Michigan judge rules Enbridge Line 5 construction is constitutional

LANSING — A state judge on Thursday handed Enbridge Energy a victory in its quest to build a tunnel around its Line 5 oil and gas pipeline in the Straits of Mackinac. 

Michigan Court of Claims Judge Michael J. Kelly ruled that the Republican-led Legislature did not violate the Constitution when it enacted a 2018 law creating an authority to oversee and operate the tunnel. 

The ruling sides with the Canadian pipeline giant in its request to uphold a series of agreements made last year with Republican Gov. Rick Snyder to replace the Straits pipelines and bury new lines in a bedrock tunnel expected to cost Enbridge $500 million. It comes as Attorney General Dana Nessel is separately suing to shutdown the pipeline

The ruling could pave the way for that project to proceed, but Nessel vowed to appeal. 

“The State of Michigan will not rely on a foreign corporation to protect and preserve our state’s most precious resource, its Great Lakes,” she said in a statement Thursday.

In the same statement, Nessel accused Enbridge of misrepresenting its financial holdings when entering the tunnel deal with Snyder’s administration — an issue that concerns whether the company would cover the cost of a potential oil spill. Nessel released a 120-page report her office commissioned on the issue.

Enbridge sued the state earlier this year after Democatic Gov. Gretchen Whitmer — Snyder’s successor — halted work on the tunnel plan in late March. Whitmer’s move came after Nessel, in a legal opinion, found the law creating a tunnel oversight board unconstitutional. 

Both Nessel and Whitmer campaigned on shutting down the pipeline, and they opposed the deal with the Snyder administration that was finalized during his final days in office.

The pipeline transports up to 540,000 barrels of light crude oil and natural gas liquids per day from Superior, Wisconsin, to Sarnia, Ontario. That includes 547 miles across Michigan and 4.5 miles beneath the Straits, where it branches into two lines.  

Enbridge calls the pipeline crucial to delivering fuel across the region and argues a shutdown would particularly harm the Upper Peninsula, which draws much of its propane from the line. Environmentalists and other concerned citizens fear that a rupture, however slight the possibility, would create a catastrophe in the Great Lakes. They argue tunnel construction would take too long and keep oil flowing through the Straits in perpetuity.

On Thursday, Kelly ruled on arcane questions that don’t touch on the environmental debate. Essentially, the dispute asked whether lawmakers in 2018 knew what they were voting on in creating a board to oversee the tunnel.

Yes, Kelly ruled, in the latest chapter of a complicated legal drama. 

During his final weeks in office in December, Snyder signed Public Act 359 to create the Mackinac Straits Corridor Authority to oversee construction and operation of the tunnel. He immediately made appointments to the authority’s three-member board, which approved a series of tunnel related agreements with Enbridge.

The legislation’s passage, the board’s creation and its signed agreement with Enbridge came in a matter of days, leading to complaints from Democrats and environmentalists that language in the law and was poorly vetted, if lawmakers had any time to read it.

Initially, Snyder’s plan hinged on the Mackinac Bridge Authority, an independent state agency that oversees the iconic bridge, owning the 4-mile, 12-foot in diameter tunnel and leasing space to Enbridge for 99 years.

That prompted overwhelming opposition, prompting Republicans to reshape the law. But rather than scrapping the original bill, Republicans — to save time during the fast-moving lame duck session — re-wrote it, keeping the Mackinac Bridge Authority in the bill's title as a body authorized to acquire the new “utility tunnel."

The bill was written so that the Mackinac Bridge Authority would immediately transfer all of its initial powers over the tunnel — including acquisition construction and operation —to the newly created corridor authority board.

In doing so, Nessel argued the Legislature violated the “title-object” provision of the 1963 Michigan Constitution, which is meant to give lawmakers clear notice of what they’re voting on. And she argued courts would see the violation as too large to keep the corridor authority intact.

Kelly disagreed, calling the law’s contents “well known, as evidenced by the strong policy-based reactions the Act has drawn.”

“Regardless of whether the Court agrees with defendants about the lack of tidy draftsmanship, the argument advanced by defendants misses the mark,” Kelly wrote. 

Enbridge has taken steps to keep its timeline for the tunnel intact — should the company resolve all the legal issues. That including boring into the Straits bedrock in July to collect rock samples

The company obtained the state and federal permits for the geological work before its feud with the state escalated recently over tunnel plans. The company said it could finish the tunnel by 2024.

Enbridge applauded the ruling on Thursday. 

“We are reviewing the decision and may have further comment,” spokesman Ryan Duffy said in a statement. “Enbridge remains fully committed to the Great Lakes Tunnel project.”

