EGLE approves some permits for Enbridge tunnel project; tribal, environmental groups challenge EGLE decision

By Michele Bourdieu

This map shows the location of the existing Line 5 dual pipelines -- dotted lines to the west of the Mackinac Bridge (at right, in red) between St. Ignace and Mackinaw City, Michigan. Enbridge hopes to replace the 67-year-old Line 5 with a pipeline inside a tunnel under the lakebed of the Straits. (Image courtesy US Army Corps of Engineers)

LANSING -- The Michigan Department of Environment, Great Lakes, and Energy (EGLE) announced on Jan. 29, 2021, that it has approved Enbridge Energy’s application for certain permits required to build a utility tunnel under the Straits of Mackinac.

If constructed, the tunnel would house a proposed replacement for the 67-year-old Line 5 dual petroleum products pipelines currently lying on lakebed. EGLE’s review of the permit applications concluded that the proposed construction of a tunnel beneath the lakebed can be done in compliance with the state environmental laws that EGLE administers.

However, that "conclusion" is questioned and challenged by several Native American tribes, whose fishing rights under treaties could be jeopardized by construction of such a tunnel and/or by the continued danger of a potential oil spill from the ageing pipeline should it be left in place while the tunnel is being constructed during what has been estimated as five to 10 years.

Environmental groups that have been opposing the Line 5 pipeline for years join with the tribal groups in challenging EGLE's recent permit approvals.

EGLE's announcement of their approval of Enbridge's permit applications even states the following: "EGLE acknowledged public concerns about the existing oil pipeline and affirmed the Michigan Department of Natural Resources’ (DNR's) conclusion that the current pipeline violates the Public Trust Doctrine and poses an unacceptable risk to the Great Lakes."*

EGLE does not state whether that "unacceptable risk" can be eliminated while Enbridge supposedly builds a tunnel, for which they still do not even have a completed design. Meanwhile the US Army Corps of Engineers is still reviewing permit applications from Enbridge, and the Michigan Public Service Commission must also make a decision on Enbridge's April 2020 application (Case No. U-20763) for siting approval under Act 16 of 1929 to replace and relocate the segment of Line 5 in the Straits of Mackinac into a new tunnel it proposes to build under the lakebed. (Following MPSC's order establishing a contested case hearing process to evaluate the application, Enbridge in September 2020 filed a motion seeking to limit the scope of the case. On Dec. 9, 2020, MPSC, ordered that Governor Whitmer's revocation of the easement for Line 5 requires remanding Enbridge’s motion to limit the scope of the case for a rehearing, stating that clarity on the scope of the case is of critical importance to the proceeding.)**

According to EGLE, the permit approvals follow a nine-month review period and cover Enbridge’s National Pollutant Discharge Elimination System Wastewater Permit (NPDES), bottomlands, and wetlands permit applications.***

EGLE states that their review "confirmed that the proposed tunneling project would have minimal impact on water quality in the Great Lakes and would not affect protected public uses of Michigan’s water resources."

Prior to making its permitting decision, EGLE held four public information sessions, four public hearings and four tribal consultations. EGLE’s decision making also included input from the State Historic Preservation Office and a report from an independent civil engineering firm specializing in complex tunneling projects. EGLE also reviewed more than 2,600 comments from the public on the permit applications and devoted more than 2,000 staff-hours to its consideration.

"Although this proposed tunnel project has illuminated numerous related policy issues, the basis for our decision is required to be limited to compliance with the relevant environmental statutes created by our legislature," said EGLE director Liesl Clark. "Our review showed construction of the proposed tunnel could comply with state environmental laws. We have issued permits designed to ensure that if a tunnel is constructed, it will be in strict compliance with relevant statutes and adhere to stringent protections against impacts to the Great Lakes."

Tribal groups challenge EGLE's decision on permits

On Jan. 30, speaking for CORA, the Chippewa Ottawa Resource Authority, which includes five tribal groups with fishing rights under the 1836 Treaty, Mike Ripley, a member of the Sault Ste. Marie Tribe of Chippewa Indians and CORA environmental coordinator, told Keweenaw Now, "We still have a lot of concerns about this tunnel going forward and we are very much opposed to the tunnel and the continued operation of Line 5." 

