Lawyers for Michigan argue to keep Enbridge Line 5 closed for safety

Michigan regulators want to shut down Line 5, a gas pipeline that passes under the Straits of Mackinac. (Bridge file photo)

Line 5 will remain closed until further notice, after a judge declined to rule from the bench Tuesday on whether Enbridge can resume operating the petroleum pipeline in the Straits of Mackinac despite state officials’ concerns following damage to the pipeline. 

The hearing Tuesday before Ingham County Circuit Court Judge James Jamo comes days after Jamo ordered the pipeline temporarily shuttered at the request of Attorney General Dana Nessel, following Enbridge’s discovery June 18 of “significant damage” to the dual span pipeline’s east leg. 

After listening to more than four hours of debate Tuesday between lawyers for the state and Enbridge, Jamo said he needs time to review the issue before deciding whether the shutdown should continue.

“I will do so keeping in mind the urgency that everyone has tried to impress upon me,” he said. 

After Enbridge discovered the damaged anchor support June 18, the company stopped transporting oil and natural gas across the Straits while crews investigated. Two days later, Enbridge resumed operations on the west leg without seeking the state’s approval. 

In response, Gov. Gretchen Whitmer blasted the move in a letter to the company’s CEO, and Nessel successfully petitioned Jamo for a restraining order temporarily shutting down the pipeline. She also sought an injunction to keep the line closed until Enbridge turns over key documents pertaining to the incident and demonstrates to the state that it is safe to reopen.

During Tuesday’s hearing, lawyers for the state and Enbridge presented competing arguments over whether Jamo should grant the injunction. 

Nessel requested the temporary shutdown in connection with a broader lawsuit she has filed in hopes of permanently shutting down the pipeline. Jamo has given no indication of when he will rule in the larger case.

In Tuesday’s hearing, state lawyers asked Jamo to order two things: That Enbridge provide the state with all the available information about the recently-discovered damage, including an explanation of what caused the damage and how Enbridge will prevent future incidents; and that both spans of the pipeline remain closed until Enbridge “affirmatively demonstrates” it can safely resume operations. 

Enbridge maintains the west leg can operate safely. Company lawyers told Jamo that inspections revealed no damage to the west leg, although divers noticed a patch of bare pipe that would normally be covered with mussels and other organisms. 

Enbridge argues the missing mussels bear no relationship to the damaged anchor support on the east line. Instead, they said they suspect a “cable or other similar object” brushed across the west leg as it dangled from a boat traveling eastward across the Straits — an event that likely also caused damage that Enbridge reported in May to coating on the pipeline’s east leg

State lawyers said they aren’t satisfied with Enbridge’s assurances that the west line is safe, because the company hasn’t provided the state with enough evidence to prove that point.

The state based its arguments for a shutdown in a 1953 easement granting Enbridge permission to site the pipeline in the straits. Under that agreement, Enbridge must practice “due care” in its operation of the Straits segment. State lawyers argued they cannot enforce that requirement without more clarity from Enbridge about the circumstances surrounding the damaged anchor support and missing mussels.

Particularly concerning to the state, Assistant Attorney General Robert Reichel said, is the fact that Enbridge has not determined exactly what hit the anchor support on the east leg, or when. Reichel said that raises questions about whether Enbridge is capable of quickly detecting and addressing future pipeline damage, “which, needless to say, from the state’s perspective is extremely concerning.”

Enbridge lawyer William Hassler conceded Tuesday that Enbridge officials don’t know when the anchor support was damaged, but they believe it occurred sometime in the past year. Hassler said Enbridge officials suspect an object dangling from “a vessel of modest size” struck the anchor support. Such a vessel, he said, is incapable of damaging the pipeline so badly that it couldn’t safely operate.

“The weight of any object it would drag is much, much, much less than the pipeline’s ability to resist that force,” Hassler said.

