By Kyle Davidson*
Posted Dec. 1, 2023, on Michigan Advance
Republished here with permission through Creative Commons
"Why make this public commission anyway if it’s planned out to disagree with us," said Moses Biber, 9, following the Michigan Public Service Commission’s approval of Enbridge’s Line 5 tunnel project. Click on photos for larger versions. (Photo © Kyle Davidson of Michigan Advance)The Michigan Public Service Commission (MPSC) on Friday, December 1, approved a permitting proposal for Enbridge’s controversial Line 5 tunnel project, despite calls from within the packed Lansing meeting room for commissioners to shut the pipeline down.
The tunnel project was proposed as a solution to safety concerns with Enbridge’s Line 5 pipelines, located in the Straits of Mackinac.
Line 5 -- which stretches from Superior, Wis., to Sarnia, Ontario -- includes two pipelines located on the lakebed in the environmentally sensitive Straits of Mackinac. Line 5 transports up to 540,000 barrels of crude oil and natural gas liquids per day, according to Enbridge.
Environmental activists and tribal nations have called for a shutdown to the pipelines out of concern for a potential oil spill in the Great Lakes.
According to For Love of Water (FLOW), a nonprofit dedicated to protecting water health in the Great Lakes Basin, the pipeline was built in 1953 and was designed to last 50 years. Since 1968 Line 5 has failed at least 33 times, spilling at least 1.13 million gallons of oil on land and in wetlands.
MPSC Chair Dan Scripps outlined the concerns created by the pipeline in its current state, noting the largest threat to the pipeline's failure comes from an anchor strike.
Michigan Public Service Commissioner Chair Dan Scripps offers comments ahead of the vote on whether to approve a siting permit for Enbridge's Line 5 tunnel project. Pictured at the table with Scripps are Commissioner Katherine Peretick, left, and Commissioner Alessandra Carreon. (Photo © Kyle Davidson of Michigan Advance)While Commissioner Alessandra Carreon abstained from the vote, citing her appointment to the board four months prior and the more than 1,500 filings in the case, as well as more than 20,000 public comments.
Scripps and Commissioner Katherine Peretick voted to approve the siting application.
"Nor is such a threat purely theoretical. It happened just five years ago, when an anchor struck and dented the dual pipelines lying on the bottomlands of the Great Lakes," Scripps said. "Fortunately, the pipeline didn’t rupture in that case, but there’s no guarantee we’d be so lucky the next time. It’s clear. We need to get those pipelines off the bottomlands and out of the Great Lakes."
In reviewing potential alternatives to the pipelines, the commission found Enbridge’s proposal to relocate the pipelines into a concrete lined tunnel embedded in the bedrock below the lake represented the best option to mitigate the danger the pipelines currently present, Scripps said.
While Commissioner Alessandra Carreon abstained from the vote, citing her appointment to the board four months prior and the more than 1,500 filings in the case, as well as more than 20,000 public comments.
Scripps and Commissioner Katherine Peretick voted to approve the siting application.
While the company has received approval for the project from both the MPSC and the Department of Environment, Great Lakes and Energy (EGLE) -- which is currently being challenged by the Bay Mills Indian Community -- it must also receive approval from the U.S. Army Corps. of Engineers (USACE).
Earlier this year, the USACE announced it would be delaying a key step in its review of the pipeline replacement project, which Enbridge spokesperson Ryan Duffy said could delay the start of construction to 2026.
Enbridge must also meet four conditions set by the MPSC:
- Enbridge must receive required governmental permits and approvals and make no significant changes to the route and location of the Straits Line 5 replacement segment within the tunnel.
- No third-party utilities may be co-located within the tunnel without application and approval by the commission.
- Enbridge must exceed minimum federal regulations to ensure the safety, integrity and reliability of the Straits Line 5 replacement segment.
- Enbridge must also submit a detailed risk management plan to the State of Michigan before beginning construction.
Enbridge issued a statement following the approval of the permit.
"With the MPSC’s decision, the Michigan agencies involved in the permitting process have given the go ahead for this critical project. We recognize the tremendous investment of time and deliberation by the MPSC and staff leading to this decision. The MPSC carefully examined this complex issue and considered many viewpoints, questions, concerns, and ideas," the statement read.
"Enbridge would like to thank everyone who provided public comment on the project. We are also grateful to the organizations that intervened in the MPSC approval process to advance the project, including the National and Michigan Propane Associations, and the Michigan Laborers’ District Council. The input from intervenors on both sides of the issue raised important questions that challenge us all to get this right."
Following the approval of the siting permit, the commission faced a flurry of public comments condemning the decision.
"I’m disgusted that grown adults such as yourself could believe such utter B.S. that Enbridge has been throwing at you and make a decision that holds no confident regard for our future in this state," said Pearl Biber, a 13-year-old member of the Little Traverse Bay Bands of Odawa Indians.
Pearl Biber, 13, spoke out against the Michigan Public Service Commission's decision to approve a siting permit for Enbridge's Line 5 tunnel project at its December 1, 2023, meeting. (Photo © Kyle Davidson of Michigan Advance)"This is not a reasonable solution. It’s a phony solution," Biber said.
While Scripps noted the state’s transition to clean energy sources in his comments before the vote, he said the transition would not happen overnight, and the commission has a responsibility to approve projects to meet the state’s energy needs.
Nichole Keway Biber pushed back on Scripps’ comment.
"You know what can happen overnight, could happen just a minute from now, is that a 73-year-old pipeline could just rupture," Keway Biber said.
