We're Still in Mortal Danger from Line 5
And yes, its continued existence is an outrage
**
CHARLEVOIX, MI – Almost eight years ago, when Gretchen Whitmer first ran for governor of Michigan, she called for the ancient oil-carrying pipelines under the Straits of Mackinac to be shut down.
Dana Nessel, who was running for attorney general at the same time, vowed she would shut down the pipelines, owned by the Canadian firm Enbridge and usually referred to as “Line Five.”
Nearly six years ago, when she’d been in office for more than two years and millions of gallons were still flowing through the pipelines every day, I asked Attorney General Nessel if those lines would ever be shut down. “Yes!” she said forcefully.
That pleased environmentalists; the pipelines, which originally were said to be good for 50 years, are now 72 years old, far older than the governor or the attorney general.
But nothing has happened. The state long ago revoked Enbridge’s easement, but the company refused to quit, and multiple complex lawsuits have been filed.
Environmentalists agree that a break in those pipelines, from an anchor strike, say, is entirely possible and could cause an environmental disaster of vast proportions.
But up to 22.68 million gallons of crude oil and natural gas still flows through them, every day. So why haven’t they been shut down?
The answer seems to be that Enbridge, the pipeline’s owner, is a powerful multinational corporation with deep pockets and has the ability to hire phalanxes of good lawyers to file lawsuits and stymie the will of the people’s elected representatives for years.
According to the nonprofit environmental group FLOW (For the Love of Water) after all these years it still is not clear even whether these cases belong in state or federal court, although lawsuits are pending in both, with the U.S. Supreme Court finally having agreed to hear the case, or at least rule on a part of it, next year.
“The water security of the Great Lakes is at high risk every day,” FLOW posted on its website last month.
Noting that the easement was revoked by the state five years ago, the site claimed that ever since the state revoked Enbridge’s easement in 2020 “Michigan has borne unacceptable risks so that a Canadian pipeline company can continue to profit, protect its market share, and deliver crude oil primarily from Canada to Canada.”
Enbridge claims the opposite is true, and says they are working to make “a safe pipeline even safer,” by encasing it in a concrete tunnel. That was a compromise the firm worked out with Gov. Rick Snyder, who left office at the end of 2018. But when I talked with Attorney General Nessel in early 2021, she was deeply skeptical.
“I don’t think they intend to build the tunnel at all,” she said. “It’s just a delaying tactic,” to allow the company to run up more profits. Whether or not that was the case, this much is indisputable: The tunnel hasn’t been built. In fact, it hasn’t even been started.
According to FLOW, Enbridge “has yet to receive the required permits from the Michigan Department of Environment, Great Lakes and Energy (EGLE) and the U.S. Army Corps of Engineers.”
In other words, don’t expect to see work on a tunnel to encase the pipelines start anytime soon. Nor is there really any reason for Enbridge to rush the permitting process, because everything really depends on the outcome of two long-running lawsuits:
In the first, Nessel v. Enbridge, filed in 2019, the attorney general asked a state court to decommission Line 5. Enbridge got the case sent to federal court, but the U.S. Court of Appeals sent it back to state court, where Ingham County Circuit Judge John Jamo said he intends to rule on whether the line will be shut down.
But however he rules, the U.S. Supreme Court has agreed to hear the case next year, at least as far as a technical matter involving timing and a matter of jurisdiction in the case.
If following all that seems a little bit like watching a tennis match, it gets worse. Enbridge filed a lawsuit of its own in federal court in 2020 (Enbridge v. Whitmer) and argued that neither the governor nor the state have the authority to shut the pipeline down.
On Wednesday, U.S. District Judge Robert Jonker ruled that it was a federal matter, and the state couldn’t shut the pipeline down. But appeals are certain.
Meanwhile, FLOW is appealing to the Michigan Supreme Court and asking it to rule that the Michigan Public Service Commission, (MPSC) improperly granted a permit to Enbridge to build the tunnel.
If all this sounds like an incredibly complicated legal mess, that’s because it is, more so than there’s space to explain here.
But what is clear is that if the pipelines were to rupture, Michigan’s fishing and tourist industries might suffer permanent disaster. Don’t expect the pipeline wars to end, anytime soon.
Since a Line 5 breach would contaminate Lake Huron, whose opposite shore from Michigan is Ontario, one wonders why the government of Canada is not up in arms about this environmental time bomb.
My watchwords: Michigan takes all the risk; Enbridge takes all the profit.
I recall back when the issue arose in the late 2010s, I found a copy of the original agreement, a typewritten contract remarkably casual in content and tone. It included a fee of some sort for what still feels like a piddling amount, maybe $2500. No annual percentage, no leasing fees, no sunset clause. (We were so innocent 73 years ago, weren't we? We let these same white guys work this out, guys who thought nothing of dumping chemical waste and mine tailings by public roadsides.) Anyway, my point is that an agreement made by the State of Michigan ought to be able to be concluded by the State of Michigan, regardless of whatever revisions or amendments were set up since then.