Tag: Enbridge

Federal Court Hears Arguments from Bad River Band and Enbridge in Appeal of Line 5 Pipeline Shutdown Order

Traverse City, Mich.— On February 7, 2024, the U.S. Court of Appeals for the Seventh Circuit in Chicago heard oral arguments in the Line 5 case involving northern Wisconsin’s Bad River Band of Lake Superior Chippewa and Enbridge, Inc., a Canadian multinational pipeline and energy company headquartered in Calgary, Alberta, Canada. The panel of Appellate Judges was Frank H. Easterbrook, Michael Y. Scudder, Jr., and Amy J. St. Eve. Line 5 is a 71-year-old pipeline, threatening the Great Lakes with a catastrophic spill to deliver oil and gas to Canada.

In 2019, the Bad River Band initiated this litigation to evict Enbridge’s 12-mile stretch of Line 5 oil pipeline from their territory based on claims of trespass, nuisance, unjust enrichment, and injunctive. The band then filed for emergency injunctive relief in May 2023, following massive spring flooding events that caused alarming rates of erosion along the Medicine River and threatened to destabilize and rupture the pipeline. On June 16, 2023, U.S. Western District Court of Wisconsin Judge Conley issued a remarkable decision, finding Enbridge in “conscious and willful trespass” and ordering shut down by June 2026 of a Line 5 section running through the tribe’s sovereign territory, and pay the tribe $5.1 million. This is the first time a date has been set to shut down Line 5. 

On appeal, Enbridge’s attorney Alice Loughran argued the Seventh Circuit should vacate Judge Conley’s order, relying on two key arguments: (1) the Bad River Band was not acting pursuant to the “best efforts” clause of the 1992 easement agreement; and (2) Judge Conley’s order violated the 1977 Pipeline Treaty between the U.S. and Canada, which limits the authority of each country to impede the flow of oil and natural gas through pipelines between the nations. 

In response, the Bad River Band’s lawyer, Paul Clement, urged the appellate court to affirm the lower court’s order requiring Enbridge to stop trespassing, and require immediate compliance, not three more years on top of ten years of trespass. Clement also argued that Enbridge must turn over the Line 5 profits realized since its reservation easements expired in 2013. Three additional years of ongoing trespass is unreasonable, Clement said, particularly given the upcoming spring flooding threat, like last year’s, which eroded the land to within 11 feet of the pipeline.

The judges probed why federal agencies were not working faster to approve Enbridge’s proposed 41-mile pipeline re-route around the Bad River reservation. They also questioned why the tribe has not taken precautionary measures like using sandbags to mitigate the risk created by Enbridge. Clement countered that it is unreasonable and unfair to expect the tribe to take affirmative steps that sanction and reinforce the trespasser’s illegal and intentional occupation of the tribe’s land. 

The hearing concluded with Judge Easterbrook announcing that the court would not decide this case until at least next month, after the court receives a briefing on the federal government’s position. 

Next month on March 21, the U.S. Court of Appeals for the Sixth Circuit will hear oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Multiple anchor strikes have occurred, threatening to rupture the line and causing a catastrophic oil spill in the Great Lakes. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.

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FLOW is an independent, 501(c)(3) nonprofit that serves as a Great Lakes water law and policy center dedicated to ensuring the waters of the Great Lakes Basin are healthy, public, and protected for all. The enduring idea of the commons and legal principles of the public trust offer unifying adaptive solutions to address basin-wide threats. FLOW’s staff of legal and policy experts, journalists, and community-builders makes FLOW an authoritative resource for Great Lakes advocates. FLOW builds a knowledge base for communities, state agencies, and legislators to inform policy and advocacy for water issues. Learn more at www.ForLoveOfWater.org.

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Disgraceful: MPSC Approves Permit for Enbridge Tunnel in the Straits of Mackinac; Breaches Legal Duty to Protect Michigan’s Natural Resources

Traverse City, Mich. — FLOW is shocked that the collective efforts of thousands of Michiganders and treaty-protected tribes to protect our waters from the catastrophic risks of Line 5 have been ignored in today’s decision by the Michigan Public Service Commission (MPSC) to grant authorization for a Line 5 tunnel. The Straits are no safer while an unprecedented tunnel perpetuates the threat of an explosion spilling oil and gas into these ecologically fragile and economically vital waters.

In the same week that Governor Whitmer signed into law a nationally significant climate bill to decarbonize 100% of Michigan’s electricity production by 2040, today’s ruling is a black mark on the administration’s climate record and a disgrace to all of Michigan. A Line 5 tunnel with a 99-year lease will be an embarrassing albatross, hobbling future efforts to transition the region off fossil fuels and imprudently burdening taxpayers.

The Commission’s approval of a tunnel and 99-year new crude oil and natural gas liquids pipeline betrays its perpetual and solemn public trust responsibility as the sworn guardians of the public rights of citizens in the Great Lakes. This is not a “just transition” but a craven capitulation to fossil fuel profits.

