Saturday, June 29, 2019

Attorney General Nessel takes legal steps to decommission Line 5; Gov. Whitmer seeks to dismiss Enbridge lawsuit

By Michele Bourdieu

Michigan Attorney General Dana Nessel. (Photo courtesy Michigan.gov)

LANSING -- In a one-two legal punch, Michigan Attorney General Dana Nessel not only responded to the Enbridge lawsuit filed against the state earlier this month, but simultaneously took the first step to decommission the 66-year-old dual pipelines that run through the Straits of Mackinac by filing a lawsuit in Ingham County Circuit Court.

Meanwhile Governor Gretchen Whitmer announced her responses to Enbridge's failure to negotiate on tunnel construction and her goal of decommissioning Line 5 under the Straits of Mackinac.

The Attorney General filed her lawsuit on June 27, 2019, the same day she filed a motion to dismiss Enbridge’s lawsuit filed in the Court of Claims on June 6 seeking to enforce agreements made in the last months of the Snyder administration that purported to authorize Enbridge to build a tunnel and continue operating Line 5.

"I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes," said Nessel.  "Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay."

Nessel’s lawsuit asks the Ingham County Circuit Court to find that Enbridge’s continued operation of the Straits Pipelines under the easement granted by the State in 1953 violates the public trust doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution impairment and destruction of water and other natural resources.

The Enbridge Line 5 Pipeline under the Straits of Mackinac. (File photo courtesy National Wildlife Federation)

The Attorney General’s lawsuit identifies a potential anchor strike as the most significant risk to Line 5. In 2017, the State’s contractor, Dynamic Risk Assessment Systems, Inc., identified an anchor strike as the most "dominant threat" to Line 5.

"The location of the pipelines -- which carry millions of gallons of oil each day and lie exposed in open water at the bottom of the Straits -- combines great ecological sensitivity with exceptional vulnerability to anchor strikes," said Nessel. "This situation with Line 5 differs from other bodies of water where pipelines exist because the currents in the Straits of Mackinac are complex, variable, and remarkably fast and strong."

Nessel also noted the serious danger of anchor strikes, such as the one that occurred in 2018.*

"The continued operation of Line 5 presents an extraordinary, unreasonable threat to the public because of the very real risk of further anchor strikes, the inherent risks of pipeline operations, and the foreseeable, catastrophic effects if an oil spill occurs at the Straits," Nessel added. "We were extraordinarily lucky that we did not experience a complete rupture of Line 5 because, if we did, we would be cleaning up the Great Lakes and our shorelines for the rest of our lives, and the lives of our children as well."

In fact, an April 2018 anchor dragging incident -- which ripped through several inches-thick steel cables -- brought that threat home in a very real way. Although Line 5 was damaged -- not ruptured -- in that incident because the anchor hit a section lying directly on the bottomlands, if the anchor had dragged across the bottom of the Straits in an area where Line 5 is elevated, the likely result would have been a complete rupture of Line 5.

Nessel’s lawsuit seeks an order from the Court to shut down and decommission the Straits pipelines as soon as possible after a reasonable notice period to allow orderly adjustments by affected parties.

The Attorney General also filed a motion for summary disposition in the Court of Claims on June 27. That motion argues that PA 359 (2018), which would have created a new Straits Corridor Authority, is unconstitutional, and the agreements that purported to give Enbridge the right to build a tunnel and continue operating Line 5 in the Straits for the estimated seven to ten years it would take to build the tunnel are invalid.

This is consistent with Nessel’s first formal opinion as Attorney General determining that PA 359 -- rammed through in a chaotic lame duck session at the end of the Snyder administration -- was unconstitutional. Her office then notified all state agencies -- including the Straits Corridor Authority -- that PA 359 and any agreements relying on the statute, were unenforceable.

"The debate over Line 5 has been raging for over five years," said Nessel. "Real-world events have shown me we can’t wait another five to ten years for Enbridge to build a tunnel. We cannot prevent accidental or emergency anchor deployments in one of the busiest shipping channels in the Great Lakes.  And it only takes one such incident to cause an environmental and economic catastrophe. That is a risk no one should be willing to take."

Nessel also explained these steps to decommission Line 5 in a video statement. In this statement she notes that she and Gov. Whitmer are both committed to protecting the waters of the Great Lakes from a potential disaster.

"We have dual responsibilities and we are working on parallel tracks," Nessel said in the video statement. "I'm doing everything I can on the legal front, and she's doing everything she can on the administrative front."

Nessel also mentioned in the video the governor's "Task Force to ensure the energy needs of our UP residents are met in an affordable and reliable way."**

Governor Whitmer responds to Line 5 legal filings

Tiffany Brown, press secretary for Governor Whitmer, issued a statement on June 27, commenting on the legal filings regarding Line 5.

