Tag: Straits of Mackinac

Saving the Straits of Mackinac

Saving the Straits of Mackinac

Yesterday, May 22, 2018, marks the day citizens threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to stop applying state law that is supposed to protect the Great Lakes to keep oil flowing in Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.

A Brief History

In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?

Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “sure it’s a matter of days, but a ‘matter of days’ could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that all but guaranteed the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. The investment in replacement all but seals the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan is the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain.

But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General cooperated with Enbridge to keep the oil flowing through a failed pipeline design in the Straits of Mackinac. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet between the bottom and pipeline, exposing the lines to powerful currents that would whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the company screwed 16 saddle-type anchors into the lakebed that suspended part of the pipelines in the water column. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended like a bridge over the bottomlands.

A Change in Design

The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures.  Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!

How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General stonewalled the citizens group and tribes, claiming the miles of suspended pipelines were “repair” or “maintenance.”

This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed.  If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will hook anchors that are dragged over them.

So what does the GLSLA say about these permits for “repair” or “maintenance?”  Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and the structure. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.

Taking Matters Into Their Own Hands

In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is time for governmental officials to take charge. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.

Jim Olson, President and Founder

I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention.


FLOW Demands State Reject Latest Enbridge Ploy


In comments submitted to state officials Friday, FLOW is urging state regulators to deny a bid by Enbridge Energy to install 48 new anchor supports on dangerous Line 5 at the Straits of Mackinac while evading scrutiny of alternatives that would protect the environment.

Enbridge’s latest request, if approved, would bring the number of anchor brackets to 198 that the governments have allowed the company to install since the early 2000s — completely changing the pipelines’ design. 

Structurally, this means that approximately 3 miles of pipeline are elevated in public trust waters above the bottomlands. But the design approved by the state in the 1950s had the pipeline resting in a trench on the lake bottom. 

“The fact that the Michigan Department of Environmental Quality and the U.S. Army Corps of Engineers continue to approve Enbridge’s anchor supports on the lakebed of the Lake Michigan as ‘repair’ and ‘maintenance’ is simply untenable,” FLOW says in its comments. “The highly increased risks of and alternatives to a completely modified design under both state and federal permitting laws requires a new agreement of occupancy and permits” under several laws.

“And given the recent anchor dents in the twin lines and rupture of the electrical line and release of toxic fluids, the risks to the Great Lakes are totally unacceptable,” FLOW said.

FLOW called on the state and federal governments to require that Enbridge:

  1. file a full and comprehensive application including a study of potential effects and feasible and prudent alternatives to Line 5 in the Straits in its entirety;
  2. suspend the flow of oil in Line 5 unless and until Enbridge files such application and evidence and obtains proper occupancy agreements, permits, or other approvals for this new or completely modified pipeline design; and
  3. consolidate into one application and examine the risks, impacts, and alternative analyses of the entire 645 miles of Line 5.

Read the full comments here.


Anatomy of A Spill in the Great Lakes

Five years ago this spring, when I first learned about Line 5, I could only imagine what a catastrophic oil spill would look like here in the heart of the Great Lakes.  Two weeks ago, we dodged a bullet as we watched a hazardous liquid spill from two neighboring transmission cables unfold. What we witnessed was an anatomy of a spill — and how truly devastating an oil spill would be.    

Here’s what we know from the April 1st spill in the Straits.  

A release of at least 600 gallons of toxic coolant and insulating fluid from electric cables owned by American Transmission Company (ATC) occurred sometime Sunday afternoon in the Straits of Mackinac.  The dielectric fluid is a mineral oil that contains a benzene compound. ATC, however, did not report the release to the Coast Guard for 24 hours.  By Monday, ATC officials were blaming “extraordinary circumstances” like ice in the water and near the shore that hindered the emergency response.  

No cause was initially identified until days later.  The cause? Vessel anchor strike. News media coverage revealed the chaotic nature of responding to this hazardous liquid spill with Coast Guard helicopters looking for oil sheens and a multi-agency unified command assembling from federal, state, tribal, and local agencies and units.  Reports attempted to allay public fears, indicating that the product was so diluted that it would not pose a threat to drinking water supply intakes. The greatest threat posed was to wildlife and shore birds swimming in possible oil floating on the water’s surface.

On April 3, Enbridge – owner and operator of Line 5 – temporarily shut down the flow of oil in the pipelines to evaluate the leak detection systems.  Ten days after the ATC accident, on April 10, Enbridge notified state and federal officials that their pipelines had suffered three dents, likely due to the same vessel activity that may have caused the damage to the ATC lines.