Three years ago, FLOW intervened as a party before the MPSC in Enbridge’s proceeding seeking approval of a pipeline tunnel under the Straits. FLOW legal advisors Jim Olson and Skip Pruss have represented the public’s interest in the Great Lakes and Michigan’s priceless ecosystem. Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960).

The authorization breaches the MPSC’s legal duty to prevent likely degradation of Michigan’s air, water, natural resources, and public health—including drinking water, fishing, sanitation, boating and recreation—under Michigan’s environmental protection laws and the mandates under article 4, section 52 of Michigan’s Constitution.

Michigan environmental law prohibits the Commission from authorizing a pipeline when, according to the recent PLG Consulting report, reasonable, practical, feasible, and prudent, and affordable alternatives exist, and environmental damage is likely. The Michigan Environmental Protection Act expressly states that under these circumstances, a permit or approval “shall not be authorized.”

FLOW Founder and veteran Michigan environmental lawyer Jim Olson said: “There is no justification, morally or legally, for a new crude oil pipeline and tunnel that will last into the days of our great-great-grandchildren. When they look back at us, what kind of ancestors will they see?”

This fight is not over, and FLOW will be there.

FLOW files amicus brief; urges Sixth Circuit Court of Appeals to remand Line 5 lawsuit back to state court

Read FLOW’s summary of the PLG Consulting report, Likely Market Responses to a Line 5 Shutdown

[PRESS RELEASE: DOWNLOAD PDF]

[AMICUS BRIEF: DOWNLOAD PDF]

Traverse City, Mich.—Today, September 25, 2023, FLOW (For Love of Water) filed a motion with the Sixth Circuit Court of Appeals in the 2019 state lawsuit Attorney General Dana Nessel v. Enbridge, requesting the federal appeals court to accept an amicus brief that articulates why this case should be remanded back to state court where it belongs.

Built in 1953, Line 5 is a 70-year-old oil pipeline operating in fierce currents on the bottomlands of the Straits of Mackinac, where Lake Michigan and Lake Huron meet. The underwater pipeline has been repeatedly struck by ship’s anchors, and cables dragged by passing vessels have damaged the pipeline and its supports. Line 5 is uniquely vulnerable to multiple impacts that could result in irreversible environmental harm and billions of dollars of damage to the Great Lakes regional economy.

Three years after the Attorney General filed the 2019 state lawsuit, Enbridge in a procedural tactic removed the case to the federal district court in Grand Rapids, Michigan. The federal district court refused to remand the case back to state court. The Sixth Circuit Court of Appeals accepted Attorney General Nessel’s request to appeal the district court’s ruling in July, and has directed the Attorney General and Enbridge to submit legal arguments on whether to remand the case back to state court in Michigan.

The waters and bottomlands are sovereign public trust resources held by the State of Michigan in trust for the benefit of the citizens of Michigan and the Great Lakes region. Long-standing legal principles that balance federal and state interests weigh in favor states’ rights and jurisdiction over public navigable waters and bottomlands.

As an advocacy organization committed to protection of the precious state sovereign water resources, FLOW has requested permission to file a “friend of the court” brief, technically called an amicus brief, to provide the Sixth Circuit Court of Appeals our unique perspective regarding its knowledge and experience of Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine. State courts are the sworn guardians with a responsibility to protect the public’s rights in and uses of navigable waters and submerged lands throughout the Great Lakes region. Our shared waters are a public trust, and it is the duty of our state governments to act as stewards of this trust, ensuring that the interests of current and future generations are safeguarded.

But for the State of Michigan’s conditional authorization under public trust law, Line 5 could not have been built on the bottomlands of Lake Michigan in the Straits of Mackinac. When the state granted an easement to Enbridge’s predecessor 70 years ago, it was subject to the perpetual duty and right of the state to assure the public trust in the Great Lakes is never impaired. The easement was never properly authorized, and in any event, is subject to revocation and termination when the public trust waters and natural resources are threatened with risks of devastating harm. In the absence of that authorization and in the face of this extraordinary risk, Line 5 can not continue to operate.

The Great Lakes Business Network (GLBN) alongside 60 Tribes and First Nations have filed two additional amici briefs supporting the Attorney General’s request to remand the Line 5 public trust case back to state court.

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Get the Facts on Line 5 with FLOW’s New, Updated Fact Sheet

Every day, Enbridge’s Line 5 pipeline carries nearly 23 million gallons of oil and natural gas liquids (NGLs) from the oil sand fields in western Canada to refineries in Ontario, using the Straits of Mackinac as a high-risk shortcut. In FLOW’s new, updated Line 5 Fact Sheet, you’ll learn the latest on the pipeline, why the tunnel is a dangerous proposition, and what you can do to help get oil out of the Great Lakes.

