under a solemn, perpetual public trust for the benefit of its citizens, who are the legal beneficiaries of this trust. The state government is the “sworn guardian” of these lands and waters, and has an affirmative duty to protect rights of citizens to navigation, fishing, drinking water, boating, and other water-dependent public needs from interference or harm. This public trust title and interests are perpetual and irrepealable and any easement or other agreement for use of Great Lakes bottomlands is revocable when necessary to prevent serious harm to the public trust and these protected uses.
Because Michigan revoked the easement and ordered the shutdown of Line5 under the Straits and Great Lakes to prevent a catastrophic spill that all agree would be devastating and cause irreparably damage to these trust lands and waters, it is unlikely under any imaginable legal theory—Enbridge has tossed a slew of them on the courthouse wall—that a federal court will allow a private foreign corporation or Canada to override Michigan’s exercise of its core sovereign power to protect the rights of its citizens and these public trust lands and waters.
Under revered decisions of the U.S. Supreme Court, these core principles of state sovereignty are not and cannot be preempted by federal law or the federal constitution; there is only one exception to this rule, and that is where Congress acts to improve navigation or promote commerce or foreign affairs related to, or dependent on, navigation in or over these waters. Crude oil pipelines can be routed anywhere, and most certainly are not dependent on navigable waters like the Straits of Mackinac and the Great Lakes. Crude oil pipelines have nothing to do with navigation and shipping or the promotion of these navigational interests.
Reality Check No. 2—The MPSC Must Not Fail Again to Consider and Determine the Necessity, Impacts, and Alternatives to Line5 in the Great Lakes.
Michigan approved the 1953 easement to Lakehead Pipe Line Company, now Enbridge, as an accommodation. It allowed the company to save money by taking the shortest route for a 30-inch pipeline to carry 300,000 barrels per day (bpd) of crude oil—at 42 U.S. gallons per barrel, that’s 12,600,000 U.S. gallons—from a pipeline hub in Superior, Wisconsin, across the Upper Peninsula of Michigan, along the bottom of the Straits of Mackinac, crossing part of the Lower Peninsula and then under the St. Clair River to Sarnia. As a result, the company did not have to build a pipeline down, around Chicago, and across southern Michigan to Sarnia. Enbridge expressly agreed that its easement and operation of Line5 in the Straits were subject to the prudence of an ordinary person to prevent harm to public and private property—namely, the public trust in the Straits and property of riparian landowners and communities along Lake Huron and Lake Michigan. According to an expert analysis and modeling by the University of Michigan’s Water Center, up to 700 miles of shoreline and the upper one-third of Lake Huron and Lake Michigan would suffer devastating, irreparable harm in the event of a failure.
In 1969, Michigan’s Public Service Commission (MPSC) gave Lakehead (now Enbridge) permission to build a second 30-inch pipeline to carry 400,000 bpd of crude oil around Chicago and across southern Michigan to Sarnia. So, ironically, just 16 years after the push for Line5’s shorter route through the Straits, Enbridge also operates Line 6b using the longer route and ended up with two pipelines.
Fast forward to 2010, and negligence by Enbridge led to Line 6b’s rupture and spill of more than one million gallons of heavy tar sands crude into the Kalamazoo River. Although Enbridge paid for years of cleanup, ultimately it appears that Enbridge was rewarded for its failure with permission to rebuild and supersize the failed pipeline. Enbridge maneuvered the MPSC to not only approve a new replacement 6b pipeline (now called 78), but to increase the diameter to 36 inches and double the design capacity to 800,000 bpd (33,600,000 U.S. gallons per day). That’s not all: During this same time period the MPSC approved Enbridge’s addition of anti-friction fluid devices to Line5 to increase the flow of crude oil from 300,000 to 540,000 bpd, and 80 percent increase to about 23,000,000 U.S. gallons of oil per day.
In sum, the MPSC granted permission to Enbridge to nearly double the capacity for the flow of crude oil through Michigan and mostly back into Canada—from 700,000 bpd to 1,340,000 bpd or 56 million gallons a day. Despite the nearly 100 percent increase in crude oil transport, the MPSC never looked at what the right hand and left hand were doing. As a result, the MPSC failed to consider and determine the necessity, impacts, and alternatives to this doubling of capacity, as required by its public utility laws and the Michigan Environmental Protection Act (MEPA). Under MEPA, the MPSC must consider and determine the likely effects and alternatives of the proposed need or conduct. Had the MPSC done so, it would have realized that the nearly doubled design capacity in Line 6b would have handled most of the oil flow volume in Line5; in fact, the MPSC could have looked at both its right and left hands, and addressed the dangers of Line5 in the Straits, made evident by the Kalamazoo River disaster, by requiring Enbridge to size the new replacement line for 6b for all of Enbridge’s need.
Had Enbridge not manipulated the MPSC into segmenting the company’s planned near doubling of crude oil volume, Line5 would be gone and Enbridge would be operating one new, replacement line 6b (78). The irony is that one of Enbridge’s executives in the 6b replacement case testified under oath that the enlarged 36-inch pipe or 400,000 bpd increase would meet Enbridge’s, and presumably Canadian refineries’, future crude oil needs.
