Enbridge just wants a permit. Michigan critics want to bring down Line 5

As the Michigan Public Service Commission considers whether to allow Enbridge Energy to move Line 5 inside an underground tunnel, the company’s opponents hope to use the case to debate climate impacts, environmental risk, and whether Michigan needs Line 5. (Enbridge file photo)

Enbridge Energy had already won the blessing from Michigan’s Republican Legislature to build a tunnel beneath the Straits of Mackinac to keep oil flowing through Line 5, and survived a legal challenge that sought to unravel that plan. 

Now, a seemingly minor detail of the $500 million, multi-year tunnel project — getting a state commission’s permission to move a 4-mile segment of pipeline inside the tunnel— could give environmental activists and Native American tribes an opening to litigate broad objections to the pipeline and, they hope, shut it down completely.

As the Michigan Public Service Commission begins a yearlong analysis of the relocation request, Line 5 opponents say they’re seeking a comprehensive review of the pipeline that has so far been missing from Michigan's deliberations over the 67-year-old pipeline’s fate.

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“It’s frustrating when we meet with different agencies with regulatory authority, and they want to limit their scope of review to just the Straits of Mackinac or just where the tunnel will land on the beach,” said Whitney Gravelle, an attorney for the Bay Mills Indian Community, which opposes Line 5.

 

“What we’re really discussing is allowing this pipeline to continue to exist for the next century.” 

Gravelle and other Line 5 opponents want the commission’s deliberations to include everything from Michigan’s long-term energy needs to climate impacts from continuing to transport fuel through Line 5, to safety and environmental concerns tied to the existing pipeline and the planned tunnel.

A small detail, a big debate

The case stems from a seemingly small detail in Enbridge’s larger quest to build a massive underground tunnel in the bedrock below the Straits. 

Building the tunnel itself will be complicated and costly: Enbridge has estimated it will cost $500 million and take until 2024 to complete, although state regulators expect it to take significantly longer.

Enbridge had hoped the process of moving the pipe inside the tunnel would be far easier. This spring, as Enbridge sought state permits for tunnel construction, it asked the Michigan Public Service Commission to agree that the company doesn't need permission to move the pipeline inside the tunnel once it is built. 

The commission, which oversees the siting of pipelines within Michigan, rejected that argument. Instead, it launched a lengthy administrative review similar to a court proceeding, in which Enbridge and its opponents will litigate a key question the energy company thought it had moved past: Does Michigan need Line 5? 

Administrative Law Judge Dennis Mack, who is presiding over the case, has granted 13 parties permission to join the case, which gives them the ability to file motions, present evidence, participate in hearings and challenge the commission’s eventual decision. 

Intervenors include a host of environmental groups and four Michigan Native American tribes that oppose Line 5, labor and industry groups that support the tunnel project, and Michigan Attorney General Dana Nessel, who has twice sued in hopes of permanently shutting down the pipeline.

Beth Wallace, a Great Lakes partnerships manager for the National Wildlife Federation, which has intervened in the case, said it’s also a chance for Enbridge opponents to use court records to answer lingering questions about the aging pipeline, which transports up to 540,000 barrels daily of crude oil and natural gas from Wisconsin to Ontario, as well as the address the merits of the tunnel project.

“When the Legislature put such a large backing behind the project, they didn't know the timeline, they didn't know the exact details of the project, including the size of the tunnel, or who would be in the tunnel,” Wallace said. 

Wallace argues the state’s deliberations over the pipeline have been inappropriately narrow for such a high-stakes issue involving a major investment in new fossil fuel infrastructure and concerns about an oil spill in the Great Lakes. During a public comment session Aug. 24, she and other Enbridge opponents sought to convince Judge Mack and commissioners that their review should fill that void. 