Hold on.  Vessel anchor strike hitting Line 5?  This was the number one threat that Dynamic Risk identified in their November 2017 alternative report to the Governor-created Michigan Pipeline Safety Advisory Board.  Ironically, the original Bechtel engineers believed that a vessel anchor strike was only “one chance in a million.”

Well, two weeks ago that one chance in a million struck.  

And finally, a growing chorus of federal and state leaders from both sides of the aisle are demanding that Line 5 be shut down until a full visual inspection has taken place.  Tribal leaders like Aaron Payment from the Sault Tribe call for more comprehensive investigation and analysis: “These old pipes need to be shut off, at least until proper investigations and the full analyses are finished.” . . .  “Governor Snyder should not be using this accident as an excuse to fast-track a tunnel.”

Liz Kirkwood, Executive Director

So what can we learn from this?  First, we don’t need to imagine anymore.  We know that it might take up to 24 hours before the spill is even reported.   We know exactly how difficult it would be to deploy emergency responders to contain oil in the open waters.  We know how extreme the conditions are in the Straits, even in spring. We know about the challenges of ice. We know that we can never be 100% prepared in such a dynamic, chaotic, and extreme environment as the open waters of the Great Lakes.  Second, and most important, we can’t take a second chance because of the magnitude of harm and risk that Enbridge is asking citizens of Michigan to shoulder.

Let’s do the right thing. Michigan leaders – it’s time to be proactive and shut down this 65-year-old oil pipeline before it’s really too late.    


Once More: Line 5 and the Public Trust

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-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 – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


Perhaps if they hear it often enough, they’ll act.

Michigan’s Pipeline Safety Advisory Board, established by Governor Snyder in September 2015, heard Monday from FLOW Executive Director Liz Kirkwood about the state’s public trust responsibilities.

It was FLOW that identified these responsibilities as the debate over unsafe Enbridge Line 5 at the Straits of Mackinac intensified several years ago.  Simply put, the public owns the lakebed under the Straits that Line 5 crosses – and state government, as the trustee, has the authority and the obligation to assure that any party granted an easement to use the public’s lakebed is not compromising the public uses protected by the trust.  The Legislature passed a law in 1953 granting Enbridge an easement across the Straits – subject to the public trust.

Enbridge has clearly fallen short of that standard with shoddy maintenance, concealment of damaging information and a track record of failure, culminating in the mammoth spill into the Kalamazoo River watershed in 2010. 

FLOW’s message Monday – Enbridge can comply with public trust interests and state law only if the state compels it to submit an application for the entire massive overhaul of Line 5 it seeks to undertake, and only with simultaneous consideration of feasible and prudent alternatives – including using other means to deliver the petroleum currently served up by Line 5.

Here are a few of Liz’s comments from Monday: 

“We are approaching the hour of decision on the fate of Line 5.  This process has been an epic example of how not to protect a world-class resource.  Transparency, corporate integrity and the rule of law have all been casualties. But there is one last chance to make it right.

“Enbridge has never applied for and DEQ has never comprehensively reviewed, considered, or authorized the new design with 128 screw anchors elevating the Line 5 pipelines off the lakebed.  This new design was not contemplated in 1953.  Moreover, the Great Lakes Submerged Lands Act does not authorize ‘activity’ permits that actually constitute a new design, permanent structures, and improvements on bottomlands or suspended in water areas above the bottomlands; rather, a new application is required in conformance with the public trust.

“The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust, and the U.S. Supreme Court has held states have the power to resume the trust whenever the State judges best.  The state owes Enbridge nothing.  Enbridge owes the people of Michigan the respect they deserve by ending its efforts to skirt statutes and the public trust.”


Public Trust Tuesday: Shutting Down Line 5

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-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 – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


The public trust doctrine is at the heart of FLOW’s efforts to shut down the antiquated Line 5 oil and gas pipelines that span the lakebed at the Straits of Mackinac.  Enbridge, the pipeline owner and operator, has access to the lakebed only because the State of Michigan provided an easement to the company’s predecessor in 1953, subject to the requirements of the public trust doctrine.

Under the terms of that easement, the State, acting as a trustee of the public interest in the Great Lakes, cannot allow impairment of public uses of the affected Great Lakes waters and submerged land.  Further, the State authorized the easement subject to Enbridge exercising “the due care of a reasonably prudent person for the safety and welfare of all persons and of all public and private property.”  Multiple disclosures by Enbridge of shoddy stewardship of Line 5 have demonstrated the lack of due care.

