With information from Michigan Public Service Commission
LANSING -- On April 22, 2020, the Michigan Public Service Commission (MPSC) put on hold Enbridge Energy LP’s application seeking siting approval to replace and relocate the portion of the Line 5 pipeline now under the Straits of Mackinac into a tunnel to be constructed beneath the Straits. Meanwhile the MPSC is taking public comment and considering the company’s request for a declaratory ruling on whether new siting authority from the MPSC is needed for Enbridge to construct this segment.
MPSC held a special virtual meeting on April 22, allowing the public to comment during the meeting. Several verbal and written comments were recorded during the meeting, which is available online.* The Commission also established a public comment period on the request for a declaratory ruling on whether Enbridge needs new siting authority from the MPSC. The deadline for these public comments is May 13, 2020.**
Comments should address only the declaratory ruling issue, and not the merits of Enbridge’s Act 16 application.**
The three MPSC Commissioners are Sally A. Talberg, Chairman; Commissioner Daniel C. Scripps, a member of the U.P. Energy Task Force; and Commissioner Tremaine L. Phillips. The Commission has explicitly invited commenters to provide legal analysis of the issues presented in the request for a declaratory ruling, which could include references to statutes, rules and prior Commission orders relevant to the matter and analysis of their applicability to the Line 5 project. Replies to comments on the declaratory ruling request must be filed no later than May 27, 2020.
Any interested parties may submit comments, written or electronic, no later than May 13, 2020. Electronic comments are preferred and may be e-mailed to mpscedockets@michigan.gov. All comments should reference Case No. U-20763. All information submitted to the Commission in this matter will become public information available on the Commission’s website and subject to disclosure. Written comments may be addressed to: Executive Secretary, Michigan Public Service Commission, 7109 W. Saginaw Hwy., Lansing, MI 48917.
Since their April 22 meeting, MPSC has received hundreds of comments -- the vast majority of them opposed to Enbridge's request. The comments include statements from Native American tribes, environmental groups, Michigan legislators and concerned individuals.
Enbridge filed its application April 17 (Case No. U-20763) requesting siting approval under Act 16 of 1929 to replace and relocate the Line 5 section into a tunnel to be constructed beneath the Straits. In the alternative, Enbridge asked the MPSC for a declaratory ruling that it already has the authority from the Commission to construct the replacement segment based on the Commission’s original 1953 order granting authority for the Line 5 pipeline.
Should the Commission issue such a declaratory ruling that Enbridge already has the authority for its Line 5 project, no further proceedings will be necessary, saving time and resources of the Commission and certain interested persons. Conversely, should the Commission issue a declaratory ruling that Enbridge does not already have the authority for its Line 5 project, the application would be reviewed as part of a contested case, starting with public notice and a prehearing conference. Such a contested case would allow more time for public involvement.
Citizens comment during April 22 MPSC online meeting
During the April 22 meeting time allowed for public comment, concerned citizens sent both verbal and written comments.
In a comment by phone, Shannon Donlevy of Grand Haven, Mich., on the shores of Lake Michigan, noted her opposition to Enbridge's application to replace and relocate the portion of the Line 5 pipeline now under the Straits of Mackinac into a tunnel to be constructed beneath the Straits.
"The application is frivolous and an imminent danger to the Great Lakes and to the Great Lakes region in its entirety," Donlevy said. "This is going to be a contested case, and I don't think this permit is needed."
Donlevy noted the "audacity" of Enbridge to do this while Michigan's governor is busy trying to protect citizens of the state from the Coronavirus.
Representing Oil and Water Don't Mix, both Sean McBrearty and David Holtz called during the meeting to thank the Commission for the opportunity to comment but to remind them that many people lack the Internet access to comment during the meeting. They encouraged the commission to assure robust community participation and public engagement in this issue by holding public hearings across the state.***
Commission Chairman Talberg replied that a contested case would take about a year, allowing more time for public involvement.