Michigan Governor Gretchen Whitmer. (Photo courtesy Michigan.gov)

"The governor’s primary goal has always been and remains to get the Line 5 dual pipelines out of the Straits of Mackinac as soon as possible. The risk of a catastrophic oil spill in the Great Lakes, and the harm that would follow to Michigan’s economy, tourism, and our way of life, is far too great to allow the pipelines to continue to operate indefinitely," the statement said.

The statement also explains that the governor's action follows her attempted negotiations with Enbridge:

"The governor has never viewed litigation as the best solution to this problem, and for this reason she entered negotiations with Enbridge about the possible construction of a tunnel. Her reasonable requirement has been that the dual pipelines through the Straits cease operation at a date certain, after allowing for a period of transition. Enbridge, however, has insisted that it be allowed to run oil through the Great Lakes indefinitely. Rather than negotiating, Enbridge walked away and filed a lawsuit. Today, Governor Whitmer filed her response asking the court to dismiss Enbridge’s lawsuit."

In addition, Gov. Whitmer has asked the Department of Natural Resources for a review of Enbridge's compliance with the 1953 Easement, which allowed Enbridge to operate Line 5's dual pipelines under the Great Lakes.

"Possible violations of the easement are just one of several grounds by which the state could seek to shut down the pipelines, some of which the attorney general has already invoked today," the statement concluded. 

Groups laud Nessel's, Whitmer's actions to begin Line 5 shutdown

Oil and Water Don't Mix, an environmental group opposing Line 5, stated their support of the actions taken by Attorney General Nessel and Governor Whitmer.

"The Attorney General’s strong and necessary stand vigorously defends Michigan’s Constitution, our environmental laws, and is aimed at protecting the Great Lakes. Gov. Whitmer's directive to the Department of Natural Resources to examine Enbridge's compliance with the state's 1953 easement agreement for Line 5 will confirm what is already on the public record: a pattern and practice of easement violations by Enbridge," the group stated on their Web site. "The attorney general’s March legal opinion clearly established that the legislation passed in lame duck last year was unconstitutional; and her actions today (June 27) seeking a court-ordered end to Enbridge's Line 5 operations in the Straits of Mackinac have the strong support of Michigan’s environmental community, civic groups and Michigan’s tribes with Treaty Rights in the Straits of Mackinac."

Sean McBrearty, Oil and Water Don't Mix coordinator, said, "Line 5 is wrong for the Great Lakes, wrong for Michigan, wrong for the rule of law and wrong for future generations who must deal with the impact of dirty fuels on an overheating climate."***

FLOW (For Love of Water) also commended Attorney General Nessel’s and Governor Whitmer’s legal actions against Enbridge to protect public waters located in arguably the worst possible place in the Great Lakes for an oil spill to happen.

"Attorney General Nessel returns Michigan and the protection of its citizens, taxpayers, and the Great Lakes to the rule of law," said Jim Olson, president and founder of FLOW. "Governor Whitmer’s action on behalf of the state to nullify the lame-duck tunnel agreements also returns Michigan to the rule of law. They should be thanked. No, they should be applauded."****

Democratic Caucuses support of Nessel, Whitmer in opposing Line 5 

The Michigan Democratic Party's Anishinaabek Caucus issued a press release on June 27, 2019, praising Attorney General Nessel for her legal filings and urging Governor Whitmer to join the Attorney General's lawsuit against Enbridge.

Andrea Pierce, chair of the Michigan Democratic Party's Anishinaabek Caucus, carries the Little Traverse Bay Bands of Odawa Indians tribal flag at Governor Whitmer's inauguration in January 2019. The photo is included with the Caucus's recent press release as a reminder that the 12 tribes of Michigan are here and are part of the decisions. (Photo courtesy Anishinaabek Caucus)

"Enbridge's continued exploratory work for the tunnel and operation of Line 5 are in violation of the Treaty rights of federally recognized tribes of Michigan," the Caucus stated, referring to their May 24, 2019, Position Statement.

In that Position Statement, the Caucus stated, "In accordance with the Tribal Treaties recognized under the United States Constitution and in solidarity with the position of the Twelve Tribes of Michigan as stewards of the land and water, the Anishinaabek Caucus of the Michigan Democratic Party enjoins the Governor and the State of Michigan to shut down Line 5 immediately to eliminate catastrophic risks to water and land, and to abandon plans for a tunnel which would perpetuate existing risks to our resources."

