Michigan Truth Squad: Bill Schuette talks tough on Line 5 pipeline

A diver for Enbridge Energy inspects the Straits of Mackinac pipeline. (Photo courtesy Enbridge Energy)

Attorney General Bill Schuette is facing criticism from environmentalists who say he hasn’t done everything in his power to shut down Line 5, a 645-mile oil pipeline that crosses the Straits of Mackinac.

In Michigan politics these days, one environmental issue seems to trump all others: Line 5.

The 645-mile oil pipeline has become a magnet for environmental concerns. That’s largely due to its age (65-years old); the checkered transparency record of its Canadian owner, Enbridge Energy; and because its section of twin pipelines stretches beneath Straits of Mackinac, the gateway between Lake Michigan and Lake Huron.

No party has a monopoly on concerns about Line 5. Top Republicans and Democrats have called for greater protections in the Straits.

But how best should Michigan protect its waters from the risk of a potential Line 5 leak? That’s where political opinion tends to diverge.

Environmentalists and many Democrats have called for a shutdown, while top Republicans such as Gov. Rick Snyder and Attorney General Bill Schuette have endorsed the idea of instead building a concrete tunnel around the line to protect it from a leak.

Now, an environmental advocacy group is claiming Schuette’s tough talk about the line doesn’t match his actions. In an online campaign, the Michigan League of Conservation Voters says Schuette, a Republican campaigning for governor, has the power the shut it down and hasn’t done so.

The claim is mostly accurate. While it’s true that Schuette hasn’t sued to stop the pipeline, the assertion omits information about how the attorney general has sought to mitigate the risks of the line –  and in doing so may mislead voters into believing he’s done nothing.

The Claim

On a webpage aimed at Schuette, the environmental group quotes Schuette as saying Line 5’s “days are numbered,” and says he hasn’t capitalized on his authority as Michigan’s top lawyer.

“Despite all of his stated concern about the pipeline, to date, Schuette has taken no concrete action to shut it down,” the website says. “As Michigan’s Chief Legal Officer, Schuette has full and independent authority to revoke the easement giving Enbridge permission to have the twin pipelines lay on publicly-owned lake bottomlands.”

The Facts

Schuette’s office has taken an active role in the state’s ongoing negotiations with Enbridge over the pipeline.

In July 2015, a task force co-chaired by Schuette released several recommendations about Line 5’s future. It called for a ban on the flow of heavier crude oil as well as an independent analysis of the pipeline’s environmental risk, both of which were implemented.

The task force stopped short of calling for a complete shutdown. But Schuette suggested that a future shutdown remained on the table, according to several media accounts.

Here’s how the nonprofit Midwest Energy News reported his comments at the time:

Schuette could not give a specific timeframe of when it might shut down, but he said alternatives should be studied, as “you would not build a Straits pipeline in this decade. I’m doubtful it will be open in future decades. … Its days are numbered, its duration is limited in my opinion.”

Schuette has since repeated the statement that Line 5’s “days are numbered,” and a campaign spokesman included the line in responding to Bridge Magazine for this story.

The Michigan League of Conservation Voters is seizing on that statement, claiming Schuette isn’t doing everything he can to shut down Line 5.

How could he do that? The conservation group points to a 1953 easement granting Lakehead Pipe Line Company — now Enbridge — the right to use the lake bottom in the Straits as long as it followed several stipulations.  Critics allege Enbridge has violated several provisions, including that the company exercise “due care” for the “safety and welfare of all persons and of all public property.”

RelatedSchuette discloses 2017 taxes, more financial details in Michigan governor’s race

And in ongoing negotiations between the state and Enbridge, Schuette’s office has scolded Enbridge for violating requirements related to supports along Line 5 in the Straits.

As attorney general, Schuette could cite the alleged violations and yank the easement, environmental groups argue. The move could put Line 5 — or at least its Straits portion — on a path to decommissioning, they say.

In its 2015 report, the task force Schuette co-chaired acknowledged the state has such a legal trigger, which would face legal scrutiny. The task force concluded the state would have to prove “clear violations” of the easement or an “imminent threat the Straits Pipelines would fail.”

Here’s how the task force described the option:

“The Task Force believes the State has available legal tools to abate any immediate and actual threat of a spill from the Straits Pipelines. But at this juncture, particularly given the nearly unanimous view that there is inadequate information at this time to fully evaluate the risks presented by the Straits Pipelines, the Task Force does not find a basis for recommending that the State take the extraordinary action of seeking a court order to immediately shut down the Straits Pipelines.”

Critics of a shutdown argue the move would disrupt the region’s energy transportation network and leave the Upper Peninsula without a crucial supply of propane. (The full economic impact is a matter of debate.)

What does Schuette’s campaign say?

“I cannot comment on the legal strategy of the Department of Attorney General,” John Sellek, a campaign spokesman, told Bridge in an email.

Sellek then questioned why past attorneys general — those in office before Line 5 became a major public issue — didn’t face an equal level of scrutiny.

“If this claim about the easement was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago--or maybe that these groups should have run digital ads against Granholm and Kelley instead,” Sellek wrote.

