Jim Olson is founder and president of FLOW (For Love of Water), a Great Lakes water law and policy nonprofit organization.
When we think of “tunnel vision” we think of narrow-mindedness, myopic thinking, or the horses at the start of the Kentucky Derby with blinders, eyes fixed straight ahead on only one option ‒ a one-way, no-return, single track. Applied to the words and actions of our state’s leaders over the last several years to remove the catastrophic risk to the Straits and the Great Lakes from Enbridge Line 5, the phrase could not be more accurate. While putting up the façade of leadership on Line 5, our leaders have in complicity narrowed the alternatives for Line 5 to a new replacement line or tunnel in the Straits.
It started with the rupture in 2010 of Enbridge’s Line 6b that crosses southern Michigan from Indiana to Sarnia, Canada, spilling a million gallons into the Kalamazoo River and costing more than $1 billion in cleanup so far and untold harm to the river, residents, and quality of life. Nearly everyone in Michigan saw the video clips of the black tar balls and ooze, dead fish and waterfowl, the largest oil spill into inland waters in our country’s history. The disaster triggered a number of questions, not the least of which was to look for other aging crude oil pipelines that cross the waters of Michigan. The answer came as a shock – 64-year-old Line 5, a 645-mile long line from Wisconsin across the UP, and, there it was, right there on the Public Service Commission’s (“PSC”) map, in the Straits of Mackinac, then down through Northern Michigan’s to near Port Huron, under the St. Clair River and into Canada.
‘If you seek a pleasant peninsula...’
Governor Snyder responded that there was nothing Michigan could do about Line 5, because the federal government had exclusive jurisdiction and control over Line 5.
The Straits of Mackinac between the two peninsulas are the heart of Michigan: its geography, history, culture, fishing, boating, drinking water, economy, jobs. The Great Lakes define us. The unacceptable risk of a leak in the Great Lakes fomented a tidal wave of public pressure on the governor, attorney general, and the DEQ to take action. The National Wildlife Federation released an alarming report showing a distressing degree of potential damage. FLOW’s Great Lakes policy center submitted a legal analysis that established the state had jurisdiction because of the state’s sovereign title and perpetual duty to protect the Great Lakes under public trust law and the PSC’s control over the siting of crude oil pipelines.
Gov. Snyder soon changed his tune and convened a petroleum pipeline task force in 2014. In September 2015, the task force released its report. The report concluded that Michigan had jurisdiction over Line 5 and that the State’s paramount duty to protect the Great Lakes would prohibit the location of a crude oil pipeline in the Straits today. To fulfill its duty, the report concluded that an independent comprehensive alternative study was indispensable and required by law. Common sense cautioned that if alternatives to a crude oil pipeline in the Straits could be utilized, Enbridge should be required to implement it in an orderly fashion.
On the same day, the governor issued an Executive Order that established the Michigan Pipeline Safety Advisory Board. The board was charged with making recommendations for statutory and regulatory implementation of the task force report, including the independent, comprehensive alternative analysis. The momentum was encouraging; finally a comprehensive alternative analysis would be conducted to solve what all agreed was an unacceptable endangerment of the Great Lakes. Unfortunately, our state leaders moved in the opposite direction.
Seeking an alternative
The task force report didn’t recommend the comprehensive alternative analysis out of thin air. Michigan’s Constitution declares that water is a “paramount concern,” and that the legislature “shall” pass laws to protect the state’s water from pollution or harm. In response to this mandate, two laws are uniquely applicable to Line 5 in the Straits: the Great Lakes Submerged Lands Act (“GLSLA”) and the Michigan Environmental Protection Act (“MEPA”). The GLSLA protects the public trust in the Great Lakes from harm. The law prohibits approval of structures and permits under or on Great Lakes bottomlands unless an applicant like Enbridge demonstrates only minor potential harm and that there exist “no feasible and prudent alternatives” to the structure or route in the Great Lakes. The MEPA similarly imposes a duty on state officials and agencies to consider and determine whether alternatives exist to proposed conduct that poses unacceptable risks to water and the environment. So where the magnitude of harm is quite high, like an oil leak in the Straits, the concern over probability is correspondingly lower. Obviously, if there is an alternative that eliminates risking grave harm, ordinary prudence would choose that path.
