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FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This 1500-year old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – like the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.
In the coming year, we will explicitly address public trust concerns on what we’re calling Public Trust Tuesday. Today, we begin with a roundup of critical public trust issues in Michigan in 2018.
Let’s look on the bright side, rather than dwelling on past failures. In the coming year, state officials and legislators have several opportunities to full their responsibilities as trustees of public trust resources:
Line 5: The twin pipelines crossing the Straits of Mackinac underwater are there only because, in 1954, the state granted the company now called Enbridge the privilege. State government never relinquished its ownership, on behalf of the public, of these waters and submerged lands.
In 2017, a stream of disclosures about negligence, poor pipeline stewardship, and concealment of critical information by Enbridge dramatized the risk to the public interest posed by Line 5. The Attorney General and Governor have the opportunity to eliminate this risk by revoking the Enbridge easement and phasing out or shutting down Line 5.
Nestle: The multinational corporate giant in 2016 asked the state DEQ for an increase in its already excessive pumping of groundwater for bottling and sale. This despite evidence that Nestle’s existing withdrawal is lowering the water levels of streams fed by this groundwater, and harming fish and fishing. The DEQ has an opportunity to protect the public trust by denying Nestle’s permit request.
Aquaculture: Proponents are seeking a state law authorizing the installation of factory fish farms in Great Lakes waters. These operations, which generate large amount of fish feces and could undermine the genetics of public fisheries, do not belong in public waters. Further, the private occupancy of public waters by fish farms and other structures is wholly inconsistent with the public trust doctrine. The Legislature has the opportunity to protect the public trust by rejecting the legislation.
These are only some of the public trust concerns at stake in Michigan and the Great Lakes this year. FLOW will work to restore awareness of and respect for the public trust doctrine among Michigan officials, and help the public bring pressure on them to fulfill their responsibilities.
Liz Kirkwood, Executive Director
Our State’s leadership in the handling of Enbridge’s Line 5 in the Straits of Mackinac has gone from bad to worse. In light of disclosures by Enbridge of a failed pipeline design and the refusal on the part of our State leaders to take action to prevent devastating harm to the Great Lakes, it is time for leaders to either step up or step aside and let the voters or courts decide.
Enbridge has revealed previously withheld documentation showing bending of pipelines from extreme currents, delaminating protective cover, and numerous sections of bared steel open to corrosion. What Enbridge doesn’t understand is this: The State is trustee for citizens who are legally recognized beneficiaries of the public trust in the Great Lakes. The State trustee has a duty to prevent unacceptable harm or risks to the Great Lakes and the boating, fishing, swimming, and drinking water that depend on them. The decision does not belong to Enbridge but to our State’s leaders as trustees of these public paramount waters. Risk is a function of magnitude of harm; the higher the harm, the greater the risk. So it doesn’t matter what Enbridge executives think or say, or what their studies say after consultants have admitted conflicts of interest and withheld critical information on the failed condition of the lines.
Our State’s leaders must put an end to this now. Statements by Governor Snyder, DEQ Director Grether, and Attorney General Schuette about “serious concern” or “disappointment” do not go far enough. The proper response to the serious risk of unthinkable harm to the Straits and Great Lakes is not mere feeling; it is leadership and action. Governor Snyder’s recent agreement has belied even his disappointment. He expressly short circuited the his own advisory board and a citizen process established by his own Executive Order. The agreement expressly narrows a comprehensive alternative study to find a way to avoid crude oil pipelines in the Great Lakes, by expressly agreeing to a replacement of Line 5 in the Straits of Mackinac and the St. Clair River. So much for disappointment, he’s handing Enbridge a large Christmas present.
The Governor and DEQ should have required Enbridge to prove that there is no alternative to crossing under the Great Lakes for pipeline transport to Canada. It is unlikely Enbridge could prove that a non-Great Lakes pipeline alternative does not exist, given the fact that Enbridge recently doubled its design capacity in Line 6b across southern Michigan to Sarnia from 400,000 to 800,000 barrels. To win approval from the Public Service Commission to double its capacity across southern Michigan after the Kalamazoo disaster, Enbridge repeatedly testified if approved the doubled capacity would fulfill the company’s current and future needs, as well as those of Canada and the smaller needs of Michigan.
Our leaders must suspend the transport of crude oil through Line 5, and order Enbridge to start over by revoking the easement the state granted in 1953 and making the company comply with the laws and public trust that protect the Great Lakes. A bank trustee would have been replaced a year ago for such inaction as our state’s. If our leaders, the sworn trustees of our Great Lakes, don’t take action, they, too, should be replaced. Hopefully, it won’t come to that. If it does, then our third branch of government—the courts—should step in as they would in a receivership where management has failed.