State Senator Ed McBroom (R-38th District), a supporter of Enbridge and Line 5, called in during the meeting to ask the Commission not to delay a decision or delay the tunnel project, which the Michigan legislature is supporting. He said the Public Service Commission has a critical role in protecting all Michigan citizens' access to energy and that Line 5 is our source of energy now and in the foreseeable future.
"Line 5 is providing for more energy for the U.P. than just through propane," he said.
State Rep. Sara Cambensy (D-109th District), also phoned comments during the meeting, thanking the Commission for giving the public several opportunities for participation, noting the possibility of taking a year for the decision would allow more time for public comment. However, in agreement with some of Sen. McBroom's concerns about costs, she also said the legislature has to balance financial costs involved in decisions on infrastructure.
Noting the dangers of another oil spill from Enbridge, Terry Wilkerson of Livingston County phoned in with this comment: "By trying to push a tunnel permit through now, when all of Michigan has a shelter-in-place order, the Canadian company Enbridge is again showing complete disregard for the safety of those in Michigan. We cannot rely on Enbridge, period -- not for energy, not for trustworthiness, not for financial stability."
Written comments posted during online MPSC meeting
During the April 22 meeting, Talberg read aloud several written comments as they were sent and posted electronically during the meeting. The following are some of those:
Kathleen Brosemer, Environmental Director, Sault Ste. Marie Tribe of Chippewa Indians: "The need and rationale for a project to spend a half billion dollars on new infrastructure at the Straits of Mackinac is considerably different from the need and rationale for the original twin pipelines installed in 1953. In 2020, we are facing the urgent need to decarbonize the economy within ten years, which is the proposed timeline for building this infrastructure. Siting a new tunnel at this time virtually assures one of two outcomes: 1. the economic need for the project will collapse, leaving it a stranded asset, or 2. the nation will refuse to change, and within ten years climate catastrophe will ensue, resulting in economic collapse and no need for the project. Either way, the need is not there, ten years from now. This new information, made available over the past ten to twenty years, was simply not available during the MPSC Public Act 16 process for the 1953 project. This must be examined, it is in the public interest to examine it, it must not be avoided by hasty approvals of a misguided project.
"Oil futures for May are trading in negative numbers at the moment. There is no need for more oil infrastructure. The demand is tanked. What is the 'foreseeable future,' Sen. McBroom? Did you foresee the current oil demand, three months ago? The economy has turned from oil already. Dinosaurs need to stop spending enormous sums to prop up oil."
Bay Mills Indian Community: "While we are operating under a State of Emergency and Stay-at-Home Executive Order, Bay Mills Indian Community is in absolutely no position to review and provide substantive comment on any permit applications submitted by Enbridge regarding the siting and construction of its long discussed pipeline tunnel underlying the Straits of Mackinac. The Line 5 Pipeline, and its impacts to our treaty-protected resources, have long been a top concern for the Tribe, and we have expressed our views on how to mitigate its adverse impacts to Michigan’s regulatory agencies and elected officials for years. I am writing on behalf of Bay Mills Indian Community to request an emergency stay of the State’s administrative review on any permit applications regarding Enbridge’s Line 5 tunnel project in order to allow both State agencies and the Tribe to carefully, thoroughly, and appropriately review Enbridge’s massive submission of data and technical reports. By filing its applications now, Enbridge is seeking to use a global pandemic to its advantage by avoiding rigorous review and meaningful public comment."
Andrew Nowicki: "The original permit issued in 1953 was made under vastly different circumstances than today. We are undergoing a climate crisis that poses an existential threat to most life on the planet, and threatens to drop the national GDP by over 20 percent. The fuels transported by the Canadian pipeline under the Great Lakes are directly responsible for this national crisis. A new application must be required using modern technology and a thorough environmental impact review that accounts for potential climate damages."
John Swimmer, chief legal officer from the Notawaseppi Huron Band (NHBP): "The Notawaseppi Huron Band opposes this application. A Declaratory Ruling is inappropriate in this matter because feasible alternatives under MEPA have not been explored. NHBP asks for additional time to comment because of the COVID-19 crisis."
