Tag: jim olson

Line 5 Straits New Anchor Structures

 Public Statement

Michigan Department of Environmental Quality

Line 5 Straits New Anchor Structures

Jim Olson

President and Legal Advisor, FLOW (For Love of Water)

July 25, 2017


Director Grether, Division and Unit Chief Fisher, and the Gaylord Office Unit Supervisor Haas, and Great Lakes Submerged Land Specialist Graft:

This statement addresses a primary legal requirement for Enbridge concerning its proposal to locate, occupy, and engage in construction activity for twenty-two (22) new anchor supports on the public trust bottomlands and waters of Lake Michigan. The application as filed requests an activities permit pursuant to the Great Lakes Submerged Lands Act and Rules (“GLSA”) for placement of these twenty-two anchors as “other materials.”  As will be seen, these anchors and the pipeline are new and involve far more than placing spoils or other materials as an activities permit. In fact, these anchor supports and line, in combination with the dual lines in the Straits, have never been authorized under the GLSA and public trust law.

FLOW submitted public comments into the record on this application on June 29, 2017, and will submit supplemental public comments and technical reports on or before August 4, 2017, the end of the extended public comment period.  For purposes of the public hearing I offer the following specific comment on the legal framework for the proceedings under the GLSA for these twenty-two support anchors and the dual pipelines in the Straits of Mackinac.

First, the history of these new anchor supports, including the proposed twenty-two supports for the dual pipelines is directly related to the failure in design and construction of the original pipelines as authorized by the terms of the 1953 Easement and the substantial increase in crude oil flow rate from 300,000 bpd approved by the Public Service Commission in 1953 and the very new increase to 540,000 bpd as part of Enbridge’s project to expand its Lakeside System. A more detailed description of these anchors and why they are new and need approval to operate these dual lines are contained in FLOW’s June 29 public comment as supplemented by the comments to be filed on or before August 4, including the additional supplemental that will be submitted by technical experts Ed Timm and Gary Street.

Second, these anchor supports are new because they fall outside and were not authorized as part of the pipelines by the 1953 Easement. These anchors are new because they are proposed to prevent further bending in the compromised and deformed lines because of powerful currents and other forces in the Straits. As noted, they are also new because these supports together with other new facilities and equipment along Line 5 are part of the Enbridge expansion of its entire Lakehead System, including the doubling of Line 6b (now Line 78) to Stockbridge in southern Michigan.

In lay person terms, what does this mean?  It means that the dual pipelines with these new anchor supports and increased flow volume have not been authorized by agreements to permit the occupancy of these anchor supports on the bottomlands and n the waters of the Great Lakes as required by the GLSLA and its Rules. It means that the pending application for the proposed new twenty-two new supports does not comply with the requirements under the GLSLA and its Rules for a proper agreement or authorization for occupying bottomlands and waters in the Straits.

New structures to prop up a previously authorized line based on the existing define and new and increased volumes as part of a major single expansion project require new authorization. It is as simple as that.  Before the Department can act on Enbridge’s application for the construction activity permit for the anchor supports, Enbridge must first apply for and the State must authorize an occupancy conveyance or agreement in accordance with Sections 32502, 32503, and 32505 and other parts of the GLSLA and its Rules.

What to do, then?  The most straightforward way to proceed is for the MDEQ to notify Enbridge that it must comply with the requirements for authorization to occupy as I have described above, and to cease or halt the use of the lines in the Straits unless and until these lines with these new anchor supports have been applied for and determined to satisfy the standards and requirements of the GLSLA and its Rules. Recent evidence from Enbridge records and grueling evaluation by Dr. Ed Timm demonstrate that the integrity of the pipelines, as noted above has been precariously compromised, and as a result, according to Dr. Timm, there is in 2017 a probability of a failure in one of the lines as high as forty-six percent (46%).

