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Showing posts with label Proposed Tunnel for Line 5 Pipeline. Show all posts
Showing posts with label Proposed Tunnel for Line 5 Pipeline. Show all posts

Friday, January 17, 2020

Michigan AG challenges court decision involving Line 5 Tunnel Law

Mackinac Bridge. Michigan Attorney General Dana Nessel opposes Enbridge's plan to build a tunnel under the Straits of Mackinac to house the company's Line 5 pipeline. (Keweenaw Now file photo)

LANSING -- With a brief filed on Thursday, Jan. 16, in the Michigan Court of Appeals, Michigan Attorney General Dana Nessel continues to challenge the constitutionality of the law which provided for the 2018 agreement between former Gov. Rick Snyder’s administration and Enbridge Energy to build a tunnel beneath the Straits of Mackinac to house the energy company’s Line 5 pipeline.

Public Act 359 of 2018 was rushed through the Legislature to amend Public Act 214 of 1952, which allowed for the construction of the Mackinac Bridge. Nessel's brief filed Thursday argues that the 2018 act violates Article 4, Sec. 24, of the Michigan Constitution, referred to the Title-Object Clause, which provides that "No law shall embrace more than one object, which shall be expressed in its title."

In response to questions raised by Gov. Gretchen Whitmer, Nessel issued a formal opinion in March 2019 that concluded Act 359 was unconstitutional and the agreements based upon it made between the Snyder administration and Enbridge should likely be considered void.*

In June 2019, Enbridge Energy countered by suing the State in the Michigan Court of Claims seeking a declaration that the Act is constitutional, thereby making the December 2018 tunnel agreement valid. The Court of Claims agreed with Enbridge and ruled in the energy company’s favor on Oct. 31, 2019.

The brief filed Thursday by the Michigan Department of Attorney General asks the Court of Appeals to reverse the Court of Claims decision because Act 359 violates the Title-Object Clause by not providing fair notice of the content of the law, and embraces two unrelated objects -- a utility tunnel to carry oil beneath the Straits and the Mackinac Bridge to carry motor vehicles above.

Separately, on Jan. 16, a panel of the Court of Appeals denied, by a 2-1 vote, the State’s motion for stay pending appeal. Had it been granted, the stay would have delayed the effect of the Court of Claims decision until the Court of Appeals reached its decision on the constitutionality of Act 359. Instead, Act 359 currently remains in effect during the appeal. The State is reviewing the order.

This case is separate from and not related to the Attorney General’s lawsuit that seeks to shutdown Enbridge’s existing 66-year-old pipelines in the Straits.**

Editor's Notes:

* See our Apr. 1, 2019, article, "Attorney General Nessel finds Mackinac Straits Corridor Authority Law unconstitutional; Gov. Whitmer issues directive to halt actions in furtherance of PA 359."

** See our June 29, 2019, article, "Attorney General Nessel takes legal steps to decommission Line 5; Gov. Whitmer seeks to dismiss Enbridge lawsuit."

Friday, August 16, 2019

Michigan Attorney General Nessel files State reply to Enbridge brief on lame duck legislation creating Mackinac Straits Corridor Authority

Michigan Attorney General Dana Nessel. (Photo courtesy Michigan.gov)

LANSING --  On Aug. 15, 2019, the State of Michigan filed its reply brief to Enbridge’s Aug. 1 brief in Enbridge Energy, et.al. v State of Michigan, et.al. (No. 19-000090-MZ). The Office of Michigan Attorney General Dana Nessel noted Enbridge "repeatedly mischaracterizes the State Defendants' arguments" and Enbridge's legal arguments "improperly attempt to re-write the title of Act 359, inventing a new, broader object -- providing for 'infrastructure' connecting the peninsulas ...."

The case, originally filed in Court of Claims by Enbridge June 6, 2019, involves the constitutionality of 2018 PA 359 and the creation of the Mackinac Straits Corridor Authority. The State argues, as Attorney General Opinion No. 7309 concluded, that the statute creating the Authority is unconstitutional because it violated the Title-Object Clause. The crux of the dispute is that the title of Act 359 -- which was pushed through the Legislature in lame duck at the end of 2018 -- violated that provision of the Michigan Constitution in two ways. First, the title did not provide fair notice to legislators and the public of substance of the bill. Second, it improperly combined two unrelated purposes: the Mackinac Bridge and a proposed "utility tunnel" meant to house a new Enbridge oil pipeline.

The court will determine if it wants to hear oral argument before issuing a decision.

A copy of the State of Michigan’s Reply Brief can be found here.

Please note: Briefing will begin on September 16 in the Attorney General’s separate lawsuit in the Ingham County Circuit Court against Enbridge. That lawsuit seeks a determination that the Line 5 pipelines in the Straits should be decommissioned due to the significant risk of a catastrophic spill from an anchor strike or operational failure.*

*Editor's Note: See our June 29, 2019, article, "Attorney General Nessel takes legal steps to decommission Line 5; Gov. Whitmer seeks to dismiss Enbridge lawsuit."