John Machowicz, Livingston County: "1) Why should we ever trust Enbridge after the devastating Kalamazoo Spill? 2) How does allowing Line 5 contribute toward aggressively combatting the Climate Crisis?"
Rita Mitchell: "MPSC's purpose is to provide for Michigan's energy security. The rail plans outlined in UP Energy Task Force plan cover the immediate future for the Upper Peninsula and current distribution systems in the Lower Peninsula are already in place as a short-term bridge. MPSC needs to aggressively plan for an energy secure future with renewable energy sources, the growing energy sector and the energy source that works in concert with other Michigan Agency programs. It is the direction Michigan communities are moving. The responsibility of MPSC Commissioners and the Governor is to provide for the interests of Michigan, not those of a foreign company with a plan to tunnel through our Straits as a short cut to their own foreign port. Tunneling will take a decade or more. In a decade it will be 2030, the target date many communities are aiming (for) zero fossil fuels. The MPSC must protect the interests of the public, not a Canadian company that is using our state as a shortcut to transport its fuel for primary use outside the State of Michigan."
Jim Sherman: "Thank you for this opportunity for public engagement. With oil trading at negative value, and with abundant renewable energy resources available but yet untapped in Michigan, why would it make any sense for Michiganders to let our invaluable natural beauty be threatened, by a company with a bad record for safety, to use our state as a pass through for resources that pose to do more harm than any benefit provided?"
Bill Wood, West Michigan Environmental Action Council: "It's no secret that Enbridge has plans to bulk up its oil transport capacity by adding increased Alberta Tar Sands oil to the portfolio of what will flow through the new Line 5 tunnel. However, even before COVID19 collapsed world oil economies, Forbes (among others) was predicting a coming decline in Alberta Tar Sands that would rival what has happened in Appalachia after the collapse of coal. This tunnel will become a stranded asset, there is no question, possibly before it is even completed. Michigan will be on the hook when that happens, environmentally as well as economically."
Kate Madigan, Michigan Climate Action Network: "Thank you to the MPSC for this opportunity for comment, and we ask for more robust public comment opportunities and more advanced notice. We oppose the application. The many reports completed by the State of Michigan over the past several years and Task Force reviews have found that Michigan does not need this oil pipeline to meet our energy needs, and that other alternatives exist that are cost-effective. In this time of climate change, where there is global scientific consensus that we must cut fossil fuel emissions significantly this decade to avoid the worst impacts, building a new pipeline must look at the climate impacts. The MPSC has opportunities and an obligation to include climate impacts as part of your review of this pipeline."
Nancy Skinner, Michigan Democratic Party Environmental Caucus: "With the price of oil in negative territory, hundreds of shale operators will face bankruptcy. Enbridge is a highly leveraged entity already, with 2 billion outstanding shares because investors have largely stopped investing in shale already. Now their stock price is $28/share today. How can the state make a contract with an entity near insolvency, and will Michigan taxpayers end up paying to decommission Line 5 and whatever construction was begun?"
Ed Steinman, Ann Arbor: "It's Mr McBroom who's being disingenuous. The tunnel will take 10 years to build assuming Enbridge even starts it. As I think you well know, Enbridge is simply buying time to keep this dangerous pipeline open. It could break at any minute. Anyone responsible for closing the pipeline who doesn't do all they can to close it will be responsible if it does break."
MPSC posting comments on Web site through May 13
The Michigan Public Service Commission has been posting on their Web site hundreds of public comments received since their April 22 meeting. The following are just a few of the comments MPSC has posted. In some cases we have published excerpts from longer comments. Click on more to read the whole comment.