Enbridge, for its part, contends that federal regulation of interstate pipelines under the Pipeline Safety Act leaves the state with no authority to regulate Line 5’s safety, and thus no grounds to ask Jamo for a temporary shutdown. Regulatory duty lies with federal regulators in the Pipeline and Hazardous Materials Safety Administration, or PHMSA, Enbridge attorney David Coburn argued Tuesday.

“Duplicative state regulation will only enhance conflict and confusion,” Coburn argued. “It won’t enhance safety.”

Coburn and Hassler noted that PHSMA officials reviewed video footage and technical information pertaining to the recently-discovered damage and concluded the west leg can safely reopen. Enbridge officials have said they will not reopen the east leg without first notifying the state and gaining PHMSA’s consent.

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In court filings, Enbridge lawyers said the company is stepping up safety protocols to prevent future damage, including deploying at least one additional boat to conduct 24-hour patrols of Line 5.

But Reichel said the state has little faith in Enbridge’s safety systems.

“Those systems didn’t prevent the impacts that affected both the east line and the west line here,” he said. 

The controversy over Line 5’s safety comes as Enbridge pursues plans to replace the lakebottom dual-span with a new segment encased within a concrete-lined tunnel buried deep beneath the lakebottom, a move that it says would eliminate the possibility of a spill in the Straits. 

On Thursday, Coburn argued that the best way for the state to ensure the safety of Line  5 going forward is to “stop litigating and start supporting the tunnel agreement.”

The hearing Tuesday began hours after the Michigan Public Service Commission ruled that Enbridge must gain its approval before it can move the pipeline into the planned tunnel, when and if it is constructed. 

That ruling triggers a lengthy public review process during which the commission will consider a host of questions about the pipeline’s safety, design and environmental impacts, its usefulness to the public, and possible alternatives to the pipeline.

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Comments

Alex Sagady
Wed, 07/01/2020 - 12:38am

>>>>>The state based its arguments for a shutdown in a 1953 easement granting Enbridge permission to site the pipeline in the straits.

NOPE.
The 1953 Easement Agreement did NOT grant Enbridge permission to "site the pipeline in the straits." Permission to site pipelines is a power held exclusively by the Michigan Public Service Commission (MPSC) and it was MPSC in 1953, not the Department of Conservation (MDNR predescessor), that granted permission to site Line 5 in the Mackinac Strait.

What the 1953 Easement Agreement with the Department of Conservation did was to provide a real estate agreement between Lakehead Pipeline Company and the Department of Conservation allowing Lakehead Pipeline Company to occupy state-owned bottomlands in the Mackinac Strait. At this point, all of the provisions of the 1953 Easement Agreement addressing matters of pipeline physical design, operations and maintenance are supplanted and preempted by federal pipeline regulations since the 1970s under the Pipeline Safety Act and predecessor federal pipeline law for interstate pipelines.

Note also that nothing in the 1953 Easement Agreement provides for orders for pipeline shutdown, and the only process spelled out is one for termination of the Easement, which is NOT what was argued in today's court proceeding. Remember that the attorney general is hardly in a position to claim the 1953 Easement Agreement is the basis for a pipeline shutdown order when her fundamental position is that the 1953 Easement Agreement is void from its inception.

Legal Beagle
Wed, 07/01/2020 - 12:35pm

"Remember that the attorney general is hardly in a position to claim the 1953 Easement Agreement is the basis for a pipeline shutdown order when her fundamental position is that the 1953 Easement Agreement is void from its inception." Of course she can. It's called arguing in the alternative. It's done all the time.

Alex Sagady
Sat, 07/04/2020 - 12:54am

The Attorney General can argue anything she wants. She has argued that
Wixom Lake levels remain high to protect mussels and clams in a manner that
jeopardized public safety.

But if she motions the Judge Jamo's court for a safety-based TRO and preliminary
injunction based on alleged authority contained in the 1953 Easement, and the Court subsequently
finds that the 1953 Easement Agreement is "void from its inception" as the Attorney General claims,
then any such preliminary injunction must dissolve because it was based on "authority" that didn't actually
exist......and any such turn of events becomes a part of a powerful argument to reverse on appeal, or to
remove the entire case to federal district court under federal preemption jurisdiction over all matters
addressing interstate pipeline safety.