Download the PDF

On this day in 2010: Enbridge Oil Spill in Kalamazoo River

This week marks the unlucky 13th anniversary of one of the largest inland oil spills in U.S. history. On July 25, 2010, a pipeline operated by Enbridge – the same corporation operating the risky Line 5 in the Strait of Mackinac – burst and released dirty tar sands oil into Talmadge Creek, a tributary of the Kalamazoo River. Nearly forty miles of the Kalamazoo River were closed for cleanup until June 2012. Enbridge paid more than $177 million in penalties and was required to improve safety measures. The estimated cost of the cleanup was more than $1 billion.

Corrosion fatigue – poor maintenance by Enbridge – was cited as the underlying cause of the catastrophic breach by the U.S. National Transportation Safety Board. NTSB Chair Deborah Hersman compared Enbridge’s inept handling of the spill to the Keystone Kops.

“Why didn’t they recognize what was happening, and what took so long?” she asked.

 

 

 

Meet the Line 5 Webinar Panelists

Enbridge’s Line 5 pipeline is over 70 years old and remains a grave threat to the waters and people of the Great Lakes region. On Wednesday, July 19, FLOW and Oil & Water Don’t Mix will present a free live webinar, The Strait Story: Enbridge Line 5 and its Trespass on State Waters and Indigenous Lands. Viewers will learn about important legal developments, smart alternatives, and how we can avert an oil spill disaster.

We’re pleased to announce an outstanding panel of experts for the webinar:

Riyaz Kanji, Founding Member and Directing Attorney, Kanji & Katzen

Riyaz Kanji is a founding member of Kanji & Katzen, PLLC, a firm whose mission is to advance Tribal sovereignty. A graduate of Harvard College and the Yale Law School, Riyaz served as a law clerk to the late Honorable Betty Fletcher of the United States Court of Appeals for the Ninth Circuit and Justice David Souter of the United States Supreme Court. He is an advisor to and vocal cheerleader for the Tribal Supreme Court Project. Riyaz represents Tribes at all levels of the federal court system, and was part of the team that argued and won the decision in McGirt v. Oklahoma vindicating the continued existence of the Muscogee Creek Reservation.


Christopher Clark, Supervising Senior Attorney, Earthjustice, Chicago

Christopher joined Earthjustice’s Midwest regional program in January 2020. He works with the Chicago-based team to advance the organization’s mission throughout the region. Earthjustice, in collaboration with the Native American Rights Fund, currently represents the Bay Mills Indian Community in its advocacy and litigation efforts involving the Enbridge Line 5 pipeline. 

Prior to joining Earthjustice, Christopher worked for over a decade as senior counsel and then Midwest Regional Director for Lambda Legal, the nation’s largest LGBTQ legal rights organization. In that capacity, Christopher successfully argued cases before five different state supreme courts in the Midwest region. 

Christopher obtained his undergraduate degree in Public and International Affairs form Princeton University and his J.D. from the University of Chicago Law School. He lives in Chicago with his husband, Victor where they own an art gallery.


Sean McBrearty, Legislative and Policy Director, Clean Water Action

Sean McBrearty is the Campaign Coordinator for the Oil & Water Don’t Mix campaign and Legislative and Policy Director at Michigan Clean Water Action, where he works on water infrastructure, oil and gas, and drinking water issues. Mr. McBrearty has served as a leader in the campaign to decommission Enbridge’s Line 5 pipeline for the past six years. He learned the importance of protecting drinking water and our environment from a young age, growing up in a community devastated by perennial droughts and poor water and air quality in California’s Central Valley.


FLOW Welcomes Court Order in Michigan Attorney General’s Case to Shut Down Line 5

Editor’s note: The following is a press statement from Zach Welcker, Legal Director of FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, Michigan, in response to a federal district court’s certification on Tuesday of questions for interlocutory review by the U.S. Court of Appeals for the Sixth Circuit. The decision comes in the case of Nessel v. Enbridge, filed by Michigan Attorney General Dana Nessel on June 27, 2019, in the Michigan Circuit Court for the County of Ingham, to shut down the Line 5 oil pipelines in the Great Lakes. Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or by cell at 231.620.7911.


“This is a welcome development in Attorney General Dana Nessel’s effort to return to state court her state-law claims seeking the shutdown of Enbridge’s dual oil pipelines on state-owned bottomlands in the Straits of Mackinac. FLOW credits her petition for mandamus—filed just two business days before the certification order—for prompting the federal district court to finally take action on a motion that the Attorney General filed more than five months ago.

“Although the district court’s order does not guarantee that the Sixth Circuit will agree to resolve the certified questions, we are hopeful that the Court will recognize that interlocutory review is necessary to protect the fundamental state rights that are undermined by the district court’s erroneous procedural and jurisdictional rulings. 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster,” said FLOW Legal Director Zach Welcker 

“The Attorney General’s extraordinary efforts to obtain appellate review before the right is available via direct appeal is a testament to her commitment to protect the Great Lakes—and our public rights to use and enjoy them—from being impaired by Enbridge, the same company that is responsible for the Kalamazoo River oil-spill disaster.” 