Enbridge has urged the Michigan Public Service commission to take a narrow view of its request to relocate Line 5 inside the Straits tunnel, calling issues of climate change, environmental impacts, or the safety of the existing line “irrelevant” to the proceedings. (Enbridge file photo)

They want to leverage the siting question into a review of the tunnel plan that the Legislature and then-Gov. Rick Snyder crafted in the waning days of Snyder’s administration, before Democratic Gov. Gretchen Whitmer, a Line 5 critic, took office.

They also want him to consider safety concerns surrounding the current pipeline, which sits exposed at the bottom of the straits and has sustained damage from passing boats multiple times in recent years. 

Some even want Mack to consider how the tunnel project would contribute to climate change by enabling continued reliance on fossil fuels, and whether the pipeline will be necessary in the future, given the increasing affordability of wind and solar energy.

Enbridge: Climate, environment ‘irrelevant’ to case

In a motion submitted this week, Enbridge lawyers argued those details are “irrelevant” to the pipeline relocation request, given that the Legislature has already endorsed Line 5 by passing the 2018 law that paved the way for the tunnel project.

Likewise, questions about the climate impacts of granting Enbridge permission to continue running fossil fuels through Line 5 should not be part of the deliberations, the company argues.

In an email to Bridge, Enbridge spokesman Ryan Duffy noted that Enbridge is committed to “being part of the transition to a lower-carbon economy,” but that the petroleum products Line 5 transports are “vital to families, schools, manufacturers and businesses.”

Concerns about fuel security—particularly for Upper Peninsula residents who rely upon propane from Line 5 to heat their homes—have been a central argument for tunnel project supporters, who argue that shutting down the line would doom Midwest oil refineries and worsen already-high propane prices for U.P. residents.

“There is no alternative,” Rep. Beau LaFave, R-Iron Mountain, told commissioners at a recent public hearing, noting that delivering propane to the U.P. by truck or rail would come with its own climate impacts. “The increased [greenhouse gas] emissions from the 2,000 semi trucks a day would lead to a serious problem.”

Labor unions, industry groups, Upper Peninsula lawmakers and others have lined up behind Enbridge and lauded the tunnel project as a solution to worries about a potential spill from the current line. 

“We need improved infrastructure to meet our needs,” Kevin Mapp, assistant to the director of United Steelworkers District 2 in Taylor, told commissioners. “Not another drawn-out process and stalling.”

Representatives with the Michigan Laborers’ District Council, which has endorsed the tunnel project and joined the case before the public service commission, did not respond to a request for comment from Bridge. But in a case filing, council lawyers argued the tunnel project will eliminate the risk of a spill in the straits while providing jobs for 200 Michigan workers to help build the tunnel, with more jobs tied to continued tunnel maintenance.

Enbridge lawyers want the commission to consider the relocation of the 4-mile segment in isolation, asking only whether it serves a public need, is designed and routed reasonably, and whether tunnel construction will meet safety and engineering standards.  

But Wallace called Enbridge’s attempts to limit the scope of the case “absurd.” Other Enbridge opponents have echoed that sentiment, criticizing Enbridge for what they call an unprecedented attempt to block opposition. 

“I’ve never seen an applicant be so aggressive in trying to limit what the commission can consider,” said Christopher Bzdok, an attorney who represents several Line 5 opponents in the case.

Mack is scheduled to rule by Oct. 23 what issues he’ll consider in the case. But ultimately, the three commissioners—Democrats Dan Scripps and Tremaine Phillips and independent Sally Talberg— will decide whether Enbridge can move the pipe into the tunnel. 

The trio have announced plans to read Mack’s record and decide on the siting matter independently, rather than acting on the judge’s recommendation as is typical in administrative cases.

Tribal dissent could be key

Among the details commissioners could consider: How do tribal treaty rights in the Straits play into the tunnel project?

As sovereign nations for whom the Straits of Mackinac are treaty-protected waters, Native American tribes that have intervened in the case argue Line 5 threatens those waters as well as inland waterways along its length.

