How Did We Get Here on Line 5? Tracing the Law and the Politics
The plotting of former Governor Snyder’s administration and Enbridge to hand over the public trust soils and bedrock under the Straits of Mackinac for the company to build and operate a new crude oil pipeline in a tunnel for 99 years has been put on hold.
On her first full day in office, Governor Gretchen Whitmer asked Attorney General Dana Nessel for a formal opinion on whether the Snyder-Enbridge agreement and legislature’s stamp of approval through a lame-duck law known as “Act 359” to hand over the Straits for Enbridge’s tunnel to Enbridge was constitutional. In late March, Attorney General Nessel found it was not constitutional because the legislature tried to graft a private tunnel-pipeline project onto a public infrastructure law that governs a public icon—the Mackinac Bridge.
Under Michigan’s constitution, the legislature can’t pretend that the title or object of a law is one thing, and then pass a law that turns it into something else. In short, the Snyder-Enbridge agreements and Act 359 would have contorted the public ownership and control approach of the Mackinac Bridge into a privately controlled tunnel.
Put another way, government is not supposed to be in the business of fostering private interests under the beguiling promise that it’s doing something for the public. If a law says a project is public, it better be public. The Enbridge tunnel corridor and project is far from a publicly owned and operated project, so the Attorney General had no choice but to rule the scheme unconstitutional. State agencies must adhere to the ruling; this means, the DEQ, DNR, and Public Service Commission cannot entertain requests for approvals or permits or take other actions that would implement the Enbridge tunnel and new pipeline project.
Legal Lens: Public Bottomlands, the Public Trust, and a Private Tunnel
The waters of Great Lakes and the soils beneath them are owned and held in public trust to protect the paramount rights of Michigan citizens, the primary beneficiaries of this legally recognized trust. The state as trustee is prohibited from leasing, granting easements, or allowing occupancy and use of these waters and soils to a private person except where: (1) the legislature expressly authorizes the conveyance or use; (2) an agency finds that the existing or proposed use serves primarily a public purpose related to navigation, fishing, boating, swimming, drinking water, or similar public need; and (3) makes a finding that the use will not interfere with or impair these protected public trust uses or the fish, habitat, and ecosystem.
To make sure the public trust is not violated, Michigan passed the Great Lakes Submerged Lands Act in 1955. Anyone who seeks authorization of a new or existing easement, lease, or agreement for use or structures, or expansion of use or structures, must apply for and obtain authorization from the DEQ under the GLSLA. In short, the Great Lakes and the soils beneath them are strictly protected and controlled by the State for its citizens under the rule of law. No person or corporation can use, occupy, control, or lease the public trust waters and soils of the Great Lakes without the authority and findings by the state that the public trust will not be violated.
Act 359 and the tunnel agreement approved an easement from the DNR to Enbridge for the new tunnel and pipeline for 99 years without obtaining the required authorization under the public trust doctrine and GLSLA. Because Act 359 and related agreements violated the state constitution and the GLSLA, the project dodged the rule of law. Until Enbridge and state agencies obtain this authorization, the project is prohibited.
Political Maneuvers: A $6 Billion Gamble with Line 5 in the Straits
Now for the $6 billion-dollar question: What about existing Line 5 in the Straits? I say $6 billion, because the range of massive economic and natural resources damage from a release ranges from $1.8 to $6 billion in Michigan (and up to $45 billion to the region’s shipping and steel industries). When the Michigan Petroleum Pipeline Task Force came out with its report four years ago, it concluded the risk of the existing Line 5 in the Straits (that runs down through the Lower Peninsula to Sarnia, Canada) was unacceptable. Even former Attorney General Bill Schuette said that Line 5’s days “are numbered.”
Under basic risk standards, when a risk is too high or unacceptable, the corporation or government in charge must determine if there is an alternative that eliminates the risk. If there is, the risk must be terminated. Four years later, Line 5 is operating at a full-tilt 540,000 barrels a day. That is 23 million gallons a day, 80 percent beyond the original design capacity contemplated by the 1953 easement.
As noted above, the state has jurisdiction of the public trust bottomlands and waters of the Straits under the public trust doctrine and the GLSLA. Any new or substantially changed structure or improvement must be authorized by the DEQ, which is precisely what the Snyder administration failed to require.
Former State Officials Defer to Enbridge on “Repairs,” Continued Use of Line 5
First, the governor and state-Enbridge agreements for a new tunnel and 99-year pipeline allowed Enbridge to operate the existing Line until 2028—another 10 years! If the tunnel and new line are not in operation by then, Enbridge could continue using the existing Line 5 for more than 10 years! Worse yet, the agreements would allow Enbridge to extend operation of the existing Line 5 beyond 14 more years (counting the 4 years of inaction to date) if there are delays. It looks like Enbridge with the approval of the Snyder administration is more interested in operating the existing Line 5 another 10 or more years than build a $500 million tunnel.
Second, strong currents in the Straits scour the soils and undermine the integrity of Line 5. For the past 18 years, the DEQ has allowed Enbridge to add anchor supports to shore up this failure in the original design of the pipeline built in 1953 as “repairs.” Since 2001 when Enbridge added 16 supports as an “emergency repair,” the DEQ has permitted more than 200 supports as “repairs,” turning Line 5 into a three-mile underwater “suspension bridge” above the lakebed. By labelling Enbridge’s supports as a “repair” or “maintenance,” the DEQ has openly allowed Enbridge to avoid the required review and authorization of a near total change in design of existing Line in the Straits. As a result, Enbridge has avoided and the public has been denied the required findings that the existing Line 5 poses no more than a minimal risk of impairment and that there are no other alternatives to using the Straits—such as using the extra capacity in the company’s new Line 78 across southern Michigan to Sarnia.
Local Guardians of the Great Lakes Challenge the State’s Line 5 Permits
Fortunately, the City of Mackinac Island, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Straits of Mackinac Alliance have filed petitions contesting the failure of the DEQ to demand Enbridge to file an application and obtain authorization for its total change in design of the existing Line 5. If successful, in addition, to inadequately narrow review of the anchor supports, Enbridge will have to apply for and prove that the risks are acceptable and that it has no other alternatives to move oil from Alberta, Canada.
It is critical for the state to exercise the rule of law because on top of the change in design, a response to a spill is impossible during winter ice or storm conditions. On April 1, 2018, a ship anchor dragging across the lakebed dented or gouged the existing line. On March 29, 2019, a federal court ruled that the federal government’s pipeline safety agency failed to adequately review the Enbridge Line 5 oil spill contingency plan in violation of the National Environmental Policy Act.