This map shows the ceded areas of Michigan and 3 Great Lakes under the 1836 Treaty, which guaranteed fishing and hunting rights to the tribes. (Map courtesy Mike Ripley)

The Chippewa Ottawa Resource Authority (CORA) gathers all 1836 Treaty fishing tribes under its mantle, including these:
    Bay Mills Indian Community
    Grand Traverse Band of Ottawa and Chippewa Indians
    Little River Band of Ottawa Indians
    Little Traverse Bay Bands of Odawa Indians
    Sault Ste. Marie Tribe of Chippewa Indians

Ripley noted several gaps in what EGLE has approved.

"They haven't ordered an EIS (Environmental Impact Study) for the whole pipeline and the tunnel," he said. "There is not even a finalized design for the wastewater treatment plant that they're proposing. Also the design for actually drilling the tunnel through the bedrock has not been finalized. Enbridge doesn't have a final design for the tunnel, and EGLE seems to be O.K. with that."

CORA believes the Army Corps needs to demand that Enbridge conduct an EIS under NEPA (National Environmental Protection Act), Ripley added.

"We think an EIS is more than warranted. It should be required for the tunnel and the entire pipeline," Ripley said. "They (EGLE) are only looking at a small portion, not the big picture."

Ripley also noted the concern about the deep center part of the site projected for the tunnel to cross the Straits.

"In the middle it looks like they're going through sand and sediment," he said. "We're saying that it's far from a done deal that this tunnel will be constructed."

Ripley added his own personal opinion of EGLE's decision making.

"I think this is a systemic problem with EGLE as a regulatory agency -- that the laws require them to approve permits and give every opportunity to the applicant rather than protecting the environment," he said.

Ripley gave several reasons for this problem with EGLE, including the following:

-- Michigan laws give them inadequate time to review applications.
-- They're understaffed.
-- They have no experts on drilling tunnels. They depend on Enbridge.

Andrea Pierce, citizen of the Little Traverse Bay Bands of Odawa Indians (LTBB) and Chair of the Anishinaabek Caucus, questioned EGLE's justification of this permit approval when the People of Michigan and the State of Michigan are both in litigation against Enbridge.

"The fact that Michigan has to sue Enbridge due to the repeated violations of the easement should be a reason that the permitting should have stopped," Pierce noted. "EGLE is charged with protecting the Great Lakes, they are ignoring the Sacred cultural site that we have discovered at the bottom of the Straits of Mackinac. Michigan needs to perform a cultural study of the Straits of Mackinac, which evidently has not been done, if tribal citizens and Citizens of Michigan can find this site with sidescan sonar and a Jiimaan."****

This photo shows a potential cultural site observed with side-scan sonar in late summer 2020. Note circle of stones that may have been placed in this arrangement about 10,000 years ago, near the end of the Ice Age, when the area would have been above water. (Photo courtesy Terri Wilkerson) 

Paddlers "practice" with the ROV (Remotely Operated Vehicle) and the Jiimaan (community canoe) used for exploring an area just west of Line 5 in September 2020. Their video captured at least one submerged cultural site -- revealing a stone circle (photo above) consistent with other underwater and terrestrial finds near Grand Traverse Bay, the Alpena-Amberley Ridge in Lake Huron and on Beaver Island. (Photo courtesy Terri Wilkerson)

Pierce added the state has been negligent in not bringing the 12 tribes adequately on board with discussions on cultural impacts of the tunnel project. The tribes have issued resolutions against Line 5 and the tunnel. An example is a resolution by her tribe, LTBB, to protect the Sacred Cultural Site discovered at the Straits of Mackinac.

"We need to protect tribal history and culture," Pierce said. "EGLE has failed as bad as MDEQ. How many public comments were ignored this time? With Nestlé MDEQ ignored 80,000 Michigan citizens and gave our water away. How many Michigan citizens were ignored this time?" 