Last week, FLOW submitted to the State six pages of comments and additional exhibits making the case that Enbridge’s patchwork approach to maintaining Line 5 has fallen well short of that standard.  Further, FLOW argued that the major changes in structural support for the pipeline contemplated by Enbridge constitute a new project for the purposes of review by the state.  This requires the State to insist that Enbridge demonstrate the absence of feasible and prudent alternatives to the proposed pipeline support changes – including alternate routes for the transport of oil and gas.

FLOW concluded, “the burden rests with Enbridge – not the State of Michigan or its citizens – to establish that there are no unacceptable risks or likely effects to waters, fishing, navigation, commerce, and public and private uses, and that no feasible and prudent alternatives to Line 5 based on existing or feasible capacity of overall pipeline system in the Great Lakes; the required scope of this showing of no alternatives includes determination of whether existing or improved pipeline infrastructure within the Enbridge system into and out of Michigan are a feasible and prudent alternative.”

You can read the full comment letter here.


Public Comment to Michigan Pipeline Safety Advisory Board

Line 5 Pipeline

Good evening, and thank you for the opportunity to comment on what is unfortunately
a deeply flawed final Line 5 alternatives study. The people of Michigan are ill-served
by this study. It cannot serve as a basis for an informed and intelligent decision about
the fate of this profound threat to the Great Lakes.

Members of the Advisory Board who represent citizens, businesses, tribes, and
conservation agree that this final report is flawed and demanded this past Monday by
resolution a more robust and comprehensive study on existing pipeline infrastructure
and Michigan’s (not Enbridge’s) energy needs.

Here are only a few of our major concerns with this final report:

  • 1: Assumes that the state must guarantee that Enbridge is able to deliver 23
    million gallons of oil daily through Line 5. The legal agreement to occupy our
    public waters is not a covenant to keep oil pipelines operating indefinitely and at full
    capacity. This bias results in the tunnel option appearing as a favored report
    alternative.
  • 2: Dismisses the most credible alternative of existing pipeline infrastructure. As
    documented in FLOW’s 2015 expert report, existing pipeline infrastructure, including
    Enbridge’s newly doubled capacity in Line 6B, is a practical alternative for
    Michigan’s energy needs. The report acknowledges that excess pipeline capacity
    exists on Enbridge Line 6B (renamed 78) now and that the Mid-Valley Pipeline could
    supply much of the remaining needs of the Detroit and Toledo refineries. (5-2; 4-18).
  • 3: Operates from a bias in favoring a tunnel in the Straits of Mackinac. A tunnel
    will not eliminate the risk to the public trust waters of the Great Lakes. Line 5
    traverses 245 other water crossings, including ones that are tributaries of Lakes
    Michigan, Superior, and Huron. A tunnel is no gift to Michiganders. It threatens
    economic and ecological disruption to the region and contravenes Michigan’s policy
    ban against directional drilling for oil and gas in the Great Lakes; And fundamentally,
    why would Michigan want a Canadian company’s tunnel located under the planet’s
    largest fresh system water systems and potentially usher in heavy tar sands transport
    back to Canada? This makes no sense.
  • 4: Continues to underestimates the economic damage of a Line 5 spill at a $100-200 million. This number defies logic in light of Enbridge’s 2010 $1.2 billion Kalamazoo disaster and the potential catastrophic harm for affected shoreline communities, tourism revenue, drinking water, fisheries, etc.

So where does this leave us? Though this report fails on many levels, it does substantiate the fact that Line 5 can be decommissioned with little disruption and minimal increased costs to Michigan consumers and businesses.

The report affirms that there are feasible and prudent alternatives readily available that both meet Michigan’s energy needs currently served by Line 5 and completely eliminate the risk to the Great Lakes.

The time for studies has ended. It is time for action as the PSAB Resolution affirmed on Monday. That action should start with shutting down Line 5 immediately and ultimately end with state’s revocation of the easement and the decommissioning of Line 5.

The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust- and the U.S. Supreme Court agrees. The public is the ultimate decision-maker.

Governor Snyder tried to circumvent them through private agreement with Enbridge. Michigan citizens deserve better.

Thank you.
Liz Kirkwood, Executive Director


Failed Leadership and Line 5


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.


Flint and the Straits of Mackinac

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.


Illuminating Information in the Straits of Mackinac

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.


Ecological disasters do not wait for political elections.


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.