It will not have to come to this if our leaders put a stake in the ground and suspend transport of oil. It will finally after three years of “cat and mouse” place the burden where it belongs: on Enbridge. Enbridge must be forced under rule of law to prove no catastrophic harm or acceptable risk and that it has no alternative to a pipeline in the Great Lakes. The truth is Line 5 under the Straits violates “reasonably prudent person” standard in the Easement, a common sense covenant that the company agreed to when it was granted the 1953 easement. It is no longer prudent to risk the Great Lakes with a crude oil spill of tar balls, dead fish, and oily wildlife and beaches.
The message and course of action for our Great Lakes State leaders is clear: Step up or step aside. If not, the courts or voters will do it for you.
What do the Flint drinking water catastrophe and the recent agreement regarding the Enbridge pipeline at the Straits of Mackinac have in common? Both are the result of a gubernatorial administration with fundamental mistrust of the public it serves.
In Flint, the Snyder Administration appointed an emergency manager to short-circuit democratic processes and act paternally on behalf of a community it deemed incapable of self-government. The result was appalling damage to the health and well-being of the community.
This week, the Snyder Administration appointed itself emergency manager of the imminent danger posed to the Great Lakes by Enbridge, apparently deciding the public, the Governor’s own Pipeline Safety Advisory Board, and the DEQ under the State’s Great Lakes protection laws were incapable of contributing to a rational decision. Astonishingly, the public engagement process the Governor himself set in motion with an executive order more than two years ago was essentially discarded in favor of a pact secretly negotiated with Enbridge. The thousands of people and hundreds of organizations and communities who took the time to comment on the future of the pipeline were ignored in favor of assurances from a company responsible for the worst inland oil spill in U.S. history.
Democracy and public participation are under attack at many levels, and the result is poor public policy. The Governor’s agreement with Enbridge puts the Great Lakes at risk.
FOR IMMEDIATE RELEASE November 27, 2017
TRAVERSE CITY, MI – FLOW issued the following statement today regarding the announcement of an agreement between the state of Michigan and Enbridge Energy concerning the company’s Line 5 oil pipelines in the open waters of the Mackinac Straits, where Lake Michigan and Lake Huron meet:
“It is imprudent and arbitrary for the Governor to unilaterally sign a deal with Enbridge before the legal processes and evidence, including the opinion of experts on all sides, have been thoroughly reviewed and completed. Governor Snyder appears to have ignored and violated his own executive order, law, rules and once more ignored his public trust duties toward the Great Lakes, water, public health and safety, and the protection of citizens.”
“While the Governor’s agreement with Enbridge imposes some important interim safety measures, these measures should be steps toward the final shutdown – not replacement – of the pipelines.”
“It makes no sense to trust Enbridge to abide by a new agreement when it has been flagrantly violating its existing commitments and attempting to conceal those violations.”
“This is the same company that brought Michigan the worst inland oil spill in U.S. history and that misled both state and federal authorities for three years about its pipeline anchors causing bare metal spots on 48 locations along Line 5 in the Straits.”
“The Governor cannot preordain the tunnel option without Enbridge submitting an application under state law — the Great Lakes Submerged Lands Act — and demonstrating that there is no feasible and prudent alternative to continuing to use the Great Lakes as a high-risk shortcut for transporting oil from one part of Canada to another.”
“The presumed tunnel option bypasses and prematurely dictates the future of Line 5 and sidelines the three-year process that the Governor set into motion with the creation of the Michigan Petroleum Pipeline Task Force and the Michigan Pipeline Safety Advisory Board under his executive order.”
“The final alternatives analysis just came out on November 20 and the public comment period ends on December 22. This agreement completely eviscerates any meaningful opportunity for the public to weigh in on alternatives. Moreover, the public and the Governor’s office still do not have a comprehensive study analyzing the risk of Line 5 and its alternatives.”
“The Governor’s preemptive move today continues to violate treaty-reserved rights that predate Michigan’s statehood. The five federally recognized tribes whose fishing rights are located in the Straits of Mackinac were never consulted in 1953, and again were not consulted as part of this 2017 agreement between Enbridge and the State of Michigan. Sixty percent of the tribal commercial whitefish harvest comes from the spawning grounds in the Straits of Mackinac.”
FLOW (For Love of Water) is a Great Lakes water law and policy center and a 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to protect the common waters of the Great Lakes Basin through public trust solutions.
When the police pulls a resident over for going 100 mph in a 55-mph zone, they don't cluck their tongues -- they click their ticket books.
