Tuesday, December 18, 2018

Environmental, tribal groups oppose Enbridge-State agreement to construct tunnel in Mackinac Straits; 5-day comment period ends Dec. 18

By Michele Bourdieu

Today, Tuesday, Dec. 18, is the last day to submit comments (during a 5-day comment period) on proposed agreements related to a planned utility tunnel in the Straits of Mackinac. Construction of the tunnel could take 10 years while the aging Line 5 pipelines would remain under the Straits. Email or call in your comments as indicated above. (Photo courtesy Anishinaabek Camp - Shutdown Line 5 Facebook page)

LANSING, HOUGHTON -- On Thursday, Dec. 13, the State of Michigan released for public review and comment proposed agreements related to a planned multi-use utility tunnel in the Straits of Mackinac and the remaining life of Line 5 in the Straits. The documents are posted to the mipetroleumpipelines.com website. Public comment is being accepted through Tuesday, Dec. 18, and supplied to Gov. Rick Snyder, state departments and the Mackinac Straits Corridor Authority (MSCA) for consideration.*

Environmental groups are speaking out against this comment period of a mere 5 days following the legislature's hasty passing (during their lame-duck session) of outgoing Michigan Senator Tom Casperson's bill, SB 1197, for constructing a tunnel under the Straits of Mackinac to "protect" the aging Line 5 pipeline.

Last week that bill was passed on Dec. 11, and on Dec. 12 outgoing Governor Snyder signed it into Public Act 359. This law directs the MSCA to enter into an agreement with Enbridge Energy Corporation -- the company that owns and operates Line 5 -- for construction of the utility tunnel, provided the agreement meets certain conditions. Under the proposed agreement, Enbridge would pay for all design, construction, operation and maintenance costs for the tunnel. The law establishes a separate Straits Protection Fund to pay for the work of the MSCA, including independent experts to ensure proper construction and operation of the tunnel.

On Dec. 12, immediately after Gov. Snyder's signing PA 359, the Michigan League of Conservation Voters (Michigan LCV) issued this statement:

"After widespread opposition from Michigan citizens, businesses, experts and more, a backroom deal brokered by special interest groups to keep oil flowing through our Great Lakes was hastily jammed through the Legislature in the 11th hour," said Lisa Wozniak, executive director at Michigan LCV. "We are deeply disappointed Gov. Snyder approved legislation that will keep oil pumping through the damaged Line 5 Pipeline for another decade or more."

Wozniak added, "On Nov. 6, the people of Michigan made their position clear by electing candidates who pledged to keep oil pipelines out of our Great Lakes and protect our drinking water. We will continue to advocate, communicate and fight to protect our water and oppose oil pipelines in the Great Lakes as the new administration takes office."

On Dec. 15, the Upper Peninsula Environmental Coalition (UPEC) addressed comments on the Proposed Tunnel Agreement between MSCA and Enbridge Energy to the Michigan Department of Natural Resources (DNR) and the Pipeline Safety Advisory Board.

"The public notice for the Proposed Agreement was posted at 3:03 p.m. on December 13, 2018, with the public period ending on December 18, 2018, for a period of just over five days, including a weekend," UPEC states. "Such a limited public comment period for a proposal of this magnitude, presented in a legally dense document, with such significant potential impacts to the population of the State and beyond is an egregious abuse of power, and an obvious attempt to limit public review and input. The State should extend the public comment period for 60 days to allow adequate time for public review and comment. The manner in which this Proposed Agreement is being pushed through also ties the hands of the incoming Governor, and is an affront to Michigan voters and the democratic process."

UPEC also points out that a federal permit should be required for a project such as this tunnel under the Great Lakes.

"The U.S. Army Corps of Engineers has jurisdiction to require a permit for the proposed tunnel under the Straits, a federally designated navigable water, pursuant to Section 10 of the Rivers and Harbors Act of 1899," UPEC says. "The Agreement should explicitly reference that authority and the fact that a federal permit would need to be obtained for the construction and operation of the proposed tunnel. That federal permit review process would involve an opportunity for agency, private group, and public review and comment, as well as analysis under the National Environmental Policy Act, to potentially include preparation of an Environmental Impact Statement."

UPEC also challenges Article 11 on Indemnification, which states, "Enbridge will defend, indemnify, protect and hold harmless the Authority and the State of Michigan, and all of its officers, officials, agents, and employees, each in their capacities as such (Indemnitee) from and against (a) any Claim or Liability arising out of or in connection with the work done by Enbridge or its contractors under this Agreement, including without limitation, the design, construction, operation and maintenance of the Tunnel or the Line 5 Straits Replacement Segment, and (b) any Claim or Liability relating to the Tunnel arising out of or in connection  with the condition of state-owned lands beneath the Straits of Mackinac."