Saturday, June 29, 2019

Attorney General Nessel takes legal steps to decommission Line 5; Gov. Whitmer seeks to dismiss Enbridge lawsuit

By Michele Bourdieu

Michigan Attorney General Dana Nessel. (Photo courtesy Michigan.gov)

LANSING -- In a one-two legal punch, Michigan Attorney General Dana Nessel not only responded to the Enbridge lawsuit filed against the state earlier this month, but simultaneously took the first step to decommission the 66-year-old dual pipelines that run through the Straits of Mackinac by filing a lawsuit in Ingham County Circuit Court.

Meanwhile Governor Gretchen Whitmer announced her responses to Enbridge's failure to negotiate on tunnel construction and her goal of decommissioning Line 5 under the Straits of Mackinac.

The Attorney General filed her lawsuit on June 27, 2019, the same day she filed a motion to dismiss Enbridge’s lawsuit filed in the Court of Claims on June 6 seeking to enforce agreements made in the last months of the Snyder administration that purported to authorize Enbridge to build a tunnel and continue operating Line 5.

"I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes," said Nessel.  "Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay."

Nessel’s lawsuit asks the Ingham County Circuit Court to find that Enbridge’s continued operation of the Straits Pipelines under the easement granted by the State in 1953 violates the public trust doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution impairment and destruction of water and other natural resources.

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

The Attorney General’s lawsuit identifies a potential anchor strike as the most significant risk to Line 5. In 2017, the State’s contractor, Dynamic Risk Assessment Systems, Inc., identified an anchor strike as the most "dominant threat" to Line 5.

"The location of the pipelines -- which carry millions of gallons of oil each day and lie exposed in open water at the bottom of the Straits -- combines great ecological sensitivity with exceptional vulnerability to anchor strikes," said Nessel. "This situation with Line 5 differs from other bodies of water where pipelines exist because the currents in the Straits of Mackinac are complex, variable, and remarkably fast and strong."

Nessel also noted the serious danger of anchor strikes, such as the one that occurred in 2018.*

"The continued operation of Line 5 presents an extraordinary, unreasonable threat to the public because of the very real risk of further anchor strikes, the inherent risks of pipeline operations, and the foreseeable, catastrophic effects if an oil spill occurs at the Straits," Nessel added. "We were extraordinarily lucky that we did not experience a complete rupture of Line 5 because, if we did, we would be cleaning up the Great Lakes and our shorelines for the rest of our lives, and the lives of our children as well."

In fact, an April 2018 anchor dragging incident -- which ripped through several inches-thick steel cables -- brought that threat home in a very real way. Although Line 5 was damaged -- not ruptured -- in that incident because the anchor hit a section lying directly on the bottomlands, if the anchor had dragged across the bottom of the Straits in an area where Line 5 is elevated, the likely result would have been a complete rupture of Line 5.

Nessel’s lawsuit seeks an order from the Court to shut down and decommission the Straits pipelines as soon as possible after a reasonable notice period to allow orderly adjustments by affected parties.

The Attorney General also filed a motion for summary disposition in the Court of Claims on June 27. That motion argues that PA 359 (2018), which would have created a new Straits Corridor Authority, is unconstitutional, and the agreements that purported to give Enbridge the right to build a tunnel and continue operating Line 5 in the Straits for the estimated seven to ten years it would take to build the tunnel are invalid.

This is consistent with Nessel’s first formal opinion as Attorney General determining that PA 359 -- rammed through in a chaotic lame duck session at the end of the Snyder administration -- was unconstitutional. Her office then notified all state agencies -- including the Straits Corridor Authority -- that PA 359 and any agreements relying on the statute, were unenforceable.

"The debate over Line 5 has been raging for over five years," said Nessel. "Real-world events have shown me we can’t wait another five to ten years for Enbridge to build a tunnel. We cannot prevent accidental or emergency anchor deployments in one of the busiest shipping channels in the Great Lakes.  And it only takes one such incident to cause an environmental and economic catastrophe. That is a risk no one should be willing to take."

Nessel also explained these steps to decommission Line 5 in a video statement. In this statement she notes that she and Gov. Whitmer are both committed to protecting the waters of the Great Lakes from a potential disaster.

"We have dual responsibilities and we are working on parallel tracks," Nessel said in the video statement. "I'm doing everything I can on the legal front, and she's doing everything she can on the administrative front."

Nessel also mentioned in the video the governor's "Task Force to ensure the energy needs of our UP residents are met in an affordable and reliable way."**

Governor Whitmer responds to Line 5 legal filings

Tiffany Brown, press secretary for Governor Whitmer, issued a statement on June 27, commenting on the legal filings regarding Line 5.

