Updated, 8:42 a.m., 4/23/20 with comments from the AG’s office
With a unanimous vote Wednesday afternoon, the Michigan Public Service Commission (MPSC) resolved to move forward on clarifying a legal issue that could impact which regulatory body has the authority to move the controversial Line 5 tunnel project along.
Electronic comments on Enbridge’s request may be mailed to [email protected], and should reference Case No. U-20763.
Sally Talberg, MPSC chair, noted afterward that she had never before seen such a high volume of public comments for a meeting in her seven years on the commission.
The MPSC called the virtual special meeting just five days after receiving an application from Canadian oil company Enbridge, which asks the commission to do one of two things: Either promptly grant Enbridge’s application to construct the new tunnel-enclosed pipeline under the Straits of Mackinac, or declare that MPSC’s authorization is not necessary to start construction.
“They’re asking the commission to decide that the 1953 easement gives them all that they need [to move forward],” said Sean McBrearty, campaign coordinator for the Oil & Water Don’t Mix coalition that opposes Line 5.
In April 1953, an earlier iteration of the MPSC had signed off on the original construction of Line 5 under the Straits. That agreement granted approval to the company now known as Enbridge to construct, operate and maintain the Line 5 oil pipeline.
Now, 67 years later, Enbridge argues that the commission’s original authorization should encompass their current request to build a new tunnel-enclosed pipeline before retiring the old Line 5.
The tunnel project is the result of a deal reached by Enbridge and term-limited Gov. Rick Snyder, which the GOP-led Legislature approved before he left office in 2018. There have been longstanding concerns about the safety of the aging Line 5 pipeline, which environmentalists have called to be completely shut down.
However, under the deal, which was meant to cut out current Gov. Gretchen Whitmer, the company agreed to build a tunnel encasing a new Line 5 pipeline to keep it up and running. Attorney General Dana Nessel and Enbridge are now locked in court battles over the project.
On Wednesday, the three-member commission voted to suspend Enbridge’s first request to construct the tunnel while it considers the second issue of MPSC’s authority. A public comment period on the declaratory ruling is open until May 13, and formal legal analysis on it will be heard through May 29.
“We are pleased the process is moving forward,” Enbridge spokesperson Ryan Duffy said in an email following the vote.
In the company’s letter to the MPSC on Friday, Enbridge argues that the commission’s original 1953 approval “embraces approval” of the planned four-mile-long replacement pipeline under the Straits, which the company describes as a modest replacement project that will allow continued safe operation of the pipeline.
Nessel spokesperson Kelly Rossman-McKinney said the need for MPSC approval is “completely separate from the constitutionality of the statute authorizing the tunnel project. The AG is reviewing Enbridge’s request for a ruling that it does not need MPSC approval to construct a new oil pipeline and is evaluating what action to take in the matter.”*
This was the MPSC’s second fully remote meeting during the COVID-19 pandemic. That didn’t stop a steady flow of comments from members of the public, tribal representatives, environmental organizations and several lawmakers, which took up the majority of the meeting. Those comments overwhelmingly opposed Enbridge’s declaratory ruling request.
The only two exceptions came from state lawmakers representing parts of the Upper Peninsula: state Rep. Sara Cambensy (D-Marquette) and state Sen. Ed McBroom (R-Vulcan), who argued in favor of the Line 5 tunnel project’s swift approval.
The commission’s decision to take the vote before taking up any of the public comments also drew ire from many of the public participants.
“We definitely disagree on Enbridge’s assertion that they don’t need Michigan Public Service Commission’s approval for this project,” McBrearty said after the meeting.
“Locating a new pipeline in a tunnel is definitely not the same thing that they have an easement for from 1953. And, as we know from Nessel v. Enbridge, there is even a question as to whether that 1953 easement should be considered valid at all,” he added.
McBrearty said that the meeting today also highlighted the downside of transitioning the public engagement process entirely to the internet and phones. He said that a number of people were unable to comment because of technical reasons, including state Sen. Jeff Irwin (D-Ann Arbor), and argued that many people in low-income and rural areas without access to broadband cannot participate in these kinds of meetings.
Earlier Wednesday, Tip of The Mitt Watershed Council sent out a press release urging Michigan residents to contact Whitmer to delay Enbridge’s permit application review process.
If the MPSC determines that the declaratory ruling request is valid, the commission’s role in the process will end and it will have no further say in the Line 5 tunnel project. If commissioners decide otherwise, a contested case process will begin, which normally goes on for about one year’s time.