Enbridge to Michigan: We won’t shut down Line 5

State officials have faced mounting pressure to revoke an easement that gives Enbridge permission to operate Line 5 in the Straits of Mackinac since last summer, when the company revealed “significant damage” to the underwater petroleum pipeline. (Shutterstock)

Enbridge Energy will not comply with Gov. Gretchen Whitmer’s order to shut down the controversial Line 5 pipeline by May, a company executive told state officials Tuesday.

 

In a letter to Whitmer and Department of Natural Resources Director Dan Eichinger, Vern Yu, Enbridge’s executive vice president and president of liquids pipelines, questioned Michigan’s rationale for ordering the shutdown and maintained that “the Dual Pipelines will continue to operate safely until they are replaced on completion of the Tunnel Project.”

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Enbridge is awaiting permits in that project, which aims to replace the aging dual span pipes at the bottom of the Straits of Mackinac with a new pipe running through a tunnel beneath the lakebottom. Enbridge officials have said they plan to start building the tunnel this year and finish by 2024, but the company is still awaiting state and federal permits it needs to begin construction.

Citing a litany of easement violations and broader concerns that the pipeline poses a dire risk of an oil spill, Whitmer notified Enbridge in November that she was revoking and terminating the 1953 easement that allows the company to operate Line 5 in the Straits. Whitmer ordered the Straits portion shut down by May. 

In a statement Tuesday, Eichinger called Enbridge’s letter an “attempt to power wash” a history of easement violations and said state officials “look forward to making our case in court, not via letters and press releases.”

“Enbridge cannot unilaterally decide when laws and binding agreements apply and when they do not,” Eichinger said. “We stand behind our efforts to protect the Great Lakes, and we stand behind the substance of the November 2020 revocation and termination of the Easement.” 

After campaigning for office in 2018 on promises to shut down Line 5, Whitmer had faced mounting pressure to act since the company revealed in June that the pipeline had sustained “significant damage” from what was later revealed to be a probable anchor strike from a vessel owned by one the company’s contractors.

 

In tandem with Whitmer’s shutdown order, state Attorney General Dana Nessel filed a lawsuit in Ingham County Circuit Court seeking to back up Whitmer’s action. 

“Enbridge has imposed on the people of Michigan an unacceptable risk of a catastrophic oil spill in the Great Lakes that could devastate our economy and way of life,” Whitmer said in a statement at the time. “That’s why we’re taking action now.”

Enbridge responded quickly with a federal lawsuit seeking a ruling that federal pipeline safety regulations trump Michigan’s authority over Line 5. The company has asked the U.S. District Court for the Western District of Michigan to dismiss Nessel’s Ingham County suit. 

But on Tuesday, Yu proposed an alternative to litigation: “Technical discussions” between the state, Enbridge and federal regulators to “better define the issues that the state believes require attention.”

Yu’s Tuesday letter claims the list of easement violations the state used to justify revoking the easement “ignores scientific evidence and is based on inaccurate and outdated information.”

Spokespeople for Whitmer and Nessel did not immediately respond to a request for comment on the letter.

Specifically, Yu contends the state’s list of alleged violations is based mainly on past issues that have been resolved, fails to acknowledge safety improvements Enbridge has made in the Straits, and misinterprets data about Line 5.

Line 5 opponents, however, contend that even if Enbridge has cleared up some past easement violations, the company’s long history of violations proves that it is incapable of operating Line 5 with the “due care” that the easement requires.

“Enbridge can claim that they’re in line with the easement right now,” said Sean McBrearty, coordinator of the anti-Line 5 coalition Oil & Water Don’t Mix, but repeated anchor strikes to the line prove that Enbridge cannot operate it safely. 

“The fact is, their long-term negligence is an incurable easement violation,” McBrearty told Bridge Michigan.

Mike Shriberg, regional executive director of the National Wildlife Federation, called Enbridge’s request for “technical discussions” an act of desperation.

“They see that they’re very likely to lose in the legal battle, so they're trying to head that off through a negotiation,” Shriberg said. “It seems like a desperate and destined-to-fail strategy.”

Enbridge proponents, meanwhile, lauded the company’s letter as further evidence that the pipeline is safe. 

“Line 5 is safe, and it means the difference between a job and the unemployment line for a lot of Michigan workers,” Geno Alessandri, business manager for the Michigan Laborers District Council, said in a statement. “The best solution is right in front of us, and it’s already been approved by an overwhelmingly bipartisan majority of the state legislature – build the Great Lakes Tunnel.”

