Tag: jim olson

Reflections on Independence – Liberty, Water, and the Public Trust Doctrine

By Jim Olson

July is “Public Trust Month” at FLOW, a time to gather views and inspiration from people from all walks of life who live, use, enjoy, or depend on the waters of the Great Lakes Basin for life, recreation, and livelihood.

This is because FLOW’s mission is to assure that decisions and actions that affect the Great Lakes are undertaken in the framework of ancient principles, embedded in our law as deep as the Great Lakes and the soils beneath them. These principles, known as the public trust doctrine, recognize the duty of government as trustee to protect, and the rights of the public as beneficiaries to enjoy, these public trust waters and their paramount public nature and uses from one generation to the next.

On July 4, my wife Judy and I hosted a large family picnic at our house in Benzie County. After enjoying the food and multiple conversations going on at once, some of us, with pant legs rolled up above the knees, found ourselves wading in the Platte River with several grandchildren. Watching them totter and frolic in the fast current—their ages ranging from 3 to 23—I had this thought: Liberty includes the gift of freedom to enjoy public trust waters like the Platte River, here in Michigan, and the Great Lakes, and waters throughout the United States and beyond. The public trust in our water resources is a principle that protects and passes on this gift from one generation to the next.

The public trust doctrine is often traced from the Justinian Code 1,600 years ago: “By the law of Nature, these things are common to [humankind]: the air, running water, the sea, and consequently the shore of the sea.”  The doctrine reappeared in 1215 in that “Great Charter of Liberty,” the Magna Carta, to restore the custom and rights of the people to access to the rivers and sea for food and sustenance.

On July 4, 1976, the Declaration of Independence declared:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

The U.S. Constitution was adopted and ratified between 1787 and 1788, and not long after, the Bill of Rights  in 1791 declared that no government—federal, state, or local—can deprive a person of the right to “life, liberty, and property” or “other rights [not listed] retained by the people.”

In 1821, in the first of a long line of decisions adopted in similar form as the common law of the people by the courts of every state, the Supreme Court of New Jersey nullified an attempt by a landowner to exclude the public from the seabeds, navigable waters, and their near shores because these waters and special lands were public common property held in a public trust for the benefit of all citizens of a state.

In 1892, the United States Supreme Court reaffirmed the public trust doctrine in the navigable waters, the soils under them, and the shoreline below the high water mark. An influential railroad company hoodwinked a compliant Illinois legislature into granting it almost one square mile of Lake Michigan for a private industrial complex. This didn’t sit well with Illinois residents, especially those who lived in Chicago, and the next session of the legislature repealed the grant.  The company, of course, notified the state that it was too late; they owned the bottomlands and waters of Lake Michigan.

The Supreme Court rejected the company’s claim, and in a landmark decision ruled that the grant to a private company or person was void because the special common public waters and lands owned and held by the states in public trust were “inalienable”! This means that no government can pass a law that deprives a citizen of the inalienable rights, as beneficiary of the public trust, to enjoy and use these waters and special trust lands for fishing, navigating, boating, swimming, bathing, and sustenance—drinking water and growing food.

Imagine that, an inalienable right derived from Roman law, the Magna Carta, and English common law came down to this country because of the “inalienable rights” covered by the Declaration of Independence and American Revolution, and that this “inalienable right” is protected by the public trust doctrine. It is a right that cannot be taken away or repealed, and it is protected by the rights to “life, liberty, and property” and the “other rights of the people” in our Constitution! 

Today, courts around the country are recognizing that the rights of citizens to an individual and indivisible right under the public trust doctrine fall within our “life, liberty, and property” protected by our Constitution.

Talk about a gift for all of us to celebrate during the afterglow of Independence Day and throughout FLOW’s “Public Trust Month” of July. This is one to be thankful for, exercise, and protect for ourselves, our children, grandchildren, and all future generations.

Jim Olson is FLOW’s founder and president. 

The Public Trust and YOU

“The Great Lakes belong to all of us. It’s in our DNA,” said FLOW executive director Liz Kirkwood. “We know that those waters that surround us, that bathe us, that nurture us underneath our feet, are inalienable rights for all.”

During this high-water month of July, FLOW will publish video postcards each weekday that feature Michiganders (and citizens of the Great Lakes Basin) explaining what the Public Trust Doctrine means to us and how our precious, publicly-owned fresh water shapes our lives and relationship to this place we call home.

“We chose July because this is the height of summer and the connections people have with our waters,” added Kirkwood. “This is an opportunity for us to renew our commitment to the Great Lakes and think about what stewardship really means. What will we do to make sure these waters are protected for our children and our children’s children?”

At its core, the Public Trust is a set of legal principles establishing the public right to our natural resources. It also establishes the government’s responsibility to protect public health and public rights to use those natural resources. Our goal is to increase everyday awareness about the Public Trust and make it feel less like a legal term and more like an existential code by which we all live.

We saw the Public Trust Doctrine in action last week when the State of Michigan and Attorney General Dana Nessel took the important step of defending the Great Lakes by suing Enbridge and alleging that its occupation of Line 5 violates the Public Trust.

“When Michigan and other states joined this country, the states took title to all navigable waters and the soils beneath them like the Great Lakes in trust for the benefit of its citizens,” said Jim Olson, FLOW president and founder and nationally recognized expert on public trust law. “This means the State has a duty to protect these waters, soils, natural resources, and the rights and uses of citizens from one generation to the next.

“Every citizen is a legally recognized beneficiary for use and enjoyment of these public trust resources for fishing, boating, drinking water, bathing, swimming, and other recreational activities. Governments and private persons cannot interfere with, impair, dispose of or alienate these public trust resources or preferred public rights and uses.”

Olson underscored the importance of the Public Trust Doctrine and its principles at this time in history.