Michigan’s courts have ruled that the legal duty to consider alternatives means evaluating a full-range of options regardless of mere inconvenience. Lopping off an alternative that narrows the range, like confining the alternative analysis to continued use of Line 5 or a replacement line in the Straits would violate this duty. As seen from the thousands of miles of pipeline options within the network of existing pipelines in the Midwest, consideration of alternatives to Line 5 in the Straits would necessarily include an in-depth evaluation of the use or improvement of existing pipeline system.
Connecting the dots
After the Kalamazoo River debacle, Enbridge petitioned the PSC to replace its failing 265-mile Line 6b from Indiana to Sarnia. The company not only obtained approval to replace the line, but doubled its design capacity from 400,000 bbl./day to 800,000 bbl./day of crude oil. This was part of Enbridge’s reported multi-billion-dollar project to expand capacity throughout its entire system from Alberta south through Minnesota, Wisconsin, and Michigan, and into Ontario for export to foreign ports. While the battle raged over the Keystone XL pipeline in the west, Enbridge quietly sought and obtained approval to build its own “Great Lakes XL” in Michigan. How did Enbridge do this without the same or greater opposition to the Keystone XL?
Divide and conquer. Enbridge filed separate petitions before the PSC to divide the expanded pipeline into eight smaller segments to attract less attention and narrow the range of alternatives to local alignments. This would preclude scrutiny by the PSC and public of the real project — the massive Great Lakes XL.
For example, in 2012, the PSC approved a 50-mile segment to replace Line 6b between Ingham and Oakland counties. During this same time frame, the PSC approved several pump stations. Enbridge basically did this with all eight segments to replace the new Line 6b. The PSC acceded to the company’s characterization of the projects as “maintenance” or “integrity,” despite the fact that Enbridge testimony declared the new line would meet all current and future crude oil transport needs. Unfortunately, the PSC has never considered Enbridge’s real project: the “Great Lakes XL” that would have required a determination of the alternatives and most likely led to the decommissioning of the then 62-year old Line 5 in the Straits, and a reasonable accommodation of propane for the rural population in the UP and transport of crude oil out of the northern Lower Peninsula.
Curiously, the PSC also received notices and petitions from Enbridge for “repairs” and “maintenance’ to Line 5. The petitions sought approval to rearrange and install pump stations and anti-friction injection facilities along Line 5 to nearly double the flow rate of crude oil in Line 5 from 300,000 bbl./day to 540,000 bbl./day. The PSC restricted its alternative analysis to pump and anti-friction stations.
Shoring up Line 5 design
From 1980 to 2001, Enbridge added grout bags along sections of the twin pipelines under the Straits in an attempt to minimize the dangers of unsupported spans of pipe that bridged bottomlands by strong currents. Sometime around 2001, it appears from public records and Enbridge disclosures that the original pipeline design that was built based on the 1953 easement wasn’t working.
Enbridge filed an emergency application under the GLSLA with the DEQ to alter its original design by adding “anchor supports” to the pipeline. This was an attempt to reduce the risk of failure from the bending of pipe spans in strong currents. Enbridge withdrew the requests, but later reapplied for what it downplayed as “maintenance.” In 2014 and 2016, the DEQ authorized a few anchor supports without any consideration of overall risk of failure of the twin pipelines or alternatives like the doubled Line 6b to Line 5 in the Straits as required by the GLSLA.
This past spring, Enbridge filed an application for 48 more anchor supports to address the failing design of the twin lines, again, for “maintenance.” This request for a major modification of the original design is pending before the DEQ. In the past six months, Enbridge has revealed continuing problems with scouring and unsupported and bending spans of pipe from currents. It turned over the 2015 Kiefner Report that documented problems going back a decade or more. Even some of the anchor supports appeared to have been pulled up or tilted by currents and line movement. In November Enbridge revealed that the anchor structures or movement had scraped protective cover to bare metal in 48 places along the lines.
In the pending application, the DEQ and Attorney General’s office have sided with Enbridge’s claim that the anchor supports are simply “maintenance,” which appears calculated to exclude consideration of the legally required full assessment of potential impacts and full-range of alternatives to Line 5 in the Straits. Puzzlingly, DEQ has ignored the provisions under the GLSLA that prohibits it from authorizing the large increase in anchor supports unless Enbridge proves there are “no feasible and prudent alternatives” to the lines in the Straits.
Under the supervision of Attorney General’s office and the pipeline advisory board, Dynamic Risk (“DR”), an experienced pipeline engineering firm, released a draft alternatives report in June 2017. After the DEQ scheduled public comment, thousands of letters poured in claiming industry bias, conflicts of interest, and low-balled risk and cost estimates that favored Line 5 or a new line in a tunnel under the Straits.