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Comments

Anonymous
Tue, 01/12/2021 - 3:34pm

Enbridge is a foreign terrorist.

Anonymous
Tue, 01/12/2021 - 3:35pm

What happened to state's rights?

Matt
Tue, 01/12/2021 - 7:06pm

Instead of worrying about a hypothetical why doesn't Mike Shriberg and the National Wildlife Federation tell us what the wildlife death toll due to windmills looks like.

Bek
Wed, 01/13/2021 - 8:51am

Matt,
The situation with Line 5 is more than hypothetical- do you propose we wait until it breaks then decide it is a true threat?
Your comparison of Line 5 and bird strikes on turbines is a false equivalent.

John Chastain
Wed, 01/13/2021 - 8:59am

Classic deflection, so tell us Matt how many Michigan rivers have been damaged by windmill spills and what immediate danger do windmills pose to the waters of the Great Lakes? When it comes to Enbridge and its history of oil spills and significant environmental damages in the state of Michigan alone there is nothing “hypothetical” about it. But even apologists and shills for the fossil fuel industry know it’s only a matter of time before another major spill happens and all their noise are just delaying tactics.

Don
Wed, 01/13/2021 - 9:48am

NONE NO animals are killed by a windmill<<< you must be one of trumps anti-American supporters that was at DC to tray to take OUR government over !!!

Alex Sagady
Tue, 01/12/2021 - 8:27pm

>>>>>Whitmer had faced mounting pressure to act since the company revealed in June that the pipeline had sustained “significant damage” from what was later revealed to be a probable anchor strike from a vessel owned by one the company’s contractors.

That did not happen, and this article's claim is not a valid engineering description of what did happen.

Enbridge never claimed or said that either the east or west segments of the dual pipeline itself had any damage at all. They denied that a "probable anchor strike" caused the damage that did occur to a single pipeline support structure on one of the segments. They claimed that a cable being dragged from one of five possible vessels caused the damage to the single pipeline support structure (with 4 of the 5 vessels being Enbridge contractors).

>>>>>Whitmer notified Enbridge in November that she was revoking and terminating the 1953 easement that allows the company to operate Line 5 in the Straits.

The authorization by the State of Michigan for Line 5 to be constructed and operated is NOT found in the 1953 Easement Agreement. Instead, those authorizations were made in a 1953 decision by the Michigan Public Service Commission under Act 16 -PA 1929 -- that was affirmed by a decision of the Michigan Supreme Court and which is NOT being challenged by Attorney General Dana Nessel or Governor Whitmer.

The 1953 Easement is merely a permission by the State of Michigan for Enbridge to occupy state-owned bottomlands -- a "real estate" agreement, not an operating agreement. This is a distinction with a real difference that is directly pertinent to litigation addressing Line 5.

>>>>>> The company has asked the U.S. District Court for the Western District of Michigan to dismiss Nessel’s Ingham County suit.

Enbridge has removed the litigation that AG Nessel filed in November in Ingham County Circuit Court to U.S. District Court as is their right under the federal removal statute. Once such state court litigation has been removed to federal court, the state court no longer has any jurisdiction at all over the case.....and any dismissal granted is at the federal court level and not in state court at all. See 28 USC Chapter 89 here:
https://www.law.cornell.edu/uscode/text/28/part-IV/chapter-89

>>>>>>“Enbridge can claim that they’re in line with the easement right now,” said Sean McBrearty, coordinator of the anti-Line 5 coalition Oil & Water Don’t Mix, but repeated anchor strikes to the line prove that Enbridge cannot operate it safely.

This quote repeats the false narrative and mythology promoted by the author that there have been multiple anchor strikes to Line 5 -- a plainly false notion. There has only been
evidence of a single anchor strike incident in April 2018 that affected both Line 5
Mackinac Strait segments.

>>>>>>“They see that they’re very likely to lose in the legal battle, so they're trying to head that off through a negotiation,” Shriberg said. “It seems like a desperate and destined-to-fail strategy.”

This claim is nonsense since there is no case law under the Federal Pipeline Safety Act
that supports Governor Whitmer's and AG Nessel's position in any way, shape or form. Pipeline safety for interstate pipelines is solely a matter of federal DOT-PHMSA jurisdiction under a federal statutory preemption -- meaning it is far more likely that Enbridge will win its case in Federal District Court than it will be for Gov. Whitmer and AG Nessel to prevail. See. for example, Olympic Pipeline v. Seattle here:
https://scholar.google.com/scholar_case?case=6779770317232965645&hl=en&a...