Anishinaabek Caucus of the Michigan Democratic Party: "The Anishinaabek Caucus is still asking that Line 5 pipeline be shut down immediately and that all permits, and negotiations regarding ENBRIDGE'S Line 5 tunnel be pulled and stopped. Line 5 was not part of the original treaty and Michigan's first people's rights have been ignored when it comes to this tunnel's permitting process. Megwetch (Thank you), Anishinaabek Caucus of the Michigan Democratic Party: Andrea Pierce, Chair; TJ Stephens, Vice Chair; Julie Dye, Secretary; Brandi Nehila, Treasurer."
This comment was accompanied by the May 24, 2019, statement of position regarding the permit application for ENBRIDGE'S Line 5 tunnel, which the Caucus stated is unconstitutional and directly against the treaties with Michigan's 12 tribes.
John Forslin of Marquette: "I want to register my most strenuous opposition to 'rubber stamping' this action. Expedited approval would call into question all Commission actions as being political or being influenced by factors outside of rational protection of the public weal. Second, social and technical considerations have changed dramatically since Line 5 was first permitted all those decades ago. Seriously -- would it even be considered as a new project today without extensive technical analysis and representation? And extensive proof that it was somehow in the 'public interest' to establish? Third, citizens just don’t want this. The risks to Michigan's waters are well documented. There are no benefits that can possibly compensate for those risks. Finally, we must all be leaning heavily to 'keeping it in the ground' to protect Michigan and the rest of the planet from climate change."
Lisa Patrell, Ann Arbor: "The MPSC is in no position to approve Enbridge's application to transport gas in their proposed subterranean tunnel through the Straits of Mackinac without a thorough third-party scientific study of the geology. There are two concerns. First, the world's largest midcontinental rift bisects our Straits. Causative studies have not been done to confirm whether fracking and/or injections in this same rift in otherstates are directly linked to earthquakes that have happened since the occurrence of fracking and injecting.... Second, Michigan's underlying geology in the region of the Straits is a karst, a system of large openings and of a porous nature. We see it above the water on Mackinac Islands arches. Karsts are prone to collapsing. We call them sinkholes when they happen on dry land...."
State Representative Yousef Rabhi, District 53: I appreciate your thorough examination of Enbridge Energy’s proposal to build a new tunnel enclosing a new segment of Line 5. On behalf of my constituents, I urge you to conduct a full review of this new construction and to delay any final orders until the public and community organizations are able to participate safely in the proceedings. Despite the Commission’s admirable efforts to facilitate remote participation for members of the public, many stakeholders face barriers during this emergency, barriers which do not equally limit Enbridge Energy. The geographic areas most impacted by the proposed construction have relatively low coverage of broadband internet, and many tribal and community organizations are unable to access files or coordinate responses due to emergency limits on travel and office operations. Because of the potential for environmental and economic disaster if a large leak occurs in the Straits, the public has a strong interest in vetting the proposal. I hope that the Commission will recognize the need to proceed in a manner and at a pace that will allow full and legitimate public input...." more ...
Superior Watershed Partnership (SWP): "The Superior Watershed Partnership (SWP) is recommending to stop all action regarding the Line 5 tunnel and to remove the entire length of Line 5 in Michigan. There are safer alternatives. The risks to the Great Lakes are simply too high....Thanks." Carl Lindquist, Executive Director, Superior Watershed Partnership and Land Conservancy, Marquette.
Mary Pelton Cooper, Negaunee: To the Public Service commission, Senator McBroom, and Rep. Sara Cambensy, I listened to the public comments during the April 22 hearing. I must say I was very disappointed in both of my representatives. Senator McBroom continues to disregard the very serious and reasonable concerns about the length of Line 5 that will continue to operate outside the tunnel if it is constructed. A break in the pipe as it crosses one of the rivers would be totally devastating. He continues to speak only of the pipe lying on the bottom of the lake. He also insulted all of the public concerns. This is ingenuous on his part. Sara Cambensy disappointed all of us by disregarding the safety of the land and water with her comment about budget limitations. I thought she would be a more sensitive human in her role in the State House. We in the Upper Peninsula need protection from the Canadian corporate control over our well being. ... more ...