Additional Resources:

Petition for Writ of Mandamus in Nessel v. Enbridge-2023-2-17 

Opinion and Order Granting Motion to Certify-Nessel v. Enbridge-2023-2-21

FLOW’s Line 5 Program

FLOW’s Line 5 News

FLOW to Army Corps: Threat to Great Lakes and Lack of Public Need Should Sink Proposed Oil Tunnel

Editor’s note: Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.


By Zach Welcker, FLOW Legal Director

For Love of Water (“FLOW”) submitted legal and technical comments before today’s deadline in response to the U.S. Army Corps of Engineers’ Notice of Intent to Prepare a Draft Environmental Impact Statement for Enbridge’s proposal to bore and blast a 20-foot-in-diameter tunnel under the Straits of Mackinac, just west of the Mackinac Bridge, to house a new Line 5 oil pipeline for another 99 years.

Zack Welcker, FLOW Legal Director

The public can still comment on the proposed oil tunnel in the Great Lakes by 11:59 p.m. EDT today (Oct. 14, 2022) on the Army Corps’ project website.

The public can still comment on the proposed oil tunnel in the Great Lakes by 11:59 p.m. EDT today (Oct. 14, 2022) on the Army Corps’ project website. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also is collecting and forwarding comments to the Army Corps using an email template that suggests key points to make. FLOW’s tunnel comment also provides critical elements to convey.

FLOW urged the Army Corps to broaden the scope of its analysis to ensure that all regional alternatives are fully considered in an effort to meet regional fossil-fuel energy demands, which are forecasted to dwindle in the ongoing transition to clean energy, while maximizing protection of the Great Lakes and combating climate change.

Enbridge’s proposed Line 5 oil tunnel is not a viable alternative given the forecasted dwindling demand for fossil fuels and the need to maximize protection of the Great Lakes and combat climate change.

In FLOW’s view, Enbridge’s proposed Line 5 oil tunnel is not a viable alternative to meet these regional objectives when viewed in light of all relevant facts. FLOW anticipates that the manifold risks of the tunnel proposal will continue to grow as Enbridge begins to fill data gaps related to geologic conditions, construction challenges, and worker safety.

FLOW Raises Concerns about Risk to Great Lakes, Lack of Public Need, and Information Gaps

FLOW’s comments to the Army Corps include an emphasis on the:

  • Line 5 Pipeline Risk—FLOW opposes tethering the shutdown of the existing dual Line 5 pipelines to a tunnel project that will not resolve underlying the environmental and cultural concerns about siting a major oil pipeline in the middle of America’s greatest surface freshwater resource.
    enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60

    A diver points to broken straps along an encrusted segment of Line 5 on the bottom of the Straits of Mackinac.

  • Lack of Information—The public is deeply concerned about the risk of a catastrophic tunnel explosion, the economic feasibility and environmental impacts of constructing the tunnel, and the long-term climate impacts of the tunnel proposal. The public needs more information than Enbridge has provided to understand the risks and benefits.

The public is deeply concerned about the risk of a catastrophic tunnel explosion, the economic feasibility and environmental impacts of constructing the tunnel, and the long-term climate impacts of the tunnel proposal.

  • Lack of Public Need—As Enbridge implicitly concedes, there is no long-term public need for the proposed tunnel from an energy standpoint, and it would undermine federal greenhouse-gas reduction policies. Enbridge’s own expert has determined that a Line 5 shutdown would have a de minimis impact on fuel prices.
  • Overly Narrow Focus—Regionalizing the Purpose and Need Statement in the Army Corps study is warranted because Enbridge’s 645-mile Line 5 pipeline is almost 70 years old and past the end of its projected operational life. As Line 5 would need a systemic makeover to keep operating for another 99 years, Enbridge’s proposed tunnel should not be segmented and evaluated in isolation from the entire operation.

Line 5 shown in red runs from Superior, Wisc., to Sarnia, Ont., as part of Enbridge’s larger pipeline network in yellow running from the Alberta, Canada, tar sands to Montreal.

Line 5 pipeline is almost 70 years old and past the end of its projected operational life.

  • Strong Public Interest in Great Lakes Protection—The Army Corps’ Purpose and Need Statement in the Notice of Intent is also deficient for lack of recognition of the public interest in protecting the Great Lakes in the face of global water shortages, chronic drought in the United States, and other costly impacts from climate change. Protection of the largest and most valuable surface freshwater system in the world is an economic and environmental imperative. The Great Lakes contain 84% of North America’s fresh surface water and are the cultural backbone for eight states, two provinces, and multiple tribes and First Nations.

FLOW cited lack of recognition of the public interest in protecting the Great Lakes in the face of global water shortages, chronic drought in the United States, and other costly impacts from climate change.

Army Corps Should Consider a Range of Reasonable Alternatives

In order to meet the objectives of a Purpose and Need Statement that focuses on the connection between Enbridge’s Superior, Wisconsin, and Sarnia, Ontario, terminals and gives primacy to the public’s interest in maximizing protection of the Great Lakes, the Army Corps should, at a minimum, consider the following alternatives:

Tar sand oil production, Fort McMurray, Alberta, Canada. Photo by Environmental Defence Canada.