That Position Statement also asked Michigan officials to reverse damage from burning fossil fuels, not to create opportunities to expand their use, and to include Michigan tribes in their decision making. The Caucus noted that treaties guarantee not only fishing rights but the right to habitat for the fish, which is threatened by the operation of unsafe pipelines.

"We applaud and celebrate Dana's stand as it is what she promised during her campaign and also at the Pipe Out Paddle Up Flotilla, when she came to Mackinaw City and met tribal leadership, environmental groups and citizens that are concerned about Enbridge's Line 5," said Andrea Pierce, Anishinaabek Caucus chair.

During the 2017 Pipe Out Paddle Up Flotilla in Mackinaw City, Dana Nessel, then a candidate for Michigan Attorney General, stated why she was running for that office and why she would shut down Line 5 if elected. (File video by Keweenaw Now)

The June 27 press release from the Anishinaabek Caucus also mentions dangers cited in the "Independent Risk Analysis for the Straits Pipelines" -- a study led by Guy Meadows, director of Michigan Tech's Great Lakes Research Center, and other faculty from Michigan Tech and including researchers from other universities and other scientific experts.

The Caucus notes, "As long as Line 5 operates, Michigan's water, wildlife, and people remain at risk. The report 'Independent Risk Analysis for the Straits Pipelines' (September 15, 2018) reveals that 2.4M gallons of crude would damage 60,000 acres of unique habitat affecting businesses personal property, and municipal water supplies. Since 1968 there has been more than 1.1M gallons of crude spilled from Line 5 inland, hence acknowledgement of a Line 5 spill in the Straits is real. Degradation of supports, mussel encrustation, deformities of the pipe, and an anchor strike have been reported."

The Anishinaabek Caucus notes that in their view Line 5 is not needed for bringing propane to the Upper Peninsula. They point out that, in addition to the fact that the volume of propane provided through Line 5 is only 0.25 percent, which could be trucked to the UP, the propane argument for Line 5 ignores good union green jobs.

"Developing renewable energy in the Upper Peninsula could be Michigan's beginning in green energy independence," the Anishinaabek Caucus states.

The Michigan Democratic Party Environmental Caucus. also issued a statement in support of Nessel and Whitmer as environmental leaders, calling their June 27 announcements "the shot heard 'round the world as we move closer to decommissioning the credible threat of a Line 5 rupture in the Straits of Mackinac."

According to the Environmental Caucus, "News of Attorney General Nessel’s actions is confirmation of her dedication to to the protection of our water, the adjacent waterways and the Straits of Mackinac themselves."

Bad River Band of Lake Superior Chippewa threatened by Line 5 impacts to watershed

While several Native American groups concerned about the water and treaty rights have been protesting for several years against the Line 5 pipelines under the Straits of Mackinac, less attention has been focused on the part of Line 5 that passes through the reservation of the Bad River Band of the Lake Superior Tribe of Chippewa Indians -- impacting rivers, streams and wetlands and posing a threat to an area of northwestern Wisconsin that has recently experienced severe floods.

This map shows a North American pipeline system including Line 5 (bright red line) -- which carries oil from Superior, Wis, to refineries at Sarnia, Ontario. Line 5 uses the Straits of Mackinac as a short cut, jeopardizing Great Lakes waters and nearby lands, including the Bad River reservation in northwestern Wisconsin. Click on map for larger version. (Map courtesy Oil and Water Don't Mix)

This aerial drone video by Bad River member David Joe Bates illustrates potential failure of Line 5, which crosses the Bad River only 15.5 miles from Lake Superior:

This video, taken from a drone during a high water event in April 2019, shows how a portion of Line 5 pipeline passing through the Bad River Band's reservation, not far from where the Bad River empties into Lake Superior, could pose a serious threat to the watershed should there be an oil spill. Click on YouTube icon for a larger screen. (Video © and courtesy David Joe Bates)

On June 20, 2019, just a week before the actions of Michigan's Attorney General and Governor, the Bad River Band held a public event with a presentation by Naomi Tillison, their Natural Resources director, outlining the impending disaster from Enbridge Line 5 at the Bad River Meander. Click here for a video of her informative presentation.*****

Editor's Notes:

* See our June 5, 2019, article, "Michigan AG Nessel: Safety Board Report on Line 5 Anchor Strike means operating Line 5 'incredibly dangerous.'"

** Click here to watch Nessel's video on YouTube. Concerning the Task Force, see "Gov. Whitmer signs executive order creating UP Energy Task Force."

*** See Oil and Water Don't Mix for their complete statement.

**** Click here for more from FLOW.

***** For background on the easements that allowed Line 5 to pass through the Bad River reservation, click here for the introduction to the June 20 by Mike Wiggins, Jr., Bad River tribal chair.