Michigan Governor Gretchen Whitmer. (Photo courtesy Michigan.gov)

"The governor’s primary goal has always been and remains to get the Line 5 dual pipelines out of the Straits of Mackinac as soon as possible. The risk of a catastrophic oil spill in the Great Lakes, and the harm that would follow to Michigan’s economy, tourism, and our way of life, is far too great to allow the pipelines to continue to operate indefinitely," the statement said.

The statement also explains that the governor's action follows her attempted negotiations with Enbridge:

"The governor has never viewed litigation as the best solution to this problem, and for this reason she entered negotiations with Enbridge about the possible construction of a tunnel. Her reasonable requirement has been that the dual pipelines through the Straits cease operation at a date certain, after allowing for a period of transition. Enbridge, however, has insisted that it be allowed to run oil through the Great Lakes indefinitely. Rather than negotiating, Enbridge walked away and filed a lawsuit. Today, Governor Whitmer filed her response asking the court to dismiss Enbridge’s lawsuit."

In addition, Gov. Whitmer has asked the Department of Natural Resources for a review of Enbridge's compliance with the 1953 Easement, which allowed Enbridge to operate Line 5's dual pipelines under the Great Lakes.

"Possible violations of the easement are just one of several grounds by which the state could seek to shut down the pipelines, some of which the attorney general has already invoked today," the statement concluded. 

Groups laud Nessel's, Whitmer's actions to begin Line 5 shutdown

Oil and Water Don't Mix, an environmental group opposing Line 5, stated their support of the actions taken by Attorney General Nessel and Governor Whitmer.

"The Attorney General’s strong and necessary stand vigorously defends Michigan’s Constitution, our environmental laws, and is aimed at protecting the Great Lakes. Gov. Whitmer's directive to the Department of Natural Resources to examine Enbridge's compliance with the state's 1953 easement agreement for Line 5 will confirm what is already on the public record: a pattern and practice of easement violations by Enbridge," the group stated on their Web site. "The attorney general’s March legal opinion clearly established that the legislation passed in lame duck last year was unconstitutional; and her actions today (June 27) seeking a court-ordered end to Enbridge's Line 5 operations in the Straits of Mackinac have the strong support of Michigan’s environmental community, civic groups and Michigan’s tribes with Treaty Rights in the Straits of Mackinac."

Sean McBrearty, Oil and Water Don't Mix coordinator, said, "Line 5 is wrong for the Great Lakes, wrong for Michigan, wrong for the rule of law and wrong for future generations who must deal with the impact of dirty fuels on an overheating climate."***

FLOW (For Love of Water) also commended Attorney General Nessel’s and Governor Whitmer’s legal actions against Enbridge to protect public waters located in arguably the worst possible place in the Great Lakes for an oil spill to happen.

"Attorney General Nessel returns Michigan and the protection of its citizens, taxpayers, and the Great Lakes to the rule of law," said Jim Olson, president and founder of FLOW. "Governor Whitmer’s action on behalf of the state to nullify the lame-duck tunnel agreements also returns Michigan to the rule of law. They should be thanked. No, they should be applauded."****

Democratic Caucuses support of Nessel, Whitmer in opposing Line 5 

The Michigan Democratic Party's Anishinaabek Caucus issued a press release on June 27, 2019, praising Attorney General Nessel for her legal filings and urging Governor Whitmer to join the Attorney General's lawsuit against Enbridge.

Andrea Pierce, chair of the Michigan Democratic Party's Anishinaabek Caucus, carries the Little Traverse Bay Bands of Odawa Indians tribal flag at Governor Whitmer's inauguration in January 2019. The photo is included with the Caucus's recent press release as a reminder that the 12 tribes of Michigan are here and are part of the decisions. (Photo courtesy Anishinaabek Caucus)

"Enbridge's continued exploratory work for the tunnel and operation of Line 5 are in violation of the Treaty rights of federally recognized tribes of Michigan," the Caucus stated, referring to their May 24, 2019, Position Statement.

In that Position Statement, the Caucus stated, "In accordance with the Tribal Treaties recognized under the United States Constitution and in solidarity with the position of the Twelve Tribes of Michigan as stewards of the land and water, the Anishinaabek Caucus of the Michigan Democratic Party enjoins the Governor and the State of Michigan to shut down Line 5 immediately to eliminate catastrophic risks to water and land, and to abandon plans for a tunnel which would perpetuate existing risks to our resources."

That Position Statement also asked Michigan officials to reverse damage from burning fossil fuels, not to create opportunities to expand their use, and to include Michigan tribes in their decision making. The Caucus noted that treaties guarantee not only fishing rights but the right to habitat for the fish, which is threatened by the operation of unsafe pipelines.