  1. An alternative to connect Enbridge’s Superior and Sarnia terminals without crossing the Great Lakes.
  2. An alternative to use existing capacity in other pipelines and, if necessary, other transportations solutions–such as rail and truck transport of natural gas liquids–in lieu of building new pipeline infrastructure.
  3. A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits of Mackinac in the event of an explosion or similar event.
  4. A “no action” alternative.

Protection of the largest and most valuable surface freshwater system in the world is an economic and environmental imperative. The Great Lakes contain 84% of North America’s fresh surface water and are the cultural backbone for eight states, two provinces, and multiple tribes and First Nations.

The Army Corps’ analysis of “energy need” should result in a determination that Enbridge’s proposed tunnel is contrary to the public interest. The confluence of future demand-side constraints, including the electrification of transportation, disinvestment in Albertan oil production, North American and global prohibitions on the sale and use of internal combustion engine vehicles, and governmental efforts aimed at reducing greenhouse gas emissions are accelerating the transition to a global clean energy economy. These forces driving change are being embraced by public and private interests and represent future trends that will bring measurable economic, environmental, and social benefits. The confluence of these market forces militates against future large-scale investment in fossil fuel infrastructure.


Editor’s note: Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.

Last Call: Army Corps on Oct. 6 to Hold Final ‘Scoping Meeting’ on Proposed Oil Tunnel in Great Lakes

Editor’s note: Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.


The public will have a last chance on October 6 to comment orally to the leadership and staff of the U.S. Army Corps of Engineers, Detroit District, on the agency’s plans for a study of an oil tunnel proposed under the Great Lakes.

The Army Corps will hold an online meeting from 1-4 p.m. on Thursday to help set the scope of the agency’s environmental impact statement study of a proposal by Enbridge, Inc., of Canada, to build an oil tunnel under the Straits of Mackinac. The tunnel would house Enbridge’s Line 5 oil pipeline, which has leaked dozens of times across Michigan and Wisconsin while carrying oil since 1953 from western Canada primarily to refineries in Sarnia, Ontario. The Army Corps study is expected to continue through at least 2023.

In addition to the Oct. 6 meeting, the public can comment on the study of the tunnel proposal by October 14 by mail or the Army Corps project website. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also is collecting and forwarding comments to the Army Corps using an email template that suggests key points to make. FLOW’s preliminary tunnel comment also provides critical elements to convey.

Many Troubling Aspects of the Tunnel Proposal

Enbridge wants to bore and blast a 20-foot-in-diameter tunnel under the Straits of Mackinac, just west of the Mackinac Bridge, to house a new Line 5 pipeline. The Canadian company’s stated goal is to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through Line 5 and State of Michigan public trust bottomlands where Lake Michigan meets Lake Huron, just west of the Mackinac Bridge.

FLOW and our partners have identified critical deficiencies in the project’s construction permit application, its legal authorization, and the review by State of Michigan environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction. FLOW and our allies have expressed continuing concerns about the impact to the Great Lakes and lack of public necessity for the project, which would worsen climate change by adding greenhouse gas emissions each year equivalent to almost seven new coal-fired power plants or nearly 6 million new cars to the road, according to experts.

Enbridge also lacks adequate liability insurance, according to a report released by the Attorney General Dana Nessel’s office revealing that Enbridge’s subsidiaries, not its parent company, hold Line 5’s 1953 easement and signed the proposed tunnel agreement; the assets of the subsidiaries’ parent Enbridge are inadequate to cover the costs and economic damages in the event of a moderate spill.

At Prior Army Corps Hearing, a Strong Majority Rejected the Proposed Oil Tunnel

The Army Corps already has held a Sept. 1 online comment session to help scope its tunnel study and a Sept. 8 in-person hearing in St. Ignace, where more than 4 out of 5 people who spoke, from among a crowd of hundreds, said that an oil pipeline tunnel proposed under the Great Lakes was a dangerous idea that would rob future generations by threatening the most precious thing on earth—fresh water—and worsening the climate crisis. 

Hundreds of people attend a public comment session held by the U.S. Army Corps of Engineers on the oil pipeline tunnel proposed by Enbridge under the Straits of Mackinac, on Sept. 8, 2022, at Little Bear East Arena in St. Ignace, Michigan. Photo by Kelly Thayer.

Most commenters at the seven-hour, St. Ignace hearing expressed deep concern for the harm that construction or a potential explosion or spill from the operation of an oil pipeline tunnel could have on their children and grandchildren’s future, local residents, the Great Lakes, drinking water, tourist economy, and jobs—as well as tribal rights, tribal member survival, cultural heritage, the fishery, ecology of the Straits of Mackinac, and the climate. (Read FLOW’s coverage here).