The only prudent and correct thing for the State to do to prevent impairment or injury to the public trust and public and private riparian rights, public health, and safety, is to halt the flow of oil and put the onus on Enbridge to apply for proper conveyance authorization for these new structures in conjunction with these pipelines—they are inextricably related. Enbridge can decide to apply for these new supports in conjunction with the condition of the pipelines and the eighty percent (80%) increase in flow of crude oil.  The State DEQ can now once and for all finally consider and determine as trustee of the public trust protected by the GLSLA, whether Enbridge has shown there is no likely high risk of serious impairment to the public trust interests of Michigan and its citizens.

To date, not one agency has considered the environmental impact or existence of other alternatives related to the increase in flow of crude oil, the new supports and the condition of these lines.  The State can now evaluate in an orderly legal process whether the dual lines in the Straits can be or should be authorized. If Enbridge does not apply in order to comply and demonstrate a right to authorization and approval, then that is its own choice, and the State has the power, duty, and right to halt the transport of crude oil or demand decommissioning of the dual lines because they do not comply with state law and regulations enacted under its title and police power to protect its public trust lands and waters.

Thank you.


 

Enbridge’s Neglect of 64-Year-Old “Line 5” Pipelines Risks Mackinac Straits, Requires State to Stop Oil and Hold Hearings

FOR IMMEDIATE RELEASE TO MEDIA: June 29, 2017

Contacts:

Liz Kirkwood, Executive Director                                                  Cell: 570-872-4956
FLOW (For Love of Water)                                                          Email: liz@flowforwater.org

Jim Olson, Founder & President                                                   Cell: 231-499-8831
FLOW (For Love of Water)                                                          Email: olson@envlaw.com 

 

TRAVERSE CITY –

After the revelation earlier this month that Enbridge for years routinely violated a legal agreement to properly anchor its dual pipelines against the swift currents in the Mackinac Straits, the state of Michigan now must apply the law, stop Line 5’s oil flow, and hold public hearings as it considers the Canadian company’s application to squeeze more life out of its decaying steel infrastructure built in 1953, according to FLOW, a Traverse City-based Great Lakes water law and policy center, in formal comments released today.

While the state’s 1953 easement agreement granting Enbridge conditional occupancy of state bottomlands in the Mackinac Straits allows Enbridge up to 90 days to cure any violations, a 2016 report commissioned by Enbridge shows that the company for years knowingly ignored the erosion problem, which  appears to be unfixable and worsening with time.

“Enbridge’s willful neglect to properly support Line 5 in the Mackinac Straits is a game changer,” said Liz Kirkwood, FLOW’s Executive Director and environmental attorney. “This neglect is a flagrant violation of the company’s privilege to use the bottomlands and waters of the Great Lakes.”

“Leaving the pipeline exposed without support in the currents and forces of the Straits causes metal fatigue and heightens the risk of a spill. There needs to be an investigation of whether a pipeline should be there at all, before considering structural changes to a pipeline that has been compromised by the company’s own actions,” Kirkwood said.

Enbridge’s June 9 “maintenance” application to install up to 22 more pipeline anchors into Lake Michigan’s public bottomlands fails to address a company pattern of violating the easement and avoiding an assessment of Line 5’s impacts and alternatives, while perpetuating the imminent threat to the Great Lakes and the protected public uses that include fishing, commerce, navigation, recreation, and drinking, according to a legal analysis by FLOW.

The Michigan Department of Environmental Quality (MDEQ) is receiving public comment through today on Enbridge’s application, which also is being reviewed by the U.S. Army Corps of Engineers.

“This application is not about anchor supports. It’s about whether Enbridge can expand Line 5 and the new Line 78 from Indiana across lower Michigan to Sarnia,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney.  “Our cities, villages, and citizens have ended up with Enbridge’s version of the Keystone XL right here in the Great Lakes, and it happened without the public notice, hearings, and independent impact and alternative analyses required by law.”

The application, like many others filed by Enbridge in the last few years, disguises the company’s piecemeal actions that continue to significantly expand oil transport through and around the Great Lakes. Line 5 transports nearly 23 million gallons of oil and natural gas liquids each day through the Mackinac Straits, 80 percent more volume than its past design capacity after several of its so-called “maintenance” upgrades.