"We applaud and celebrate Dana's stand as it is what she promised during her campaign and also at the Pipe Out Paddle Up Flotilla, when she came to Mackinaw City and met tribal leadership, environmental groups and citizens that are concerned about Enbridge's Line 5," said Andrea Pierce, Anishinaabek Caucus chair.

During the 2017 Pipe Out Paddle Up Flotilla in Mackinaw City, Dana Nessel, then a candidate for Michigan Attorney General, stated why she was running for that office and why she would shut down Line 5 if elected. (File video by Keweenaw Now)

The June 27 press release from the Anishinaabek Caucus also mentions dangers cited in the "Independent Risk Analysis for the Straits Pipelines" -- a study led by Guy Meadows, director of Michigan Tech's Great Lakes Research Center, and other faculty from Michigan Tech and including researchers from other universities and other scientific experts.

The Caucus notes, "As long as Line 5 operates, Michigan's water, wildlife, and people remain at risk. The report 'Independent Risk Analysis for the Straits Pipelines' (September 15, 2018) reveals that 2.4M gallons of crude would damage 60,000 acres of unique habitat affecting businesses personal property, and municipal water supplies. Since 1968 there has been more than 1.1M gallons of crude spilled from Line 5 inland, hence acknowledgement of a Line 5 spill in the Straits is real. Degradation of supports, mussel encrustation, deformities of the pipe, and an anchor strike have been reported."

The Anishinaabek Caucus notes that in their view Line 5 is not needed for bringing propane to the Upper Peninsula. They point out that, in addition to the fact that the volume of propane provided through Line 5 is only 0.25 percent, which could be trucked to the UP, the propane argument for Line 5 ignores good union green jobs.

"Developing renewable energy in the Upper Peninsula could be Michigan's beginning in green energy independence," the Anishinaabek Caucus states.

The Michigan Democratic Party Environmental Caucus. also issued a statement in support of Nessel and Whitmer as environmental leaders, calling their June 27 announcements "the shot heard 'round the world as we move closer to decommissioning the credible threat of a Line 5 rupture in the Straits of Mackinac."

According to the Environmental Caucus, "News of Attorney General Nessel’s actions is confirmation of her dedication to to the protection of our water, the adjacent waterways and the Straits of Mackinac themselves."

Bad River Band of Lake Superior Chippewa threatened by Line 5 impacts to watershed

While several Native American groups concerned about the water and treaty rights have been protesting for several years against the Line 5 pipelines under the Straits of Mackinac, less attention has been focused on the part of Line 5 that passes through the reservation of the Bad River Band of the Lake Superior Tribe of Chippewa Indians -- impacting rivers, streams and wetlands and posing a threat to an area of northwestern Wisconsin that has recently experienced severe floods.

This map shows a North American pipeline system including Line 5 (bright red line) -- which carries oil from Superior, Wis, to refineries at Sarnia, Ontario. Line 5 uses the Straits of Mackinac as a short cut, jeopardizing Great Lakes waters and nearby lands, including the Bad River reservation in northwestern Wisconsin. Click on map for larger version. (Map courtesy Oil and Water Don't Mix)

This aerial drone video by Bad River member David Joe Bates illustrates potential failure of Line 5, which crosses the Bad River only 15.5 miles from Lake Superior:

This video, taken from a drone during a high water event in April 2019, shows how a portion of Line 5 pipeline passing through the Bad River Band's reservation, not far from where the Bad River empties into Lake Superior, could pose a serious threat to the watershed should there be an oil spill. Click on YouTube icon for a larger screen. (Video © and courtesy David Joe Bates)

On June 20, 2019, just a week before the actions of Michigan's Attorney General and Governor, the Bad River Band held a public event with a presentation by Naomi Tillison, their Natural Resources director, outlining the impending disaster from Enbridge Line 5 at the Bad River Meander. Click here for a video of her informative presentation.*****

Editor's Notes:

* See our June 5, 2019, article, "Michigan AG Nessel: Safety Board Report on Line 5 Anchor Strike means operating Line 5 'incredibly dangerous.'"

** Click here to watch Nessel's video on YouTube. Concerning the Task Force, see "Gov. Whitmer signs executive order creating UP Energy Task Force."

*** See Oil and Water Don't Mix for their complete statement.

**** Click here for more from FLOW.

***** For background on the easements that allowed Line 5 to pass through the Bad River reservation, click here for the introduction to the June 20 by Mike Wiggins, Jr., Bad River tribal chair.

Saturday, December 22, 2018

Mackinac Straits Corridor Authority approves agreement to build multi-use tunnel, remove pipelines from bottom of Straits

A view of the Mackinac Bridge, crossing the Straits of Mackinac. Enbridge's 65-year-old Line 5 pipeline, which lies under the Straits, is destined to be replaced by a multi-use utility tunnel, according to a Dec. 19, 2018, agreement between the State of Michigan and Enbridge. (Keweenaw Now file photo)

From: Michigan Department of Natural Resources (DNR) Bulletin

ST. IGNACE, Mich. -- The Mackinac Straits Corridor Authority (MSCA) approved on Dec. 19, 2018, an agreement with Enbridge Energy Limited Partnership to build a multi-use utility tunnel beneath the Straits of Mackinac. The tunnel will house a replacement segment for the Line 5 pipeline that sits on the bottom of the Straits and other utilities.