But when Michigan’s state government catches Enbridge Energy putting the Great Lakes at risk by failing again to disclose dangerous conditions on its Line 5 oil pipelines in the Mackinac Straits, the response is paralysis. The state has again caught Enbridge ignoring its legal obligation to be a proper steward of the submerged land that the state allows the company to occupy with its pipeline.
But all we're hearing out of Lansing, and particularly Attorney General Bill Schuette is an expression of disappointment.
The difference between strict enforcement of laws against individuals and giving an oil transport giant chance after chance to meet its fundamental responsibility not to harm public waters is as stark as the difference between a single speeding motorist and a catastrophic oil spill fouling the drinking water source for millions.
The accumulation of studies, evidence of pipeline delamination and bends in June, and now exposed metal with likely corrosion, signals a dangerously flawed and ultimately incurable pair of sunken pipelines.
It’s time for our state government to stop treating the 1963 Constitution, statutes, and common law that protect our lakes as nice but meaningless environmental policy statements and start treating them as the duty the people through the Constitution and our courts have mandated. More than ever, it’s time to shut down Line 5.
FLOW's senior advisor, Dave Dempsey, has 35 years experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission. He has also provided policy support to the Michigan Environmental Council and Clean Water Action. He has authored several books on the Great Lakes and water protection.
Deep beneath the Straits of Mackinac, where twin petroleum pipelines cross the lakebed, sunlight has difficulty penetrating. But there’s more illumination at that depth than there is on key information involving the safety of the pipelines, thanks to deplorable tactics of state agencies and the pipeline owner, Enbridge. The recent disclosure of state-company collusion to circumvent the Freedom of Information Act (FOIA) should concern all citizens.
The pipelines, part of the Line 5 route, qualify as a matter of significant public interest because they were laid down 64 years ago and have been poorly maintained by Enbridge. An August 30 underwater inspection of the pipelines revealed that the screw-anchors used to shore up the pipeline are themselves causing damage to the pipeline coating and creating bare metal gaps in the cathodic protection. Seven bare areas on the pipeline the size of dinner plates were identified. This is the latest in a long list of disclosures that reveal Enbridge to be cavalier in its stewardship responsibilities – and its most important duty – to prevent a catastrophic oil spill fouling a vast area of the Great Lakes.
Why, then, would state government agencies want to collaborate with Enbridge or the contractors hired with their money in eluding public scrutiny of information related to the pipeline risks? But that’s what they did.
Instead of obtaining copies of documents that citizens could request under FOIA, state officials accessed a website controlled by a private contractor, Det Norske Veritas, where they could view but not download the information. This was not pedestrian material. It included “figures depicting hypothetical migration of oil in the environment” from a spill. Michigan citizens, not just state officials, have every right to view that information.
This is not the first time the state has participated in a scheme to keep information about Line 5 from the public. In 2014, when Enbridge originally provided information to the state as part of the Line 5 review, the company set up a password protected portal for the state to review information but not to download. The logic was similar to that of the most recent subterfuge: that because the information was not downloaded, it was not in the possession of the state, and therefore not subject to FOIA. It took the state two years to release Enbridge’s information, in April 2016.
The state ultimately fired Det Norske Veritas for undisclosed conflicts of interest. But the firm’s effort to circumvent FOIA – and the state’s willing cooperation – were equally egregious. Access to information is one of the core tenets of government accountability.
Statutes like FOIA are nicknamed “sunshine laws.” They were written for a reason, to assure protection of the public’s right to know about matters like a potential oil spill affecting public waters. It’s time for the state to clearly and unhesitatingly affirm its commitment to letting the sun shine on everything pertaining to a grave threat to the Great Lakes.
FOR IMMEDIATE RELEASE TO MEDIA: November 3, 2017
Liz Kirkwood, Executive Director Cell: 570-872-4956
FLOW (For Love of Water) Email: email@example.com
Gary Street, Technical Advisor Phone: 231-944-1568
FLOW (For Love of Water)
Portions of the steel oil pipelines in the Mackinac Straits may have lost half their wall thickness since installation in 1953 and become dangerously weakened due to hard-to-detect pitting corrosion, an engineering expert said today.
The independent analysis further strengthens the case for an immediate shutdown of Line 5 to prevent a catastrophic oil spill in the Great Lakes, according to FLOW, a Great Lakes law and policy center based in Traverse City. The full analysis can be found at www.FLOWforWater.org.
The possible damage stems from invasive zebra and quagga mussels that have covered portions of the dual underwater pipelines for years, inhibiting external inspection of Line 5 while possibly weakening the steel.