“Whether oil pipelines in the Great Lakes, toxic algae and ‘dead zones’ in Lake Erie, Green Bay, or along Sleeping Bear Dunes, the sale and private control of public water, changes in water levels, erosion, flooding and damage to piers, docks, roads, water infrastructure from global warming and climate climate, the public trust in our waters offers all of us a path forward to address the existing damage and threats, and the world water and climate crisis. When government fails or others refuse to change, citizens have the right to enforce the law to protect their rights and the common good of the community, and their children and grandchildren.”

Our Public Trust video postcards this month will feature everyone from a U.S. Senator and a state Attorney General, to leading environmental advocates, to poets and dancers, to boaters and fishermen, to everyday citizens recreating, beach walking and swimming in their public waters. Through these videos, we hope to empower citizens, educate people about beach access rights, discuss the importance of protecting our groundwater, and reinforce the importance of protecting our freshwater in the age of Climate Change.

On the Fourth of July, we’ll also unveil an online “Public Trust Passport” that you can view, download or print, and use as a handy guide to learn more about your freshwater recreation rights.

Stay tuned to FLOW’s social media feed to learn why Sen. Gary Peters loves backpacking at Isle Royal National Park, why poet Anne-Marie Oomen loves to paddleboard, why toddler Judah Heitman digs swimming and kayaking, and the lifelong resonance of fly fishing with her father on the Boardman River for dancer Sarah Wolff.

Attorney General Nessel, Governor Whitmer Take Bold Legal Actions to Shut Down Line 5 and Apply Rule of Law

Today represents a historic turning point for all Michiganders. Attorney General (AG) Dana Nessel took decisive legal action on Pipeline 5 in the Straits of Mackinac when she filed suit in Ingham County Circuit Court to revoke the 1953 Easement that conditionally authorized Enbridge to pump oil through twin pipelines.

Nessel’s lawsuit alleges that Enbridge’s continued operation of the Straits Pipelines violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution, impairment, and destruction of water and other natural resources. Simultaneously, Governor Whitmer and the natural resources and environmental protection agencies have taken action through the AG to dismiss Enbridge’s June 6 lawsuit to defend the public’s rights and waters of the Great Lakes. 

“I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes,” said the Attorney General. “Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay.”

Gov. Gretchen Whitmer also ordered the Michigan Department of Natural Resources to review violations of the Line 5 easement. As the state’s top leader and public trustee, Whitmer has the express legal authority to revoke the easement to start decommissioning the pipeline.

“The governor’s primary goal has always been and remains to get the Line 5 dual pipelines out of the Straits of Mackinac as soon as possible,” said Whitmer’s press secretary Tiffany Brown today in a statement. “The risk of a catastrophic oil spill in the Great Lakes, and the harm that would follow to Michigan’s economy, tourism, and our way of life, is far too great to allow the pipelines to continue to operate indefinitely. As a recent National Transportation Safety Board report documented, any doubt as to the risk posed by Line 5 was erased in April 2018 when a barge dragging a 12,000-pound anchor nearly caused disaster.” 

FLOW (For Love of Water) commends Attorney General Nessel’s and Governor Whitmer’s legal actions against Enbridge. It’s about time Michigan’s government is standing up for our public waters — waters located in arguably the worst possible place in the Great Lakes for an oil spill to happen.

“Today, Attorney General Nessel returns Michigan and the protection of its citizens, taxpayers, and the Great Lakes to the rule of law,” said Jim Olson, president and founder of FLOW. “Governor Whitmer’s action on behalf of the state to nullify the lame-duck tunnel agreements also returns Michigan to the rule of law. They should be thanked. No, they should be applauded.”

Nessel’s move comes three weeks after Enbridge sued the State of Michigan on June 6 to claim its right to continue operating Line 5 and to build and operate a tunnel under the Great Lakes for the next 99 years. It comes just over six months after former Governor Snyder, former Attorney General Schuette and lawmakers gifted Enbridge a one-sided law and set of agreements during their last days in office that handed control of Great Lakes waters and soils beneath the Straits of Mackinac to a private Canadian company for its private gain.

Act 359 and the agreements during the 2018 lame-duck session were designed to allow Enbridge to continue the dangerous and unacceptably grave risks of a failing Line 5 design until the company builds a tunnel to lease for the next 99 years, with massive potential liabilities for the State and citizen taxpayers.

“The deal was approved by a lame-duck session law that was based on dubious constitutional and legal grounds, and sought to suspend the rule of law in Michigan, binding citizens and the state to the control of part of the Great Lakes for the next century,” said Olson. “The Snyder administration helped Enbridge run around our state constitution and evade the rule of law that protects the public’s ownership and rights in the Great Lakes.”

 

New year, new administration

After taking office on Jan. 1, Governor Whitmer’s first move was to direct Attorney General Nessel to examine the legality of the lame-duck tunnel deal. AG Nessel ruled in March that Act 359 violated Michigan law and openly violated the state constitution. Whitmer quickly ordered the executive branch to adhere to Nessel’s opinion, preventing the implementation by state agencies of the unlawful deal.

On June 6, Enbridge reacted by filing a lawsuit against the State in an attempt to resuscitate the lame-duck law and agreements, claiming easements and the right to continue using the existing Line 5 in the Straits indefinitely—or until it gets a 99-year tunnel and new pipeline to transport crude oil from Alberta and through Michigan into Ontario.

The Attorney General telegraphed her decision to stand with the Great Lakes. At the Mackinac Policy Conference in late May she told WWMT-TV in West Michigan, “I’m tired of it and we can’t have a private company be more important than the natural resources and residents of our state. They don’t own us, they don’t own the natural resources in this state and I think it’s time that we had elected leaders in office that recognize that.”

On the campaign trail in 2018, Nessel ran on a message to shut down Line 5.

“No state can cede the Great Lakes or soils under them to a person or private corporation,” said Olson. “These lakes and the soils under them are held in public trust for fishing, boating, drinking water, recreation, bathing, swimming for all citizens. This trust cannot be suspended by private agreements. The use of these trust waters and soils can only be authorized under law with transparent findings that there is no private deal or gain and no risk of impairment of current and future generations.”

