Updated, 12:34 p.m. 3/26/19 and 9:21 p.m. 3/29/19.
For years, environmentalists have called to shut down a 66-year-old oil pipeline in the Straits of Mackinac. What happens next may be determined by an upcoming legal opinion from the state’s new attorney general.
Attorney General Dana Nessel is expected to soon release a legal opinion on a 2018 Lame Duck law that, in effect, allows Enbridge to continue pumping oil through the Great Lakes for almost another century. The Canadian energy company’s Line 5 currently carries about 23 million gallons of oil and some natural gas every day through the intersection of lakes Michigan and Huron, at the tip of the Lower Peninsula.
Nessel, a Democrat who made a campaign promise to shut down the oil pipeline, will issue an opinion that could further define the contours of a political battle with Enbridge that has dragged on for years.
Although her opinion has not been released, Nessel has indicated that she has “serious and significant concerns” with it.
The company was responsible for the largest inland oil spill in U.S. history, when one of its oil pipelines ruptured in 2010, spilling 1 million gallons of heavy crude oil into the Kalamazoo river.
For environmentalists, nothing less than the purity of the Great Lakes hangs in the balance. And with new leadership comes hope.
“This presents an enormous opportunity for change, especially because the governor and attorney general, who have the ability to take action to shut down the pipeline, have campaigned [on promises] that is what they will do,” said Kate Madigan, an energy and climate specialist with the Michigan Environmental Council.
But Enbridge and the business community say that terminating the oil line could threaten the supply of energy to Upper Peninsula residents and harm the state economy.
In March, the courts struck a blow to environmental hopes after Court of Claims Judge Stephen Borrello upheld the former Gov. Rick Snyder-backed law, which created a new political entity, the Mackinac Straits Corridor Authority (MSCA), to oversee the construction of a planned new pipeline and tunnel underneath Line 5.
Borrello ruled that one aspect of the law is unconstitutional — a section pertaining to appointed term limits — but otherwise upheld it as a whole.
Yet more questions about the law’s constitutionality remain, fueling hope that the attorney general will have enough ammunition in her legal arsenal to take on the oil giant.
On Jan. 2 — her second day on the job — Gov. Gretchen Whitmer asked Nessel to consider the constitutionality of five other aspects of the law. Like Nessel, Whitmer is a Democrat who also campaigned on shuttering the pipeline.
“While Governor Whitmer’s opinion request remains under review, it has long been the practice of the Department of Attorney General not to opine on issues pending before a court,” Nessel spokeswoman Kelly Rossman-McKinney said in a statement.
Business community responds
University researchers, lawmakers and others have, for years, expressed deep concern that the pipeline could rupture. That would send millions of gallons of oil into the Great Lakes and poison hundreds of miles of shoreline, natural ecosystems and a northern economy that greatly benefits from fishing and tourism.
But during Snyder’s administration, calls to shut it down were ignored, and he and Republicans instead forged ahead.
After Whitmer and Nessel took office in January, the newly minted MSCA approved Enbridge’s plan to drill a tunnel 100 feet beneath the lakebed that would contain a new pipeline to replace Line 5. Company and business groups like the Michigan Chamber of Commerce say the buried pipeline almost eliminates the risk of an oil spill in the Great Lakes.
The plan would also ensure that oil flows through the intersection of Lake Michigan and Lake Huron for another 99 years.
Michigan Chamber of Commerce Executive Vice President Jim Holcomb, declined an interview with the Michigan Advance. He instead pointed to comments in a legal brief the powerful business lobby submitted at Nessel’s request.
In its brief, the chamber argued that the law is not only constitutional, but necessary.
“The continued operation of Line 5 through the State of Michigan serves important public needs by providing substantial volumes of propane to Michigan citizens, particularly during cold winters like that which we all are now enduring,” the chamber wrote in a brief to Nessel.
“Line 5 also transports essential products, including Michigan-produced oil to refineries, thereby supporting not only our State’s energy needs, but also our businesses and economy.”
The agreements between the state, Enbridge and the new MSCA “substantially reduces any risk of adverse impacts from a potential oil spill reaching the Straits,” and said the deal “should not be undermined,” the brief said.
New oversight panel
In the waning days of complete Republican control over state politics, the GOP-led Legislature rammed through Public Act 359, which Snyder signed during the frenzied 2018 Lame Duck legislative session.
It created a new political body to oversee the construction of the new tunnel and pipeline that could ensure the deal stands even though Whitmer and Nessel are now in office.
The $350 to $500 million project would take about 10 years to complete and would replace Line 5. The existing pipeline operates in an area called by University of Michigan researchers “the worst possible place for an oil spill in the Great Lakes.”
But Snyder and other Republicans have argued the new tunnel project, once complete, will protect the Great Lakes. The former governor brokered the deal with the company to build the tunnel and it was one of his top Lame Duck priorities.
“From the beginning of this four-year process, our fundamental goal has been to protect the Great Lakes against an oil spill through a solution we know will work,” Snyder said in a December 2018 statement, after the state approved Enbridge’s tunnel proposal.
The law will remove the oil pipeline from the bottom of the lake, “provide energy security for residents of the Upper Peninsula and northern Michigan and create good-paying jobs,” while Enbridge pays to design, construct and operate the pipeline, Snyder said.
