Further Piecemeal Review of Enbridge Proposals Falls Short of Legal Requirements
Enbridge’s latest in a long series of requests for government approval of a change in design that elevates a large portion of Line 5 pipelines in the Straits of Mackinac must trigger a full environmental review under the National Environmental Policy Act (NEPA), a Great Lakes law and policy center said today in formal comments to the U.S. Army Corps of Engineers.
Responding to Enbridge’s bid for federal approval of 48 additional screw anchors for the pipelines, FLOW said if the permit is granted, the private Canadian corporation will have cumulatively constructed 198 anchor support structures that lift approximately three miles of the dual pipelines off the lakebed and fundamentally alter the original design of the 65-year-old pipelines built in 1953.
“It is time for government agencies to stop allowing Enbridge to do an end run around the law,” said Jim Olson, president and founder of FLOW (For Love of Water). “By posturing each anchor support as a ‘repair’ or ‘maintenance’ only one piece at a time, Enbridge is attempting to trick the agencies and the public into accepting what is a totally changed or new design, a design that departs radically from the one authorized decades ago.”
“The Army Corps should prepare a draft environmental impact statement and hold public hearings pursuant to NEPA before making any decision on the Enbridge application,” Olson said. “For the last 15 years, Enbridge has evaded a comprehensive federal and state review of a new design never evaluated before by a federal or state agency.
FLOW’s Executive Director added, “This has allowed Enbridge to avoid an impact statement of potential and cumulative risks and adverse impacts resulting from Enbridge’s new design efforts to stabilize its failing Line 5 infrastructure in powerful currents eroding the lakebed floor of Lake Michigan. The Corps correctly recognizes that Enbridge’s permit application can no longer be characterized as mere ‘maintenance’ and ‘repair.’ But the Corps must go further.”
The Army Corps recently announced it would conduct a smaller-scale environmental assessment, but a full environmental impact statement is warranted under NEPA because the issuance of the permit would amount to a major federal action, FLOW said.
In its formal comments, FLOW said, “When the Corps evaluates the possible effects from structurally changing the pipeline with an additional 48 screw anchors, they must review the possible effects on the nation, the State of Michigan, the sovereign tribes, and the local communities that would undoubtedly be economically devastated if the pipeline were to rupture. In addition to evaluating the context, the Corps must also evaluate the intensity of possible effects.” FLOW’s comments also demonstrated the need for a reasonable alternative analysis that addresses other available pipeline design capacity and adjustments that do not require crude oil pipelines in the Straits or Great Lakes. “The Great Lakes are subject to the paramount public trust and rights of water navigation that must be avoided where there are feasible alternatives, like the doubled capacity in Line 6B across already in place across southern Michigan to Sarnia and Detroit,” Kirkwood said.
FLOW said several considerations justify the Army Corps requiring an EIS, among them:
- With Line 5’s new design elevated off the lakebed, the pipeline is now more susceptible to anchor strikes than it has ever been. This susceptibility was demonstrated on April 1, 2018, when a tug boat anchor dented the dual oil pipelines in three locations and spilled over 600 gallons of dielectric fluid from electrical transmission cables into the waters of Lake Michigan. Because the federal government exercises authority over navigation in Great Lakes waters, it must consider the potential for these impacts.
- Enbridge’s continued operation of Line 5 threatens to destroy the off-reservation fishing rights of five Indian tribes who signed the March 28, 1836 Treaty of Washington. They include Bay Mills Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, and Little Traverse Bay Bands of Odawa Indians, and are collectively represented by the Chippewa Ottawa Resource Authority.
- If the pipelines rupture, Michigan’s economy could suffer an estimated $6 billion blow from damage to tourism, aquatic and terrestrial wildlife and natural resources, coastal property values, commercial fishing, and municipal water systems, according to a new study by a Michigan State University economist commissioned by FLOW.
“The Corps has a clear duty under law to do a full environmental impact and alternative analysis, not a piecemeal review that avoids that duty,” Olson said. “Nothing less will suffice.”
FLOW (For Love of Water) is a Great Lakes law and policy center and 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to protect the common waters of the Great Lakes Basin through public trust solutions.
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