Tag: Attorney General Schuette

Attorney General Bill Schuette has Ample Legal Authority to Pursue a Shutdown of Line 5

Line 5 Pipeline

By: FLOW Chair, Skip Pruss

Taking Legal Action

Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] 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.”

The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.

But Sellek’s comment obscures the more important issue:  Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5.  What is more, there is legal precedent for such action.

The Precedent

In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America.  The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.

The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.

Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.

The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine.  These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.

In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5.  The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people.  And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.

Bill Schuette has that duty, and he has acknowledged that Line 5 presents an unacceptable risk stating that “you wouldn’t site, and you wouldn’t build and construct pipelines underneath the Straits today.”  Schuette’s assessment implies that a state-of-the-art, 21st Century pipeline presents an unacceptable risk, yet he has not initiated any legal proceedings despite the growing evidence that the integrity of Line 5 may be dangerously compromised.

Line 5 is showing a number of red flags.  Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims: 

  • Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
  • Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
  • Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
  • Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
  • As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
  • Anchor strikes that have dented the pipeline in three locations.

These facts support a finding that Line 5 poses an imminent risk.  Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm.  A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron.  And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.

Line 5, if it continues to operate, will fail eventually.  It is unscientific and reckless to suggest that it can function indefinitely.  While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.

The Result

So, what was the result of Attorney General Kelley’s action in 1986?

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” but denied the state’s request to void the lease for state bottomlands.  Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.

Skip Pruss, FLOW Chair

The result:  A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF. 

As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands.  It is time for Schuette to act on Line 5, not make excuses.


It’s Time for the State of Michigan to Put Protection of our Great Lakes and Citizens First


Almost three years ago, with the release of Michigan Petroleum Pipeline Task Force’s report on July 14, 2015, Attorney General Bill Schuette announced that the days of Line 5 were numbered. The public also believed that the State of Michigan planned to seek two independent studies on Line 5 to evaluate risk and alternatives.

It’s been over 1,000 days and despite plenty of distracting PR, Attorney General Schuette, the Governor, and the State of Michigan have done virtually nothing to make Line 5 in the Straits of Mackinac safer from a catastrophic oil spill.

Over these 1,000-plus days, while the debate has raged on with an incomplete alternatives study and a back door deal between the Governor and Enbridge, Line 5 has:

  • lost its protective pipeline coating in over 80 locations;
  • suffered more cracking and corrosion, and even dents from an anchor strike in three locations; and
  • continued to violate its legal occupancy agreement with the State of Michigan because it is shifting dangerously on the bottomlands. 

Designed to last for only 50 years, Line 5 is now 65 years old and continues to pump 23 million gallons of oil every day from Canada and back into Canada using the Great Lakes as a high-risk shortcut. And there is no end in sight.

On April 1 of this year, the unthinkable happened; a tugboat anchor struck and dented Line 5 in three locations. Miraculously, Line 5 did not rupture, but the emergency response to transmission cables ruptured by the anchor underscored how difficult if not impossible cleaning up toxic oils and fluids can be in the wild currents of the Straits.

Enbridge is delighted that the conversation has now shifted to the option of a tunnel to replace the failing pipeline. It is the perfect distraction. It drags public attention into the weeds of whether or not constructing a tunnel is feasible from a highly technical perspective. And it steers the public, Michigan lawmakers and leaders, and candidates away from asking the right questions:

  • What is the State of Michigan as a trustee of the public interest doing right now to protect and defend the Great Lakes against the most dangerous pipeline in American?
  • How does Line 5 actually benefit Michigan’s current and future energy needs?
  • What are the feasible and most prudent alternatives to transporting oil that do not threaten the Straits of Mackinac and the 245 other water crossings in Michigan also protected by the state’s public trust duty?
  • Why is Enbridge in charge of investigating the feasibility of a tunnel when the state demanded an independent review?

Make no mistake: a conversation about a tunnel is folly and it fails to meet our state government’s legal obligation to put the public interest ahead of Enbridge’s pure profit. Dutch water expert Henk Ovink observed “If we only respond to the past, we will only get answers that fit the past.” This is exactly where we are as Enbridge tries to hijack the Line 5 conversation and bring the tunnel option center stage.  

Liz Kirkwood, Executive Director

We must demand that our leaders ask the right questions and seek truthful answers. Right now, the State of Michigan can revoke the Line 5 public trust easement and ensure protection of our drinking water, economy, fishing, and way of life.

