By Michele Bourdieu
LANSING -- Today, Governor Gretchen Whitmer and Department of Natural Resources (DNR) Director Dan Eichinger notified Enbridge that the 1953 easement allowing it to operate dual pipelines in the Straits of Mackinac to transport petroleum and other products is being revoked and terminated.
They also filed a lawsuit asking the Ingham County Circuit Court to recognize the validity of this action. The state is revoking the easement for violation of the public trust doctrine, given the unreasonable risk that continued operation of the dual pipelines poses to the Great Lakes. Moreover, the state is terminating the easement based on Enbridge’s persistent and incurable violations of the easement’s terms and conditions.
The Notice of Revocation and Termination of the 1953 Easement requires Enbridge to cease operations of the dual pipelines in the Straits by May 12, 2021, allowing for an orderly transition that protects Michigan’s energy needs over the coming months.
The Great Lakes are home to 21 percent of the world’s fresh surface water. They supply drinking water for 48 million people, including 5 million here in Michigan, and support 1.3 million jobs that generate $82 billion in wages annually across the US. In Michigan, the Great Lakes support over 350,000 jobs. An oil spill in the Great Lakes would put families and small businesses across the region at risk.
"After spending more than 15 months reviewing Enbridge’s record over the last 67 years, it is abundantly clear that today’s action is necessary. Enbridge’s historic failures and current non-compliance present too great a risk to our Great Lakes and the people who depend upon them," said DNR Director Dan Eichinger. "Our number one priority is protecting the Great Lakes and we will continue to work with our partners across Michigan in pursuit of that objective."
AG Nessel files lawsuit in support of State's Notice to Enbridge
Michigan Attorney General Dana Nessel’s office, on behalf of Gov. Gretchen Whitmer and the Michigan Department of Natural Resources, filed a new complaint in Ingham County Circuit Court today seeking to revoke and terminate the easement granted by the State in 1953 that allows Enbridge to operate its dual pipelines on the bottomlands of the Straits of Mackinac. The new lawsuit will bring claims in addition to Nessel’s lawsuit filed in 2019 seeking the shutdown of Line 5, which remains pending before Judge James Jamo.
"I commend Gov. Whitmer and Director Eichinger for their forceful actions today to address the grave threat posed by Enbridge’s unlawful operation of its pipelines in the Straits of Mackinac," Nessel said. "With the steps they took today, Gov. Whitmer and Director Eichinger are making another clear statement that Line 5 poses a great risk to our state, and it must be removed from our public waterways. The arguments they are making to revoke the easement based on the public trust align with those outlined in my office’s pending lawsuit in Ingham County Circuit Court which seeks to shut down Line 5 to avoid an environmental catastrophe. Because Enbridge has repeatedly violated the terms of its easement, including its duty to exercise due care for protecting public and private rights, termination of the easement is also appropriate and provides another reason to shut down Line 5. I am pleased to support the Governor and the DNR by filing a new lawsuit today that asks the Ingham County Circuit Court to uphold their actions and enforce them. Simply put, Michigan law requires that the pipelines be shut down and the Notice provides a timely and orderly process for achieving that."
The state is revoking the 1953 easement for violation of the public trust doctrine. This body of law recognizes the State of Michigan as the "trustee" of the public’s rights in the Great Lakes and lays upon the state legal obligations to protect those rights from any impairment. The state found that the 1953 easement violated the public trust doctrine from its inception because the easement does not make the necessary public trust findings. Moreover, the state also found that the continued use of the dual pipelines cannot be reconciled with the public's rights in the Great Lakes and the State's duty to protect them.
Native, environmental groups applaud State action
Andrea Pierce, member of the Little Traverse Bay Bands of Odawa Indians and chair and founder of the Michigan Anishinaabek Caucus, said Line 5 has for many, many years been a ticking time bomb putting the largest source of fresh water in danger.
"We are so happy that the Governor has kept her promise to the people of Michigan to shut down line 5!" Pierce told Keweenaw Now today. "Miigwetch Thank You to Governor Whitmer and Director Eichinger for protecting the Great Lakes and our future."