 

Pure Michigan

Our freshwater seas are of paramount importance to Michiganders, and citizens throughout the Great Lakes basin. They uphold our economy and represent our very way of life. According to the Great Lakes Commission, Michigan has more than 3,000 miles of freshwater coastline and 11,000 inland lakes that provide residents, businesses, and visitors with access to nearly 20 percent of the world’s surface freshwater. More than 800,000 Michigan jobs and $62 billion in resulting annual wages are directly linked to the Great Lakes. 

An oil spill in the turbulent Straits of Mackinac between Lakes Michigan and Huron, where the currents create a washing machine effect, could jeopardize all that we are as Michiganders.

“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood.Attorney General Nessel and Governor Whitmer made strong campaign promises to shut down Line 5, and now our elected leaders are making good on their commitment to protect the Great Lakes.” 

Reactions from local leaders — both in city hall and in the private sector — were strong.

“Shutting down Line 5 is a priority to those in northern Michigan who rely on the economic benefits of the natural resources we have in our Great Lakes,” said Traverse City Mayor Jim Carruthers. “Our Attorney General is right for supporting the immediate shut down of this aging Enbridge Pipeline under our Straits, to ward off the devastating effects of a breach that will destroy all that is important to life ‘up north’. As the mayor of Traverse City, I wholeheartedly support these actions to protect the waters around my city for all to enjoy and benefit from.”

Business owners like Brian Schwartz of eightyfive MILES, a lifestyle apparel and accessory brand company, reflected on the economic value and significance of the Great Lakes.

“I am the owner of a Great Lakes’ inspired start-up and former hedge manager, and I don’t see Enbridge’s enthusiasm or desire to fund a $500 million tunnel project,” he said. “We believe it’s a faulty plan and the time is now to shut down Line 5. We support Attorney General Dana Nessel in the State’s battle to shut down this aging pipeline. Our company contributes a share of revenues to support Great Lakes’ conservation and it would be an ecological disaster and economic catastrophe to Michigan if the pipe were to burst. There’s no need to put the State’s livelihood and environment at risk.”

 

Deception campaign

“Despite the posturing and rhetoric of Enbridge’s media scheme, there are alternatives to the existing Line 5 that do not require a tunnel,” said Olson. “These include delivering propane for those pockets of customers in the Upper Peninsula, and the use of excess capacity in other Enbridge lines that run across southern Michigan and northern Indiana to Canada and Detroit. We don’t need a 99-year tunnel and pipeline in light of plummeting demand for crude oil as the world economy rapidly shifts to renewable energy.”

“The Enbridge lawsuit is a diversion from the reality that the 540,000 barrels of oil are pulsating through a 66-year old pipeline, which is peppered with design flaws, gouges, corrosion, and unavoidably threatened with another anchor strike at any time.”

Enbridge has failed to prove itself as a trustworthy and transparent partner. Time and time again, Enbridge has withheld information, attempting to hide Line 5’s design flaws, pipeline coating, cracks, gouges, corrosion, and the April 1, 2018 anchor strike that nearly caused a calamitous spill, anchor strikes, and more. Enbridge’s operational track record is dismal. Its Line 6B Kalamazoo River disaster in 2010, one of the largest inland oil spills in U.S. history, cost $1.3 billion in damages. Line 5 has suffered 33 known spills, leaking approximately 1.1 million gallons of oil into Michigan’s environment.

An increasingly desperate Enbridge is enlisting allies to engage in what can only be deemed a deceitful Chicken Little campaign. The Canadian company wildly alleges that “shutting down Line 5, even temporarily, would mean lost union jobs, refinery closures, gas price spikes and greater harm to the regional economy every year.” The campaign is designed to scare officials into giving the company what it wants — a 99-year lease to use the people’s waters and lakebed to transport refined dirty tar sands oil from western Canada primarily to Sarnia, Ontario.

Enbridge makes the absurd claim that the PBF refinery in Toledo, Ohio, would lose a thousand jobs if Line 5 is shut down. But that directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts, emphasizing the refinery has several sources of supply and can adjust them depending on market conditions. PBF also claims that 40% of the jet fuel used at Detroit Metropolitan Airport comes from refined Line 5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day. Alternative pipeline sources can more than make that up. Impacts of a Line 5 shutdown on Metro Airport jet fuel have never before been raised as an issue in the Line 5 debate or when Line 6B ruptured and closed in 2010. Its introduction at the 11th hour after more than five years of controversy over the fate of Line 5 is a transparent effort to alarm the public.

Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Mackinac Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.

Enbridge has a track record of misleading the public and governments about its performance, and its recent efforts are consistent with the company’s apparent philosophy of saying anything to keep Line 5 petroleum — and profits — flowing.

FLOW applauds Michigan’s top leaders — Gov. Whitmer and AG Nessel — for their leadership in defending the people’s rights and public waters of the Great Lakes.

Walking the Water Line — a Legal Right, But Difficult as Great Lakes Levels Rise

Pack away those dreams of walking miles from bay to bay along the shores of Lake Michigan this summer—unless you want to get wet, that is—reports Linda Dewey for the Glen Arbor Sun.

The U.S. Supreme Court reaffirmed the public’s right to walk the Great Lakes shoreline in February when it declined to hear an Indiana case filed by riparian landowners who live along the south shore of Lake Michigan. But with near-record breaking high water levels this spring, the reality isn’t so simple.

“Public spaces, infrastructure, and Great Lakes beaches are underwater,” says FLOW founder and president Jim Olson. “We see the effects of rising Great Lake water levels everywhere, from Chicago’s treasured waterfront, to Sleeping Bear Dunes National Lakeshore, to Clinch Park here in Traverse City.”

“The question becomes: What does this mean, and what might citizens do about it?”