Line 5 is a Great Lakes issue, a Michigan issue that affects us all. This is not about which side of the aisle you stand on. Rather, Line 5 is about our future and our children’s future, and they will never forgive our elected leaders if Line 5 ruptures on our watch.

Water unites us. Let’s let the decommissioning of Line 5 do the same.


Saving the Straits of Mackinac

Saving the Straits of Mackinac

Yesterday, May 22, 2018, marks the day that our state’s citizens, threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac, took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to start applying state law that is supposed to protect the Great Lakes, and stop the flow of oil through Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair, a shift that will finally bring state officials and Enbridge under the rule of law. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.

A Brief History

In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?

Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “Sure it’s days are numbered, but that number could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that establishes a framework for the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. If not contested under rule of law that protects the public trust in the lakebeds and waters of the Great Lakes, the investment in replacement could all but seal the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan has become the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain. Why does the governor and not the law of the Great Lakes and the citizens of Michigan through our elected officials or under rule of law decide the fate of crude oil in and out of the Great Lakes basin?

But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General unwittingly if not unlawfully cooperated with Enbridge to keep the oil flowing through pipelines in the Straits, pipelines whose design is failing. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet suspended in the water column above the lakebed and exposing the lines to powerful currents that could whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the for the company fastened 16 saddles to the pipelines, supporting the saddles and lines by leg supports crewed into the lakebed. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended in the water like a bridge over the lakebed.

A New or Changed in Design

The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures.  Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!

How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General staff stonewalled the tribe’s and citizens groups’ patently obvious charge that miles of suspended pipelines were a new or substantial change in design, not “repair” or “maintenance,” subject to required comprehensive review under the GLSLA and public trust in the lakebed and waters of the Straits.

This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed.  If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will snag anchors dragging over them from a passing ship.

So what does the GLSLA say about these permits for “repair” or “maintenance?”  Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and permit for the new pipeline design and structures. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations also require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.

Taking Matters Into Their Own Hands

In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines that have been substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, and if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is unlawful. For three years, government officials could have taken charge.

But they haven’t. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.

Jim Olson, President and Founder

I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention. I urge our Governor, Director of DEQ, and Attorney General to join the side of citizens and tribes and invoke the available rule of law under the GLSLA to protect the Great Lakes.


PR: Citizens Respond to Attorney General Schuette: Get Off the Sidelines on Line 5 and Protect Great Lakes

FOR IMMEDIATE RELEASE

Tuesday, March 28, 2017

Media Contacts: Leonard Page 231-268-8430/ leonard@thepages.net
David Holtz 313-300-4454/david@davidholtz.org

 

Citizens Respond to Attorney General Schuette:

Get Off the Sidelines on Line 5 and Protect Great Lakes

Responding today to a letter from Attorney General Bill Schuette, citizens groups from across the state told state officials that their decision to “stand on the sidelines” by failing to enforce legal requirements on pipeline operator Enbridge Energy Partners is putting the Great Lakes at risk from a catastrophic oil spill in the Straits of Mackinac.

In a March 8 letter to the Oil & Water Don’t Mix campaign, the attorney general, Dept. of Natural Resources Director Keith Creagh and Dept. of Environmental Quality Director Heidi Grether responded to revelations that protective anti-corrosion coatings were missing from 18 areas of Enbridge’s Line 5 in the Straits.  In their letter, Schuette, Creagh and Grether said they would investigate findings in a late 2016 report detailing the missing coatings as well as other evidence calling into question claims by Enbridge that Line 5 is safe.

In their response letter today to state officials, citizens groups told Schuette and other state officials that their failure to assert regulatory authority over Line 5 in the Straits could result in an oil spill that would “devastate our public drinking waters and our water-dependent economy.”

“It is not enough to stand on the sidelines or fail to take action that has the effect of complicity by deferring to Enbridge,” the groups said in their letter to Schuette.  “For nearly two years, we have heard our state leaders declare that the days of this pipeline are numbered and that Line 5 wouldn’t be built today.  However, the State of Michigan has not taken a single preventative measure to make our Great Lakes safer from a catastrophic oil spill.”

The missing Line 5 coatings, the groups said, violated a 1953 easement agreement with the state and should, at a minimum, have resulted in enforcement action against Enbridge.  By instead deferring to Enbridge, the state’s failure to act allows Enbridge to avoid comprehensive review of Line 5 and delays any potential action for months while the state continues to study the pipelines. 

“Attorney General Schuette’s urgency in protecting the Great Lakes and our communities from an oil spill seems to be missing,” said attorney Leonard Page of the Straits Area Concerned Citizens for Peace, Justice and the Environment.  “We need action now, before Line 5 ruptures and destroys our way of life and economy.”