UPEC notes that "if the Authority, and by extension, the State is the lease holder and/or permittee or co-permittee of the Tunnel, an indemnity agreement cannot shield the State against an enforcement action of a federal permitting authority due to a catastrophic failure of Line 5, including a major spill of liquid hydrocarbon product into the Straits or other portions of the Great Lakes and its shorelines."

UPEC concludes, "The manner in which this Agreement and accompanying documents is being rushed through at the end of the Snyder Administration gives the undeniable impression that there is not a sincere desire to provide the public with a reasonable opportunity to be informed of the State’s and Enbridge’s intentions with respect to the Tunnel, nor to allow for a deliberative process that considers the potential impacts to the incomparable natural resources of the Straits of Mackinac and the Great Lakes ecosystem. This is especially true in consideration of Enbridge’s dismal track record of major pipeline spills, including in Michigan. This Agreement and the entire subject of the construction of a Tunnel under the Straits of Mackinac should be left to the incoming Whitmer Administration, in accordance with the clear expression of the voters of Michigan."**
 
Another environmental group, which has been calling for decommissioning Line 5 because of the danger of such a major oil spill, is Oil and Water Don't Mix.

Mary Pelton Cooper of Marquette, left, is pictured here with June Thaden of Traverse City at the 2017 Pipe Out Paddle protest against Line 5 in Mackinaw City. Both support the activist organization Oil and Water Don't Mix, which has been calling for the shutdown of Line 5 since 2013. (Keweenaw Now file photo)

Oil and Water Don't Mix has asked concerned citizens to sign, on their Web site, a new petition against the construction of this tunnel, saying, "There is no light at the end of Gov. Snyder’s proposed Line 5 oil pipeline tunnel under the Straits of Mackinac. Michigan doesn’t need Enbridge’s Line 5 or the oil it sends to southern Ontario. We don’t need to keep the Great Lakes at risk of a catastrophic oil pipeline rupture in the Straits while state officials spend years and taxpayer resources keeping an old oil pipeline running so a Canadian oil transport company can get a new pipeline built in Michigan to transport heavy tar sands oil. What we do need is a clear timetable to close Line 5 under the Straits of Mackinac and keep oil pipelines out of the Great Lakes!"

Their petition lists several objections to the tunnel (cited here in part):

-- Exposing Great Lakes to tar sands oil. "Line 5 does not currently transport heavy tar sands oil thanks to the State of Michigan’s 2015 ban. However, a new Canadian tunnel in the Straits is an invitation for Enbridge to seek to lift this ban and transport tar sands in Line 5."
 
-- Continuing to use the 65-year-old Line 5. "Since 1968, Line 5 has ruptured at least 29 times on land, spilling over 1.1 million gallons of oil into Michigan’s pristine lands and waters. Line 5 traverses 245 other water crossings, including ones that are tributaries of Lakes Michigan, Superior, and Huron. One Line 5 spill in the Upper Peninsula near Lake Michigan contaminated 825 tons of soil in the Hiawatha National Forest and exposed groundwater to potential contamination."

-- Ignoring the law and alternatives. "A Canadian tunnel under the Straits is not permissible under Michigan’s Great Lakes Submerged Lands Act (GLSLA), common law public trust doctrine, and would risk violating the 1836 Treaty and consent decree with Michigan Tribes protecting the Straits fishing grounds."

-- Opposing the public’s will, Michigan's 2002 directional oil and gas drilling ban. "Strongly supported by the public, the 2002 drilling ban was designed to prevent the very risk a Line 5 tunnel for Canada would present. In addition, May 2018 public polling results found 54 percent of Michigan voters want the Line 5 oil pipeline in the Straits of Mackinac to be shut down, and 87 percent of voters said they are concerned that the 65-year-old pipeline could have an oil spill in Northern Michigan, while 64 percent said they are 'very concerned.'"

-- Harming the Michigan economy, from tourism to fishing, during tunnel construction.

-- Promoting climate change by continued investment in fossil fuel infrastructure.***

Tribal Groups: Tunnel plan ignores treaty fishing rights

According to Nov. 2, 2018, article in Michigan's Bridge magazine, tribal groups complain that the Line 5 Tunnel ignores fishing rights guaranteed to them by an 1836 Treaty.