In a letter to EGLE, the Bay Mills Indian Community and the Little River Band of Ottawa Indians pointed out red flags associated with Enbridge's tunnel project that EGLE must not ignore:

"Enbridge and other tunnel supporters have readily acknowledged that the existing dual pipelines that run along the bottom of the Straits of Mackinac in the Great Lakes pose a substantial risk to the environment. Yet, the Tunnel Project proposal -- on its own terms -- allows at least five more years of the continued operation of the risky pipelines in the Straits of Mackinac. In addition, Enbridge has a known poor track record of pipeline safety. An oil spill in the Straits would devastate fisheries relied on by Bay Mills, Little River Band, and many others. On top of these known concerns, information has recently been uncovered that reveals that (1) Enbridge submitted incorrect or misleading application materials to EGLE and other agencies, and (2) previously undisclosed archaeological findings in the Straits of Mackinac necessitate further study and analysis to understand the Project’s potential impact. EGLE cannot ignore these warning signs and proceed with a review of a deeply flawed project when its own name and mission require it to protect the Great Lakes and its inhabitants."

Tribal attorneys question EGLE's permitting decision

Debbie Chizewer, Earthjustice managing attorney, representing Bay Mills Indian Community, said, "EGLE’s permitting lacked the rigor needed for such a massive project involving the precious Great Lakes. On behalf of Bay Mills Indian Community, we will continue to urge the Army Corps of Engineers to undertake a more comprehensive and rigorous review. Before this tunnel project proceeds, the Corps must critically evaluate the environmental and cultural and archaeological site impacts relied on by tribal nations and other communities across the region."  

Chizewer noted the wetlands permit is a Joint Permit Application. The Army Corps’ process under the Clean Water Act is separate and should take several more weeks/months. The Army Corps is undertaking multiple processes -- consultation with SHPO (State Historic Preservation Office) and tribes over cultural and archaeological resources under the National Historic Preservation Act (Section 106), consultation with the Fish and Wildlife Service under the Endangered Species Act (Section 7), and preparation of an analysis of environmental impacts under the National Environmental Policy Act (NEPA). Those processes should entail public comment periods.

"The agency's decision to grant these permits is deeply troubling considering Enbridge did not provide the baseline information required to obtain such permits," Chizewer added. "The tunnel construction and the ongoing operation of the Line 5 pipeline will have devastating impacts all along its path throughout the Great Lakes, including within the treaty-protected Straits of Mackinac. We will continue to advocate before the Public Service Commission and Army Corps of Engineers to bring attention to the dangers posed by this project and seek denial of the remaining permits needed."

Whitney Gravelle, tribal attorney for the Bay Mills Indian Community, said it is "heartbreaking" that Tribal Nations are not surprised by the state agency's continued failure to consider treaty rights.

"Although EGLE’s decision is disappointing, it is even more heartbreaking to say that this type of 'rubber stamp' approval without considering tribal treaty rights is something Tribal Nations are accustomed to," Gravelle said. "When Governor Whitmer revoked the easement for the dual pipelines, Indigenous people across the Great Lakes were celebratory, but cautious. It’s becoming apparent that this administration views the tunnel project as the compromise. In fact, the tunnel project will not only harm tribal resources and the Great Lakes, but EGLE never considered alternatives that would be less harmful."

Gravelle noted the need to see this permitting from the Indigenous perspective of acting for future generations.

"Our people -- the Anishinaabe -- have a teaching that any decision we make today must take into consideration a sustainable world for the next seven generations," Gravelle explained. "It reminds us to understand that the decisions we make are not limited by the immediate concerns of today, but instead have implications long after we are gone. EGLE’s decision (on Jan. 29) approving the permits demonstrates they did not think of the next seven generations, let alone the people of Michigan today who will be harmed by the Tunnel Project."

David Gover, staff attorney for the Native American Rights Fund, pointed out that, in this permitting process, the State of Michigan has failed to honor an Accord on tribal consultation.