FLOW’s Position on the Scope of the Army Corps Tunnel Study

FLOW’s position, as expressed at the hearing in St. Ignace, is that the Army Corps’ environmental study of the tunnel proposal and alternatives must under the law include, at a minimum:

  1. A “no action” alternative that would use existing capacity in other pipelines and, if necessary, other transportations solutions—such as rail and truck transport of natural gas liquids—in lieu of building new pipeline infrastructure.
  2. An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes. (See FLOW’s fact sheet on alternatives).
  3. A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits in the event of an explosion or similar event.

Army Corps Process to Continue through at Least 2023

Enbridge has applied for a Army Corps permit under the Rivers and Harbors Act of 1899 and the Clean Water Act, seeking federal approval to discharge dredged or fill materials into waters of the United States, as well as the construction of structures or work that may affect navigable waters. The Army Corps also will conduct an ethnographic/traditional cultural landscape study as part of the environmental impact statement under the National Historic Preservation Act. After considering public comment and issuing the draft EIS likely by fall 2023, the Army Corps will seek additional public feedback, release a final study, and then issue a “record of decision” regarding whether to issue, issue with modification, or deny the Department of the Army permit altogether—consistent with the National Environmental Policy Act.

The Army Corps, Detroit District, to date has identified general concerns in the following categories:

  • Potential direct effects to waters of the United States including wetlands; water and sediment quality; aquatic species and fisheries; threatened and endangered species;
  • Archaeological and cultural resources, including the Straits as a Traditional Cultural Landscape; Tribal treaty rights and interests;
  • Recreation and recreational resources; waste management; aesthetics; noise; air quality; climate change, including greenhouse gas emissions and the social cost of greenhouse gasses;
  • Public health and safety during construction and operations; navigation; erosion; invasive species; energy needs; environmental justice; needs and welfare of the people; and cumulative effects.

FLOW’s Legal Team and Allies Helped Spur the Army Corps’ Full Environmental Study

FLOW continues to be deeply engaged in every step of the Army Corps study and committed to shutting down Line 5 and stopping the oil tunnel. FLOW’s legal team and allies helped spur the Army Corps’ full Environmental Study through our legal research, analysis, and comment, including FLOW’s formal legal comments submitted to the agency in July 2020The legal team challenged the proposed tunnel in December 2020 by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority, Clean Water Action—Michigan, FLOW, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350. The comments demonstrated a serious gap in Enbridge’s evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that Enbridge has characterized as solid bedrock.

Hundreds Attend Army Corps Hearing, Strong Majority Speaks Out against Proposed Oil Pipeline Tunnel under the Great Lakes

Above: Hundreds of people attend a public comment session held by the U.S. Army Corps of Engineers on the oil pipeline tunnel proposed by Enbridge under the Straits of Mackinac, on Sept. 8, 2022, at Little Bear East Arena in St. Ignace, Michigan. Photos by Kelly Thayer.


By Kelly Thayer, FLOW Deputy Director

Katie Otanez, Regulatory Project Manager for the U.S. Army Corps of Engineers, Detroit District, delivers a presentation on Sept. 8, 2022, in St. Ignace, Mich., while Army Corps staff look on.

Five-and-half hours into a marathon federal hearing that lasted seven hours on Thursday, September 8, in St. Ignace, Michigan, more than 4 out of 5 people who spoke said that an oil pipeline tunnel proposed under the Great Lakes was a dangerous idea that would rob future generations by threatening the most precious thing on earth — fresh water — and worsening the climate crisis.

The U.S. Army Corps of Engineers held the public comment session to help set the scope of its environmental impact statement study of a proposal by Enbridge, Inc., of Canada, to build an oil tunnel under the Straits of Mackinac to house its Line 5 oil pipeline, which carries oil from western Canada primarily to refineries in Sarnia, Ontario. The Army Corps study is expected to continue through at least 2023.

U.S. Army Corps welcome sign on Sept. 8, 2022, in St. Ignace, Mich.

Hundreds of people attended the meeting at Little Bear East Arena, a local hockey facility just north of the Mackinac Bridge in the eastern Upper Peninsula, with each commenter taking up to three minutes to address the Army Corps staff seated up front. Most people expressed deep concern for the harm that construction or a potential explosion or spill from the operation of an oil pipeline tunnel could have on their children and grandchildren’s future, local residents, the Great Lakes, drinking water, tourist economy, and jobs — as well as tribal rights, tribal member survival, cultural heritage, the fishery, ecology of the Straits of Mackinac, and the climate.

Whitney Gravelle, president of the Bay Mills Indian Community, was the first to speak at the Army Corps meeting against the tunnel proposal and sought to change the narrative promoted by Enbridge in its multimillion-dollar advertising campaign. “Line 5 is not about Enbridge. It is not about jobs. It is not about profit. It is about the continued existence of my people here in the State of Michigan.”

Whitney Gravelle, President of the Bay Mills Indian Community

“Line 5 is not about Enbridge. It is not about jobs. It is not about profit. It is about the continued existence of my people here in the State of Michigan.” — Whitney Gravelle, president of the Bay Mills Indian Community

“We rely on all of those natural resources to be able to live, to be able to support our families and just exist as Anishinaabe people,” said President Gravelle, emphasizing that more than half of Bay Mills tribe members depend on their treaty rights to hunt, fish, and gather for subsistence.