"While the Snyder administration formally met with tribes three times over the past year under a State-Tribal Accord, tribal leaders say these consultations were little more than an 'airing of grievances' for them," the article notes.

A jiiman (tribal canoe) participates in the Sept. 3, 2016, Pipe Out Paddle protest against Line 5 near the Mackinac Bridge. (Keweenaw Now file photo © and courtesy Miguel Levy)

"The last meeting between tribes and Gov. Rick Snyder was Sept. 27, less than a week before the state announced an agreement with Enbridge to pursue a $500 million tunnel for the company’s Line 5 pipeline. In other meetings, officials have been unwilling to share information from Enbridge or modify any agreements, tribes say."****

Jannan J. Cornstalk, citizen of the Little Traverse Bay Bands (LTBB) of Odawa Indians and organizer of the September 2016 Pipe Out Paddle Protest against Line 5, commented to Keweenaw Now this week on the importance of protecting the water.

"Our water is in a state of emergency on so many levels," she said. "From PFAs (per- and polyfluoroalkyl substances) to Flint and other areas around the world. We need water to live and I wish people would live their lives as if this knowledge were true. Water is sacred. As Anishinaabek we choose to co-exist with it and hope to have clean healthy water for generations. Shut down Line 5 before it's too late!"

During the 2016 Pipe Out Paddle protest, organizer Jannan Cornstalk, right, is pictured here with her daughter, Jannan Cotto, near the Mackinac Bridge. Both are from Petoskey, Mich., and citizens of the Little Traverse Bay Bands of Odawa Indians (LTBB). Cotto is also LTBB education director. (Keweenaw Now file photo)

Professor Martin Reinhardt of the Center for Native American Studies at Northern Michigan University also organized and participated in the protests against Line 5 at the Mackinac Bridge and offered these comments to Keweenaw Now:

"I have serious concerns about how Line 5 has impacted our responsibility, as Anishinaabe people, to protect our Mother earth and our fellow inhabitants. The United States has a legal and political obligation to protect our Aboriginal rights, and to uphold our treaty rights which guarantee our continued ability to hunt, fish, and gather as well as the other usual privileges of occupancy. I am also a citizen of the United States, and a US Army veteran. I believe that the US has great potential to help save our planet from the very serious threat of global warming, if we and other nations work together with traditional Indigenous knowledge holders to begin reversing the damage that we have inflicted through our continued reliance on petroleum products. Lastly, the people of the State of Michigan have a duty to stand up and stop this madness. We literally have a foreign company telling the Governor of our State to leave a dangerous oil pipeline in waters that are in desperate need of protection. So much for Pure Michigan! Shame on Governor Snyder and his cronies for jeopardizing the health of future generations."

Professor Martin Reinhardt of Northern Michigan University, second from right seated and drumming, joins drummers and singers during the 2017 Pipe Out Paddle protest against Line 5 near the Mackinac Bridge. (Keweenaw Now file photo)

The Anishinaabek have set up a camp for all Water  Protectors -- a place to gather in unity and solidarity with all Anishinaabek, to live in balance and harmony, to build a positive place to rest. They are opposed to the Line 5 attack on the Great Lakes and offer cultural classes. The camp is located at 2716 Reed Rd., Levering, MI 49755.****

Michigan Tech and Enbridge

Meanwhile, Michigan Technological University researchers, faculty and students have contributed their technological expertise to assist Enbridge by monitoring the lake environment in the Straits with one of their scientific buoys; directing a team of 41 experts to produce a worst-case-scenario, independent risk analysis on Line 5; and offering to both government and industry a preliminary, student-created design for the tunnel.

In August 2015 Michigan Tech's environmental monitoring buoy for the Straits of Mackinac was successfully deployed west of the Mackinac Bridge. The buoy uses sonar to measure the flow of the water beneath the buoy. It also measures wind direction and speed, wind gust speed, air temperature, relative humidity, barometric pressure, solar radiation, water temperature, wave height and direction.*****

Michigan Tech's monitoring buoy near the Mackinac Bridge. (File photo courtesy Guy Meadows, Great Lakes Research Center director)

During the past year, Michigan Tech's Guy Meadows, director of the Great Lakes Research Center (GLRC) led a team of 41 researchers -- 21 from Michigan Tech and 20 from other organizations and universities -- who conducted an independent risk analysis of the two aging Line 5 pipelines under the Straits in order to determine the potential environmental and economic impacts of a potential oil spill in the Straits. The draft report was submitted last July, and the final report, the "Independent Risk Analysis for the Straits Pipelines," was published on Sept. 15, 2018.