Lisa Patrell -- also a member of the Michigan Anishinaabek Caucus, and co-founder of Washtenaw 350, an environmental conservation organization -- expressed gratitude for Governor Whitmer's action against Enbridge.
"I am grateful to Governor Whitmer for making a decision that is in the best interest of Michigan," Patrell said. "Water Protectors can celebrate this milestone, but the fight to prevent the tunnel continues. The Army Corps of Engineers is hosting a Hearing on December 7. Water Protectors will be there, too, and watching Enbridge until the May 2021 decommissioning."
Martin Reinhardt, Northern Michigan University professor of Native American Studies and citizen of the Sault Ste. Marie Tribe of Chippewa Indians, thanked the Governor and the State of Michigan for this important step. "The State of Michigan, under Governor Whitmer's leadership, took an important step today in supporting the health of the Great Lakes Region for all of us now and into the future," Reinhardt said. "Ordering the shutdown of Enbridge's Line 5 was the responsible thing to do. Short term economic gain at the cost of long term ecological harm is never the best choice. Chi-miigwech (many thanks) for protecting those whose voices are often not heard including Indigenous peoples and the animals and plants."
Regina Gasco Bentley, tribal chairperson at Little Traverse Bay Bands of Odawa Indians, said, "At a time of uncertainty tribes have led the charge by taking initiative to protect our waters. We have been an example of what communities can accomplish when we work together. A victory for water is a victory for our life. We are also incredibly grateful for Governor Whitmer -- for our relationship with her, her leadership and willingness to always do what is right."
Oil and Water Don't Mix -- a coalition of community groups, organizations and businesses concerned with the threat of Enbridge's Line 5 through the Straits of Mackinac -- expressed enthusiastic support of the State's decision.
"Governor Whitmer’s decisive action today to shut down Line 5 fulfills her public trust duty to protect the Great Lakes," said Sean McBrearty, campaign coordinator for Oil and Water Don’t Mix. "Enbridge has played fast and loose with their duty of care for these dangerous oil pipelines, and the governor is holding them accountable for their irresponsible behavior that threatens the Great Lakes every single day. Michiganders who care about the Great Lakes and our northern Michigan economy -- and that’s certainly all of us -- welcome the governor’s strong actions that put Michigan and Great Lakes first."
McBrearty, who is also Michigan Legislative and Policy Director for Clean Water Action, a grassroots conservation group, said Clean Water Action applauds the action by Governor Whitmer.
"Today is a big day for our Great Lakes," McBrearty said on behalf of Clean Water Action. "We applaud the Governor’s actions to protect Michigan residents and our public trust resources by revoking the 1953 easement and shutting down the Line 5 pipeline. This is yet another example of Governor Whitmer putting the health and safety of Michiganders first and fulfilling the promises she made to voters in 2018. For 67 years, this pipeline has risked our most precious natural resources and has spilled a cumulative total of over 1 million gallons of oil. With the Governor's actions today, this dangerous pipeline will no longer threaten our Great Lakes, the drinking water source of millions of Americans. Thank you to Governor Whitmer for her tremendous leadership."
Liz Kirkwood, executive director of FLOW (For Love of Water), sent an email to fellow water protectors today calling the Governor's action a victory for the Great Lakes and thanking concerned citizens, tribes and groups for their work and persistence in opposing the danger of a potential oil spill from Line 5.
"As public trustees of our waters, the State of Michigan is affirmatively upholding the rule of law and protecting the public’s treasured Great Lakes from the clear and present danger of an oil spill catastrophe from Enbridge’s Line 5 pipeline," Kirkwood writes. "This is an historic day of state leadership by the Whitmer administration brought about by many years of dedicated action by environmental groups, Indian tribes, communities, businesses, faith communities, families, and individuals like you who gave life to this Great Lakes movement."
Kirkwood also gave special thanks to Oil and Water Don't Mix and the National Wildlife Federation for their work in calling attention to the dangers posed by Line 5.
"While this is a moment to celebrate, we must remain vigilant until the oil stops flowing for good in May 2021 because Line 5 remains exposed to uncontrollable and powerful forces, including exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion. These forces dramatically increase the risk of this elevated, outdated pipeline collapsing and causing the unthinkable: a catastrophic oil spill in the heart of the Great Lakes," Kirkwood added.
