Tag: mackinac straits

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.”


FLOW Praises Attorney General for Restoring Rule of Law 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
Cell: (231) 499-8831

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


FLOW supports attorney general’s process and opinion, which is binding on state agencies and rejects the fatally flawed law and undermines side agreements on Enbridge oil pipelines, proposed tunnel in Mackinac Straits


In a major step toward restoring the rule of law, Michigan Attorney General Dana Nessel issued an opinion today declaring unconstitutional a hastily crafted law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, while allowing the aged, dangerous existing “Line 5” oil pipelines in the Straits to continue operating for another decade as the tunnel is considered and possibly built.

The move comes in response to a formal request by Gov. Gretchen Whitmer and is critical to unpacking the layers of problems with the law creating the Mackinac Straits Corridor Authority that the lame-duck legislature rushed through in late 2018.

“We applaud Attorney General Nessel for clearly recognizing the legislative overreach, restoring the rule of law, and stopping the attack on the Great Lakes and the state constitution, which demands that the state’s air, water, and natural resources are treated and protected as ‘paramount,’” said Liz Kirkwood, an environmental attorney and Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

The attorney general’s opinion on Public Act 359 is binding on state agencies and voids the tunnel agreement called for by the law, and also nullifies the legal effect of the side agreements reached between the state of Michigan under then-Gov. Rick Snyder and Line 5-owner Enbridge. Those agreements allowed continued oil pumping through the Straits, where Lake Michigan meets Lake Huron, and an easement and 99-year lease of Great Lakes public bottomlands to Canadian-based Enbridge for private control of the tunnel for its own gain.

Public Act 359 and the related agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act (GLSLA) that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.

Public Act 359 and the side agreements are peppered with other serious problems, most of which are covered by the questions the Governor asked the Attorney General to answer, which include:

  • Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
  • Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
  • Violating provisions of the state constitution that prohibit fostering private or special purposes, the commingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.

“We hope this critical first step by the Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ deliberate evasion of the rule of law and mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Straits of Mackinac, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the soils and waters of the Great Lakes,” said Olson.

FLOW recommends that Gov. Whitmer take immediate action to end the massive threat posed by the existing Line 5 in the Straits of Mackinac in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes, including by:

  • Acknowledging that State of Michigan agencies are bound by the attorney general’s opinion.
  • Sending a letter to Enbridge indicating that the company should decide for itself, if it wants to build a new oil tunnel, and apply, if it chooses under the Great Lakes to construct a tunnel under the rule of law. The rule of law requires a full consideration of the risk to the paramount public rights in the soils and waters of the Great Lakes, and a showing that the company has no prudent and feasible alternatives to using the Great Lakes as a shortcut for western Canadian oil on its way to refineries in eastern Canada as well as overseas markets. If the company does not chose to do this, or cannot satisfy these mandatory requirements that protect the Great Lakes, then it should choose to use other parts of its several-thousand mile system.
  • Starting the process to decommission the 66-year-old Line 5 pipelines in the Straits of Mackinac, which are operating without lawful authority, in violation of the public trust and GLSLA, and in violation of their 1953 easement granted by the state. If Enbridge chooses to continue operating the existing Line 5 in the future, it can apply under the GLSLA for new authority to continue using Line 5 if it can demonstrate little risk and no feasible and prudent alternative to the unacceptable existing Line 5, but the state is not obligated to agree.

“Public Act 359, coupled with the State’s public entanglement with Enbridge, has put private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes,” said Olson. “The unconstitutional law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes.”


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.


State-Commissioned Line 5 Risk Analysis Underlines Urgency of Shutdown, FLOW Says

FOR IMMEDIATE RELEASE                                                                      August 21, 2018


Even the significantly understated economic impacts of a spill from Line 5 at the Straits of Mackinac in a state-commissioned analysis reveal a fiscal and human price tag too high for the people of Michigan, FLOW (For Love of Water) said in comments submitted to Lansing officials before Sunday’s deadline.

FLOW submitted the comments to the state on a draft Independent Risk Analysis coordinated by Dr. Guy Meadows of Michigan Technological University that was released in July.      

The Traverse City-based Great Lakes law and policy center said that while the state-commissioned analysis rests on excessively conservative assumptions that lead to underestimates, the potential $2 billion economic impact it calculates is unacceptable and justifies an immediate shutdown of the twin petroleum pipelines owned and operated by Enbridge Energy. The company was responsible for the largest inland oil spill in U.S. history when its Line 6B ruptured and contaminated the Kalamazoo River watershed in 2010.

An analysis released by FLOW in May and conducted by ecological economist Dr. Robert Richardson of Michigan State University estimated impacts and damages of over $6 billion from the same approximate volume of spill used as an assumption in the state-commissioned study.