In her vow to appeal, Nessel also accused Enbridge of misrepresenting its financial holdings when making the tunnel deal. The statement linked to an Oct. 29 report commissioned by her office that probes whether Enbridge would foot the bill for a cleanup were Line 5 to rupture. 

In a 2018 deal with the Snyder administration, certain Enbridge business entities agreed to fund $1.878 billion in potential damages in an oil spill. 

The new report from Wisconsin-based American Risk Management Resources found that parent company Enbridge Inc. could foot the bill. But Enbridge Inc. didn’t technically sign the agreement with the state — only its U.S. subsidiaries did. 

And “the U.S. based Signatories would not have enough resources to fund a loss event of this magnitude,” the report found — unless the parent Canadian company voluntarily bailed them out.  

According to the report, Chris Johnston, Chief Financial Officer of Enbridge Energy Partners, L.P,  told the Minnesota Public Utilities Commission in 2017 that Enbridge parent company isn’t obligated to honor assurances from its subsidiaries. 

“In the event of a catastrophic oil spill, the people of the state of Michigan could be left holding the bag for more than a billion dollars in unfunded liability,” Nessel said of the report.

Duffy, the Enbridge spokesman, did not immediately respond to questions about the report. 

The pipeline’s environmental opponents lamented the Thursday’s ruling.

"We are tremendously disappointed that the Court of Claims allowed this lame duck law to stand, and look forward to seeing the case go to the Michigan Supreme Court," Sean Hammond, policy director for the Michigan Environmental Council, said in a statement. "Despite this ruling, we ask Gov. Whitmer and AG Nessel to continue to use every legal tool at their disposal to end the massive risk to our Great Lakes posed by Line 5 as soon as possible."

In a tweet, House Speaker Lee Chatfield, R-Levering, called the ruling “great news for thousands of Michigan’s families & our statewide economy.”  

“With this ruling, people will have peace of mind that they are not going to be left out in the cold this winter by political gamesmanship. We need these jobs. We need this tunnel. Let's get it built,” he wrote. 

Meanwhile, Nessel is suing to shut down the pipeline in a separate lawsuit

Filed in Ingham County Circuit Court, the lawsuit calls the pipeline “a continuing threat of grave harm to critical public rights in the Great Lakes,” and seeks to void a 1953 easement that allows Enbridge to run the pipelines across state-controlled bottomlands in the Straits. 

The filing calls for Line 5 to stop flowing “as soon as possible after a reasonable notice period” and to allow officials to permanently decommission the lines.

Enbridge has taken steps to keep its timeline for the tunnel intact — should the company resolve all the legal issues. That including boring into the Straits bedrock in July to collect rock samples

The company obtained the state and federal permits for the geological work before its feud with the state escalated recently over tunnel plans. 

Enbridge officials say they could finish the tunnel by 2024.

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Comments

Dude
Fri, 11/01/2019 - 10:09am

It is good news for both sides that a judge has ruled in favor of the tunnel. The need for a tunnel across the straight is WAY overdue for these 60 year old lines. Legal wrangling could drag on for years with both sides trying to win their case. In the meantime, 500,000 gallons a day flows through the 60 year old lines. These lines are just on the bottom of the lake. The tunnel will be well below the lake bottom and directionally-drilled into the bedrock. The tunnel itself will be encased in grout. There will be no chance of a leakage from the tunnel as it will have a maintenance service drive and collection system. Still if these were to fail somehow, the tunnel would still hold the leakage and not allow it into the lake. The tunnel engineering should begin immediately and construction should quickly follow. Meanwhile Enbridge could work with the state to lower pumping pressures and put more resources towards tunnel project to get it to completion more quickly. In addition, there are other portions of Line 5 that also need remediation and they are just as important as the tunnel. As for the comment from Nessel that this would allow oil to flow "in perpetuity", it's misleading. Any remediation of the pipeline would have a service life in excess of 50 years and we all know that 50 years from now, oil and gas will not be the primary energy sources they are now. Alternative energy will have almost completely taken over well before 50 years from now.

Shut it down now!
Sat, 11/02/2019 - 10:01am

So shut it down now. The risk is too great to wait for a tunnel promised by Canadian Enbridge with it's untrustworthy history of disasters in America, including a huge one here in Michigan on the Kalamazoo River.

https://beltmag.com/kalamazoo-river-line-6b-oil-spill/

Kishauwau
Sun, 11/03/2019 - 2:59pm

It’s time to quit filling up our cars with earth discharge. United States doesn’t need to be a conduit for oil to Canada

Integrity testing is bullshit!

Government needs to change

Jim Katakowski
Tue, 11/05/2019 - 10:27am

No chance for a leak are you dreaming? If 50 years from now alternative energy will take over why not start that now, Dude.

