Enbridge submits construction permit for Line 5 project, enviros want Whitmer to delay due to COVID-19

Groups say lack of public oversight could compromise safety

Mackinac Bridge | Susan J. Demas

If an oil pipeline company requests permits for a controversial project during a pandemic, does it make a sound?

Not nearly enough, if you ask many of the state’s environmental, civic and tribal leaders who oppose Canadian company Enbridge’s controversial Line 5 tunnel project.

The Oil and Water Don’t Mix coalition, made up of more than a dozen Michigan organizations that want to decommission the Line 5 oil pipeline under the Straits of Mackinac, addressed that concern and others in a letter to Gov. Gretchen Whitmer on Wednesday. 

The groups request that Whitmer use her emergency powers to temporarily delay the application process for the Line 5 tunnel project in light of the COVID-19 outbreak.

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A spokesperson for Whitmer did not respond to a request for comment.

Enbridge has said that it is merely following deadlines set by the agreements with the state, which were made during Republican former Gov. Rick Snyder’s administration.

In the letter, the groups point out that while local and tribal governments have shut down operations in cooperation with the governor’s emergency orders on COVID-19, Enbridge has is forging ahead with the permitting process — making it likely that full public engagement on its permit requests will be hindered.

Public engagement on any such permit application is required by Michigan law.

“By filing its applications now, Enbridge is seeking to use a global pandemic to its advantage by avoiding rigorous review and meaningful public comment,” said Bryan Newland, chair of the Bay Mills Indian Community and of the Chippewa Ottawa Resource Authority representing five tribes.

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Nonetheless, Enbridge submitted applications on Wednesday for state and federal authorization of the project’s construction. With the help of two construction firms and an engineering firm, the company is tentatively planning to build a roughly five-mile tunnel that lies approximately 60 to 200 or more feet below the lakebed.

That tunnel, with an interior diameter of 18 to 21 feet, will house the replacement for the Line 5’s aging dual pipelines that run under the environmentally-sensitive Straits of Mackinac. It is expected to be built in 2021 and be in operation sometime in 2024.

“The state should not be considering non-essential permits that require public comment in this unprecedented time,” said Sean Hammond, Policy Director, Michigan Environmental Council. “Many Michiganders have insufficient access to the internet — especially in rural areas most impacted by Line 5 — so relying on remote feedback for public participation is not sufficient for the public’s voice to be heard.”

The Michigan Department of Environment, Great Lakes and Energy (EGLE) and the U.S. Army Corps of Engineers will both need to approve the joint permit application before construction begins.

Dean Scott, a spokesperson for EGLE, said it is working under the department’s typical 30-day internal timeline to evaluate the “completeness” of the application.

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“Like the rest of state government, EGLE continues to operate and serve the public. As part of that mission, we continue to receive and process permit applications like those submitted by Enbridge this week,” Scott said.

“We are adapting our processes to handle these and other permit requests in a way that protects public health, complies with the law, and allows meaningful public participation and input.”

Enbridge spokesman Ryan Duffy said the company has chosen not to hit pause on the permitting process because it is moving along a “set timeline with required deadlines for moving the tunnel project forward,” as set forth under the company’s agreements made with the state under Snyder.

“Enbridge recognizes that this submittal is happening at a very challenging time as Michigan and the country continues to engage in the COVID-19 response,” Duffy wrote in an email to the Advance.

“Throughout the past several months, we have been regularly communicating with state and federal agencies to ensure we remained aligned in terms of the timing of this application. Their consultation in recent weeks has been helpful in making certain the application and the process met their requirements, expectations and capabilities,” Duffy continued.

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But Oil & Water Don’t Mix coordinator Sean McBrearty noted that tribes and other interested persons will not be able to easily meet that statutory timeline for response and review due to office closures and other restrictions, and called on Whitmer to use her emergency powers to pause them.

“The governor and her departments should recognize this issue and set aside those deadlines until the emergency is over,” McBrearty said.

Michigan activists have also expressed heightened concerns over a notice sent by the federal Pipeline Hazardous Materials and Safety Administration (PHMSA) to Enbridge and other oil transport firms, which says they plan to suspend enforcement of certain specific regulatory requirements due to the COVID-19 emergency.

PHMSA plans to exercise enforcement discretion with regard to other pipeline safety regulations based on the limitations posed by the pandemic, and advises that pipeline operators are still responsible for the safe operation of their systems and must adequately respond to critical pipeline safety issues and emergencies.

David Holtz, a spokesperson for Oil & Water Don’t Mix and volunteer with the Sierra Club Michigan chapter, said this could still have troubling implications for the Line 5 project given Enbridge’s history.

In response to that question, Duffy said Enbridge is “not planning to have any employees in the field for the project until 2021.”

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Kelly Rossman-McKinney, spokesperson for Attorney General Dana Nessel, said the AG “remains deeply concerned about Enbridge’s operation of Line 5 and its past record of violations elsewhere in its system, including the Line 6B spill near Kalamazoo in 2010.”

In response to whether the PHMSA enforcement suspensions add to that concern, Rossman-McKinney said that “Enbridge is responsible for fully complying with all regulations and PHMSA should hold them to it at all times, including during the duration of the pandemic.”

Rossman-McKinney also noted that Enbridge was fined by PHMSA following the 2010 oil spill incident near Kalamazoo for violating operator qualification regulations, which is one of the regulations being temporarily suspended by PHMSA.

After the Advance uncovered troubling information last month about the track records of both companies set to construct the tunnel, Nessel called for the Mackinac Straits Corridor Authority (MSCA), which oversees the project, to “investigate the contractors’ fitness before taking any action to approve their role.”

Whether this has happened remains unclear. Rossman-McKinney referred the question to the spokesperson for the MSCA at the Michigan Department of Transportation (MDOT), who did not respond to the Advance’s request for comment on whether the panel has taken up Nessel’s request.