"Governor Whitmer’s administration entered into a Government-to-Government Accord supporting tribal consultation with the twelve Tribal Nations in the State of Michigan," Gover stated. "This Accord included a commitment by the State to share information, participate in meaningful communication and robust collaboration with Tribal Nations. The tribal consultation initiated by EGLE has been wholly inadequate throughout this entire permit process since the beginning. It is even more disappointing that EGLE would approve the permits knowing they have not shared all relevant information with Tribal Nations, who have a treaty-vested interest in the waters of the Great Lakes, nor received adequate feedback from Tribal Nations regarding their concerns with the Tunnel Project."

Native, non-Native concerned citizens oppose tunnel permits

The Upper Peninsula Environmental Coalition (UPEC) recently held an online discussion, "All Pipelines Considered," on the numerous planned and existing fossil fuel pipelines in the Upper Midwest and Great Plains, including Line 5, with Dr. Phil Bellfy, State Chair of the Keep Our Lakes Great Ballot Committee that circulated a petition to shut down Enbridge’s Line 5. Bellfy is also Professor Emeritus of American Indian Studies, Michigan State University, and an enrolled member of the White Earth Band of Minnesota Chippewa. Recently he and other American Indians submitted a "Rule 19 Joinder" petition to the federal court dealing with the Enbridge v. Whitmer case over the future of Line 5.

This map of Enbridge's pipeline route, part of Phil Bellfy's UPEC presentation on pipelines, shows how Line 5 -- from Superior, Wis., to Sarnia, Ontario -- is a shortcut for Enbridge to transport fossil fuels from Canada through the Upper and Lower peninsulas of Michigan and back to Canada. (Map courtesy Phil Bellfy)

During the UPEC discussion, Bellfy said a catastrophic spill would destroy the Native Americans' fishery.

"Without any fish to catch, Treaty rights are destroyed," he noted.

This map, one of the slides in Phil Bellfy's presentation, shows sensitive areas where Line 5 (red line) crosses lakes and streams that would be impacted by an oil spill. (Map courtesy Phil Bellfy) 

Those Treaty rights have an estimated $10 billion value for the tribes, while Enbridge has only about $40 million in insurance and no obligation to make up the difference, he explained.

"They (Enbridge) are woefully underinsured," Bellfy said.

Following EGLE's Jan. 29 announcement of the tunnel permit approvals, Bellfy told Keweenaw Now he believes those permits should be denied.

"I was struck by (EGLE's) statement that the tunnel project 'could' comply with state environmental laws," Bellfy said. "That doesn't seem like a strong argument for granting the permits; in fact, it sounds like a strong argument for denying the permits. Deny the permits, and fight it out in court."

Bellfy also commented on the tunnel, which would take five or more years to complete.

"If the twin pipelines in the Straits should be put into a tunnel due to safety concerns, the entire Line 5 must be replaced at the same time," he said.

Lisa Patrell -- co-founder of Washtenaw 350, an environmental conservation organization, and an active member of the Michigan Anishinaabek Caucus -- asks whether EGLE's decision reflects pressure from Canada, since Enbridge is a Canadian company transporting Canadian oil through Michigan and back to Canada (see map above).

"EGLE has passed the buck onto MPSC (Michigan Public Service Commission)," Patrell said. "To claim that EGLE performed a review is a misnomer; to claim environmental standards have been upheld is twisting in the wind. I am concerned that the decision was strong-armed at a federal level after receiving direct pressure from Canada. Michigan is not a Canadian colony; Michigan is not responsible for the fuel needs of Ontario. Truly, if Line 5 was that critical to Ontario then where is reciprocity? I have not read that Canada is underwriting catastrophic recovery costs. It is already known that Canada is disrespectful of First Nation Rights; clearly the United States intends to do better, given that Biden (recently) established an Environmental Justice office within the DOJ (Department of Justice), or is that as much of sham as EGLE?"

Environmental groups challenge EGLE permits, note climate impacts

Oil and Water Don't Mix, a group of organizations and citizens across Michigan who are working to keep oil out of the Great Lakes and spur a transition to a clean energy economy, has criticized EGLE's permit approvals and invites citizens to sign a "No Oil Tunnel" petition to Governor Gretchen Whitmer and the Michigan legislature and a Petition to President Biden to Support the Line 5 Shutdown.

