FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
The public trust doctrine is at the heart of FLOW’s efforts to shut down the antiquated Line 5 oil and gas pipelines that span the lakebed at the Straits of Mackinac. Enbridge, the pipeline owner and operator, has access to the lakebed only because the State of Michigan provided an easement to the company’s predecessor in 1953, subject to the requirements of the public trust doctrine.
Under the terms of that easement, the State, acting as a trustee of the public interest in the Great Lakes, cannot allow impairment of public uses of the affected Great Lakes waters and submerged land. Further, the State authorized the easement subject to Enbridge exercising “the due care of a reasonably prudent person for the safety and welfare of all persons and of all public and private property.” Multiple disclosures by Enbridge of shoddy stewardship of Line 5 have demonstrated the lack of due care.
Last week, FLOW submitted to the State six pages of comments and additional exhibits making the case that Enbridge’s patchwork approach to maintaining Line 5 has fallen well short of that standard. Further, FLOW argued that the major changes in structural support for the pipeline contemplated by Enbridge constitute a new project for the purposes of review by the state. This requires the State to insist that Enbridge demonstrate the absence of feasible and prudent alternatives to the proposed pipeline support changes – including alternate routes for the transport of oil and gas.
FLOW concluded, “the burden rests with Enbridge – not the State of Michigan or its citizens – to establish that there are no unacceptable risks or likely effects to waters, fishing, navigation, commerce, and public and private uses, and that no feasible and prudent alternatives to Line 5 based on existing or feasible capacity of overall pipeline system in the Great Lakes; the required scope of this showing of no alternatives includes determination of whether existing or improved pipeline infrastructure within the Enbridge system into and out of Michigan are a feasible and prudent alternative.”