In addition, the authority, which held its inaugural meeting in St. Ignace, approved the transfer of a property right that will allow Enbridge to construct the tunnel in bedrock beneath the Straits.

Gov. Rick Snyder and leaders of the departments of Natural Resources and Environmental Quality signed a separate agreement with Enbridge on Dec. 19. This Third Agreement carries forward provisions of two previous agreements with the company -- one in November 2017 and one in October 2018. The Third Agreement requires Enbridge to undertake an enhanced inspection and stewardship regimen. The agreement also includes interpretations of the 1953 easement for the dual pipelines on the bottom of the Straits, as well as ongoing financial assurance requirements for the pipelines.

The Line 5 pipelines would be removed from the bottom of the Straits once the tunnel is complete. The construction could take 7-10 years.

Visit the Michigan Petroleum Pipelines Web site to download these Dec. 19 agreements.

Click here to read the rest of this bulletin from the Michigan DNR.

See also the Dec. 20, 2018, updated article on mlive.com: "Gov. Snyder finalizes Line 5 tunnel deal."

See the recent post from Enbridge here.

Tuesday, December 18, 2018

Environmental, tribal groups oppose Enbridge-State agreement to construct tunnel in Mackinac Straits; 5-day comment period ends Dec. 18

By Michele Bourdieu

Today, Tuesday, Dec. 18, is the last day to submit comments (during a 5-day comment period) on proposed agreements related to a planned utility tunnel in the Straits of Mackinac. Construction of the tunnel could take 10 years while the aging Line 5 pipelines would remain under the Straits. Email or call in your comments as indicated above. (Photo courtesy Anishinaabek Camp - Shutdown Line 5 Facebook page)

LANSING, HOUGHTON -- On Thursday, Dec. 13, the State of Michigan released for public review and comment proposed agreements related to a planned multi-use utility tunnel in the Straits of Mackinac and the remaining life of Line 5 in the Straits. The documents are posted to the mipetroleumpipelines.com website. Public comment is being accepted through Tuesday, Dec. 18, and supplied to Gov. Rick Snyder, state departments and the Mackinac Straits Corridor Authority (MSCA) for consideration.*

Environmental groups are speaking out against this comment period of a mere 5 days following the legislature's hasty passing (during their lame-duck session) of outgoing Michigan Senator Tom Casperson's bill, SB 1197, for constructing a tunnel under the Straits of Mackinac to "protect" the aging Line 5 pipeline.

Last week that bill was passed on Dec. 11, and on Dec. 12 outgoing Governor Snyder signed it into Public Act 359. This law directs the MSCA to enter into an agreement with Enbridge Energy Corporation -- the company that owns and operates Line 5 -- for construction of the utility tunnel, provided the agreement meets certain conditions. Under the proposed agreement, Enbridge would pay for all design, construction, operation and maintenance costs for the tunnel. The law establishes a separate Straits Protection Fund to pay for the work of the MSCA, including independent experts to ensure proper construction and operation of the tunnel.

On Dec. 12, immediately after Gov. Snyder's signing PA 359, the Michigan League of Conservation Voters (Michigan LCV) issued this statement:

"After widespread opposition from Michigan citizens, businesses, experts and more, a backroom deal brokered by special interest groups to keep oil flowing through our Great Lakes was hastily jammed through the Legislature in the 11th hour," said Lisa Wozniak, executive director at Michigan LCV. "We are deeply disappointed Gov. Snyder approved legislation that will keep oil pumping through the damaged Line 5 Pipeline for another decade or more."

Wozniak added, "On Nov. 6, the people of Michigan made their position clear by electing candidates who pledged to keep oil pipelines out of our Great Lakes and protect our drinking water. We will continue to advocate, communicate and fight to protect our water and oppose oil pipelines in the Great Lakes as the new administration takes office."

On Dec. 15, the Upper Peninsula Environmental Coalition (UPEC) addressed comments on the Proposed Tunnel Agreement between MSCA and Enbridge Energy to the Michigan Department of Natural Resources (DNR) and the Pipeline Safety Advisory Board.

"The public notice for the Proposed Agreement was posted at 3:03 p.m. on December 13, 2018, with the public period ending on December 18, 2018, for a period of just over five days, including a weekend," UPEC states. "Such a limited public comment period for a proposal of this magnitude, presented in a legally dense document, with such significant potential impacts to the population of the State and beyond is an egregious abuse of power, and an obvious attempt to limit public review and input. The State should extend the public comment period for 60 days to allow adequate time for public review and comment. The manner in which this Proposed Agreement is being pushed through also ties the hands of the incoming Governor, and is an affront to Michigan voters and the democratic process."