In his email, Sellek reiterated Schuette’s support for protecting Line 5’s Straits section by building a tunnel around it.

A tunnel “would protect the Great Lakes, obviously, by removing the pipelines from the lakebed, where they can be damaged by something as common as an anchor strike” and ensure “they can be easily inspected and separated from our valuable water while still allowing for the safe transport of essential propane that so many families rely on for heating their homes in the U.P.”

(Researchers say a tunnel could take up to seven years to build and cost more than a half billion dollars, and environmentalists oppose the idea.)

Also related to Line 5: Schuette in April filed a lawsuit against a shipping  company whose anchor damaged Line 5 and other cables in the Straits.

Who
Bil Schuette
What
Response to Line 5
The Call
Mostly Accurate

The League of Conservation Voters accurately portrayed Schuette’s public statements expressing concern about Line 5.

And while there’s debate about whether he should revoke Enbridge’s easement, it is true — as described by a task force Schuette co-chaired —  he could argue in court for a Line 5 shutdown but hasn’t.

Still, the group’s campaign could have provided extra context that a shutdown would require a court order, and that Schuette has been involved in ongoing negotiations concerning Line 5’s safety. There’s no question that Schuette’s office has taken less drastic, but concrete, actions on the pipeline.

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Comments

Dan Moerman
Fri, 06/15/2018 - 9:18am

"Critics of a shutdown argue the move would disrupt the region’s energy transportation network and leave the Upper Peninsula without a crucial supply of propane. " Nonsense. The oil and gas in the pipeline flows SOUTH across the state, "terminating in Sarnia, Ontario, Canada" (according to an Enbridge web site). Sarnia is just across the St. Clair River from Port Huron. If the pipeline were shut down, nothing would happen to the UP. The pipeline carries oil and gas from western Canada to Eastern Canada. (Enbridge is a Canadian company.)

leonard page
Fri, 06/15/2018 - 9:36am

95% of the 23 million gallons of crude going daily thru the straits is delivered to sarnia. there have been 29 spills totally over a million gallons in line 5 to date. michigan gets all the risk, canada gets its oil to market and enbridge gets its profits.

Alex Sagady
Tue, 07/10/2018 - 6:19pm

Your claim that Line 5 delivers 95% of its crude oil to Ontario is false. About 30-35% of the crude oil transported by Line 5 is drawn off to a Sunoco Pipeline at Marysville, MI which delivers such crude oil to 1 refinery in Michigan and 2 near Toledo, OH. See map and discussion at PDF page 41 here:
https://mipetroleumpipelines.com/sites/mipetroleumpipelines.com/files/us...
The Sunoco pipeline takes as much as 190,000 barrels per day of crude oil out of the 540,000 barrels of crude per day total transported.

Rick
Fri, 06/15/2018 - 11:27am

Thanks. Typically the polluters and their friends (largely Republicans) love to resort to lies and fear when threatened by the facts. Like the lies they're using in the UP.

Skip Pruss
Mon, 06/18/2018 - 10:03am

There are multiple grounds and precedent for seeking a court order terminating the Enbridge easement for Line 5. In Frank J. Kelley, Attorney General for the State of Michigan, ex rel, Michigan Natural Resources Commission, Michigan Department of Natural Resources, and the Director of the Michigan Department of Natural Resources v. Consumers Power Company and The Detroit Edison, Supreme Ct. No. 98019, attorney general Frank Kelley sought a declaratory judgment that the lease for state bottomlands authorized under the Great Lakes Submerged Lands Act should be determined void because activities conducted under the lease were inimical to the State’s public trust resources.
The action was based upon the Public Trust Doctrine, the Michigan Environmental Protection Act, the Great Lakes Submerged Land Act, and the common law of nuisance.
[I was the principal litigator on behalf of the state. The settlement ultimately resulted in the establishment of the Great Lakes Fisheries Trust, conveyance of over 26,000 acres of pristine lands to the state, including 70 miles of riparian river frontage, twelve Great Lakes fishing stations, and prophylactic measures to protect sportsfish.}
In the case below, the Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources.” 202 Mich App 74; 508 NW2nd 901 (1993).
See also, https://www.oilandwaterdontmix.org/other-hidden-costs-of-line-5

Alex Sagady
Tue, 07/10/2018 - 6:06pm

This article is not accurate legal analysis addressing Enbridge Line 5, an interstate hazardous liquids pipeline. For such pipelines, all regulation of pipeline safety, design, operations, inspection, maintenance, etc. is federally preempted under 49 USC Sec. 60104(c). This means the state of Michigan is without authority to shut down Line 5....a power that is reserved to the federal government Pipeline and Hazardous Materials Safety Administration.

Under this federal preemption, state easement agreement provisions addressing any matter subject to federal preemption are NOT enforceable. See Olympic Pipeline Company v. City of Seattle:
https://caselaw.findlaw.com/us-9th-circuit/1058087.html

Any attempt by the Michigan Attorney General to file litigation in state court to shut down Line 5 would be met with a motion by Enbridge to remove the entire matter to Federal District Court for the Western District of Michigan....where any such litigation attempt will be dismissed relatively quickly because of the State of Michigan's lack of authority over such federally preempted matters.