Bryan Newland, chairman of the Bay Mills Indian Community, said the tribe chose to join the case after Michigan state government officials failed to meaningfully engage them in discussions about the pipeline, instead treating them as “just another stakeholder group” rather than a sovereign nation with property rights in the Straits. 

Newland, said intervening in the case gives the tribes an opportunity to have their voices heard in a courtroom-like setting where their legal status may get more respect. 

The tribe has enlisted Earthjustice and the Native American Rights Fund, two groups involved in the high-profile legal disputes over the Dakota Access and Keystone XL pipelines, to represent it in the proceedings.

“We are going to fight to protect our interest and our rights in every forum that’s available to us,” Newland said.

Tribal opposition has been key in other recent pipeline debates across the nation. In July, for example, a federal court ordered the U.S. Army Corps of Engineers to review environmental impacts of the Dakota Access Pipeline after the Standing Rock Sioux tribe sued over concerns that a spill could taint their drinking water. 

That decision points to the special legal status tribes have in pipeline debates, and the significance of their involvement in the Michigan Public Service Commission’s proceedings, said Matthew Fletcher, director of Michigan State University’s Indigenous Law and Policy Center.

“Tribes have their own sovereignty and their own self-determination,” Fletcher said, along with a protected property right in the Straits, “and that matters in court.”

Growing frustrations

The focus on the commission’s process follows deepening frustrations among Line 5 opponents with what they see as a hesitancy within the administration of Gov. Gretchen Whitmer to take action against Enbridge despite promises she made in her 2018 campaign to shut down the pipeline.

Since taking office in January 2019, Whitmer has initiated several processes to scrutinize the pipeline, including ordering a review of possible alternative energy supplies for the Upper Peninsula and directing the state Department of Natural Resources to conduct an as-yet-unreleased review of Enbridge’s compliance with its 1953 easement across the Strait’s sandy bottom. 

Separately, the Michigan Department of Environment, Great Lakes and Energy is reviewing how a spate of Enbridge permit applications may impact water, wetlands and Great Lakes bottomlands. Those applications are under review, with decisions expected late this year.

Though Whitmer vowed to shut down Line 5 during her campaign, she so far has been less aggressive than Nessel in pursuing a shutdown.

Nessel lost one case challenging the constitutionality of the tunnel law. A separate case seeking to void the state easement that allows Line 5 to operate in the Straits is still pending in Ingham County Circuit Court. 

Line 5 opponents have pressed Whitmer to revoke Enbridge’s 1953 easement, arguing recent damage to the pipeline proves the company can’t operate Line 5 in alignment with the easement’s requirement to exercise “due care.”

Whitmer press secretary Tiffany Brown on Friday said the state’s review of Enbridge’s compliance with the easement is “nearing completion,” but declined to elaborate on how Whitmer might react to the report’s findings. 

“The governor's number one priority has always been getting the oil out of the water as soon as possible while protecting the energy needs of the residents of Michigan,” Brown said.

Enbridge and its supporters, meanwhile, maintain that the best way to do that is by quickly granting the permits it needs to begin building the tunnel. 

“Enbridge remains committed to moving forward with the tunnel project,” Duffy said.

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Comments

Anonymous
Tue, 09/08/2020 - 8:25am

Make it a referendum. We the People should decide.

duane
Tue, 09/08/2020 - 9:35pm

Anonymous,
All you want to do is politically deny is science/technology and the human inventiveness with politics.

If you truly care about the Great Lakes, you would be asking better questions. Ones that will lead to means and methods both for #5, government, and industrial practices to protect our surroundings long into the future. By failing to accept that there are knowledgeable people within industry that have a desire to protect the Great Lakes and where we live, at least as much as you do, you fail to realize that with out the effective use of science/technology government will build on its long history of being the largest polluter become the preferred polluter of last resort, and the least accountable polluter, for they do not have the culture they improves means/methods.