UPEC also points out that a federal permit should be required for a project such as this tunnel under the Great Lakes.

"The U.S. Army Corps of Engineers has jurisdiction to require a permit for the proposed tunnel under the Straits, a federally designated navigable water, pursuant to Section 10 of the Rivers and Harbors Act of 1899," UPEC says. "The Agreement should explicitly reference that authority and the fact that a federal permit would need to be obtained for the construction and operation of the proposed tunnel. That federal permit review process would involve an opportunity for agency, private group, and public review and comment, as well as analysis under the National Environmental Policy Act, to potentially include preparation of an Environmental Impact Statement."

UPEC also challenges Article 11 on Indemnification, which states, "Enbridge will defend, indemnify, protect and hold harmless the Authority and the State of Michigan, and all of its officers, officials, agents, and employees, each in their capacities as such (Indemnitee) from and against (a) any Claim or Liability arising out of or in connection with the work done by Enbridge or its contractors under this Agreement, including without limitation, the design, construction, operation and maintenance of the Tunnel or the Line 5 Straits Replacement Segment, and (b) any Claim or Liability relating to the Tunnel arising out of or in connection  with the condition of state-owned lands beneath the Straits of Mackinac."

UPEC notes that "if the Authority, and by extension, the State is the lease holder and/or permittee or co-permittee of the Tunnel, an indemnity agreement cannot shield the State against an enforcement action of a federal permitting authority due to a catastrophic failure of Line 5, including a major spill of liquid hydrocarbon product into the Straits or other portions of the Great Lakes and its shorelines."

UPEC concludes, "The manner in which this Agreement and accompanying documents is being rushed through at the end of the Snyder Administration gives the undeniable impression that there is not a sincere desire to provide the public with a reasonable opportunity to be informed of the State’s and Enbridge’s intentions with respect to the Tunnel, nor to allow for a deliberative process that considers the potential impacts to the incomparable natural resources of the Straits of Mackinac and the Great Lakes ecosystem. This is especially true in consideration of Enbridge’s dismal track record of major pipeline spills, including in Michigan. This Agreement and the entire subject of the construction of a Tunnel under the Straits of Mackinac should be left to the incoming Whitmer Administration, in accordance with the clear expression of the voters of Michigan."**
 
Another environmental group, which has been calling for decommissioning Line 5 because of the danger of such a major oil spill, is Oil and Water Don't Mix.

Mary Pelton Cooper of Marquette, left, is pictured here with June Thaden of Traverse City at the 2017 Pipe Out Paddle protest against Line 5 in Mackinaw City. Both support the activist organization Oil and Water Don't Mix, which has been calling for the shutdown of Line 5 since 2013. (Keweenaw Now file photo)

Oil and Water Don't Mix has asked concerned citizens to sign, on their Web site, a new petition against the construction of this tunnel, saying, "There is no light at the end of Gov. Snyder’s proposed Line 5 oil pipeline tunnel under the Straits of Mackinac. Michigan doesn’t need Enbridge’s Line 5 or the oil it sends to southern Ontario. We don’t need to keep the Great Lakes at risk of a catastrophic oil pipeline rupture in the Straits while state officials spend years and taxpayer resources keeping an old oil pipeline running so a Canadian oil transport company can get a new pipeline built in Michigan to transport heavy tar sands oil. What we do need is a clear timetable to close Line 5 under the Straits of Mackinac and keep oil pipelines out of the Great Lakes!"

Their petition lists several objections to the tunnel (cited here in part):

-- Exposing Great Lakes to tar sands oil. "Line 5 does not currently transport heavy tar sands oil thanks to the State of Michigan’s 2015 ban. However, a new Canadian tunnel in the Straits is an invitation for Enbridge to seek to lift this ban and transport tar sands in Line 5."
 
-- Continuing to use the 65-year-old Line 5. "Since 1968, Line 5 has ruptured at least 29 times on land, spilling over 1.1 million gallons of oil into Michigan’s pristine lands and waters. Line 5 traverses 245 other water crossings, including ones that are tributaries of Lakes Michigan, Superior, and Huron. One Line 5 spill in the Upper Peninsula near Lake Michigan contaminated 825 tons of soil in the Hiawatha National Forest and exposed groundwater to potential contamination."

-- Ignoring the law and alternatives. "A Canadian tunnel under the Straits is not permissible under Michigan’s Great Lakes Submerged Lands Act (GLSLA), common law public trust doctrine, and would risk violating the 1836 Treaty and consent decree with Michigan Tribes protecting the Straits fishing grounds."

