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Dana Nessel asks for temporary shutdown of Enbridge Line 5 after damage

Michigan Attorney General Dana Nessel has asked a judge to shut down the Line 5 petroleum pipeline that runs along the bottom of the Straits of Mackinac until more is known about what damaged an anchor support on one of the pipeline’s two legs.

Nessel announced the request Monday evening, four days after Enbridge notified state officials that the anchor support had sustained “significant damage” and two days after Enbridge defied a request from Gov. Gretchen Whitmer to shut down Line 5 until more is known about the incident.

As part of an ongoing lawsuit challenging the 1953 easement that allowed Enbridge to build the pipeline in the Straits, Nessel has asked Ingham County Circuit Court Judge James Jamo for a restraining order and preliminary injunction suspending the pipeline’s operations until the state can conduct a full review of the incident with the help of independent experts.

Nessel also wants Jamo to order Enbridge to provide the state all information it possesses about the incident. 

In a statement Monday night, Enbridge officials vowed to fight Nessel’s shutdown motions.

Enbridge believes the temporary restraining order and preliminary injunction sought by the Attorney General of Michigan is legally unsupportable, unnecessary, and will be vigorously opposed by Enbridge,” the statement reads.

In a statement announcing the legal action, Nessel said photos make it clear that the pipeline suffered significant damage, but Enbridge has provided “no explanation of what caused this damage and a woefully insufficient explanation of the current condition and safety of the pipeline as a result of this damage.”

“We cannot rely on Enbridge to act in the best interests of the people of this State,” Nessel said in her statement, “so I am compelled to ask the Court to order them to.”  

After discovering the damage Thursday, Enbridge stopped petroleum transports in both legs of the dual-span pipeline and used divers and a remote-operated vehicle to investigate. By Saturday afternoon, Enbridge had reopened the west leg after saying it had determined it was not damaged. 

That led to a strongly-worded letter from Whitmer over the weekend. The governor said she was “taken aback” that the company had resumed operations without consulting state officials. 

Citing the “many unanswered questions” about what caused the damage, Whitmer asked Enbridge CEO Al Monaco to shut down pipeline operations and provide the state with engineering reports, photographs, video and other evidence of the damage, as well as a full report about what caused the damage and how Enbridge will prevent it from happening again.

In a statement Monday, Whitmer said she supports Nessel’s legal action. 

“Enbridge has not timely complied with the state’s request for full and complete information and resumed operation without even consultation,” she said. “This brazen disregard for the people of Michigan and the safety and well-being of our Great Lakes is unacceptable.” 

In response to questions from Bridge Monday, Enbridge spokesman Ryan Duffy said the west leg is open and Enbridge has sent the state “full inspection reports” on each of the pipeline’s two spans.

Nessel countered that those reports amounted to “only a few pages” that contained “little content, few pictures, and left several critical questions unanswered, including the cause of the damage.”

The east leg remains shut down and the company is still investigating what caused the damage, Duffy told Bridge Monday, adding that the company “shares the governor’s and Michiganders’ desires to protect these precious waters, the environment and the people who use the water.”

In a Sunday letter to Whitmer, which Enbridge officials released Monday night, Monaco said he has directed Enbridge staff to “provide regular and fulsome briefings to state officials and discuss current plans with your administration and with you personally, if desired.”

News of the damage has heightened tensions between the state and Enbridge over the 67-year old pipeline, which crosses along the bottom of the straits as it transports oil and natural gas liquids between Ontario and Wisconsin. 

It comes days after the U.S. Environmental Protection Agency fined Enbridge $6.7 million for failing to quickly address safety problems in the Lakehead Pipeline System, which includes Line 5, and weeks after protective coating covering the pipe was reported damaged on May 26. 

Nessel and Whitmer both campaigned on promises to shut down Line 5, citing fear that it could catastrophically damage the Great Lakes if it sustains damage that results in a spill. 

But while Nessel has continued to pursue lawsuits against Enbridge and issue frequent calls for Line 5’s shutdown, Whitmer had recently been quieter on the subject.

That changed after last week. 

In the days since, Whitmer has sent two strongly-worded letters to Monaco condemning Enbridge for a lack of transparency and cooperation with state officials as it responded to the incident. She also warned Monaco that the 1953 state easement granting Enbridge’s predecessor permission to run the pipeline along the lakebottom requires Enbridge to use “due care” in operating and maintaining Line 5.

In a press conference Monday afternoon, environmentalists called upon Whitmer to revoke the easement, arguing that Enbridge has violated its “due care” obligation by resuming partial operations before more is known about the damaged anchor support.

Beth Wallace, a conservation partnerships manager for the National Wildlife Federation’s Great Lakes office, said Enbridge’s decision to resume operations without Whitmer’s consent proves the company can’t be trusted. 

“There is a culture of deviance within this company,” Wallace said, and state officials “need to take it seriously.”

Wallace and others expressed dismay that Enbridge found last week’s reported damage significant enough to shut down operations — something they said the company did not do in 2018, when a six-ton anchor struck and dented the pipeline. That incident caused $100 million in damages to another company’s underwater power cables and 800 gallons of oil to spill into the Straits.

Line 5’s temporary shutdown last week “speaks to how bad this damage must be,” said Sean McBrearty, coordinator of the group Oil & Water Don’t Mix. McBrearty called Enbridge “incredibly irresponsible” for resuming operations without first determining what caused the damage.

In a statement Monday, Duffy, the Enbridge spokesperson, defended the company’s decision to resume operations, noting that Enbridge officials first discussed their plan with federal regulators at the Pipeline and Hazardous Materials Safety Administration, or PHMSA, which regulates pipeline safety. Federal regulators had “no objections,” Duffy said.

A spokesman for PHMSA did not respond to a series of questions from Bridge about its response to the incident, but said the agency is monitoring the situation and “will stay apprised of efforts to determine the source of the impact.”

Operations on the east leg where the anchor support damage occurred will not resume without further discussion with Michigan officials and approval from PHMSA, Duffy said. He added that Enbridge officials have briefed the state on the incident, and Monaco has offered to meet with Whitmer “at any time.”

“We will continue to provide the State all the information we provide to PHMSA on this matter,” Duffy said.

A national expert in pipeline safety told Bridge that if Enbridge is sincere in its belief that Line 5 can safely resume operation, the company should have been more forthright with details about the damaged anchor support. 

“There’s no pipeline that doesn’t have imperfections in it,” said Richard Kuprewicz, president of Accufacts, Inc. “The key is, does it rise to the level where it could take you to failure?” 

It’s a question Enbridge needs to affirmatively answer, and provide evidence, Kuprewicz said — especially given Line 5’s particularly vulnerable position at the bottom of the Great Lakes. 

If not, he said, “it would be agreeable for a state to say ‘we’re telling you to shut down.’”

While Nessel awaits Judge Jamo’s answer to her request for a temporary shutdown, she continues pushing for a permanent shutdown by challenging the legality of the 1953 easement that made way for Line 5’s placement at the bottom of the straits. Jamo heard oral arguments May 22 in Nessel’s lawsuit claiming the easement violates the state’s public trust doctrine, but has given no indication of when he will rule on the case.

Meanwhile, Enbridge is moving forward with its $500 million plan to encase the pipeline in a tunnel deep beneath the Straits — a move it says would virtually eliminate the possibility of a Great Lakes spill. Company officials are awaiting several state and federal permits that would allow them to start construction on the project, with a planned completion date of 2024.

A spokeswoman for Nessel, who opposes the tunnel project and has sued in hopes of blocking it, has said Nessel plans to ask the Michigan Supreme Court to review a Michigan Court of Appeals ruling earlier this month that upheld the constitutionality of a 2018 law that made way for the tunnel project.

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