Anonymous
Tue, 09/08/2020 - 8:43am

The trade unions are the shills for the greedy corporatists, doing the devil's work for crumbs.

Independent
Wed, 09/09/2020 - 7:29am

That's the basic jist of it ; AND if this new line EVER fails the losses incurred will be astronomical AND incontrovertible !!!!!

Marvin
Tue, 09/08/2020 - 8:55am

"particularly for Upper Peninsula residents who rely upon propane from Line 5 to heat their homes—"

But of course, since that propane comes from the west, and not from the lower peninsula, those homes can get that same propane without regard to whether or not the pipeline crosses the Straits of Mackinaw, in a tunnel or not.

powellga@charter.net
Tue, 09/08/2020 - 9:10am

The gist of your article lays bare Enbridge's motives - keep the current pipeline operating as long as they can. " Enbridge has estimated it will cost $500 million and take until 2024 to complete, although state regulators expect it to take significantly longer."

They undoubtedly know that a tunnel will take more than a couple of years to obtain permits, build it, and test it. Meanwhile, the citizens of the Great Lakes region sit on a major time bomb while Enbridge gets richer. Oh, and the politicians from the UP that defend Enbridge? Check and see from where they are getting a huge campaign contribution. Yep, Enbridge and it's subsidiaries and it's suppliers.

duane
Tue, 09/08/2020 - 9:40pm

powell,
The government 'knows' it will take longer because the government projects always take longer/costing more, and they are the ones issuing the permits so they know that will take longer because it always does [though I suspect the expect even more time because those who oppose the 'tunnel' will do everything they can to delay it].
The smarter way it to accept the 'tunnel' and do everything to expedite the construction.

Yooper4
Wed, 09/09/2020 - 11:58am

Please provide proof 'of these large campaign contributions' that you refer too?

Diane
Tue, 09/08/2020 - 9:23am

They want to move the original pipe into the tunnel ? I'm sure if that's the case, that old old pipe will fall apart.
Shut the whole thing down....Michigan cant afford to have poisoned Great Lakes.

Marge
Wed, 09/09/2020 - 4:34am

Michigan’s Great Lakes (and they’re not JUST Michigan’s) contain 21% of the WORLD’S fresh water. I agree, it’s worth protecting. So much depends on the "health" of the Great Lakes!

leonard page
Tue, 09/08/2020 - 11:13am

enbridge line 5 pumps 540,000 barrels a day through this michigan shortcut to get 94% of that volume to sarnia for that market but mostly for export. 20% of the time it pumps highly volatile propane and butane thru line 5. imagine a leak of volatile gases insided a confined space like a tunnel -- you would have the world's largest pipe bomb connecting st. ignace and mackinaw city. right now there are only 2 points where line 5 product is siphoned off in Michigan. at rapid river in the UP, about 1300 barrels of propane a day (on average) is stripped out for 13000 UP propane customers. Detroit Marathon gets 20,000 barrels of light cruder per day on average - representing about 1.5% of Michigan's daily gas needs. two studies (dynamic risk and london economics international) both concluded that a shutdown of Line 5 would have no real significant impact on retail gas and propane prices. https://www.metrotimes.com/news-hits/archives/2020/08/14/research-dives-.... there should be no acceptable risk to our greatest natural resource

Yooper4
Wed, 09/09/2020 - 12:08pm

What about all the oil that the Toledo refineries get from Line 5 that makes it's way back into SE Michigan as jet fuel and gasoline? This was from the Toledo refineries recent letters to State officials. What about 250 million gallons plus of refined propane this comes back to SE Michigan from Line 5 after it delivers this 'highly volatile' material to Ontario? The Marathon facility you mentioned only has the ability to produce enough fuel for about 1/3 of Michigan's daily use. The other regional refineries (including the 2 in Toledo) produce this product to make up the difference to make Michigan whole. Based on your argument, all the refineries in Ohio and Illinois (that make up this 2/3 gap) should not allow any of their petroleum to be shipped and used in Michigan. You also fail to mention the Michigan produced crude oil that is injected into Line 5 in northern Michigan. What about those family sustaining private oil leases? Costs to truck or rail that oil to Marathon or other refineries would put them out of business. Also failed to mention the significant tax dollars that Enbridge pays to counties in which the pipeline passes. Local county commissioners and school administrations all along the route have publicly stated that if those tax dollars go away, their public services will be greatly slashed.! Is that what we need to come out of this economic depression due to COVID?