"Michigan’s environmental regulators -- the people whose job it is to protect the Great Lakes -- should have said 'no' to new oil pipelines in the Straits of Mackinac for the next 99 years," said Sean McBrearty, Oil and Water Don't Mix campaign coordinator. "Instead, they did an end-run around environmental laws, best practices for tunnel construction design, and common sense and said 'yes' to Enbridge."

McBrearty also criticized the "conditions" included in the permit approvals for Enbridge.

"The conditions the state Department of Environment, Great Lakes and Energy (EGLE) put in its water and resources tunnel permits are mostly Band-Aids that fall far short of addressing the fact that Enbridge will be allowed to discharge an average of 1.4 million gallons of wastewater into the Great Lakes, proceed with a questionable tunnel designed on the cheap and allow Enbridge to transport 23 million gallons of Canadian oil mostly for export to Canada for the next 99 years," McBrearty said. "Moreover, EGLE’s 'finding' in their permit decision that the existing Line 5 pipeline is an unreasonable risk begs the question of why EGLE would allow any oil pipelines to continue operating in the Straits of Mackinac. As an independent tunnel expert has pointed out, the idea that Enbridge’s tunnel design is without risk to the Great Lakes is a false narrative driven by Enbridge, one apparently adopted now by EGLE."*****

McBrearty added Oil and Water Don't Mix remains hopeful that the Army Corps of Engineers and the Michigan Public Service Commission will take their permitting responsibility to protect the Great Lakes more seriously than EGLE has.

The Michigan Climate Action Network (MiCAN) has teamed up with Environmental Law and Policy Center (ELPC) to intervene in the oil tunnel permits at EGLE, the Michigan Public Service Commission, and the Army Corps of Engineers to make sure the climate impacts of this tunnel are fully considered.

"While we are disappointed with the decision, EGLE’s actions (on Jan. 29) are not the end of the story," said Margrethe Kearney, Senior Attorney at ELPC. "The Resource Permit indicated that the tunnel is still subject to the Great Lakes Submerged Lands Act, requiring Michigan’s Department of Natural Resources to affirmatively find that the tunnel project is consistent with that Act."

MiCAN Director Kate Madigan said, "EGLE’s approval of permits to build an oil pipeline to operate for 99 years is starkly out of touch with the realities of the climate crisis, and undermines our state’s efforts to lead on climate."

MiCAN is also calling on President Biden to use the power of the federal government to prevent the construction of the pipeline tunnel. They urge concerned citizens to sign the petition at Oil and Water Don't Mix.

To keep the public informed, EGLE has partnered with the Michigan Public Service Commission (MPSC) and the Michigan Department of Transportation’s (MDOT) Mackinac Straits Corridor Authority on the state’s Line 5 in Michigan website. Information on this project, permit documents and other supporting materials are available there.

Notes:

* Governor Gretchen Whitmer and the DNR notified Enbridge in November 2020 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. 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. See our Nov. 13, 2020, article, "Governor Whitmer, DNR take action to revoke Enbridge easement, shut down Line 5 dual pipelines through Straits of Mackinac; AG Nessel files new lawsuit."

**  Click here for the MPSC explanation of Enbridge's application for siting approval for Line 5 and the tunnel.

***  Permits were issued allowing wastewater discharge to Great Lakes waters under the state’s Water Resources Protection law (Part 31 or NPDES permit); and for work within wetlands under the state’s Wetlands Protection Act (Part 303) and under Great Lakes Submerged Lands (Part 325) of the Natural Resources and Environmental Protection Act, Public Act 451 of 1994, as amended (NREPA).

The National Pollutant Discharge Elimination System (Part 31/NPDES) permit is a final action by EGLE. But the 303/325 permit is a proposed counter-signed permit and is not yet final since EGLE has drafted conditions for Enbridge to consider. The permit is not final until Enbridge agrees to the conditions and signs the permit, at which point EGLE would sign the permit to make it final. Parties who disagree with the final permit decisions may file a petition for a contested case hearing.

**** See "Ancient underwater tribal cultural site discovered in Mackinac Straits near Line 5."

***** See examples of these permit conditions on EGLE's FAQ, pages 2-3.