Because the duty of the MPSC to consider need, impacts, and alternatives is a continuing duty under the MEPA, it can now correct this serious legal error and take into account the overall Enbridge projects that doubled capacity through its Michigan pipeline infrastructure as part of Enbridge’s pending application to approve a replacement tunnel for a new Line5pipeline under the Straits of Mackinac. According to its application and a lease-back agreement, this will allow Enbridge to operate Line5 for another 99 years.
Reality Check No. 3—Alternatives Exist to Line5 for Oil and Propane Supplies that Don’t Threaten the Economy and the Great Lakes.
Enbridge and Canada claim that Line5 benefits the U.S. and Michigan and that Ontario jobs associated with the crude oil transported to Sarnia overshadow the inestimable value of the public trust, sovereign title, and life and livelihoods of states and Canadian provinces sharing Lake Huron and Lake Michigan. The numbers don’t add up. A sizeable spill into the Straits and the upper one-third of Lake Huron and Lake Michigan would threaten the 350,000 jobs in Michigan’s coastal communities that are directly tied to the Great Lakes and depend on the Great Lakes; a spill would jeopardize the 1.3 million jobs and $82 billion in wages tied to tourism, agriculture, fishing, shipping and related industries in the Great Lakes.
As Canadian expert Warren Maybee recently pointed out, “The oil is flowing into Canada. The U.S. doesn’t really gain any benefit… Most of it is just traveling through their country in order to feed into our system.”
The fact is that Line5 is basically for the transport of Canadian oil through Michigan and back into Sarnia for Ontario, eastern Canada, and export to England. The few benefits of Michigan hardly outweigh the State’s duty to protect the public and Straits of Mackinac from billions of dollars and irreversible harm to their livelihood and quality of life. With the upper one-third of Lake Huron and portions of Georgian Bay in harm’s way, there would also be a substantial impact on Ontario’s environment, property owners, tourism, agriculture, and shipping jobs and economy.
As has been well documented, the 41-year-old Line 6b that ruptured in 2010 caused $1.2 billion in damages to the Kalamazoo River, one of the largest inland-waterway oil spills in U.S. history. The 68-year-old Line5 dual pipelines in the Straits pose a clear danger of far greater damage. Strong currents eroded and scoured away soils under the dual pipelines, elevating long spans of pipe; the problem is so serious that 228 supports have been added since 2001, suspending up to 3 miles of pipes above the bottomland. An anchor strike dented or gouged the dual lines in 2018. Last summer, for at least the third time, an anchor or a heavy cable struck the pipelines and damaged their supporting structure. The next anchor strike could unmoor or break the long sections of pipe now suspended several feet in the water above the lakebed.
Given that alternatives to Line5 exist, including the increased capacity in Line 78, there is no reason why with a few adjustments in the overall pipeline system that jobs and economic concerns in Ontario or Michigan are really threatened. And, as noted above, the harm to jobs and the economy of a Line5 spill in the Straits would far outweigh any benefit from continuing to operate the outdated infrastructure.
In short, when Line5 shuts down, Detroit jets will still fly and union refinery jobs will still exist. Michigan and the U.S., and Ontario on Lake Huron, gain no real benefit and hold 100 percent of the risk of serious harm. It simply isn’t an “either or” analysis. If the harm to the public trust, livelihood, quality of life of the millions of people in Michigan and the Great Lakes Basin outweigh the fewer than 100 permanent Enbridge jobs from Line5 in Michigan, or jobs in Canada, then the sovereign interests in these waters in the law are “paramount,” which any standard dictionary defines as “above all else.”
Jim Olson, environmental attorney and senior legal advisor to FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, reacts to a narrow ruling released today by an administrative law judge on Enbridge’s oil tunnel proposed for the Straits of Mackinac:
“Today’s ruling by Administrative Law Judge (ALJ) Dennis W. Mack ignores the declining public need for oil as the U.S. and world finally reckon with the climate emergency, and it is blind to the fact that Gov. Whitmer has ordered the permanent shutdown of the Line5pipeline that the tunnel would contain this May.
“The State of Michigan will never reach a just and lawful decision on the proposed oil tunnel by agreeing with Enbridge to ignore critical evidence and treat a proposed oil tunnel meant to last 99 years as simply a maintenance-and-replacement project. The tunnel is a Trojan Horse designed to push billions of gallons of oil through the world’s largest system of freshwater lakes in an era of water crises hastened by climate change.
“The Michigan Environmental Protection Act (MEPA) enacted in 1970 was created to compel agencies like the MPSC to evaluate the cumulative environmental impacts and to examine alternatives to proposed projects. In the case at hand, MEPA requires the MPSC to examine the environmental, health, and climatic risks of the proposed tunnel and Line5pipeline. The greenhouse gas emissions from Line5’s oil and natural gas liquids, at more than 57 million metric tons a year, is greater than the annual yield from the combined operation on the nation’s three largest coal plants.
“The law does not keep the MPSC frozen in time such that they can ignore these paramount issues.
“The State of Michigan has a perpetual duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them, which led to the Governor’s and DNR’s November 13 order and lawsuit to revoke and terminate the easement allowing Line5 to occupy the Straits of Mackinac. The ALJ rejected the argument that the Governor’s notice and revocation of the 1953 easement is a basis to evaluate the environmental effects of Line5 or the consumption of the oil transported on the system under MEPA.”
Background: See FLOW’s ongoing coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel proposed for the Straits of Mackinac here: