A two-member panel with full, independent authority to oversee the intensive project to replace Enbridge’s controversial Line 5 pipeline and keep oil flowing under the Straits of Mackinac has been quiet and out of the news for the past year, as Line 5-related court cases heat up and focus has largely been on the regulatory agencies permitting the project.
The Mackinac Straits Corridor Authority (MSCA) did not meet publicly for 11 months until Wednesday. In the meantime, the panel spent hundreds of thousands of dollars held in trust by the MSCA to secure significant consulting contracts meant to guide Enbridge’s tunnel project forward, according to documents obtained by the Michigan Advance.
The statute creating the MSCA was rushed through the 2018 Lame Duck session by the GOP-controlled Legislature, then swiftly signed into law by former Gov. Rick Snyder, who had negotiated the deal with Enbridge shortly before leaving office.
While three state regulatory bodies are in charge of granting Enbridge the construction permits necessary for the tunnel — the Michigan Department of Environment, Great Lakes and Energy (EGLE), Michigan Public Service Commission (MPSC) and the U.S. Army Corps of Engineers — the MSCA was entrusted specifically to oversee all aspects of the tunnel project and ensure it comes to fruition.
The MSCA approved two contracts worth a total of $475,689 — with the Chicago-based McMillen Jacobs Michigan, Inc. for “advisory tunnel engineering services,” and the Lansing-based CDM Smith Michigan, Inc. for “structural design support services.” Both were already signed in October, according to Michigan Department of Transportation (MDOT) documents attained by a Freedom of Information Act (FOIA) request, but both members of the MSCA met virtually Wednesday to publicly “approve” the contracts.
Both contracts were secured by MSCA Chair Mike Nystrom, a registered lobbyist for the construction industry and executive vice president/secretary of the Michigan Infrastructure and Transportation Association (MITA). He didn’t respond to an inquiry for the story.
MSCA Member Tony England, a professor of electrical and computer engineering at the University of Michigan, did not appear to be included in the decisions. England’s name is not on the documents, and at Wednesday’s meeting he asked when they were signed. But he approved the contracts during the meeting anyway.
The two 2020 contracts make four total consulting contracts entered into by the independent panel. On Dec. 28, 2018, the MSCA signed three-year agreements with the Colorado-based Michael Mooney Consulting, LLC for up to $452,805.33 and with the Grand Rapids-based HT Engineering, Inc. for up to $309,452.70.
The panel is housed under MDOT and its funds are administered by that department.
The MSCA was created as a three-member panel in 2018, but only has two members now due to a vacancy. Former member James “JR” Richardson resigned in June after being appointed to the Michigan Natural Resources Commission by Gov. Gretchen Whitmer.
Whitmer spokesperson Chelsea Parisio, in response to an inquiry about why the position has not been filled yet by the governor, said that “the vacancy is currently under review.”
Any appointment to the MSCA would be subjected to the advice and consent of the GOP-led state Senate, which has rejected 18 of Whitmer’s appointments in the last couple weeks over Republicans’ unhappiness with her COVID restrictions.
The small panel will also own the tunnel after it is completed and “provide independent oversight throughout its life.” Another unique aspect of the MSCA is that it works alongside EGLE and the MPSC to seemingly advise the agencies about the tunnel project, ostensibly with advice given by the external consulting firms it hires.
Public Act (PA) 359 was designed not only to ensure the authorization of a new tunnel-encased oil pipeline in the Straits of Mackinac, but to also tie the hands of the incoming Democratic Whitmer administration to reverse it.
Months later, newly elected Democratic Attorney General Dana Nessel challenged the law with a legal opinion arguing that PA 359 is unconstitutional. That gave Whitmer the grounds to temporarily block progress on the tunnel project, although state agencies allowed action anyway.
A subsequent legal fight — one of many — between Nessel and Enbridge eventually led to a Court of Appeals panel upholding PA 359’s constitutionality in July. Nessel’s office did not appeal that ruling to the Michigan Supreme Court.
Three other court cases between Enbridge and the state of Michigan remain ongoing in state and federal court.
Each contract secured by the MSCA under MDOT approval must also be approved by the attorney general’s office.
Nessel spokesperson Ryan Jarvi declined to expand on the role the AG’s office plays in the panel’s administrative functions.
“The Mackinac Straits Corridor Authority’s contract and procurement process falls within the purview of MDOT under MCL 254.324d(6), which states that ‘Any administrative functions of the Mackinac Straits corridor authority shall be performed under the direction and supervision of the state transportation department,’” Jarvi said.
“As such, you may want to contact MDOT regarding the information you are seeking. Our office is limited on the information we can provide since our communications with state agencies and commissions that we represent, such as the Authority, fall within the attorney-client privilege.”
Ryan Mitchell, the MDOT contact for the panel, did not respond to a request for comment. Mitchell also did not respond last March to whether the MSCA would investigate the Enbridge-approved contractors hired to build the tunnel project, as Nessel had called for after the Advance uncovered troubling information about both companies’ track records.