Legally, the Public Trust Doctrine protects the rights of citizens to walk along the beach or shore in the area below the Natural or Ordinary High Water Mark (OHWM) along the Great Lakes, along with the rights of fishing, boating, and swimming, explains Olson. But what happens when the water rises above the Natural High Water level or mark?

The Public Trust Doctrine assures walking the beach along the shore above the Natural High Water Mark as long as people walk within the so-called “swosh” or wet zone. This is why the doctrine relies on the definition of “natural”—the beach defined by wave action and other natural forces. Generally, this means that if you stay within the wet, compacted sand or stones you are safe and not trespassing on the property of riparian landowners.

So when the water is high, that means that walking the Great Lakes shoreline along private property is allowed. Plopping down with your beach towels, cooler, or firewood is not.

Climate Change Infringes on Public Trust

“The public is also right to wonder: what happens when the water rises to the toe or up a bluff, completely shutting off public access along the shore?” Olson said.

Legally, the Public Trust Doctrine prohibits any interference or impairment of the public’s right to access and walk along the shore. Members of the public can insist, by court action if necessary, that the interference or impairment must be prevented or minimized by those who are responsible.

In the case of the current extremely high water levels, the most recent United Nations International Panel on Climate Change pins the cause of  unprecedented high water levels in the Great Lakes on the effects on climate, evaporation, precipitation caused by greenhouse gases.

So, legally, citizens have a right to demand—through lawsuits if necessary—that government and industries causing higher and higher levels of global warming reduce their greenhouse gases. Why? Because their action or inaction is impairing one of the public’s valuable protected rights—access to walk along the shore–in violation of the Public Trust Doctrine.

Danger at Sleeping Bear Dunes

The Glen Arbor Sun reports that with the “Ordinary High Water Mark” on Sleeping Bear Bay currently under water and cliffs marking the Natural High Water Mark, the question of where one can walk the beach becomes more than a question of trespassing or the Public Trust. Now the issue is safety.

That has prompted staff at Sleeping Bear Dunes National Lakeshore, in northwest lower Michigan to discourage the public from running down popular water-facing dunes or cliffs like the overlook from Pierce Stocking Scenic Drive.

The issue is serious—and potentially dangerous. National Lakeshore Deputy Superintendent Tom Ulrich said that Lakeshore staff recently had a meeting to figure out how to help climbers stuck on the dune below the Pierce Stocking overlook. They used to help those not in need of immediate life support walk back down to the shoreline and then south to North Bar Lake (sometimes with the help of their ATV, if needed).

“No more!” Ulrich said. “That route is impossible now. You cannot walk to North Bar Lake.” The only alternative is calling a boat out of Leland, which will take an additional 30-60 minutes to arrive.

“That’s why, this year, we’re going to try to let people know this is a really bad choice … to descend that slope, because our rescue is so limited.”

The problem exists up and down the Lake Michigan shoreline. One beach at the Indiana Dunes National Park is temporarily closed because wave action has created a cliff-enclosed beach. Walkers are also warned not to walk out on piers when waves break over them for fear they will be washed away.

On May 20, ABC Channel 57 in Indiana reported that last year was the deadliest ever for Lake Michigan with 42 deaths. This year has already seen seven fatalities, according to the Great Lakes Surf Rescue Project.

FLOW’s Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline

FOR IMMEDIATE RELEASE:                                                                                              April 17, 2019

Liz Kirkwood, Executive Director                                                                 Email: Liz@FLOWforWater.org
Office: (231) 944-1568                                                                                     Cell: (570) 872-4956

Jim Olson, President, Cell: 231-499-8831                                                   Email: olson@envlaw.com
FLOW (For Love of Water), Traverse City, MI                                           Web: www.FLOWforWater.org


FLOW Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline


Traverse City, Mich. –  FLOW (For Love of Water) issued the following statement on the disclosure that Gov. Gretchen Whitmer and Enbridge Energy will discuss expediting construction of an oil tunnel beneath the Straits of Mackinac while the company’s troubled Line 5 pipelines continue operation in the Straits:

“We are concerned about this development. Every day that the Line 5 pipelines continue to operate is a risk to our precious Great Lakes,” said FLOW executive director Liz Kirkwood. “State government’s efforts should first and foremost be devoted to shutting the pipeline down, not negotiating its continued operation while a tunnel is explored and possibly built.

“Now that the Governor has chosen to engage in this process, we hope and trust it will be a transparent one. It is unfortunate that her predecessor engaged in secret talks on agreements with Enbridge, and the lame-duck Legislature was so eager to benefit Enbridge that it passed a sloppy statute that the Attorney General ruled unconstitutional. We are confident this Governor will operate differently,” Kirkwood said.

“We are also hopeful that the Governor will restore and apply the rule of law to Enbridge’s operations in the Straits. Any easement or lease of Great Lakes bottomlands and any private control for a 99-year tunnel by a private company like Enbridge for a private operation must be authorized under the Great Lakes Submerged Lands Act (GLSLA),” said Jim Olson, President of FLOW.

“The GLSLA ensures a public review, analysis, participation, and a determination under standards that protect the public trust in the waters of the Great Lakes and the soils beneath them from privatization and impairment. It also ensures a thorough evaluation of feasible and prudent alternatives, including ones that do not involve use or control of the Great Lakes. No agreement between the executive branch and a private company can override this fundamental law,” Olson said.


The Future of Line 5 in the Straits of Mackinac





Now that Michigan’s governor and attorney general have sunk the oil tunnel scheme hatched by the last administration, I’m asked nearly every day: What can citizens and state leaders do to shut down the propped-up, banged-up Line 5 oil pipelines in the Straits of Mackinac for good?

Here’s my answer, as succinctly as I can distill it, accompanied by a summary of the law and political history in play.

So what should Governor Whitmer and Attorney General Nessel do?