-- Opposing the public’s will, Michigan's 2002 directional oil and gas drilling ban. "Strongly supported by the public, the 2002 drilling ban was designed to prevent the very risk a Line 5 tunnel for Canada would present. In addition, May 2018 public polling results found 54 percent of Michigan voters want the Line 5 oil pipeline in the Straits of Mackinac to be shut down, and 87 percent of voters said they are concerned that the 65-year-old pipeline could have an oil spill in Northern Michigan, while 64 percent said they are 'very concerned.'"

-- Harming the Michigan economy, from tourism to fishing, during tunnel construction.

-- Promoting climate change by continued investment in fossil fuel infrastructure.***

Tribal Groups: Tunnel plan ignores treaty fishing rights

According to Nov. 2, 2018, article in Michigan's Bridge magazine, tribal groups complain that the Line 5 Tunnel ignores fishing rights guaranteed to them by an 1836 Treaty.

"While the Snyder administration formally met with tribes three times over the past year under a State-Tribal Accord, tribal leaders say these consultations were little more than an 'airing of grievances' for them," the article notes.

A jiiman (tribal canoe) participates in the Sept. 3, 2016, Pipe Out Paddle protest against Line 5 near the Mackinac Bridge. (Keweenaw Now file photo © and courtesy Miguel Levy)

"The last meeting between tribes and Gov. Rick Snyder was Sept. 27, less than a week before the state announced an agreement with Enbridge to pursue a $500 million tunnel for the company’s Line 5 pipeline. In other meetings, officials have been unwilling to share information from Enbridge or modify any agreements, tribes say."****

Jannan J. Cornstalk, citizen of the Little Traverse Bay Bands (LTBB) of Odawa Indians and organizer of the September 2016 Pipe Out Paddle Protest against Line 5, commented to Keweenaw Now this week on the importance of protecting the water.

"Our water is in a state of emergency on so many levels," she said. "From PFAs (per- and polyfluoroalkyl substances) to Flint and other areas around the world. We need water to live and I wish people would live their lives as if this knowledge were true. Water is sacred. As Anishinaabek we choose to co-exist with it and hope to have clean healthy water for generations. Shut down Line 5 before it's too late!"

During the 2016 Pipe Out Paddle protest, organizer Jannan Cornstalk, right, is pictured here with her daughter, Jannan Cotto, near the Mackinac Bridge. Both are from Petoskey, Mich., and citizens of the Little Traverse Bay Bands of Odawa Indians (LTBB). Cotto is also LTBB education director. (Keweenaw Now file photo)

Professor Martin Reinhardt of the Center for Native American Studies at Northern Michigan University also organized and participated in the protests against Line 5 at the Mackinac Bridge and offered these comments to Keweenaw Now:

"I have serious concerns about how Line 5 has impacted our responsibility, as Anishinaabe people, to protect our Mother earth and our fellow inhabitants. The United States has a legal and political obligation to protect our Aboriginal rights, and to uphold our treaty rights which guarantee our continued ability to hunt, fish, and gather as well as the other usual privileges of occupancy. I am also a citizen of the United States, and a US Army veteran. I believe that the US has great potential to help save our planet from the very serious threat of global warming, if we and other nations work together with traditional Indigenous knowledge holders to begin reversing the damage that we have inflicted through our continued reliance on petroleum products. Lastly, the people of the State of Michigan have a duty to stand up and stop this madness. We literally have a foreign company telling the Governor of our State to leave a dangerous oil pipeline in waters that are in desperate need of protection. So much for Pure Michigan! Shame on Governor Snyder and his cronies for jeopardizing the health of future generations."

Professor Martin Reinhardt of Northern Michigan University, second from right seated and drumming, joins drummers and singers during the 2017 Pipe Out Paddle protest against Line 5 near the Mackinac Bridge. (Keweenaw Now file photo)

The Anishinaabek have set up a camp for all Water  Protectors -- a place to gather in unity and solidarity with all Anishinaabek, to live in balance and harmony, to build a positive place to rest. They are opposed to the Line 5 attack on the Great Lakes and offer cultural classes. The camp is located at 2716 Reed Rd., Levering, MI 49755.****

Michigan Tech and Enbridge

Meanwhile, Michigan Technological University researchers, faculty and students have contributed their technological expertise to assist Enbridge by monitoring the lake environment in the Straits with one of their scientific buoys; directing a team of 41 experts to produce a worst-case-scenario, independent risk analysis on Line 5; and offering to both government and industry a preliminary, student-created design for the tunnel.