Aaron Miller, Sturgis, Mich.: "I am in favor of putting Line 5 into a tunnel beneath the bedrock under the Straits of Mackinac. It’s the safest and best way to get the current Line 5 out of the straits. Most of all, it’s the law."
Friends of the Land of Keweenaw (FOLK), Rosemary Grier, FOLK Board Member: "FOLK agrees with the MPSC’s decision, which is to put on hold Enbridge Energy LP’s application seeking siting approval to replace and relocate the portion of the Line 5 pipeline under the Straits of Mackinac, so the public has adequate time for public comment. Based on current scientific data and research, FOLK requests the State to deny the replacement and relocation of the Line 5 section into a tunnel to be constructed beneath the Straits. In addition, FOLK supports the closing of Line 5 through the UP based on safety and environmental concerns, with an adequate timeline for acquiring alternate delivery and storage systems of affordable propane to UP families...." more ...
On May 5, MPSC posted one filing with 590 pages of comments. Many of these stated the same opposition to Enbridge's request for a declaratory ruling that they do not need MPSC approval for their proposal to build an oil tunnel in the bottomlands of the Straits of Mackinac. Here is a sample:
Renee Russell, Traverse City, Michigan: "...The 1953 easement granted to Enbridge’s predecessor, Lakehead Pipeline Co., was an easement to operate twin pipelines on the lakebed and contained no consideration of a subsurface tunnel. Further, as you are aware there is currently an ongoing lawsuit on behalf of the people of Michigan asserting among other things that the 1953 easement ought to be considered void because the potentially disastrous impact of an oil spill in the public trust waters of the Straits of Mackinac was not fully considered prior to issuance of the easement. This is obviously a new project despite Enbridge’s claims to the contrary, and your role in reviewing this project is essential to protect the Michigan public by determining whether or not this project is in the public interest and whether or not there are prudent and feasible alternatives to the proposed oil tunnel that could meet Michigan’s energy needs without the substantial risk involved. .... Please protect the Michigan residents that you serve by denying this request for a declaratory ruling and ensuring that members of the public have ample opportunity to be heard and fully engage in this process before making your determinations in this case." more ...
FLOW (For Love of Water) -- a Michigan-based water, environment, and public interest organization -- submitted to the MPSC a request to grant it permissive intervention pursuant to Rule 410(b) of the Commission’s Rules of Practice and Procedure, R 792.10410, because of its unique and special expertise and perspective on the questions of necessity, public interest, and environmental impact studies, alternative studies, and market, potential externalized costs, potential economic impacts and interests related to the subject matter of these proceedings. more ...
The Michigan Environmental Council (MEC) has also petitioned MPSC to intervene in this case. MEC is a statewide environmental organization with individual supporters, 70 member entities, and a collective membership of over 200,000 people -- including the Grand Traverse Band of Ottawa and Chippewa Indians, a sovereign Indian Tribe with usufructuary property rights to natural resources in the Straits of Mackinac, including fishing rights. The State of Michigan is obligated to honor these rights, and prohibited from diminishing them, under the March 28, 1836, Treaty of Washington (7 Stat. 491). MEC’s member entities also include the Tip of the Mitt Watershed Council, whose service area includes the entire southern shore of the Straits of Mackinac, including but not limited to the project area described in the application in this case. MEC's members and supporters have the potential to be harmed if Line 5 continues to operate in the Straits of Mackinac, even if it is moved into a tunnel as Enbridge proposes. more ...
Deb and Grady Peninger, Clarkston, Mich. -- "We don't support construction of the Enbridge Line 5 Tunnel under the Michigan Straits of Mackinac. I have attached a file with a history of Enbridge's oil spills in the United States. ... If the Enbridge Line 5 Tunnel is implemented under Michigan's Straits of Mackinac, Enbridge will be transporting approximately twenty two million, six hundred and eighty thousand gallons of oil each day (22,680,000), along thelake bed between Michigan's Upper and Lower Peninsulas, e.g., 42 gallons in1 barrel of oil...." more ...