Notably, DR rejected evaluation of alternatives involving existing pipelines across southern Michigan by artificially deciding to exclude consideration of existing or potential pipelines in the system unless there was a single line that would equal the capacity of Line 5. As a result, DR decided it did not have to evaluate the newly replaced Line 6b with its doubled capacity of 800,000 bbl./day.
DR pointed to the junction at Stockbridge, east of Lansing, where the diameter narrowed from 36 to 30 inches and capacity dropped to 500,000 bbl./day from there to Sarnia. It did not consider the other leg that transports a sizeable volume to refineries in Detroit and Toledo; it did not consider adjustments or expanding the diameter of the leg to Sarnia. It did not consider lines that connected to southern Michigan from northern Indiana. Other technical experts, however, submitted reports that demonstrated that with a few adjustments at likely lower costs Enbridge could readily accommodate the capacity of Line 5 oil and meet current and future needs of Michigan and its customers. Enbridge’s testimony before the PSC had already declared that if Line 6b was doubled to 800,000, it would meet all current and future needs.
The State directed DR to revise the report and assuring citizens, the tribes, and businessmen in the Straits they would be given an opportunity for further comment. In November, the State released DR’s revised report and scheduled public comment and review by the pipeline advisor board. DR’s revised report generally defended the conclusions in its draft report. Unfortunately, DR again declined to evaluate the full range of alternatives involving the use and improvement of existing pipelines and routes of the overall system across Lower Michigan. DEQ announced public meetings across the State for comment on the revised report and for recommendations from the Governor’s pipeline advisory board.
Snyder Agreement with Enbridge Calls for Tunnel
The governor announced he had signed a formal agreement with Enbridge on November 27, taking his own advisory board, Michigan Indian tribes, Straits businessmen, and citizens by total surprise. While the agreement contained a few measures that could minimize some of the risks in event of a leak or rupture, including an infrequent shut-in of valves to stop the flow of oil in the Straits when wave conditions reached 8 feet, overall it allows Enbridge to keep operating Line 5.
But what the agreement really did was short circuit the Governor’s advisory board process for reviewing the DR revised alternative analysis and making recommendations on alternatives and risks for the State to make a good decision on how to protect the Great Lakes from the risks of Line 5. It also cut short citizen comment and the entire process and role of the public in participating in what was supposed to be a public, transparent process in which they played a meaningful role.
The short of it is the Governor signed a closed-door deal with a private corporation that usurped the rule of law and shunned the legal requirements for a comprehensive full-range evaluation of whether there are alternatives to crude oil in the Straits and the Great Lakes. The agreement provides for the “Evaluation of Alternatives to Replace the Dual Pipelines.” This means the Governor has usurped the rule of law and simply chopped off and narrowed the legally required alternative analysis to one option — a new tunnel or trench under or in the Straits of Mackinac. Enbridge is only required to do evaluate three alternative designs: tunnel, trench, or ditch. Without legislative approval, the governor narrowed the rule of law under the GLSLA that demands a full evaluation of alternatives to any risk from a crude oil in the Straits.
Advisory board questions agreement
The Governor’s agreement caused uproar at the December meeting of the Governor’s pipeline safety advisory board to review and listen to public comment on the DR revised alternative report. Except for one or two insiders close to the governor and Enbridge’s top brass, members were caught off guard by the agreement. Even more surprising was the packet of three resolutions handed out to the board by a few members who challenged the wisdom of the governor and recommended changes to the agreement.
After Enbridge’s and the state’s representatives on the board abstained, the remaining seven members voted in favor. Thanks to Roberts Rules of Order there was a quorum and the resolutions were adopted. While advisory only, one of the resolutions propounds that the governor should amend the agreement to require a comprehensive alternative evaluation of all of the full range of options to the needs, costs, benefits, and logistics of using the capacity or potential capacity of existing pipeline routes and infrastructure.
It is time the governor, Attorney General Bill Schuette, the DEQ, and our state leaders apply the rule of law, and stop putting Enbridge above the constitutional paramount concern for the public trust and Great Lakes. To move forward, there are only two actions: One, the Governor and state leaders must demand a full application under the GLSLA on the failed line design and anchor support structures and a showing by Enbridge that there are no feasible and prudent alternatives or combinations of alternatives using existing or adjusted infrastructure and design capacity within the pipeline network into and out of Michigan; two, if our leaders fail to take the first action, citizens, communities, and businesses should turn to the third branch of government.