Jim tomlinson
Sun, 07/05/2020 - 12:54pm

Its almost as if the right is cheerleading for the catastrophe that is inevitable rather than error on the side of caution. How would the right respond to a spill on that woman from Michigan’s wAtch? The right is in it to deny safety and promote fossil fuels while playing politics with the two women from michigan. What would embridge do when the catastrophe happens, the cost to remediate if possible exceeds their resources? Tgey’d walk away declare bankruptcy, there management would retire well. The public and the state would be left to deal with the fatal blow. The right would hang it around the women’s necks in order to reassert gop hegemony continue their zeal to strip Michigan of its public assets

Let People Decide
Wed, 07/08/2020 - 11:23am

There should be a referendum on the November ballot to shutdown Line 5. 1,000 to one odds the people of Michigan will vote to shut it down.

Anonymous
Wed, 07/08/2020 - 12:00pm

Alex, it seems you are pathetically grasping at straws trying to make your legal argument in the comment section of Bridge. The real courts will decide, not some peanut gallery. You look desperate and it doesn't bode well for your case or the court of public opinion, but hey, nice try. Thanks for giving it the old college try. It must be tough arguing for an irresponsible, unscrupulous, greedy foreign company like Enbridge in a state where most people don't want their hazardous risks to our environment and that of our children, grandchildren, great grandchildren.

Love Lakes
Wed, 07/01/2020 - 4:13am

Glad to know there are lawyers working for us, We the People. Shut down Line 5 permanently.

Don
Wed, 07/01/2020 - 8:39am

Remember the Enbridge spill in Michigan a few years ago??
The right wing controlled court rule that the people of Michigan had to pay the Millions to clean up Enbridge mess NOT Enbridge!!!!

Memories
Wed, 07/01/2020 - 12:27pm

Yes, but maybe some people who like Enbridge forgot. The Kalamazoo River oil spill occurred in July 2010 when a pipeline operated by Enbridge (Line 6B) burst and flowed into Talmadge Creek, a tributary of the Kalamazoo River. A 6-foot (1.8 m) break in the pipeline resulted in one of the largest inland oil spills in U.S. history (the largest was the 1991 spill near Grand Rapids, Minnesota). The pipeline carries diluted bitumen (dilbit), a heavy crude oil from Canada's Athabasca oil sands to the United States.[1] Cleanup took five years.[2] Following the spill, the volatile hydrocarbon diluents evaporated, leaving the heavier bitumen to sink in the water column. Thirty-five miles (56 km) of the Kalamazoo River were closed for clean-up until June 2012, when portions of the river were re-opened. On March 14, 2013, the Environmental Protection Agency (EPA) ordered Enbridge to return to dredge portions of the river to remove submerged oil and oil-contaminated sediment. Is it even clean today?????? I wouldn't fish there.

Anonymous
Wed, 07/01/2020 - 1:07pm

What are you talking about? Nothing in your comment is true.

Alex Sagady
Wed, 07/01/2020 - 7:30pm

>>>>>>The right wing controlled court rule that the people of Michigan had to pay the Millions to clean up Enbridge mess NOT Enbridge!!!!
Your comment is false. First, it was President Obama's EPA and Justice Department that
took the case up for penalties, fines and cleanup orders against Enbridge, including
requiring measures going beyond Pipeline and Hazardous Materials Safety Administration
requirements for the entire Lakehead pipeline system, not just for Line 6b that spilled
into the creek leading to the Kalamazoo River.....and there was no expenditure of millions by
the public to cleanup that disaster....that was required of Enbridge.

Yes, Judge Quist was a republican appointed federal judge, but he ordered the consent agreement
between the Obama EPA/Justice Department and Enbridge, since achieving that agreement was
the right thing to do and surely merited bipartisan support.

No thanks
Wed, 07/08/2020 - 11:19am

With your hard work and advocacy for Enbridge, the US could become Duerte's Philippines. There's really much more to life than selling out to the highest bidder.