Governor Gretchen Whitmer and Attorney General Dana Nessel must take swift and comprehensive actions to review and reverse the improper failure of the former Snyder administration to bring Line 5-owner Enbridge under the rule of law. Enbridge has had its way with Michigan’s prior elected officials, and it is time to call a halt to this nonsense. Here are the steps to getting Enbridge out of the Great Lakes for good:

Proposed Oil Tunnel:

  1. Send a Letter: Tunnel Deal Is Dead– Governor Whitmer and Attorney General Nessel should send a formal letter to Enbridge advising the company that its agreements calling for a transfer or occupancy of the Straits of Mackinac public trust bottomlands, the new state-granted easement, and 99-year lease for the proposed oil tunnel that would house a new Line 5 are unenforceable unless Enbridge has obtained authorization under state law – the Great Lakes Submerged Lands Act (GLSLA).

Line 5 in the Straits:

  1. Send another Letter: No Life Support for Line 5 – Governor Whitmer and the Michigan Department of Environmental Quality (DEQ), along with Attorney General Nessel, should send a letter to Enbridge advising it that the agreements purporting to grant Enbridge occupancy and use of waters and bottomlands the existing Line 5 for 10 years or more are unenforceable, because the former administration and Enbridge failed to obtain the required authorization under the GLSLA.
  1. Apply the Law to the Redesign of the Ailing Pipelines – Governor Whitmer and the DEQ, along with Attorney General Nessel, should investigate and correct the lack of review and showings required by the GLSLA and public trust law for the substantial change in design implemented for the 3 miles of pipeline elevated above the lakebed under the guise of “repair.” Enbridge should be instructed that it must show the risks and magnitude of harm are minimal and that there exist no other alternative than the existing line in the Straits or Great Lakes.

How Did We Get Here on Line 5? Tracing the Law and the Politics

The plotting of former Governor Snyder’s administration and Enbridge to hand over the public trust soils and bedrock under the Straits of Mackinac for the company to build and operate a new crude oil pipeline in a tunnel for 99 years has been put on hold.

On her first full day in office, Governor Gretchen Whitmer asked Attorney General Dana Nessel for a formal opinion on whether the Snyder-Enbridge agreement and legislature’s stamp of approval through a lame-duck law known as “Act 359” to hand over the Straits for Enbridge’s tunnel  to Enbridge was constitutional.  In late March, Attorney General Nessel found it was not constitutional because the legislature tried to graft a private tunnel-pipeline project onto a public infrastructure law that governs a public icon—the Mackinac Bridge.

Read more about the history and law surrounding Line 5 here!

  1. Revoke the Easement – Attorney General Nessel along with the Department of Natural Resources (DNR), along with the above actions, revoke the 1953 easement because under the current circumstances the existing Line 5 is no longer in compliance with the common law standards of the paramount interests of the Great Lakes protected by public trust law; if Enbridge desires to continue using the existing line in the Straits, the company must submit an application for authorization of such use and occupancy along with the authorizations identified in this list.
  1. Increase Insurance Requirement and Verify It – Governor Whitmer, the DEQ, and the DNR, with the Attorney General, should require Enbridge to submit financial assurances that cover the worst case economic and natural resources damages of at least $6 billion (significantly more than the current cap of $1.8 billion), retain qualified experts to determine the adequacy of those assurances, and require Enbridge to name the State of Michigan as an “additional insured” and/or “named insured” on its insurance coverage for Line 5. Inadequate insurance is another cause for revoking the easement.

Once the Governor and Attorney General do these things, they will have taken action consistent with their pledge in being elected to lead the State and protect the Great Lakes, by nullifying the improper actions and agreements of their predecessors and bringing Enbridge, finally, under the rule of law. Regardless of the outcome, the interested parties, communities, and persons in this controversy and the government will be required to make determinations concerning the fate of Line 5 in an open forum based on facts, science, and law.  We are ruled by law, not by self-serving agreements that were plotted to avoid it.

Given President Trump’s executive orders this week to water-down or smooth over federal laws and regulations affecting water, the Great Lakes, and pipelines, it is more critical than ever that Governor Whitmer and Attorney General Nessel exercise the full jurisdiction and authority they and the State of Michigan under its exclusive power over use of the waters and bottomlands of the Great Lakes, its lakes and streams, public lands, and the public trust in the Great Lakes and navigable waters and public common property of Michigan. This trust imposes a duty on our leaders to protect the interests of citizens, the legal beneficiaries of this trust. Not the President, not Congress, not federal agencies, or state government can repeal, limit, or narrow the state’s duties and citizens’ individual and common rights under this public trust.

What Should Citizens Do?

It is quite simple: Citizens should do what they always do best. Continue to stay involved, increase communications to Governor Whitmer, Attorney General Nessel, and the Director of the DEQ, and the DNR.  These communications should do the following:

  • Thank our state leaders for taking action on the unconstitutional Act 359 and the misguided oil tunnel agreement;
  • Urge our state leaders to take immediate steps to implement the actions outlined above to formally scrap the oil tunnel and shut down Line 5.

FLOW Praises Governor for Action on Line 5


FOR IMMEDIATE RELEASE:                                                                      March 28, 2019

Liz Kirkwood, FLOW Executive Director                                                   Email: Liz@FLOWforWater.org
Office: (231) 944-1568, Cell: (570) 872-4956                                           Web: www.FLOWforWater.org

Jim Olson, FLOW Founder and President                                                Email: olson@envlaw.com
(231) 499-8831 

Dave Dempsey, FLOW Senior Advisor                                                     Email: dave@FLOWforWater.org
(612) 703-2720


In the wake of an opinion by Attorney General Dana Nessel invalidating a law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, Governor Gretchen Whitmer has now ordered state agencies to pause permitting on Line 5, an action hailed by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

“We welcome the Governor’s swift, prudent action to halt the legal effect of the law and tunnel and side agreements,” said Jim Olson, founder and president of FLOW. “Now, it’s time to bring the existing perilous Line 5 in the Straits under rule of law and decommission it as quickly as possible.”

