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Friday, November 13, 2020

Governor Whitmer, DNR take action to revoke Enbridge easement, shut down Line 5 dual pipelines through Straits of Mackinac; AG Nessel files new lawsuit

By Michele Bourdieu 

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

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.

"Here in Michigan, the Great Lakes define our borders, but they also define who we are as people. Enbridge has routinely refused to take action to protect our Great Lakes and the millions of Americans who depend on them for clean drinking water and good jobs. They have repeatedly violated the terms of the 1953 easement by ignoring structural problems that put our Great Lakes and our families at risk," said Governor Whitmer. "Most importantly, Enbridge has imposed on the people of Michigan an unacceptable risk of a catastrophic oil spill in the Great Lakes that could devastate our economy and way of life. That’s why we’re taking action now, and why I will continue to hold accountable anyone who threatens our Great Lakes and fresh water." 

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.

Oil and Water Don't Mix posted this victory photo on their Web site today. (Photo courtesy oilandwaterdontmix.org) 

"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.

This is one of a group of photos of damage to an anchor support on the east leg of the Line 5 pipelines, discovered in June 2020. The photos were sent by Enbridge to EGLE (the Michigan Department of Environment, Great Lakes and Energy) and DNR. (File photo courtesy Enbridge Energy)*

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  

Cover letter (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)

Tuesday, November 10, 2020

Native Americans not "Something Else" -- Native leaders call for CNN to apologize

From Michigan Anishinaabek Caucus
November 9, 2020

CNN's poll board announcing election results last week included Native Americans in a percentage labeled as "Something Else." (Photo courtesy Michigan Anishinaabek Caucus)

INDIAN COUNTRY, November 9, 2020 -- Caucuses of the Democratic National Party call for a formal apology from CNN for a dismissive poll board that discounted the impact of the Native American vote and, more importantly, dehumanized the Native community.

The Native American vote’s impact in critical states around the country are well documented by relevant organizations on the ground and leaders within the community. Battleground states like Nevada, Arizona, and Michigan have been decided by critical margins. Community engagement by Tribal leadership, organizers, and volunteers produced historic General Election results.

The Navajo Times reported on Nov. 5 that the success of turning Arizona blue is credited with the Native American vote. Michigan, which also flipped blue, has the highest population of Native Americans east of the Mississippi. Over 100,000 Native Americans were called to vote, and understood that sovereignty was on the ballot.

States across the Country (Arizona, Michigan, Nevada, etc.) have prominent Native communities and are engaging in a critical fight for support and recognition of circumstance.
Native Americans have been insulted by non-Natives on their own ancestral land for hundreds of years. Many Elders alive today were subject to the United States' first parent-child separation policy, otherwise known as Indian Boarding Schools. The Constitutional documented rights of Native Peoples have been constantly disrespected and ignored. Narratives perpetuated by the media contribute to the continued erasure of our peoples and the invisibility of our communities.*

CNN’s dismissive reference of the Native American vote as "Something Else" is not a small injury. It continues the abuse of the Native American identity. It is akin to Trump referring to the Michigan’s Governor as "that woman."

CNN is called to make a public apology and to engage in critical conversations that identify the unique experiences of Native American peoples and their contributions to the 2020 General Election. Native American cultures are something all Americans can be proud of, even though only Native Americans can claim them as their own.

Andrea Pierce, Chair, Michigan Anishinaabek Caucus of the Michigan Democratic Party

Brian Melendez, Chair, Nevada Statewide Native American Caucus of the Nevada State Democratic Party

Joseph Vital, Chair, Native Peoples Caucus of Minnesota DFL

Crystal Cavalier, Chair, North Carolina Democratic Party, Native American Caucus

Dr. Twyla Baker
Prairie Rose Seminole
Rep. Ruth Buffalo

Interim co-Chairs, North Dakota Native American Caucus - Dem-NPL

* Editor's Note: The Native American Journalists Association (NAJA), on Nov. 5, also demanded an apology from CNN. See "NAJA demands CNN apologize for using "something else" to describe Native voters."

See also: "The Power of the "Something Else" vote," by Nick Martin, published Nov. 6, 2020, in The New Republic. 

Monday, November 09, 2020

Western Upper Peninsula Health Department prioritizes case investigation for COVID-19

HANCOCK -- The Western Upper Peninsula Health Department (WUPHD) is notifying residents in Baraga, Gogebic, Houghton, Keweenaw and Ontonagon counties that over 750 cases were added within the five-county jurisdiction in the last three weeks, placing a significant strain on resources. Even with assistance from partner organizations, capacity has been reached. Individuals and their close contacts may not receive a call from the WUPHD.

Effective immediately, in order to maximize staffing resources and prevent outbreaks amongst vulnerable individuals, the WUPHD will begin prioritizing case investigation to notify these individuals:

  • Those who are Age 65 and older, especially those with chronic underlying conditions;
  • Children who are 18 years old and younger, especially those attending school in-person;
  • Individuals residing in congregate living environments, such as long-term care facilities;
  • All other individuals as capacity allows.

Residents are urged not to wait for the Health Department to call, but to take personal responsibility and action if someone becomes aware of a positive test result or potential exposure to COVID-19. 

Individuals notified that they are positive or probable COVID-19 should do the following:

  • Isolate for 10 days from the onset of symptoms or 10 days from the day a positive test sample was collected if you don’t have symptoms. After 10 days, if your symptoms have improved (note symptoms do not need to be fully resolved, but overall improvement is required), and you are fever-free without the use of medications, it is OK to return to normal activities. If you are still feeling sick, please consult with a medical professional as some people can be contagious for a longer period.
  • Please do your best to isolate away from the other members in your household to prevent them from contracting the virus.
  • Notify your employer or school that you are a COVID-19 case.
  • Notify all of your close contacts and ask that they quarantine for 14 days: a close contact includes those that you have been within 6 ft. of for more than a total of 15 minutes any day you were contagious which is two days before symptoms begin or 2 days prior to a positive test if you are asymptomatic.

If you are a Close Contact you should do the following:

  • Quarantine for 14 days from your last contact to the COVID-19 case. If you develop symptoms you should get tested and isolate away from other household members.
  • Please notify your employer or school that you are a close contact and need to quarantine.
  • If you are a close contact and considered an essential worker, please work with your employer to determine your return to work procedure.
  • Please note receiving a negative COVID-19 test as a close contact does not mean that you will not get symptoms or test positive at a future time within your quarantine period. You need to complete the full 14-day quarantine period even if you do not develop symptoms.

The Health Department will continue to conduct case investigation and contact tracing in nursing homes, schools, high-risk congregate settings and will assist businesses with COVID-19 related issues.

Letters to employers will no longer be issued; therefore if you are an employer seeking confirmation regarding employees please call the WUPHD office at (906) 482-7382 to be given verbal confirmation.

For COVID-19 testing or medical concerns please reach out to your healthcare provider or a local healthcare facility for further guidance. In case of a medical emergency call 911.

For resources on how to stay safe during the pandemic visit https://www.wupdhd.org/, https://www.michigan.gov/coronavirus, and https://www.cdc.gov/coronavirus.