The Michigan Pipeline Safety Advisory Board is conducting a parallel review of Line 5 in the Straits, with a draft report on alternatives released today and a risk report that has been stymied by a conflict of interest, but that process is neither under the rule of law nor complies with the Great Lakes Submerged Lands Act (GLSLA) or other state and federal law.

“The advisory board’s review is not legally binding and does not replace the DEQ’s independent obligation to determine whether Line 5 should continue.” Kirkwood said.

Of particular concern is Enbridge’s continued failure to predict and prevent the cumulative impacts on Line 5 of lakebed erosion caused by Straits currents that frequently reverse and can exceed 10 times the flow over Niagara Falls.

“Enbridge’s piecemeal approach to managing washouts and installing adequate support under the Straits crossing of Line 5 has resulted in the line frequently being out of compliance with easement support requirements since the 1970’s,” said Ed Timm, PhD, an engineer advising FLOW. “Washouts are inherently unpredictable and it is likely that damage to the pipe has already occurred because of unsupported spans that were not detected and repaired by Enbridge’s two-year inspection and repair schedule.”

Contrary to assertions by Enbridge, the state taking action to stop Line 5’s oil flow in the Mackinac Straits to prevent a catastrophic oil spill would not disrupt Michigan's or the Midwest's crude oil and propane supply, according to a set of expert reports FLOW released in December 2015. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American pipeline system run not only by Enbridge, but also by competitors supplying the same refineries in Detroit, Toledo, and Sarnia, Ontario.

“The fact is, Line 5 is not essential,” said Rick Kane, a Michigan-based hazardous materials risk management specialist advising FLOW. “The regional pipeline system can supply crude oil to Michigan and surrounding refineries while eliminating the risk that Line 5 poses to the Great Lakes,” Kane said. “Feasible and prudent alternatives exist to support domestic needs, as well as exports.  However, pipeline company owners will not move to implement any alternatives as long as Line 5 operates and the public continues to carry the risk.”

For more information, visit FLOW’s website at www.FLOWforWater.org/Line-5/ and these links:

  • FLOW’s Public Comments on the Joint Application of Enbridge Energy to Occupy Great Lakes Bottomlands for Anchoring Supports to Transport Crude Oil in Line 5 Pipelines in the Straits of Mackinac and Lake Michigan [2RD-DFDK-Y35G], submitted June 29, 2017.
  • FLOW’s Public Comments on the Joint Application of Enbridge Energy to Occupy Great Lakes Bottomlands for Anchoring Supports to Transport Crude Oil in Line 5 Pipelines in The Straits of Mackinac and Lake Michigan [No. 2hb-Vgko-35je], submitted August 25, 2016.
  • Technical Note Regarding Enbridge Line 5 Non-Compliance with 1953 Easement Requirements, A Mechanistic Analysis of Straits Pipeline Washout Phenomena, by Edward E. Timm, PhD, PE, August 20, 2016.
  • Appendices of August 2016: A & B

 

Enbridge’s June 9, 2017, application and public notice can be viewed at:

  • MDEQ website at https://miwaters.deq.state.mi.us/. The public can view the application or submit comments by clicking on the Public Notice Search and entering “Enbridge” in the Applicant Name section or “2RD-DFDK-Y35G” in the Application Number section.

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PDF of Media Release:

Read FLOW's Comments here:

Jim Olson’s statement to Pipeline Safety Advisory Board

Public Meeting of the Michigan Pipeline Advisory Board

Petoskey, Michigan, June 12, 2017

Statement of James Olson

President and Legal Advisor, FLOW for Love Water

It’s time for our state government to stop treating our 1963 Constitution, statutes and common law as nice but meaningless environmental policy statements and start treating them as the duty the people through the Constitution and our courts have mandated.

FLOW has submitted a number of reports to the State on crude oil transport through Michigan, particularly the antiquated and dangerous twin pipelines operated by Enbridge Energy in the Straits of Mackinac. When FLOW appeared before the Pipeline Task Force created by Governor Snyder, it and other organizations urged the State to bring Enbridge Line 5 under the “rule of law.” Enbridge Line 5 raises serious concerns related to the violation of the constitution and laws of Michigan that mandate the protection of air, water, natural resources of the state, and the public trust in those resources.