Myla
Fri, 11/01/2019 - 10:15am

Let Enbridge go ahead with their tunnel plans, BUT shut down the pipelines immediately. That way, the lakes are protected now. Of course, I suspect that they’ll then lose interest, because the value to them will be too far in the future and not worth the cost.

Exactly
Sat, 11/02/2019 - 7:46am

Agreed. Shut the pipeline down NOW. If Enbridge could be trusted, it would have built the proposed tunnel BEFORE the expiration date of the current pipeline. Enbridge lies again and a again and can't be trusted. We can't afford ANOTHER Enbridge catastrophe.

We now live with the consequences of Snidely Snyder, Moscow Mitch, and Benedict Trump. FOLLOW THE FOREIGN MONEY.

George
Fri, 11/01/2019 - 11:13am

I supported and voted for both Dana Nessel and Gretchen Whitmer on the basis of their vow to stop the pipeline. Now it simply sounds like they each made a statement that politicians make in order to get elected (Mexico will pay for the wall), and it looks like Schuette and Snyder had more political and legal savvy than our current office holders. Both Bill and Rick are gone now but their legacy will live on for an awful long time, and we'll all have to live with it and Enbridge.

Mrs A
Fri, 11/01/2019 - 11:19pm

How could Gov Whitmer and AG Nessel possibly know how Justice Kelly would rule? It's not like they can legislate by fiat - they are not the US president, after all. <SARCASM>

I hope that you might take heart that what has been created and passed by a Michigan legislature can be CHANGED by a Michigan legislature. If Michiganders focus on electing a climate-aware majority (of any party) (rescinding the present gerrymandering will help), we can undo this knot and fix the situation. It's simply inevitable that Line 5 will shut down -- the people of Michigan hate this line, climate change is occurring and the fossil fuels causing it will be replaced, and there are other energy solutions for the UP. Change is slow and conflicted, but it is inevitable. The key worry is - will the pipeline hold out long enough to overcome the risk of an accident?

Bones
Fri, 11/01/2019 - 12:33pm

>Enbridge officials say they could finish the tunnel by 2024.

What a way to end the article, with one of Enbridge's most bald faced lies: "We hear the concerns of the people, that our ancient infrastructure poses at existential threat to the Great Lakes. That's why we're promising an absolute rush job that guarantees to cut as many corners as possible to get people off our backs."

Jonah212
Fri, 11/01/2019 - 3:09pm

Such a sad finding by a judge to a deal that was concocted in secret by former Gov. Snyder, the Republicans in the House and Senate for something that can ruin the lakes should there be a leak in the current pipeline or in the tunnel, if ever built. And, just today, there was news of a large spill from the Keystone Pipeline in N. Dakota. Isn't that an inspiration for a 60 year old pipeline owned by a company that ignored the massive leak into the Kalamazoo River some years ago.
I would still love to know what Enbridge promised Snyder and his minions for the fast, secret deal for the tunnel? The AG should investigate that secret scenario!

dondeibert@char...
Fri, 11/01/2019 - 5:45pm

This article seems to focus on the attorney generals views with no information provided
about why the Court of Claims decided to authorize going forward on the project.

Arjay
Fri, 11/01/2019 - 5:59pm

Jobs, total containment, improved inspection efficiency, safety, and did I mention, jobs. What’s not to like? Whitmer and Nessel should be ashamed of themselves for even attempting to scuttle the tunnel.

Rick
Mon, 11/04/2019 - 12:29pm

Canadian Jobs? Canadian profits? That's what's going on here in case you didn't notice.
AND guess who gets to pay when there's a leak and a huge mess. Michigan Taxpayers.
I guess you didn't notice that either.

middle of the mit
Fri, 11/01/2019 - 8:53pm

[[“The State of Michigan will not rely on a foreign corporation to protect and preserve our state’s most precious resource, its Great Lakes,” she said in a statement Thursday.]]

According to Republicans, foreign corporations are more trustworthy than the US Government or the State Government unless Republicans are in control.

And since Republicans did this;
[[Initially, Snyder’s plan hinged on the Mackinac Bridge Authority, an independent state agency that oversees the iconic bridge, owning the 4-mile, 12-foot in diameter tunnel and leasing space to Enbridge for 99 years.

That prompted overwhelming opposition, prompting Republicans to reshape the law. But rather than scrapping the original bill, Republicans — to save time during the fast-moving lame duck session — re-wrote it, keeping the Mackinac Bridge Authority in the bill's title as a body authorized to acquire the new “utility tunnel."