But the law also seems designed to ensure that Whitmer would not be able to interfere with that plan, said Oday Salim, an environmental lawyer with the National Wildlife Federation (NWF).
NWF submitted a legal brief arguing that multiple areas of the new law are unconstitutional, hastily written and full of flaws.
“It was an attempt to force something onto a new administration, and in their attempt to do so they made many other mistakes that we believe will cause the law to fall,” Salim said, arguing that the worst offense is “that it misleads.”
What the title of the law suggests is fundamentally different from what is later outlined in the act, and what the law will do, he argued in a brief submitted for the NWF.
The Lame Duck law also rewrites a section of state statute outlining the Mackinac Bridge Authority’s powers, creating a wholly new political entity, the MCSA, to oversee a fundamentally different kind of infrastructure — an oil pipeline instead of traffic over a bridge.
“And clearly in this case, there are things that the law does that are missing from the law. This is truly only something that you’re going to get if you are sprinting to pass a law in the weeks before a brand new administration from a different political party,” Salim continued.
These problems, Salem and others argue, are unconstitutional. Whitmer has asked Nessel to review these questions in her upcoming opinion.
Enbridge says it’s safe
Despite fierce criticism and deep concern, the company has argued that it has operated the pipeline safely for more than 65 years. Enbridge says a new buried pipeline “will make Line 5 among the safest, most reliable stretches of pipeline in North America.”
Enbridge spokesman Michael Barnes told the Advance it’s waiting for Nessel’s opinion and federal permit approval before beginning construction.
“Enbridge looks forward to working with Governor Whitmer and Attorney General Nessel to ensure critical infrastructure — like Line 5 — continues to safely and reliably meet the energy needs of the people of Michigan,” Barnes said in an email. “We believe there is an opportunity to work on these important issues together.”
The company also is awaiting U.S. Army Corps of Engineers’ approval on a permit application before it can begin preliminary “geotechnical work” for the planned tunnel project, Barnes said.
Despite both Whitmer’s and Nessel’s vows to shut down Line 5, the state Department of Environmental Quality (DEQ) also issued a permit to Enbridge to begin pre-construction sampling after Whitmer was sworn into office.
DEQ spokesman Scott Dean said the company applied for the permit last year. The department held a public hearing on the application Nov. 27, more than two weeks before Snyder signed legislation to create the MSCA.
Problems on the line
Although environmentalists say they are pleased with the attorney general’s decision to review the matter, many have long called for the state to simply file suit against Enbridge related to alleged violations of a 1953 agreement with Michigan called an “easement.”
Those alleged violations relate to damage to the pipeline and missing anchor supports that environmentalists say could make a spill more likely.
Enbridge previously failed to disclose knowledge of gaps in protective coating along the pipeline and missing anchor supports. Groups like the environmental coalition Oil and Water Don’t Mix have said this violates the original 1953 agreement between the company and Michigan.
Enbridge has since repaired all but one of the coating gaps along Line 5, according to company spokesman Ryan Duffy. The last one will be patched this year.
But the coalition of environmental groups opposed to Line 5 has called on the state to file legal action against Enbridge related to “ongoing violations of the easement agreement.”
That has not yet happened, although an April 2018 leak again stoked fears of a rupture. About 600 gallons of insulation fluid leaked into the straits after an electrical cable operated by American Transmission Company was damaged by a ship anchor. The same anchor dented Line 5, but did not cause a spill.*
Mackinac Island has since joined a lawsuit with the Grand Traverse Band of Ottawa and Chippewa Indians that argues issues with anchor and saddle supports violate state permits granted to the energy company, as the Advance reported.
But the new MSCA law has made it “very complicated to undo” the existing state easement, said Liz Kirkwood, executive director of an environmental group called For the Love of Water (FLOW).
FLOW also submitted a brief at Nessel’s request arguing that the MSCA law is unconstitutional.
Nessel and Whitmer “know that the new law is limiting their current ability to act on current violations of the easement,” Kirkwood said. “So they’re pulling back the layers, looking at the constitutionality of the act.
“And then the plot thickens, because nobody knows what exactly will happen. We don’t know what other actions the state will take,” Kirkwood said.
“But we’re in a new situation in which the leadership of the state is now taking their responsibility seriously,” she added.
In the meantime, some environmentalists say they hope that Whitmer will take further executive action to bolster state oversight of the pipeline and add new safety measures, said National Wildlife Federation Conservation Partnerships Manager Beth Wallace.
Wallace and others have called for more aggressive reporting requirements to the state regarding the status of Line 5’s protective coating.
Enbridge admitted in 2017 that it had, for years, failed to disclose knowledge of damage to the line’s protective coating. The company also misled the state about the extent of the damage, prompting demands to repair it.
“We do not believe there’s any way to properly prepare for a significant spill in that location,” Wallace said. “Unknown variables make having … a vintage oil pipeline continue to operate completely inappropriate.”
Correction: Damage to an electrical cable operated by American Transmission Company caused 600 gallons of insulation fluid to leak into the Straits of Mackinac. The damage done was to a ship anchor. The story has been corrected to reflect this.