Michigan’s constitution and laws, and the binding decisions of our appellate courts, impose a duty on our state agencies to protect the paramount interests of citizens and communities in the protection of air, water, natural resources, public trust and public health. From the 1970s through the 1980s, Michigan developed one of the strongest, most highly respected legal frameworks for active citizen participation and strong regulatory protections of air, water, environment and public health in the United States. A centerpiece of these laws and court decisions is the duty to review of projects that required government approval through public participation and comprehensive assessment and determination of the potential effects on water, environment and health and alternatives that where avoided or minimized those effects consistent with the state’s paramount concern for its environment and public health.

Unfortunately, over the past several years, this protective, participatory framework has fallen into shambles. The State has ignored or breached this mandatory duty to consider and determine effects, alternatives, and protect our air, water, and health from pollution or impairment. Governmental review has been narrow, shallow, and with little or minimal public notice or participation.

Last fall, it took a seasoned journalist to uncover a major permit about to be issued to a bottled water company to withdraw massive quantities of water from a headwater creek system in mid-Michigan, with less than a week remaining for public comments or participation. The law required public notice and at least 45 days for public comment. This attitude of expediency over prudence and protection has reached a crisis level in state governance. This is not the fault of dedicated, competent employees and staffs of the Departments of Environmental Quality and Department of Natural Resources. The blame falls on legislators and political leaders who put expediency, politics, and slashed budgets over the rigorous review and protection of water, environment, and public health.

Case in point: Our state agencies involved in the approval of the siting, improving, and expanded volumes of the flow of crude oil through Enbridge Line 5 and Line 6b (which runs from the southwestern part of the state to Port Huron before crossing into Canada) have totally failed to comply with this mandatory duty to consider and determine likely effects and alternatives. Approvals by the MPSC and MDEQ regarding Enbridge’s Lines 5 and 6b have not complied with this mandatory duty.

The MPSC and MDEQ have nearly collapsed their consideration and determinations of effects and impacts and alternative routes or capacity by allowing Enbridge to divide its expansion project into many narrow segments, presumably calculated to limit the scope of consideration of impacts and alternatives to each segment. In effect, this was like looking at the effect of clipping each toe-nail rather than the effects and alternatives of the whole elephant— a near doubling of crude oil pipeline capacity in Michigan. While others debated the impacts and alternatives to the Keystone XL down through the western U.S., Enbridge launched a massive expansion through the Great Lakes and Michigan—in Michigan, we ended up with the Enbridge “Great Lakes XL.”

Inexplicably, this was done without any public notice, comment, and participation regarding this true project purpose in Michigan. Even though the MPSC and DEQ have independent authority and legal responsibility to consider the effects and alternatives of the location and siting of this massive expansion and substantial upgrade of the pipeline system in Michigan, Enbridge has not been required to comply with the legal requirements for a comprehensive impact statement and showing by Enbridge that there are no likely or potential ill effects or there exist no alternatives to this massive expansion and upgrade of the company’s pipelines through Michigan.

This is unconscionable, unlawful, and a flagrant violation of the duties imposed on the State by our state constitution and laws. In the past few years, Enbridge has implemented its plan to greatly expand crude oil pipeline transport to more than 800,000 bpd from Alberta through its Great Lakes-Michigan Lakehead System. Applications to the MPSC and MDEQ, along with news releases and reports, show a multi-billion dollar investment to nearly double the capacity of its entire Lakehead system. MPSC documents show that the original capacity of 120,000 bpd in Line 5 could be increased to 300,000 bpd by the addition of 4 pump stations. In the past few years, Enbridge has invested tens of millions to increase the capacity of Line 5 to 490,000 bpd, and most recently to 540,000 bpd by a major new arrangement for 12 pump stations and the addition of more than anti-friction injection facilities to increase capacity to meet the 600 psi limit for the line in the 1953 Easement. Nothing in the 1953 easement giving Enbridge permission to use the bottomlands of Lake Michigan where Line 5 crosses the Straits suggested, even remotely, a four-fold increase.