The bill was written so that the Mackinac Bridge Authority would immediately transfer all of its initial powers over the tunnel — including acquisition construction and operation —to the newly created corridor authority board.

In a 2018 deal with the Snyder administration, certain Enbridge business entities agreed to fund $1.878 billion in potential damages in an oil spill.]]

And then a report said this;

[[The new report from Wisconsin-based American Risk Management Resources found that parent company Enbridge Inc. could foot the bill. But Enbridge Inc. didn’t technically sign the agreement with the state — only its U.S. subsidiaries did.

And “the U.S. based Signatories would not have enough resources to fund a loss event of this magnitude,” the report found — unless the parent Canadian company voluntarily bailed them out. ]]

And then Enbridge said this;

[[According to the report, Chris Johnston, Chief Financial Officer of Enbridge Energy Partners, L.P, told the Minnesota Public Utilities Commission in 2018 that Enbridge parent company isn’t obligated to honor assurances from its subsidiaries.

“In the event of a catastrophic oil spill, the people of the state of Michigan could be left holding the bag for more than a billion dollars in unfunded liability,” Nessel said of the report.

Duffy, the Enbridge spokesman, did not immediately respond to questions about the report. ]]

They didn't immediately reply to the report? It is now almost 2020. Have they made a statement since?

I suggest that the Michigan GOP should have a fund set up to replace any losses from said companies that have restrictions, rules, or regulations eased. If there are no problems, you shouldn't have problem with it. Put your money where your easing of regulations is. Then we might not have a ton of toxic superfund sites in the State that is surrounded by the greatest concentration of fresh water in the world.

Take responsibility. Enbridge already said they wouldn't.

Did you see that the Keystone pipeline was leaking?

https://time.com/5716106/keystone-pipeline-leak/

Why doesn't Canada want the oil line in their country? That's where it ends up.

Enbridge Line 5 is a major oil pipeline in the Enbridge Lakehead System, which conveys petroleum from western Canada to eastern Canada via the Great Lakes states. Line 5 is particularly notable for passing under the environmentally sensitive Straits of Mackinac, which connect Lake Michigan to Lake Huron. As of December 2013, the line carries of oil per day. It carries synthetic crude, natural gas liquids, sweet crude, and light sour crude.Wikipedia

Joe
Sat, 11/02/2019 - 7:18am

It’s interesting to note that former Democratic Governor Jim Blanchard made a statement a couple weeks ago in favor of the tunnel. Citing both the cost and timeline of the judicial procedure to stop the tunnel, the construction and payments from Enbridge would be reality by the time the judicial process played out. It should also be noted that the former governor sat on the Enbridge board of directors for many years after he left office. While many of the arguments against the tunnel cite the very real environmental concerns, there is nothing in place currently to replace the dependence upon fossil fuels. Perhaps the intelligent direction for the current Govenor and
A G would be policies and incentives to develop alternatives to our fossil fuel dependency.

Anonymous
Sun, 11/03/2019 - 12:20pm

two huuuuge problems with the proposed tunnel project. last year Enbridge said ten to seven years and snyder agreements said the twin pipelines could continue to pump in the open waters. these agrements, now reinstated by the decision, provided that technical problems and guaranteed permitting challenges would delay the project. In august, 2017 enbridge siad such delays would be "significant". so the twin pipelines, now conveniently held 2-4 feet off the lakebed to accomodate the next anchor drag, will continue to pose an indefinite high risk to our most precious natural resource.
the second problem is that noting in PA359 of 2018 requires replacement of the other 640 miles of Line 5, all in the great lakes basin with an even greater risk of rupture than the straits section. why take any risk of any kind to get canadian oil to sarnia? Rapid River gets only 1300 barrels of propane and detroit marathon get 33,000 barrels of crude each day while the other 505,300 barrels go to sarnia.

Matt
Mon, 11/04/2019 - 8:06am

Do you know whether the crew that illegally drug it's anchor over the pipeline was prosecuted? What prison are they in for this near existential crime? Interesting point of view here that the innocent party in this assault is the one that the mob here wants to see punished. Is this your normal approach or just when you don't like the victim or is the just a ruse for something else?

middle of the mit
Tue, 11/05/2019 - 8:20pm

I am unsure of whether the company or captain was held accountable. The mere fact that Enbridge now knows this is a possibility and has yet take any action to prevent future compromise says something about their business model. It's the same for every utility company. Get as much profit off of existing infrastructure and don't replace until it fails or the public demands it.

Guess what? The public is demanding it because we do not want a Kalmazoo river or BP oil spill in OUR GREAT LAKES!

Sorry for victim blaming. Maybe you could remember that the next time you start saying something about disgruntled employees?