“The cause of their corrosiveness is the excrement from the mussels, which is acidic. An acidic deposit on bare steel leads to corrosion,” said Gary Street, MS, PE, the former director of engineering at Dow Environmental who conducted the analysis. Street notes that pipeline inspection tools called “smart pigs,” which Enbridge uses to detect corrosion, are not very accurate in detecting pitting corrosion.
The disturbing possibility of a significantly weakened Line 5 in the Mackinac Straits comes after recent acknowledgement by the pipeline owner and operator, Enbridge, that there are several large areas of the pipeline where the protective coating is missing. According to Enbridge, the bare steel on Line 5 in the Mackinac Straits was detected by Canadian oil transport giant Enbridge in 2014 when the company installed more supports, but not revealed to regulators until this summer.
“What else is Enbridge hiding from the public and state regulators?” asked Liz Kirkwood, executive director of FLOW and an environmental lawyer. “Attorney General Bill Schuette must immediately enforce the laws protecting the Great Lakes and revoke the state easement that has allowed a private Canadian company conditional use of our public waters and bottomlands.”
Not all types of corrosion are equally harmful. Some forms are far worse than others. Pitting corrosion is a localized form of corrosion by which tiny cavities or “holes” are produced in the material. The National Association of Corrosion Engineers has stated, “While corrosion of bare steel can take many forms, the most insidious, is pitting corrosion.”
“The prudent scenario is to assume that damage originally occurred in 2003 when the first of the new supports was installed,” said Street, whose 35+ year career in industry and consulting has covered an extensive range of experience in environmental engineering, chemical process design, ethanol production processes, minimization of waste materials, project management, and engineering management. “That being the case, it is very possible that the Line 5 pipe wall has suffered serious pitting corrosion beginning at that time. Making the matter worse, pitting corrosion is very difficult to detect.”
Enbridge acknowledged the areas of external anti-corrosion coating loss in September. Several of the areas are larger than the “Band-Aid“-sized areas Enbridge initially described when the gaps were revealed. The largest patch of exposed pipeline metal is 16 inches long and 10 inches wide. Others are narrower but also exceed a foot in length.
Also detailed in the Enbridge reports is a “disturbed” coating area that’s more than 3 feet long, a “dislodged” coating area that’s 13 feet long and a mysterious 8-inch “white deposit” of unknown origin that Enbridge says “remains under investigation.”
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Ecological disasters do not wait for political elections.
And Line 5 at the Straits of Mackinac seems oblivious to the campaign calendar.
To date, the Band-Aid fix-it approach for line 5 has only resulted in Band-Aid size – oh, I mean dinnerplate size -- bare metal spots on the pipeline itself.
The law is clear. Public trust waters are the paramount interest and must be the priority of state protection and action.
Enbridge's ongoing violations on Line 5 are blindingly obvious. And they have continued to mount over the last three years while the state has delayed a safe solution through endless study. A quick sampling of violations includes: lack of adequate anchor supports, loss of protective coating, bent pipeline, bare metal, lack of a credible emergency oil spill response plan, deficient liability insurance, and so on.
Time and time again, Enbridge has asked the public and the state to trust them. And we have only later found out that Enbridge has misled the citizens of Michigan and the state government about the true condition of their aging 64-year-old dual pipelines.
Enbridge has an outstanding permit request to install 22 additional anchors. But the state is in no position to authorize these permits because the anchors themselves have caused the bare metal exposure on the pipeline.
Now the state has decided to engage university experts to spend months finishing a risk study put on hold last summer due to contractor conflicts of interest. A risk study only further delays meaningful state action on Line 5 to avoid a pipeline oil spill. We already know that the risk of any oil spill in the heart of the Great Lakes is unacceptable. Thus, we are merely asking ourselves: How fast will the Titanic sink? 1 hour or 3 hours.
Any credible risk study will simply conjure a more realistic disaster scenario than Enbridge would like us to imagine. It appears that the state is committed to completing the risk study; however, it should at the very least recommend that the state temporarily shut down the flow of oil while the risk study marches on.
No one today would ever authorize oil pipelines to pump 23,000,000 gallons of oil daily in the open waters of the Great Lakes. While consultants completes a risk analysis, the state at a bare minimum should temporarily shut down the flow of oil.
So let's be clear ourselves. Line 5 must be decommissioned and we, the citizens of Michigan, demand that this process starts immediately.
The time to act is now.
Liz Kirkwood is FLOW's Executive Director, an environmental lawyer with seventeen years of experience working on water, sanitation, energy, and environmental governance issues both nationally and internationally. She oversees the direction of the organization, prioritizing policy research and corresponding educational initiatives to ensure their consistency and high quality.