“The backroom deals creating Enbridge’s proposed oil tunnel couldn’t survive public scrutiny, and now we know they can’t survive the rule of law,” said Liz Kirkwood, Executive Director of FLOW. “It’s time to focus on Michigan’s true energy future and protect Michigan’s Great Lakes and our economy from a Line 5 pipeline rupture. The path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac.”


Sign of the Times: Toledo Voters Pass Bill of Rights for Lake Erie

Above: A Summer day on western Lake Eire


A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.

As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.

Holy Toledo! The Frustration!

So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie? 

In a word—frustration!

Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.

In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.

The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.

Well, not exactly no action

Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.

Toledo is a Telltale Sign

On February 26, 2019, less than a month ago, the voters of Toledo blew into the voting booth and won—61 percent to 39 percent—and adopted a new local law, a “Lake Erie Bill of Rights” to prohibit activities and projects that threaten or harm Lake Erie!

Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.

What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.

Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.

Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.

Symbolism, Standing, and Redress

While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do. 

I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.

Recognizing Rights, and Ourselves, in Nature

Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.

Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action. 

When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.

The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.

Michigan, Ohio, and the Public Trust

In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.

Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.

How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.

A Flag to Rally Around

In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.

Jim Olson, President and Founder

It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.


Bypassing, and Now Restoring, the Rule of Law on Line 5

After last year’s election, newly chosen leaders and the old guard with a few weeks left in Lansing rushed in opposite directions. The Snyder administration and legislators intensified their unprecedented, legally questionable attacks on water, the environment, and public health during a lame-duck feeding frenzy.

The new guard, Governor Gretchen Whitmer and Attorney General Dana Nessel, meanwhile formed transition teams and appointed cabinet members, new department heads, and staff to reestablish Michigan’s constitutional mandate that the state shall protect the paramount public concern in the Great Lakes, groundwater, and public health from pollution and harm arising out of water crises like statewide PFAS surface and well water contamination, Detroit drinking water shutoffs, lead and Legionnaire’s Disease in Flint water, and the Enbridge Line 5 oil pipelines in the Straits of Mackinac.

The combination of these crises manifests a far deeper crisis in state government—a breach of trust in the oath of office of state officials to uphold the constitution and rule of law. State leaders under the Snyder Administration and many elected officials deliberately ignored the constitutional and legal mandates and instead chose to serve special private interests.

FLOW’s Commitment: Protecting Public Waters from Pollution and Private Control

Here at FLOW, we are increasing our efforts and projects to protect the paramount public trust concern in water, the environment, and public health through our Campaign for Fresh Water launched last fall. One of these projects is to bring an end to the high risk of extreme damage to the Great Lakes, tribal fishing, drinking water, property, businesses, citizens, and Michigan’s economy from the continued operation of the decaying, 66-year-old Line 5 oil pipelines in the Straits of Mackinac.

FLOW has redoubled our efforts in concert with a large public outcry and movement to decommission or end Line 5, collaborating with Oil & Water Don’t Mix and many local and statewide environmental groups, like National Wildlife Federation and Groundwork Center, individuals, families, businesses, communities, elected officials, and the leadership and legal challenges brought by Michigan’s Indian tribes with treaty rights in the Straits, Straits of Mackinac Alliance, and the City of Mackinac Island.

The former Snyder Administration and state environmental and natural resource agencies, former Attorney General Schuette, and a core of pro-Enbridge legislators in a flurry of agreements, laws, and actions, suspended the state Constitution and rule of law to convey and appropriate public trust lands and waters for Enbridge to build a private oil tunnel for a new Line 5 in the Straits of Mackinac for another 99 years. Worse, these state officials and leaders purported to guarantee Enbridge to keep operating and using Great Lakes bottomlands for its dangerous existing Line 5 for another 10 years—without the required authorization and occupancy or use agreements required by the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes.

This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law.

This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law. The administration and legislature signed off on a covert deal that would let Enbridge Energy continue pumping 540,000 barrels of oil a day (bbl/day; 1 barrel equals 42 U.S. gallons) through the dual lines laid in 1953 in the Straits and Great Lakes with a catastrophic worse-case damage scenario in the tens of billions of dollars. Unaccountably, the administration and legislature did so despite Great Lakes law in Michigan that prohibits the transfer or occupancy of the state-owned waters and the soils beneath them for private purposes.

Reward for Failure: After Enbridge’s 2010 Kalamazoo Pipeline Disaster, Michigan Officials Doubled Enbridge’s Oil Pumping across Michigan, and then Locked in an Oil Tunnel Deal for 99 Years

How is it that the State ended up rewarding Enbridge for a spill from Line 6B of a million gallons of crude oil and billions of dollars of damage to the Kalamazoo River system? While the State worked with Enbridge to address the damage from its unprecedented 2010 spill, it granted Enbridge a gigantic windfall by incrementally approving, from 2012 to the present, the doubling of Enbridge’s pipeline capacity and oil transport through the Great Lakes. In effect, while Canadians continued to block pipeline projects to transport crude oil to the country’s coasts, and citizens in the U.S. derailed the Keystone XL in the West, the Snyder Administration and former Attorney General Schuette orchestrated a “Great Lakes XL” that is even larger.

And then in 2018, Snyder, in his term’s waning months, and the lame-duck legislature gave away and endangered the Great Lakes to Enbridge, by locking in a 99-year sweetheart deal for Enbridge to build an oil tunnel to convey Line 5 under the Straits and granting Enbridge the cover to keep operating the existing failing Line 5 that threatens tens of billions in damages. On top of this deal, the Administration totally failed to even consider climate change impacts and risks and the rapid shift toward the new renewable energy economy that will leave the state with a billion-dollar dinosaur.