“A Line 5 spill will ravage Michigan’s economy and environment no matter which estimate you use,” said Liz Kirkwood, executive director of FLOW.  “The state-sponsored report confirms that the economics of Line 5 are bad news for the people of Michigan and our precious Great Lakes.”

FLOW said the state-commissioned study’s flaws understate the potential impact; for example:

  • Short-term impact? The study wrongly assumes that an oil spill in the Straits will only have a short-term effect on the region’s tourism and recreational economies, commercial shipping industry, commercial fishing, and coastal property values.  It bases the short-term economic impact assumption on a recreation assessment for the Deepwater Horizon oil spill in the Gulf of Mexico in 2010.  However, that spill occurred roughly 41 miles off the coast of Louisiana, while a potential Line 5 spill would occur approximately two miles offshore at most. This proximity to the shoreline and coastal communities amplifies the impacts of a Line 5 spill.
  • Quick cleanup? The study grossly underestimates the amount of time it will likely take to remove the dispersed oil, to the extent even possible, and start restoring the water and shorelines of Lake Michigan and Lake Huron. If the Line 5 spill estimated in the state-sponsored study were to occur, and approximately 441 miles of shoreline were affected, cleanup crews would have to restore over a mile of beach every day to ensure the shoreline would be in condition for the next summer season, when the majority of Michigan tourism and recreational activities take place.
  • No lasting harm to the Pure Michigan brand? The study does not account for any lingering stigma that a catastrophic environmental disaster would likely cast. The long-term taint and diminution of property values from a release of hazardous substances and water pollution are well documented. The Risk Analysis assumes the reduction in the value of lakefront properties would only amount to $2.6 million.  Richardson’s analysis estimates a multi-year impact of over $485 million in coastal property values.
  • Loss and damage to people, communities The Risk Analysis acknowledges that “mental health issues are a significant concern after disasters such as a potential oil spill at the Straits of Mackinac.” As significant as the effects to mental health on residents and tribal members, the Risk Analysis fails to discuss the potential costs of long-term mental health counseling, therapy, and other services needed to prevent or treat the mental health symptoms caused by a worst-case scenario Line 5 spill. The Risk Analysis also fails to evaluate the risks to the public drinking water supply on Mackinac Island, as well as the emergency response plan that would have to be implemented to ensure Mackinac Island residents and visitors have adequate drinking water supplies after a spill.

FLOW said state officials, as public trustee of the waters, should require Enbridge to submit and demonstrate through a comprehensive alternative analysis that there are no other feasible and prudent alternatives to the continued operation of Line 5 in the Straits of Mackinac. At a minimum, state officials must demand that Enbridge demonstrate that they possess sufficient liability coverage for all liabilities and/or damages stemming from the worst-case scenario Line 5 spill outlined in the Risk Analysis. Enbridge has made no attempt to do so, instead calling on the state and citizens to trust that another Kalamazoo River-scale disaster won’t happen again. 

“Trust is no substitute for hard evidence,” Kirkwood said. “Enbridge has continually failed to demonstrate it can be trusted with the future of our great waters.”


Enough is Enough: It’s Time to Decommission Line 5


Every year, a million visitors reach the shores of Mackinac Island, also known as Turtle Island to the Anishinaabe peoples who first settled here in the Great Lakes.  Unlike most visitors, every May I make an annual pilgrimage to the island to argue the case to decommission Line 5 to our top state and federal leaders at the Policy Conference.  Against the spectacular backdrop of the Straits of Mackinac, thousands of attendees gather on this tiny island to discuss the state’s most pressing economic issues.  But every year without fail, Line 5 is not even mentioned on the agenda.  And the irony could not be greater.

Let’s talk economics for a moment: Michigan will suffer an estimated $6.3 billion blow from damage to tourism, natural resources, coastal property values, commercial fishing, and municipal water systems, according to a new study by a Michigan State University economist commissioned by FLOW.  Mackinac Island and St. Ignace will immediately lose their Great Lakes drinking water supply, and the oil spill could threaten shoreline communities and their water source from Traverse City to Alpena and beyond.

Legislators often ask about the U.P. propane issue, which continues to be a red herring and barrier to clear decisive state action.  Research by engineers working with FLOW reveals that just 1-2 rail cars or a few tanker trucks a day from Superior, Wisconsin, could replace Line 5’s U.P. propane supply.  A state-sponsored study in October found that installing a 4-inch-diameter propane pipeline from Superior to Rapid River would meet demand.  State leaders should urgently pursue these options.

And where does all the Line 5 oil go?  It turns out that 90-95 percent of Line 5’s oil comes and goes back to Canada.  What this means is that the 5-10 percent of the crude oil in Line 5 headed to the Detroit and Toledo refineries could be replaced by oil from the Capline and Mid-Valley pipelines from the south that serve the same refineries, along with crude from Northern Michigan oil fields.  Alternative pipelines exist that do not threaten our globally unique Great Lakes that contain 20 percent of the world’s fresh surface water.  