In August 2015 Michigan Tech's environmental monitoring buoy for the Straits of Mackinac was successfully deployed west of the Mackinac Bridge. The buoy uses sonar to measure the flow of the water beneath the buoy. It also measures wind direction and speed, wind gust speed, air temperature, relative humidity, barometric pressure, solar radiation, water temperature, wave height and direction.*****

Michigan Tech's monitoring buoy near the Mackinac Bridge. (File photo courtesy Guy Meadows, Great Lakes Research Center director)

During the past year, Michigan Tech's Guy Meadows, director of the Great Lakes Research Center (GLRC) led a team of 41 researchers -- 21 from Michigan Tech and 20 from other organizations and universities -- who conducted an independent risk analysis of the two aging Line 5 pipelines under the Straits in order to determine the potential environmental and economic impacts of a potential oil spill in the Straits. The draft report was submitted last July, and the final report, the "Independent Risk Analysis for the Straits Pipelines," was published on Sept. 15, 2018.

This Figure ES4 from the Executive Summary of the "Independent Risk Analysis for the Straits Pipelines," based on modeling, shows the Maximum Extent of Shoreline Oiling predicted for the Straits of Mackinac and Lake Michigan and Huron Regions as Associated with the Meteorological, Ice Cover and Water Current Conditions Observed for January. Results depicted above represent a total oiled shoreline  distance of 1146 km following an oil release date and time of 01/17/2016 at 1800 hrs from the northern pipeline release point and a total dispersal simulation time of 60 days. The red particles represent dispersed oil.******

On Friday, Dec. 14, the Michigan Tech Board of Trustees heard a presentation on a senior design project for an underwater utility corridor spanning the Straits of Mackinac. Michael Prast, Michigan Tech graduate student in civil engineering, who had presented the project to Michigan legislators and policymakers in Lansing last May, described the project to the Michigan Tech trustees. Here he talks about three of the four teams of students contributing to the projeect:

Michigan Tech graduate student Michael Prast describes, to the Michigan Tech Board of Trustees, several aspects of the senior design project for designing a tunnel under the Straits of Mackinac. Click on YouTube icon to watch video with larger screen. (Videos by Keweenaw Now)

This slide from the student presentation displays the students' design concept of the potential tunnel under the Straits. Click here and then on Mackinac Straits Tunnel Presentation to view the slides of the Power Point presentation. (Photo by Keweenaw Now)

Here Prast recounts his experiences presenting the project to officials in Lansing:

Prast updates the trustees on recent proposals (for the tunnel plans) by Gov. Snyder and Enbridge and describes reactions to the students' presentations in Lansing. Click on YouTube icon for larger screen.

Prast concludes his presentation and welcomes questions. Click on YouTube icon for larger screen.

Horst Schmidt, UPEC president, who attended the student presentation at the Board of Trustees meeting, said he thought Michael Prast's presentation was well done.

"However, the magnitude of the project is not just one of engineering," Schmidt added. "That he (Prast) admitted there are no recent studies of the geology of the Straits is disturbing. The law itself ignores many state and federal regulations. That Enbridge is given the authority to build the line with its poor record of compliance is unbelievable. Even the outgoing DEQ (Department of Environmental Quality) director has commented in the past upon not being able to trust the company. And as has happened in other recent legislation, the governor is hastily approving these laws before he leaves office."

Guy Meadows, GLRC director, who attended the presentation at the Board of Trustees meeting, had a positive reaction to the student project.

"They did a wonderful job," he said. "It's great to see how creative they were in their thinking and to have such a positive response from the State and Enbridge."

Meadows said the tunnel is not covered in his final "worst-case-scenario" risk analysis report (mentioned above).

"We received a positive response to the report from the general public and the State," he noted.

As for the tunnel, he said, "I think it's certainly a step forward."

Now that the risk analysis report is complete, Meadows said Michigan Tech is working on setting up High Frequency Radar (HFR) to monitor surface currents throughout the Straits all year round and 24/7. This will provide more monitoring since the environmental buoys are taken out of the water in the winter.

"This will be the first operational HFR in the State," he noted.

Notes:

* On Wednesday, Dec. 19, 2018, the new Mackinac Straits Corridor Authority will hold its inaugural meeting from 1 p.m. to 3 p.m. at the Little Bear Arena, 275 Marquette St., St. Ignace. The three-member authority is charged with overseeing construction and operation of a proposed multi-use utility tunnel beneath the Straits of Mackinac. The tunnel will house a replacement segment for the dual Line 5 petroleum pipeline in the Straits, and reportedly will be built to accommodate other utilities.

** Learn more about UPEC by visiting their Web site.
UPDATE: Click here for their Dec. 15, 2018, proposed letter on the tunnel agreement.

*** Click here to read the entire petition and sign it.

**** See "Michigan tribes say Line 5 pipeline tunnel plan ignores treaty rights." 
UPDATE: See the Dec. 14, 2018, Washington Post article on the Anishinaabek camp for water protectors, "A submerged oil pipeline triggers a winter of frigid protest."

***** See our Sept. 13, 2015, article, "Michigan Tech/Enbridge buoy deployed in Mackinac Straits; Gov. Snyder visits GLRC."

******  Click here for the Executive Summary of the final report, "Independent Risk Analysis for the Straits Pipelines."