Here’s how the calculated actions of Snyder, Schuette, and their cohorts bypassed legal requirements in seven sweeping steps, along with some advice from FLOW to Michigan’s new leadership at the start of their journey to reestablish the rule of law and rollback the mess:

  1. Bit by Bit, Doubling the Oil Flow on Line 6b after Enbridge’s Kalamazoo River Disaster

First, from approximately 2011 to 2014, the Michigan Public Service Commission (MPSC) approved a series of Enbridge applications to replace short segments, rather than a single application to replace the whole portion, that had the effect of doubling the design capacity of most of Line 6b pipeline from 400,000 to 800,000 barrels (bbl)/day. Allowing the MPSC to review shorter pipeline segments avoided the alternative analysis on the entire Line 6b from Indiana to Sarnia, Canada. 

MPSC rules and decisions, and Michigan’s environmental laws, require a review of likely impacts and alternatives to the entire length of the pipeline. Had this rule been followed, the MPSC would have been required to look at all of the Enbridge lines in Michigan, and determine the overall needs of the public necessity and needs of the company, short and long term, and the alternative or best route or location that would best meet that need with the least impact and risk to water, environment, and communities. That would have included a review of the need for Line 5, including the risks to the Straits of Mackinac and Great Lakes. It also would have required a consideration of the future need for crude oil through Enbridge’s system in Michigan in light of falling crude oil demands caused by the rapid and imminent shift to renewable energy to reduce the effects of climate change.

  1. Increasing Line 5’s Oil Flow in the Straits by 80 Percent

Second, during the same time frame, the MPSC approved the location and installation of new and changed pump stations and anti-friction fluid injection facilities for Line 5, including the Straits segment, so Enbridge could implement its final increment to result in the increase the oil transport capacity of Line 5 from 300,000 to 540,0000 bbl/day.  Again, the MPSC did not evaluate the need, impacts, risks, or alternatives to this overall 80-percent increase in flow volume of crude oil.  Once more, the State allowed Enbridge to avoid the law that required a full evaluation of the purpose.  Had the rule of law been followed in the doubled Line 6B and expanded flow volume in Line 5, the State through proper notice, public input, and evidence would have been required to look at overall impacts, risks, and alternatives and need for the Enbridge system, and Line 5 could have been decommissioned in an orderly manner in exchange for the doubling of Line 6B.

  1. Saddling, Elevating, and Damaging Line 5 in the Straits

Third, although not disclosed by Enbridge until 2016, Enbridge installed saddle supports screwed into the lakebed to support a failing design of Line 5 in the Straits. The original design specified in the 1953 easement and built in the Straits called for the heavy steel dual lines in the Straits segment to be laid on the bottom on the lakebed. If wave action and currents scoured more than 75 feet of soils beneath a segment of the pipes, the company was required to stabilize the line by closing the existence of the spans.

While not disclosed until 15 years later, when filling or grout bags failed, Enbridge in 2001 started installing saddle supports screwed into the lakebed to elevate the heavy dual pipes above the lakebed. Initially, there were 16 supports, more and more were added, and between 2016 and 2018, the Michigan Department of Environmental Quality (DEQ) permitted Enbridge to install more than 70 saddle supports, bringing the total to 200 supports, which has resulted in a suspension of three miles of an aged line above the lakebed.

The DEQ shrouded Enbridge’s failing Line 5 risks and redesign by characterizing the supports as a “repair” and “maintenance.”  This not only covered up the redesign but confined the legally required impact and alternative analysis to a 50-foot radius of lakebed around each support.  As a result, the DEQ ignored and allowed Enbridge to escape the comprehensive review of potential impacts and alternatives to the failing condition of the outdated line required by the Great Lakes Submerged Lands Act.

In addition, Enbridge’s installation of the saddles has damaged Line 5’s anti-corrosion protective coating, a fact that the company hid from Michigan officials for three years during its negotiations to install additional anchor supports.

  1. Signing Side Deals for Another 99 Years of Line 5 in the Straits

Fourth, Governor Snyder, DEQ and the Department of Natural Resources (DNR) signed two agreements with Enbridge between October and the end of December 2018 that purported to transfer state public trust bottomlands and soils of the Straits so Enbridge can build a tunnel for a new 99-year pipeline. The tunnel and new line will take 10 years or more to construct. Until the new line is operating, Enbridge is authorized to continue operating the failing design of the existing aged line.

Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses.

Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses.  The two agreements that commit leasing, easements, or use of waters and soils beneath the Straits do not require Enbridge to obtain authorization or findings under the GLSLA. In other words, the Governor and his agencies agreed to transfer state public trust lands for the tunnel and the private 99-year new line, and at the same time allow the continued use of public bottomlands for the existing line, without obtaining the authorization required by law.

  1. Ramming through a New Law to Transfer State Public Lands to Canada’s Enbridge without Proper Authorization

Fifth, when the Legislature ram-rodded the passage of Public Act 359 and Governor Snyder signed it into law in late December, they created a corridor authority to sign the tunnel agreement, easements, leases and other commitments for Canadian-based Enbridge to take over the public’s state-owned waters and soils and build the tunnel and its new pipeline. On its face, Act 359 transfers or commits to the authority these state public trust bottomlands without requiring authorization of the conveyance under the GLSLA. Under U.S. Supreme Court and Michigan Supreme Court decisions, any disposition, occupancy, or use must obtain authorization based on findings of no private purpose and no impairment of waters, soils, fishing, navigation or other public rights.  Otherwise, it is prohibited.

  1. Bypassing State Law and Alternatives to Risking the Great Lakes

Sixth, the easement for a public utility, after approval by the MPSC, such as the tunnel or the 99-year lease, or the continued operation of the existing Line 5 in the Straits, must be obtained from the state DNR in addition to the authorization under the Great Lakes Submerged Lands Act. Because the easements involve public trust bottomlands, they cannot be granted unless authorized by the GLSLA or unless based on the standards of the common law of public trust, which requires the comprehensive review of potential impacts and alternatives to the total or substantial change of the outdated dual lines in the soils and open waters of the Great Lakes.  