In April 2016 the Oil & Water Don’t Mix campaign wrote Schuette and other state officials, identifying eight violations of the 1953 easement, including missing pipeline anchors, emergency oil spill response plan violations along with issues related to pipeline coatings in the Straits.  While the state notified Enbridge of easement violations, it has yet to require Enbridge to submit to a comprehensive environmental assessment under state law.  A current series of studies being done by the state with $3.6 million in funding from Enbridge are advisory.

“What Attorney General Schuette or any state official can’t tell us is how the structural integrity of these pipelines in the Straits are holding up against age, strong currents, missing anchors and missing coatings,” said David Holtz, chair of Sierra Club Michigan Chapter Executive Committee.  “They can’t tell us that because they are not taking the kind of enforcement actions that could produce answers.  They are not prioritizing protecting the Great Lakes over Enbridge’s profits.”

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Oil & Water Don’t Mix is a campaign supported by 22 organizations and thousands of citizens businesses who want to end the threat of a Great Lakes oil spill by shutting down the flow of oil through Enbridge’s Line 5 in the Straits of Mackinac.

The March 27, 2017 letter to Attorney General Schuette, the March 8 letter to OWDM from Schuette and OWDM’s original letter to Schuette are located here:

http://www.oilandwaterdontmix.org/owdm_response_to_ag_schuette_michigans_legal_duty

End Enbridge Stonewalling

Observations by some that the State of Michigan has no regulatory authority over hazardous liquid pipelines is correct to the extent that it is understood in the context of  safety regulations — standards, inspection and enforcement; safety code enforcement is covered by the federal PHMSA law, regulation and agency.  However, it is not true that Michigan does not have authority to demand the information Enbridge keeps under its control, and it is not true that Michigan does not have enforcement authority.

As concluded by the Michigan Petroleum Pipeline Task Force Report, 2015, Michigan has authority under the 1953 Easement, including the continuing obligation of Enbridge to conduct itself with prudence at all times, and it has authority under:

(1) its sovereign ownership of bottomlands and waters of the Great Lakes since statehood in 1837 under “equal footings” doctrine. Michigan took title in trust to protect the basic rights of citizens as beneficiaries of a public trust imposed on the state.  This means the state has authority and duty to take actions to protect the public trust as a matter of its “property and public trust power,” whether or not it passes regulations on hazardous liquid pipelines or not.  Under public trust authority and principles, the state cannot transfer or shift control over waters and bottomlands held in trust to any private person or corporation; the retention of information by Enbridge that is required to protect the public trust or to determine whether the public trust is threatened with high unacceptable harm or risk violates this public trust principle, and the Attorney General can demand and take all action necessary to compel Enbridge to turn it over, indeed, even the easement recognizes and is subject to this public trust.

(2)  The Michigan Public Service Commission has authority over siting and locations of crude oil pipelines like Enbridge’s and others.  Anytime Enbridge or some other corporation applies for a change or improvement to the structure it regulates as to siting, including its consideration of risks to property and health or environment and alternatives, the MPSC has authority to demand all relevant information needed to  make a decision on the application for such change.  Unfortunately, the MPSC has not insisted on the full range of information it could demand, including alternative pipeline routes and capacity to Line 5 in the Straits of Mackinac when it doubled capacity for Enbridge’s new replacement for the failed Line 6B that ruptured into the Kalamazoo River in 2010.

(3) Finally, the Michigan Environmental Protection Act, Part 17,  NREPA, imposes a duty to prevent and minimize harm to air, water, and natural resources, and this includes the right to take action where necessary when a corporation’s actions are contrary to this duty to prevent and minimize harm; the MEPA, as it’s  often called, is derived from Art 4, Sec. 52 of the Michigan Constitution.

So while Michigan ponders the aging or new pipeline infrastructure for hazardous liquids and crude oil, the state, including the Attorney General, have the authority to take immediate action to prevent the high risk of Line 5 or other pipelines.  And, where that risk involves the devastating harm that undoubtedly may occur in the Straits, action should be taken immediately pending the coming one to two years of pondering.  In short, there is no legal excuse or justification for Governor Snyder, Attorney General Bill Schuette, or the Department of Environmental Quality to put up with Enbridge’s self-serving stonewalling on disclosure of all information related to its Line 5 hazardous crude oil pipeline.  And, there is no excuse or justification for our state leaders to delay action to eliminate the unacceptable harm from the Straits or other Michigan waters from Line 5.