butch krumenaker
Tue, 09/08/2020 - 11:45am

What does the people of Michigan get from this pipeline. other than all the risks of an environmental disaster ! Does this crude go to Michigan OR just to Canada ? How much natural gas stays in Michigan and how much goes to Canada ? Are we the people of Michigan taking all the risks because Embridged has bought off the Government of Putin (Michigan Branch), and we are saving them money by going thru the

Bek
Tue, 09/08/2020 - 12:27pm

Big Gretch, here is your couplet for the day:
Stop the appeasement
Revoke the easement.
Thank you

Don
Tue, 09/08/2020 - 2:20pm

Who had to pay to clean up Enbridge last spill in Michigan<<<< The courts ruled for Enbridge and made the people of Michigan pay!!!

Yooper4
Wed, 09/09/2020 - 12:11pm

This is a false statement. Enbridge paid for all cleanup costs associated with their 2010 spill and this included paying for the State and Federal govt's and their resources they used to manage and assist in the cleanup. Please provide a factual source of your statement if you feel I am in error.

Alex Sagady
Tue, 09/08/2020 - 4:13pm

>>>>>>Nessel lost one case challenging the constitutionality of the tunnel law.

That is not an accurate rendition of what happened.

Enbridge sued multiple State of Michigan entities and Governor Whitmer seeking to enforce agreements between the State of Michigan and Enbridge and to enforce the 'tunnel authority law,' PA 359 of 2018.

As a defense to that litigation, AG Nessel sought a declaratory ruling that PA 359 of 2018 was unconstitutional. AG Nessel's defense was rejected by the Michigan Court of Claims and the Michigan Court of Appeals, and Enbridge won the case. AG Nessel did not appeal the case to the Michigan Supreme Court.

Leona
Tue, 09/08/2020 - 4:23pm

The long term oversight and maintenance needed to ensure the integrity of the pipeline were neither realistically considered or the dire consequences when the pipelines failed. Profits were reveled; maintenance and repairs ignored, designated funds for oversight disregarded. Too long ignored, pipeline conditions now dangerous and threatens the health and life of the Great Lakes. The risk of death and poisoning due to human greed and neglect, because lack of oversight, and willful neglect cannot not be tolerated any longer. Close the pipelines!

Independent
Wed, 09/09/2020 - 7:59am

As far as I am concerned the whole issue centers around an obligation/requirement which Enbridge has a responsibility to demonstrate and carryout ; DUE CARE , meaning the risk(s) involved in their proposed operation are of a "reasonable" , MANAGEABLE scope relative to the place and community in which it would or does operate............ The old line is showing to be increasingly problematic to have in operation... AND the risk involved in doing so for the people and environment most directly connected to the place in which it is operated should properly be evaluated as to extensive to be acceptable...!!!.!!! The proposed new line ; which is meant to carry larger volume at higher pressure (not just replace the capacity of the existing line!!!!)would bring with it a risk level so extensive ; that if it EVER fails the amount of pollutants and the resultant affects will mean extensive IMMEDIATE IRREPARABLE damage to the straights AND BEYOND!!!! THEY AREN'T WORTH THE RISK

E Miller
Wed, 09/09/2020 - 8:59pm

A safe tunnel sounds much better than a buried pipe. It would be able to be serviced and from what I read traffic can use this tunnel which would allow travel to and from the up safer. We need less people causing problems and more people solving problems, if you can't offer a better solution move along.