Spiracle
Wed, 01/13/2021 - 8:51am

What do you do Alex? You sound like their lawyer.
Enbridge has a notorious history of negligence. I was living in Kalamazoo when the river was contaminated by these guys who didn't respond for hours as oil poured into the river. They don't care about us at all.

SJG
Wed, 01/13/2021 - 8:54am

I do appreciate when someone takes the time to fix the Bridge hit pieces.

A cookie for you
Wed, 01/13/2021 - 11:40am

Alex, you sure are earning your paycheck, but Whitmer promised us she would shutdown Line 5 when she ran for office and she won. She's just keeping her promise. Sorry for you, but happy for democracy.

leonard page
Wed, 01/13/2021 - 12:55am

OK let's consider the 1953 easement as "a mere real estate agreement" like a lease perhaps. this mere real estate agreement gives the tenant the right to trespass on state land only if it fulfills its written promises. the tenant has been constantly violating that lease for the past 68 years and you now have serious concerns your property will be destroyed. (Remember the Enbridge disaster in 2010 Marshal spill. governor whitmer's public trust duty requires that she protect our greatest natural treasure for future generations. She wisely revoked the lease in november but gave the tenant until may to move out. in january tenant now says no way. governor page would not wait until may. lease to be on stand land in no longer in effect. state troopers would be on the way now to the st. ignace pumping station to flip switches and turn dials until the pumps stop. so sue her again for refusing to risk the great lakes to serve as a shortcut to get 94% of the canadian oil product to sarnia. i'll even let enbridge pick the michigan judge and the michigan jury. for the next 4 years of litigation. in the meantime we avoid the worst case spill risk of some 2.5 million gallons (mich tech study of 2018)

Jim
Wed, 01/13/2021 - 9:17am

If a neighbor wanted to run an oil pipeline across my property and through the pond on my land, being a good neighbor I very well might grant permission. However, a legal document would demand that the neighbor would guarantee to assume all costs for cleanup for any leakage.
I want the same from Enbridge, an assurance to assume all costs of cleanup.
If the eventually leakage happens under the ice it will cause a lot of damage to the environment and to a lot of businesses in the tip of the mitt before it can be cleaned up. Until there is this guaranteed assurance the lines should shut down.
If the lines are as safe as Enbridge claims an insurance policy should be quite reasonable in cost.

leonard page
Wed, 01/13/2021 - 10:09am

mr. sagady refers to the now revoked 1953 easement as a mere real estate agreement to impy it is of no real import. why did lakehead need it in 1953 then - obviously the pipeline had to get the landowner's permission to put two 30 inch oil pipelines in the straits. the bottomlands are owned by the state in public trust for all future generations. the easement is a lease and governor whitmer revoked it in november -- based on 68 years of enbridge violations of its written promises. - what does theca landowner due when a bad tenant has the potential to destroy the property where the lease no longer exists?. mich tech study of 2018, paid for by enbridge, predicts a 2.5 million gallon worst case spill. a level of devastation beyond comprehension. , the tenant says if will not leave --even with 6 months advance notice. ok it's time to remove the bad tenant ---right now. send the troopers to st. ignace to shut down the pumps. remove the trespasser from the state land.

CM
Wed, 01/13/2021 - 1:02pm

Allow Enbridge to move forward with the underground replacement pipelines, so the lake bottom pipeline can be decommissioned. All Whitmer and Nessel have done is delayed the replacement process putting the GL at further risk.

A Yooper
Thu, 01/14/2021 - 10:06am

If they don't do it, then send in the State Police to do it at the pumping stations as the Straits?

Yooper4
Thu, 01/14/2021 - 10:39am

"Another interesting quote from the DNR Director, “Enbridge cannot unilaterally decide when laws and binding agreements apply and when they do not,” Eichinger said."

It seems to me that Enbridge is following all binding agreements? In 2018 they agreed to build the tunnel with the State of Michigan. At that time the State also said that they were in compliance with the 1953 easement. The State is now staying the easement hasn't been valid since 1953 since the State 'screwed up' and didn't do an adequate 'public trust' analysis. What about the prior 16 State administrations since 1953 who had no problem or issues with the validity of the agreement, but this one does? This is all politics...