Ian Bund, venture capitalist

Ian Bund, a venture capital investor who attended the hearing on his birthday to oppose the tunnel project, said, “There’s no evidence that Enbridge’s board of directors has approved the tunnel. Is it a PR stunt? Enbridge is largely uninsured, uninsurable, and un-bondable…. There’s no evidence how Enbridge would finance the tunnel project. One wonders if they might look to taxpayers.”

Enbridge, in fact, lacks adequate liability insurance, according to a report released by the Attorney General Dana Nessel’s office revealing that Enbridge’s subsidiaries, not its parent company, hold Line 5’s 1953 easement and signed the proposed tunnel agreement; the assets of the subsidiaries’ parent Enbridge are inadequate to cover the costs and economic damages in the event of a moderate spill.

Many Troubling Aspects of the Tunnel Proposal

Enbridge wants to blast and bore an oil tunnel under the Straits of Mackinac just west of the Mackinac Bridge. Credit: Flickr

Enbridge is proposing to bore and blast a 20-foot-in-diameter tunnel under the Straits of Mackinac to house a new Line 5 pipeline. The Canadian company’s goal is to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through Line 5 and State of Michigan public trust bottomlands where Lake Michigan meets Lake Huron, just west of the Mackinac Bridge.

FLOW and our partners have identified critical deficiencies in the project’s construction permit application, its legal authorization, and the review by State of Michigan environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction. FLOW has expressed continuing concerns about the impact to the Great Lakes and lack of public necessity for the project, which would worsen climate change by adding greenhouse gas emissions each year equivalent to almost seven new coal-fired power plants or nearly 6 million new cars to the road, according to experts.

FLOW’s position, as expressed at the hearing in St. Ignace, is that the Army Corps’ environmental study of the tunnel proposal and alternatives must include, at a minimum:

  1. A no action alternative that would use existing capacity in other pipelines and, if necessary, other transportations solutions–such as rail and truck transport of natural gas liquids–in lieu of building new pipeline infrastructure.
  2. An alternative to connect Enbridge’s Superior, Wisc., and Sarnia, Ontario, terminals without crossing the Great Lakes. (See FLOW’s fact sheet on alternatives).
  3. A tunnel alternative that fully eliminates the risk of oil intrusion into the Straits in the event of an explosion or similar event.

Tribal Nations, agencies, communities, organizations, citizens, and other stakeholders can comment on the tunnel proposal through Oct. 14, 2022, via mail, through the Army Corps project website, or at the Army Corps’ Oct. 6, 2022, online meeting. The Oil & Water Don’t Mix campaign, of which FLOW is a founding steering committee member, also is collecting and forwarding comments to the Army Corps using an email template that suggests key points to make.

Oil & Water Don’t Mix Campaign Mobilizes Great Lakes Advocates

The Oil & Water Don’t Mix campaign chartered two buses that gathered people in Ann Arbor, East Lansing, and Traverse City to attend the Army Corps’ September 8 meeting, with FLOW, the Sierra Club Michigan Chapter, and several other allied groups helping organize the effort. Many riders wore the campaign’s black t-shirts with white letters proclaiming “No Line 5 Oil Tunnel.” At the session, Enbridge and some allied trade unions also wore bright blue or orange shirts expressing support for the proposed tunnel or labor to show their solidarity.

Kim Gribi of Traverse City

Lana Pollack, former U.S. Chair of the International Joint Commission

Several people, including Lana Pollack, former U.S. chair of the International Joint Commission, called Enbridge a “bad actor” with a long history of oil spills from Line 5, which runs through the Straits, and Line 6B in southern Michigan that burst in 2010 into the Kalamazoo River watershed.

Kim Gribi, a concerned citizen from Traverse City, also pointed to Enbridge’s “bad track record.” Gribi said that with her professional background in human resources and evaluating applicants for jobs, when it comes to the tunnel project and Enbridge, “I wouldn’t hire them.”

Barbara Stamiris of the Northern MI Environmental Action Council

Barbara Stamiris of the Northern Michigan Environmental Action Council and others questioned whether the tunnel proposal was a delay tactic by Enbridge to allow the Canadian energy-transport giant to keep running its Line 5 oil pipelines indefinitely in the open waters of the Straits of Mackinac, despite a standing order issued in November 2020 by Gov. Gretchen Whitmer to shut down the risky 69-year-old pipeline segment.

A number of people in their public remarks in St. Ignace requested that the Army Corps extend the 60-day comment period on the proposed tunnel and hold additional in-person meetings downstate to reach more people on such a critical matter as the future of the Great Lakes and the drinking water supply.

FLOW: There’s No Alternative to Fresh Water

FLOW Board member Barbara Brown, a St. Ignace resident who served for 14 years on the Mackinac Bridge Authority, pointed to what the region must protect above all else: our freshwater heritage. “We are rapidly moving toward alternative forms of energy. Enbridge already has, in Line 78 [in southern Michigan], an alternative route of deliveryWhat we do not have is an alternative to water.”