  1. Appropriating Public Property for Enbridge’s Private Purpose

Seventh, the Michigan Constitution, Art IV, Sec. 30, prohibits the appropriation of public property of the State for private or local purposes. An appropriation occurs where the disposition or transfer of state property, like the public trust waters and soils of the Great Lakes, is granted without findings or full and fair compensation—that is, where the transfer is for free, little consideration, or less than the full public trust value of these waters and soils.

In short, our former Governor, DEQ and DNR Directors, the MPSC, and former Attorney General suspended wholesale the rule of law for the benefit of Enbridge’s massive increase in the volume of crude oil through our Great Lakes State for private gain.

Restoring the Rule of Law and the Paramount Place of the Water and the Great Lakes in Michigan’s Future Prosperity

The first order of business for our new leaders—Governor Whitmer and Attorney General Nessel—is to restore the rule of law on Line 5 in Michigan, and they are off to a good start.  The high risks and more than $6 billion catastrophe from a release of crude oil in the Great Lakes and an estimated additional $45 billion in damage to shipping, steel production, and jobs are unacceptable by any sane measure.  

The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.

Governor Whitmer should direct her new directors of the DEQ and DNR and Attorney General Nessel should direct her lead attorneys on Line 5 and the Great Lakes to conduct a thorough and careful review and reevaluation of the Snyder Administration’s and former Attorney General Schuette’s failure to follow the public trust, GLSLA, and Michigan Constitution in the handling of the entire Enbridge Line 5 controversy.

Buoyed by the work of so many organizations, tribes, communities, individuals and families, and the majority of citizens who elected them, the Governor and Attorney General Nessel and their administrations have a mandate and opportunity to restore water, environment, and public health as paramount in Michigan. The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure. 

Jim Olson, President and Founder

Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Straits and the Great Lakes.  There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.


Take Action Today to Oppose Michigan’s Senate Bill 1197 and Save the Mackinac Bridge from Enbridge Line 5

FLOW President Jim Olson addresses the board of the Mackinac Bridge Authority at its Nov. 8, 2018, meeting in St. Ignace.


FLOW is urging supporters to contact your Michigan lawmakers today using our guidance below and to plan to join FLOW and other leaders of the Oil & Water Don’t Mix campaign who are hosting a Line 5 lawmaker lobby day for Tuesday, November 27, in Lansing, to fight for the Great Lakes and the Mackinac Bridge by opposing Governor Snyder’s Enbridge oil tunnel scheme and shutting down Line 5 in the Mackinac Straits.

In coordination with the Snyder administration, departing State Sen. Tom Casperson, a Republican from Escanaba, on November 8 introduced Senate Bill 1197 to amend the Mackinac Bridge Authority Act to allow it to own and operate a “utility tunnel,” with the Enbridge Line 5 oil pipeline as the intended occupant. There’s also the uncertain prospect of adding gas or electric lines, which could rent space in the tunnel by paying Enbridge, not the bridge authority that is proposed to own it. In fact, if the fiber optic lines that currently cross the Mackinac Bridge were moved to the proposed tunnel, Enbridge could gain more than $500,000 a year in lease revenue currently going to operate and maintain the bridge.

Please use our updated Line 5 oil tunnel fact sheet to get informed and share it with your lawmakers and others who can help stand up for the Great Lakes and the Mighty Mac. Here are the three key points to make when contacting your lawmaker (You can look up your state representative here and state senator here).

Senate Bill 1197:

  1. Fails to address the imminent risk of the decaying Line 5 pipelines lying on the bottom of the Great Lakes for 10 years or more. The deal struck by Gov. Snyder and Enbridge would lock in, by right, the operation of the 65-year old, gouged, damaged, and deteriorating Line 5 dual pipelines across the Straits of Mackinac for at least the 10-year period it is expected that tunnel construction would take.  At any future time, if the Enbridge decides not to build the tunnel, the agreement would obligate future governors to keep Line 5 in the waters of the Mackinac Straits indefinitely!
  2. Compromises the mission of the Mackinac Bridge Authority (MBA) and the Mighty Mac itself. For more than 60 years, the Mackinac Bridge Authority has overseen and managed Michigan’s most iconic asset with no hint of controversy and with impeccable performance. This proposed legislation would draw the MBA into the middle of a major controversy with no other purpose than to allow a private, Canadian oil company to continue using a short cut across Michigan and through the Great Lakes to transport oil from western Canadian oil fields to eastern Canadian refineries, with some of that oil being shipped overseas.
  3. Exposes the Mackinac Bridge Authority, toll payers, and taxpayers to financial peril. Since its beginning, the Mackinac Bridge was designed to be funded through the tolls collected by those crossing the bridge. The proposed legislation, which is designed to authorize the backroom deal struck by Gov. Snyder and Enbridge, opens up numerous areas of financial risk for the MBA and the public, including the potential liability in the event of an explosion or other catastrophe associated with the proposed tunnel or if Enbridge fails to keep its commitments to build and maintain the tunnel during the 99-year lease.

The Michigan Senate could quickly approve the bill in the lame duck session after Thanksgiving, and send it to the House. Gov. Snyder is seeking to sign and tie the hands of the incoming administration of Governor-elect Gretchen Whitmer and Attorney General-elect Dana Nessel, who both campaigned for shutting down Line 5, not replacing it with a tunnel. Gov. Snyder also released a draft of a third oil tunnel agreement with Enbridge, which Senate Bill 1197 seeks to enact.

Click here for FLOW’s summary of recent action at the November 8 meeting of the Mackinac Bridge Authority. Stay tuned to the FLOW’s website for additional updates, legal analyses, and more steps that citizens, communities, and businesses can take to protect the Great Lakes and the Mighty Mac.