Jannan Cornstalk, a citizen of the Little Traverse Bay Bands of Odawa Indians and organizer of several Pipe Out Paddle protests against Line 5 near the Mackinac Bridge as well as Water Is Life celebrations, said she is looking forward to a celebration at the Straits during these events in the coming year.
"Our water is sacred and much respect to all those who have remained vigilant, said prayers, written letters, hosted events and continued to do things in a good way," Cornstalk told Keweenaw Now. "Action and raising awareness were essential, and the support of people from all walks of life is what collectively makes our life high quality. Chii- Miigwech to the Creator of all things and to Niibi."
Michigan Tech Professor Miguel Levy, who participated in some of the Pipe Out Paddle protests against Line 5 at the Mackinac Bridge, said the Governor's action is good news.
"The movement forced the issue. But the logic of corporate profit-making will continue to threaten and harm the environment through other channels," Levy said. "Let's build the movement against fracking and the Midwestern sand mines feeding the fracking industry."
Matthew Borke, a water protector and Flint resident, who served as a chef during the Standing Rock protests against the Dakota Access Pipeline, reacted to the news by saying, "I will only begin to dance when there are No Pipelines in the Great Lakes. Energy Transfer and Enbridge are two heads of the same Snake."
Borke recently filed a federal Civil Rights case against the owner operators and security teams of what the NoDAPL (No Dakota Access Pipeline) Movement calls "The Black Snake."
Line 5: Unacceptable risk
Transporting millions of gallons of petroleum products each day through two 67-year old pipelines that lie exposed along the entire span of a busy shipping channel presents an extraordinary and unacceptable risk. As recent events have confirmed, this threat is very real. For example, in April 2018, the pipelines were struck and dented in three different locations by an anchor inadvertently dropped and dragged by a commercial vessel. Then, in June 2020, Enbridge disclosed that the pipelines had again been struck sometime in 2019 by anchors or cables deployed by nearby vessels, damaging pipeline coatings and severely damaging a pipeline support. Four of the five vessels potentially responsible for the impacts were operated by Enbridge’s own contractors.
In addition, the state is terminating the 1953 easement because Enbridge has repeatedly and incurably violated its terms. The easement requires Enbridge to exercise due care in operating the pipelines, and also requires Enbridge to satisfy numerous specific conditions, such as ensuring that the pipelines are physically supported at least every 75 feet, are covered by a multi-layer coating to prevent corrosion and other physical damage, and are within certain curvature limitations. Enbridge, however, has failed for decades to meet these obligations under the easement, and these failures persist and cannot be cured. For these and other reasons, the state is revoking and terminating the 1953 easement.
Today’s action to revoke and terminate the 1953 easement is the culmination of a careful review of Enbridge’s compliance with the easement, the threats posed by the continued operation of the dual pipelines, and the state’s energy supply. On June 7, 2019, the governor issued Executive Order 2019-14, creating the UP Energy Task Force to assess the region’s energy needs and alternative sources of supply. The Task Force issued a report on April 17, 2020.** Moreover, on June 27, 2019, the governor directed the DNR to undertake a comprehensive review of Enbridge’s compliance with the 1953 easement. That review is now complete and supports this action.
The state’s action today to revoke and terminate the 1953 easement for the dual pipelines through the Straits of Mackinac does not prevent Enbridge from continuing to seek the necessary legal approvals to construct a tunnel.
To view documents relating to today’s announcement, click the links below:
State of Michigan v. Enbridge, Complaint (11.13.20).pdf
Notice of Revocation and Termination of Easement (11.13.20).pdf
Attorney General Nessel's new lawsuit
Editor's Notes:
* See our June 25, 2020, article, "UPDATED: Judge orders Enbridge to cease Line 5 operations following recent damage."
** Click here for info on the UP Energy Task Force. For the Task Force April 17, 2020, report, click here.
Inset photos: Governor Gretchen Whitmer, DNR Director Dan Eichinger, Attorney General Dana Nessel. (Photos courtesy michigan.gov)