FLOW Board Member Barbara Brown, a resident of St. Ignace, Mich., addresses the Army Corps staff.

“We are rapidly moving toward alternative forms of energy. Enbridge already has an alternative route of deliveryWhat we do not have is an alternative to water,” said Barbara Brown, FLOW Board Member and St. Ignace resident

In fact, the North American energy pipeline system operated by Enbridge and its competitors has available capacity and flexibility to meet energy demand in the Great Lakes region without threatening public waters and the economy, according to multiple studies. One of Enbridge’s own experts has concluded gasoline prices will rise by about only half a penny in Michigan if the Line 5 oil pipeline shuts down.

“We are sitting today at the very heart of 20% of the world’s fresh surface water,” Brown said. “With much of humanity and the animal world on the brink of death for want of water, and we being at the center of the largest body of fresh surface water on the planet, it is bordering on the immoral to even entertain the unnecessary, continued operation of Line 5 through the Great Lakes whether by pipe or tunnel.”

As FLOW’s Deputy Director, I (the author of this article) helped coordinate the bus from Traverse City and in my comments, said, “The Straits of Mackinac is the worst possible place to build and operate an oil pipeline tunnel. Any rupture, explosion, or other event resulting in a major oil spill in the Straits would contaminate the very heart of the Great Lakes, which hold 95% of the fresh surface water in the United States.”

As a result, “the Army Corps’ Environmental Impact Statement or ‘EIS’ review of the project should be scoped to eliminate the risk of a pipeline-related oil spill into the Great Lakes.” (Click to read Kelly Thayer’s full comment delivered on behalf of FLOW).

Regional and Binational Perspectives

Beth Wallace of the National Wildlife Federation

Michelle Woodhouse of Environmental Defence in Canada

Michelle Woodhouse, representing Environmental Defence Canada, came from Toronto to convey that many Canadians want to move rapidly away from oil extraction as a key driver of the economy in order to cope with the “climate emergency.” Woodhouse also pointed to indigenous cultural artifacts in the Straits of Mackinac that could be damaged by the tunnel proposal and said “clear alternatives exists” that would not harm the Great Lakes.

Beth Wallace of the National Wildlife Federation, Great Lakes Regional Center, spoke next and emphasized that Enbridge’s history of nearly three dozen oil spills from Line 5 and the 2010 oil spill disaster from Line 6B in Marshall, Michigan, are forewarnings of what could happen in the Straits of Mackinac.

Maya Ponton Aronoff pointed to better ways for Enbridge and trade workers to aid the residents of Michigan than building an oil pipeline tunnel under the Great Lakes.

“[Enbridge] could be replacing every lead-lined water pipe in Michigan that’s poisoning our children and our communities. They could be investing in renewable energy, creating jobs in solar and wind. They could be doing anything with their billions of dollars. But they’re making us believe this lie that we have to choose between jobs and our future,” said Maya Ponton Aronoff

“[Enbridge] could be replacing every lead-lined water pipe in Michigan that’s poisoning our children and our communities,” Ponton Aronoff said. “They could be investing in renewable energy, creating jobs in solar and wind. They could be doing anything with their billions of dollars. But they’re making us believe this lie that we have to choose between jobs and our future.”

Army Corps Process to Continue through at Least 2023

Enbridge’s has applied for a Army Corps permit under the Rivers and Harbors Act of 1899 and the Clean Water Act, seeking federal approval to discharge dredged or fill materials into waters of the United States, as well as the construction of structures or work that may affect navigable waters. The Army Corps also will conduct an ethnographic/traditional cultural landscape study as part of the environmental impact statement under the National Historic Preservation Act. After considering public comment and issuing the draft EIS likely by fall 2023, the Army Corps will seek additional public feedback, release a final study, and then issue a “record of decision” regarding whether to issue, issue with modification, or deny the Department of the Army permit altogether — consistent with the National Environmental Policy Act.

The Army Corps, Detroit District, to date has identified general concerns in the following categories:

  • Potential direct effects to waters of the United States including wetlands; water and sediment quality; aquatic species and fisheries; threatened and endangered species;
  • Archaeological and cultural resources, including the Straits as a Traditional Cultural Landscape; Tribal treaty rights and interests;
  • Recreation and recreational resources; waste management; aesthetics; noise; air quality; climate change, including greenhouse gas emissions and the social cost of greenhouse gases;
  • Public health and safety during construction and operations; navigation; erosion; invasive species; energy needs; environmental justice; needs and welfare of the people; and cumulative effects.

FLOW’s legal team aided in this effort in December 2020 by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority, Clean Water Action—Michigan, FLOW, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350. The comments demonstrated a serious gap in Enbridge’s evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that Enbridge has characterized as solid bedrock.

Learn more about FLOW’s efforts to shut down Line 5 and stop the proposed oil pipeline tunnel on FLOW’s Line 5 program page and new Line 5 fact sheet.