"Our tribal governments do not approve this. Our governor and our attorney general do not approve this," Nichole Keway Biber said, condemning the Michigan Public Service Commission's approval of Enbridge's Line 5 tunnel project. (Photo © Kyle Davidson of Michigan Advance)"You just made it that much more likely, because basically [Enbridge gets] to keep the oil going. While they have their little pet project. We all know it’s probably going to be contested by people who are sane and care about our collective future. But in the meantime, they can keep their oil flowing," she said.
Andrea Pierce, network manager for the Michigan Environmental Justice Coalition and chair of the Michigan Democratic Party Anishinaabek Caucus, said she was "disgusted" by the committee’s vote.
Andrea Pierce expresses strong opposition to the MPSC's vote for a tunnel siting permit. (Screenshot photo by Keweenaw Now)"You’re supposed to protect the Great Lakes, protect us. [These] pipelines and tunnels are going to go through my tribal lands, through my people’s lands through my community. And I think that’s just reprehensible," Pierce said.**
Whitney Gravelle, president of the Bay Mills Indian Community, condemned the decision in a statement.
"Instead of complying with a Governor’s [Gretchen Whitmer's] public safety order to decommission Line 5 in Michigan, individuals working at a state agency granted Enbridge a permit for a project for which they hold no property rights and no safety track record in good standing," Gravelle said. "Today’s decision is another notch in a long history of ignoring the rights of Tribal Nations."
When the pipeline was initially constructed in 1953, there was no consultation with tribal nations, review of treaty rights or impact on those treaty rights, David Gover, managing attorney for the Native American Rights Fund, told the Advance.
In 1836, several Anishinaabe tribes ceded vast acres of land and water to the U.S. Government in return for the guarantee that the Tribal Nations would retain the right to hunt, fish gather and continue living as Anishinaabe in the ceded territory.
The Native American Rights Fund has identified Line 5 as a threat to treaty-rights, resources, and the Anishinaabe people’s fundamental way of life. All 12 of Michigan’s federally recognized Tribal Nations have passed resolutions opposing Line 5’s continued operation.
"I don’t think the MPSC allowed the tribal voice to be heard, to the extent that it was offered; we had testimony that showed impacts to the treaty rights by this project, and a lot of that was eliminated or barred from being added to the record by an [Administrative Law Judge’s] ruling early on in the case," Gover said.
Rebecca Liebing, in-house counsel for the Bay Mills Indian Community, also noted that the Straits of Mackinac are an important cultural and sacred site for many Tribal Nations.
"It’s a place where many tribes practice both their treaty rights and different ceremonies. And so I think it’s not a small thing for tribes to share that information with these agencies," Liebing said. "This is cultural knowledge that is of high value to the tribes so when they share it, they share it in good faith and hope that it will be considered and given proper weight, and that’s just not what we’re seeing."
Christopher Clark, senior attorney for Earthjustice, also noted concerns on the safety of the tunnel.
"We presented evidence to the commission from a pipeline safety expert, who expressed serious concerns about the design of this tunnel. He is concerned that the way this is designed there is a significant risk that there will be a release of product from the pipeline inside the concrete," Clark said.
"The concern that you have when you have a release within the tunnel like that, although the product is liquid [natural gas], it vaporizes when it is released," Clark explained. "So for example, propane, which is a natural gas liquid, becomes a gas when it is released like that, and that gas is highly flammable, which creates a risk of an explosive event inside the tunnel."
Another expert testified that an intense fire with high temperature could cause the concrete to fail, exposing the underlying steel and potentially causing the tunnel to collapse, allowing the product to reach the water of the straits, Clark said.
Additionally, while Line 5 poses a significant risk in the Straits of Mackinac, it also poses a threat to the many waterways it crosses, many of which feed into one another and into the Great Lakes, Clark noted.
"There is a significant threat in the straits. But it’s not the only place where there’s a threat. And that’s why the pipeline needs to be shut down," Clark said.
As far as potential challenges to the Commission’s decision, everything is on the table, Liebing said.
While a number of environmental groups including the Michigan League of Conservation Voters, the Sierra Club, Oil and Water Don’t Mix and the National Wildlife Federation released statements opposing the decision, state Rep. Cam Cavitt (R-Cheboygan) pushed back against opposition to the pipeline.
"Anytime Line 5 gets mentioned, we’re bombarded by environmental activists clamoring about potential oil spills," Cavitt said in a statement. "Enbridge is ready to address safety concerns by updating aging infrastructure. Instead of moving quickly, bureaucrats have held Enbridge back at every opportunity."
Michigan Attorney General Dana Nessel, a Democrat who has been fighting in court to shutter Line 5, also released a statement in response to the commission’s decision.
"In issuing its decision today, the Michigan Public Service Commission highlighted the risk posed by the pipelines currently located on the bottomlands of the Straits of Mackinac and the catastrophic effects an oil spill would have on the Great Lakes," Nessel said. "Even with today’s approval, the fact remains that we are still years away from the tunnel actually being built. In the meantime, Line 5 is a ticking timebomb in the heart of the Great Lakes." (Inset Photo: Michigan Attorney General Dana Nessel. Photo courtesy michigan.gov)
Nessel also noted her commitment to her case filed against Enbridge to shut down Line 5.
Nessel filed a brief in September with the U.S. Sixth Circuit Court of Appeals asking that the case be returned to state court, where it was originally filed and litigated for more than a year.
"I am committed to seeing that case through, and I will always take action to protect Michigan’s citizens and natural resources from the threat of pollution," Nessel said.
* Editor's Note: Thanks to Michigan Advance and Reporter Kyle Davidson for sharing this article via Creative Commons. To see more photos and the original article click here.
**UPDATE: Editor's Note: See the Dec. 6, 2023 interview with Andrea Pierce for further reaction to the MPSC decision on Line 5 and the tunnel: https://youtu.be/WPE8W9aJFD8?si=kcDmupnAZ_Z1MEW4