After the original 30-inch diameter Line 6B that was constructed across Lower Michigan in 1969 ruptured in 2010, Enbridge applied to the MPSC for approval of a new 36-inch replacement Line 6b from Indiana to Sarnia (ironically, public records show that Line 5 was approved in 1953 to save Enbridge money rather than constructing a line across Lower Michigan). Enbridge applied for short segments of the new replacement line or the addition of pump stations. Like its applications for almost doubling the capacity of Line 5, Enbridge described its project purpose as line “maintenance” and “integrity.” By the time MPSC approved each small segment, Enbridge had a new replacement line that increased capacity from 400,000 bpd of old Line 6b to 800,000 bpd for the new 6b (now called Line 78).

For example, in 2012, MPSC approved Enbridge’s application to “replace a 50-mile segment” of existing Line 6b between Ingham and Oakland counties. It did not mention this was to double crude oil from Canadian “tar sands” through Lower Michigan. At about the same time, MPSC approved four new pumping stations to increase capacity to 800,000 bpd in this new 36-inch line. (A map showing eight segments, and several pump stations, is attached to this statement for your convenience) During this same time, the MPSC approved Enbridge applications for several new pumps stations and many anti-friction injection stations to increase the flow or volume rate of crude oil in Line 5. Once again, Enbridge represented these modifications as “maintenance” or “repairs.” Enbridge has done the same in applying to the MDEQ for anchor supports for Line 5 along the 4.5 mile stretch of the twin-pipelines in the Straits of Mackinac. Even in Enbridge’s recent May10, 2017 application for anchor supports in the Straits, the company beguilingly states that it “plans to conduct maintenance… by installing anchor support structures.”

To date, the MPSC and MDEQ have not considered or determined the full environmental impacts and the alternative routes, capacity, or modifications for doubling crude oil transport from 700,000 bpd to 1,340,000 bpd in the Straits and in Michigan. Citizens, communities, businesses, property owners and our air, water, and natural resources have been blatantly ignored and deprived of their right to notice, participation and involvement in a matter that strikes at the core of quality of life and as the slogan says, “pure Michigan.”

It is time to address this crisis in State governance. It is time to correct this violation of by the State and Enbridge of the constitutional and legal duty to protect citizens’ public health and our air, water, natural resources and public trust (in those resources). It is time to correct the failure of our agencies and Enbridge to correctly disclose and comprehensively consider potential effects and the existence of alternatives through proper public notice and comment, participation, and transparent comprehensive consideration and determinations under the rule of law.

You as members of the Pipeline Advisory Board are urged to exercise your authority granted by Governor Snyder’s Executive Order 2015-12, and recommend that the MDEQ, MPSC, and Attorney General take all necessary and prudent steps to require Enbridge prove before the MPSC and MDEQ that (1) there is no likely risk of catastrophic harm to the Straits, our waters, fish, drinking water, riparian and public trust uses, and ecosystem from the continued transport of crude oil in the Straits, and (2) there exist no alternative routes, capacity, or modifications to other pipelines to accomplish the overall purpose of the Enbridge’s Lakehead System.


 

Welcoming Dave Dempsey to FLOW

I share in the excitement with FLOW’s Executive Director Liz Kirkwood, the staff, Board of Directors, and supporters in welcoming Dave Dempsey’s arrival at FLOW.

When we began FLOW in its initial stages nine years ago, Dave Dempsey expressed his enthusiasm and support for our launch and the course ahead.  He knows first-hand how important strong policies and actions are to address the systemic threats we face in the 21st century.

Dave and I have shared a friendship, worked together, and exchanged ideas and our shared passion for the Great Lakes, its people, and beauty for over 30 years.  FLOW, but  more importantly, all of us in Michigan and in the Great Lakes region are fortunate Dave has decided to join us at this time.  His ideas, wisdom, talents, professionalism, and experience will help us find and implement commons, public trust principles and new frameworks to find solutions to the systemic threats that face the Great Lakes and our world.

As you might expect, since Dave arrived, we’ve already rolled up our sleeves higher and waded a little more deeply to strengthen our capacity and efforts in what all of us and our organizations can accomplish as we work together and with many others in the years to come.