This Figure ES4 from the Executive Summary of the "Independent Risk Analysis for the Straits Pipelines," based on modeling, shows the Maximum Extent of Shoreline Oiling predicted for the Straits of Mackinac and Lake Michigan and Huron Regions as Associated with the Meteorological, Ice Cover and Water Current Conditions Observed for January. Results depicted above represent a total oiled shoreline  distance of 1146 km following an oil release date and time of 01/17/2016 at 1800 hrs from the northern pipeline release point and a total dispersal simulation time of 60 days. The red particles represent dispersed oil.******

On Friday, Dec. 14, the Michigan Tech Board of Trustees heard a presentation on a senior design project for an underwater utility corridor spanning the Straits of Mackinac. Michael Prast, Michigan Tech graduate student in civil engineering, who had presented the project to Michigan legislators and policymakers in Lansing last May, described the project to the Michigan Tech trustees. Here he talks about three of the four teams of students contributing to the projeect:

Michigan Tech graduate student Michael Prast describes, to the Michigan Tech Board of Trustees, several aspects of the senior design project for designing a tunnel under the Straits of Mackinac. Click on YouTube icon to watch video with larger screen. (Videos by Keweenaw Now)

This slide from the student presentation displays the students' design concept of the potential tunnel under the Straits. Click here and then on Mackinac Straits Tunnel Presentation to view the slides of the Power Point presentation. (Photo by Keweenaw Now)

Here Prast recounts his experiences presenting the project to officials in Lansing:

Prast updates the trustees on recent proposals (for the tunnel plans) by Gov. Snyder and Enbridge and describes reactions to the students' presentations in Lansing. Click on YouTube icon for larger screen.

Prast concludes his presentation and welcomes questions. Click on YouTube icon for larger screen.

Horst Schmidt, UPEC president, who attended the student presentation at the Board of Trustees meeting, said he thought Michael Prast's presentation was well done.

"However, the magnitude of the project is not just one of engineering," Schmidt added. "That he (Prast) admitted there are no recent studies of the geology of the Straits is disturbing. The law itself ignores many state and federal regulations. That Enbridge is given the authority to build the line with its poor record of compliance is unbelievable. Even the outgoing DEQ (Department of Environmental Quality) director has commented in the past upon not being able to trust the company. And as has happened in other recent legislation, the governor is hastily approving these laws before he leaves office."

Guy Meadows, GLRC director, who attended the presentation at the Board of Trustees meeting, had a positive reaction to the student project.

"They did a wonderful job," he said. "It's great to see how creative they were in their thinking and to have such a positive response from the State and Enbridge."

Meadows said the tunnel is not covered in his final "worst-case-scenario" risk analysis report (mentioned above).

"We received a positive response to the report from the general public and the State," he noted.

As for the tunnel, he said, "I think it's certainly a step forward."

Now that the risk analysis report is complete, Meadows said Michigan Tech is working on setting up High Frequency Radar (HFR) to monitor surface currents throughout the Straits all year round and 24/7. This will provide more monitoring since the environmental buoys are taken out of the water in the winter.

"This will be the first operational HFR in the State," he noted.

Notes:

* On Wednesday, Dec. 19, 2018, the new Mackinac Straits Corridor Authority will hold its inaugural meeting from 1 p.m. to 3 p.m. at the Little Bear Arena, 275 Marquette St., St. Ignace. The three-member authority is charged with overseeing construction and operation of a proposed multi-use utility tunnel beneath the Straits of Mackinac. The tunnel will house a replacement segment for the dual Line 5 petroleum pipeline in the Straits, and reportedly will be built to accommodate other utilities.

** Learn more about UPEC by visiting their Web site.
UPDATE: Click here for their Dec. 15, 2018, proposed letter on the tunnel agreement.

*** Click here to read the entire petition and sign it.

**** See "Michigan tribes say Line 5 pipeline tunnel plan ignores treaty rights." 
UPDATE: See the Dec. 14, 2018, Washington Post article on the Anishinaabek camp for water protectors, "A submerged oil pipeline triggers a winter of frigid protest."

***** See our Sept. 13, 2015, article, "Michigan Tech/Enbridge buoy deployed in Mackinac Straits; Gov. Snyder visits GLRC."

******  Click here for the Executive Summary of the final report, "Independent Risk Analysis for the Straits Pipelines."

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