David Brown -- "I favor approval of the permit to move ahead with the construction of the Line 5 tunnel. I’m sure you have all the facts. The way I see it...the tunnel is exponentially safer than the 67-year-old line that sat on the lake bed without creating any significant environmental problem. The tunnel will take the risk of a spill from extremely low to virtually non-existent. Even the current system has digitally sensitive shut off systems triggered by pressure losses. Encased in a tunnel in the bedrock beneath the lake bottom makes the risk de minimus...." more ...
Michigan Democratic Party Environmental Caucus -- "Reject Enbridge’s request for a Declaratory Ruling. Dear Commissioners, We thank you for taking Enbridge’s request for a declaratory ruling under thorough consideration, and for providing the people of the State of Michigan an opportunity to share facts related to this case. As you know, the 1953 easement was granted to construct twin pipelines at the bottom of the Straits of Mackinac. It was understood when the permit was issued that the lands and waters potentially impacted by the project are placed under public trust doctrine. As such, this permit has always been subject to re-evaluation based on new information. The last 67 years have provided a wealth of new information and technology. The original easement did not consider the disastrous implications of an oil spill in the Straits of Mackinac, which researchers at the University of Michigan have called 'the worst possible place' for an oil spill in the largest body of freshwater in the world. We learned from the 2010 Kalamazoo oil spill that Enbridge’s pipeline operations are imperfect and will require additional review to ensure the protection of Pure Michigan’s most valuable natural resource. Climate change and the urgent need to shift away from fossil fuels also pose very serious considerations to this decision...." more...
Upper Peninsula Environmental Coalition (to Keweenaw Now) -- "The Upper Peninsula Environmental Coalition (UPEC) has learned that Enbridge Energy is requesting a decision from the Michigan Public Service Commission (MPSC) as to whether any additional authorization is needed from the MPSC to construct their proposed Line 5 tunnel underneath the Straits of Mackinac. Lakes Michigan and Huron, including the Straits are a world-class aquatic resource that may be at risk from construction and operation of the proposed tunnel. And yet Enbridge apparently would like to proceed to construction of their enormous project without any further permit review process from the MPSC. This would also preclude any opportunity for the public to make their views of such a project known. By seeking this ruling on additional authority and perhaps filing its application now, Enbridge may be seeking to use a global pandemic to its advantage by avoiding rigorous review and meaningful public comment.
"The Governor may be the only authority who can order a stay of the MPSC reviews. Therefore, UPEC has written to the Governor to request an emergency stay of the State’s administrative review of any permit applications regarding Enbridge’s Line 5 tunnel project in order to allow the MPSC, our organization and others to carefully, thoroughly, and appropriately review Enbridge’s massive submission of data and technical reports. The citizens of Michigan and our environment deserve no less." Jeffrey Towner, UPEC Board Member
Opportunities to monitor MPSC’s Line 5 proceedings
The MPSC launched a dedicated webpage, www.michigan.gov/MPSCLine5, to enable the public to monitor Enbridge’s siting application and related requests. Background resources on the MPSC’s siting authority under Act 16 and opportunities for the public to participate are available. Individuals can sign up for e-mail updates on MPSC meeting notices, orders, press releases, or other developments specifically related to the Line 5 proceeding before the Commission. Instructions are also available for individuals seeking to sign up to be notified of all formal case filings through the MPSC’s e-dockets system. Additional information will be posted on the website as it becomes available.
To look up cases, access the E-Dockets filing system here. For information about the MPSC, visit www.Michigan.gov/MPSC, sign up for one of its listservs, or follow the Commission on Twitter.
Notes:
* Click here for a video recording of the April 22, 2020, MPSC meeting.
** Click here for the MPSC Order establishing this comment period.
*** Visit Oil and Water Don't Mix to learn about their concerns about Line 5 and their opposition to the proposed tunnel.
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