 

Gratefully,

Jim Olson

 

To see the recent press release about Dave Dempsey’s arrival at FLOW, please click here.

 

 

Jim Olson & Dave Mahan on Natural Resources Stewardship

 

 

A Conversation About Climate and Conservation

In this video produced by Joe VanderMeulen for NatureChange, Phil Ellis, Executive Director of the Grand Traverse Regional Community Foundation, moderates as two of Northern Michigan’s most respected and experienced environmental leaders discuss the challenges and choices facing our region.

FLOW’s own Jim Olson and Dr. Dave Mahan, former Associate Director of the Au Sable Institute of Environmental Studies, offer their insight on this important issue. A must watch.

Click here to see more like this.

 

 

The Great Lakes are no place for fish farming, but there might be one nearby

The waters of the Great Lakes are held in trust by the state as a shared public commons for the benefit of citizens for navigation, boating, fishing, health and sustenance. The courts of all eight Great Lakes states have recognized this principle, which means the states must manage these waters as a trustee for the benefit of all citizens to prevent interference with these public purposes – a duty of stewardship.

Net-pen fish-farming in the Great Lakes poses a major interference with existing protected riparian and public uses of these hallowed waters – landowners, fishermen, boaters, tourists, and citizens. Private fish farming would displace and interfere with the public trust in these waters.

 

Click here to read Jim Olson’s full guest commentary on bridgemi.com!

 

Nestlé resistance in the Detroit Metro Times

Nestlé has been aiming to pump more water out of Michigan.  Near Evart, the company is attempting to expand and greatly increase the withdrawal amount to 400 gallons per minute, which equates to 576,000 gallons per day.Michael Jackman, from the Detroit Metro Times, writes that there may be “rough water ahead” for Nestlé. Many people are unhappy with their actions. Read more here.

 

Press Statement: Today’s Approval of the Waukesha Diversion Application

On behalf of FLOW (For Love of Water), Jim Olson released the following statement regarding today’s decision on the Waukesha Diversion Application.

“For better or worse, the Compact governors’ decision approving Waukesha’s diversion is done. There were a number of loose provisions that pointed to a bad precedent where a community’s water system doesn’t even straddle the Basin divide. It will all depend on the details, the amendments and conditions made part of the decision.  This remains a serious matter and as we have done so far, FLOW will dig in and evaluate these conditions and make sure they are strictly interpreted and enforced.  When it comes to the Great Lakes and the duties of government to protect their integrity, there is no room for mistakes or relaxation.  It would have been better for the public to be able to see and comment on these amendments and conditions.  For the moment, all we can do is review them after the fact. The key to this and future decisions is to make sure they meet the standards for exceptions like Waukesha’s request as a community in a straddling county.  These standards are the beacons by which the Great Lakes will be protected from diversions and exports. They must burn bright and respected.  The public trust duty of the governors to protect the integrity of these waters from one generation to the next is first and foremost.”

There is No Legal Authority for Commercial Fish Farming in Great Lakes Waters

The Great Lakes are not and cannot be a “gold mine” for any private person or corporation. They are owned by the State in public trust for each citizen. The Supreme Courts of Michigan, the U.S. and other states have ruled for more than 120 years that public trust bottomlands and waters cannot be transferred or occupied or subordinated for primarily private gain. Not the DEQ, not private interests, not the Governor, not the legislature, not even the courts can violate this principle. Moreover, given the environmental effects and the fact that feasible and prudent on-land alternatives exist, fish farming the Great Lakes would violate basic environmental law standards. So it’s time for the fish farming industry to stop promising “gold mines” for the Great Lakes.  They are not legal, they cannot be approved.  Land is for farms, the Great Lakes are for navigation, fishing, swimming, drinking water, sustenance, and recreation, aquatic life, and our own quality of life. There is no authority for private development of aquaculture CAFOs or any water farms in the Great Lakes, so the debate over environmental impacts is a waste of time. Moreover, because there are on-land alternatives, they must be done or shown to be totally unfeasible and not prudent. If anything, on-land fish farming is feasible and prudent.