The catastrophic nature of a potential spill became clear last month when a tugboat anchor slammed into Line 5 in the Mackinac Straits and dented and gouged the Line 5 pipelines, while also severing two submerged electric cables and spilling their toxic dielectric fluid into the water.  It was at least the second significant strike of Line 5 in the Straits, according to Enbridge’s inspection data.  

So here we are, another year later with little progress towards decommissioning Line 5.  Rather, Governor Snyder had high hopes of wrapping things up with his November 2017 back-room deal with Enbridge to authorize a tunnel under both the Straits and the St. Clair River.  Significant legal questions and challenges loom, not to mention engineering trials and staggering public work costs that make this a hazardous path to walk.  Bottom line, a tunnel (even if feasible) could take 7-10 years to build and utterly fails to address the ongoing and growing imminent threat as the pipelines continue to bend and age every day.

Liz Kirkwood, Executive Director

According to the Detroit Free Press, Line 5 is one of the “thorniest issues being grappled with by state leaders, including Gov. Rick Snyder and Attorney General Bill Schuette.”  This, however, should not be the case.  Our state leaders, in fact, have the legal power now to decommission Line 5 by revoking the easement it granted Enbridge in 1953 to build Line 5 and occupy our waters of the Great Lakes under public trust law.  Heightened state scrutiny and enforcement are warranted given that Enbridge continues to violate its legal easement agreement with the state and the express engineering requirements designed to prevent catastrophic rupture.  For example, in 2017, it was revealed that Enbridge for three years hid the fact that Line 5 had lost its anti-rust outer pipeline coating in more than 60 places in the Straits of Mackinac. 

Enough is enough.  It’s time to decommission Line 5.  


Liz Kirkwood’s Comment to the PSAB

  • Over two years ago, the Governor of Michigan created this Advisory Board by Executive Order to “Review and make recommendations for statutory, regulatory, and contractual implementation of the Michigan Petroleum Pipeline Task Force Report.”  This meant the board was required to oversee an independent and comprehensive analysis of risks and alternatives. 

 

  • Instead we Michiganders have (1) no risk report, (2) a flawed alternative report that still ignores the most credible alternative – using existing and expanded pipeline infrastructure around the Great Lakes, and (3) the Governor’s Thanksgiving deal with Enbridge that locks in a tunnel alternative under 20 percent of the planet’s fresh surface water. 

 

  • What our leaders have now is Tunnel Vision. 

 

  • Tens of thousands of citizens of this state have taken the time to study these matters and express their views to you.  Members of this board have spent countless hours on your task.  All of that for naught because of a closed-door agreement between Enbridge and the governor.

 

  • The deal allows Enbridge’s decaying Line 5 oil pipelines to continue to occupy the publicly owned lakebed at the Straits of Mackinac indefinitely, despite the company’s record of deception, poor stewardship, and bungled emergency response.  It’s a reward for failure.

 

  • We know a fair alternative analysis can be done.  In fact, in December 2015, FLOW offered a thorough analysis for the decommissioning of Line 5 that established an alternative that reasonably met the basic purpose of transporting crude oil to the various refineries within and beyond the Great Lakes region.  Why hasn’t the state done the same?

 

  • The Governor’s deal has mapped a blueprint that narrows the alternatives to some form of tunnel replacement in the Straits, the Great Lakes, and St. Clair River.  Moreover, the deal will bind the state to a new replacement of the entire 645 miles of Line 5 through Michigan and potentially open the door to heavy tar sands.

 

  • In the interest of full transparency and public knowledge, this board can do the people of Michigan a service by asking for a full public accounting for this deal, and by demanding a credible adverse weather provision to shut down Line 5 and a comprehensive alternatives analysis as required by law. The future of Line 5 is about the future of the Great Lakes.  And fortunately, public trust law makes this the public’s decision, not a closed-door deal between the Governor and Enbridge.     

 

Thank you.

Liz Kirkwood, Executive Director


 

For Immediate Release: FLOW RESPONDS TO STATE-ENBRIDGE AGREEMENT

FOR IMMEDIATE RELEASE                                                        November 27, 2017

Contact:  Liz Kirkwood                                                       Email: Liz@FLOWforWater.org
Executive Director                                                              Office: (231) 944-1568
FLOW (For Love of Water)                                                 Cell: (570) 872-4956


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.


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


 


 


 

FOR IMMEDIATE RELEASE TO MEDIA: June 29, 2017

Contacts:

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

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

 

TRAVERSE CITY –

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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PDF of Media Release:

Read FLOW's Comments here: