Whitmer, DNR take action to shut down Line 5 after after a transition period

The state found that Enbridge has repeatedly violated the 1953 Easement and that the continued operation of the dual pipelines violates the state’s solemn duty to protect the Great Lakes under the public trust doctrine.
Published: Nov. 13, 2020 at 12:23 PM EST|Updated: Nov. 13, 2020 at 2:46 PM EST
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LANSING, Mich. (WLUC) - Friday, 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 requires Enbridge to cease operations of the dual pipelines in the Straits by May of 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% 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.”

TV6 reached out to Enbridge for comment, and Enbridge told TV6 that “Line 5 continues to operate safely and that there is no credible basis for terminating the 1953 Easement allowing the Dual Line 5 Pipelines to cross the Straits of Mackinac.”

Enbridge said it has received the notices and is reviewing the documents.

“This notice and the report from Michigan Department of Natural Resources are a distraction from the fundamental facts,” said Vern Yu, Executive Vice President and President, Liquids Pipelines. “Line 5 remains safe, as envisioned by the 1953 Easement, and as recently validated by our federal safety regulator. We will continue to focus on the safe operation of the dual Line 5 pipelines at the Straits of Mackinac, ensuring the Great Lakes are protected while also reliably delivering the energy that helps to fuel Michigan’s and the region’s economy."

In developing its report, the Michigan Department of Natural Resources (DNR) chose to conduct its assessment of Easement compliance in a non-public manner. The DNR rejected Enbridge’s offer to allow technical experts to discuss any questions or clarifications related to its review. This failure to engage reflects a lack of understanding or worse, a continued failure to meet the State’s commitments under the 2018 Second Agreement between the State of Michigan and Enbridge, which contemplates periodic meetings on pipeline issues to avoid just this kind of situation.

With today’s actions by the Governor and Attorney General based on historical Line 5 compliance, Enbridge finally will have an opportunity to review the DNR’s analysis and provide a more thorough response through the legal process.

Line 5 is an essential source of energy for not only Michigan but for the entire region including Wisconsin, Indiana, Ohio, Pennsylvania, Ontario, and Quebec. Any disruption would have devastating consequences, especially in the winter months.

Our focus remains on protecting the Great Lakes, the environment and all the people who use these waters while delivering energy that people rely on daily. Enbridge’s Line 5 has served Michiganders safely without incident at the Straits crossing for more than 65 years, over nine different State Administrations. We remain committed to advancing The Great Lakes Tunnel that will contain a new section of pipeline to replace the Dual Pipelines. Enbridge is currently seeking permit approval for the tunnel project and replacement pipeline which, upon completion, will make a safe Straits crossing even safer.

The state’s action 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, the governor’s office said.

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. 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. The dual pipelines are vulnerable to anchor strikes, similar dangerous impacts, and the inherent risks of pipeline operations.

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.

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.

Friday’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.

To view documents relating to the announcement, click the links below:

Michigan Attorney General Dana Nessel’s office, on behalf of Gov. Gretchen Whitmer and the Michigan Department of Natural Resources, filed the new complaint in Ingham County Circuit Court Friday, a shown in the documents above. 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.”

U.S. Senator Gary Peters (D-MI) released the following statement on this decision:

"There’s no question an oil spill in the Straits of Mackinac would have catastrophic and long-term consequences to the economic and environmental health of Michigan and the Great Lakes. Unfortunately here in Michigan, we already know from the Enbridge pipeline leak in the Kalamazoo River just how devastating and costly spills are to our state. Given the structural integrity and age concerns around Line 5 – particularly in recent years – and Enbridge’s failures and inability to be transparent with Michiganders, it’s clear that Line 5 poses too serious of a threat and must be removed in the coming months.

"In the coming weeks and months, I’ll be working with PHMSA and the State of Michigan to swiftly evaluate alternatives to Line 5 while continuing to hold Enbridge accountable. We must do everything possible to protect our Great Lakes and support the businesses that rely on them – and I’ll continue working to protect them for future generations.”

U.S. Representative Jack Bergman (R-MI) issued a statement on his Facebook page:

"Governor Whitmer’s announcement that she will unilaterally shut down Line 5 is not only bad governance, but it is a dangerous action for tens of thousands of Michiganders who rely on the propane transported through this pipeline for heat in the winter. This is just another example of Governor Whitmer ignoring the needs of the Upper Peninsula.

“I have supported the tunnel project since the beginning to ensure long-term, safe energy infrastructure for the Upper Peninsula and Northern Lower Michigan. However this purely political effort to shut down Line 5, without any energy plan in place, would be catastrophic for our First District communities.”

109th District State Representative Sara Cambensy (D-Marquette) released a statement in opposition to the governor’s and DNR’s decision, saying:

Earlier [Friday], Gov. Whitmer and Department of Natural Resources (DNR) Director Dan Eichinger announced that the state of Michigan would be revoking and terminating the 1953 easement which allowed Enbridge to operate the dual oil and gas Line 5 pipelines through the Straits of Mackinac. State Rep. Sara Cambensy (D-Marquette), a longtime advocate for the jobs and affordable energy costs Upper Peninsula residents enjoy as a result of the safe operation of these pipelines, sharply criticized the move for lacking any viable energy alternatives:

"Since when does Michigan turn its back on an industry that provides regional and bi-national energy security without having a solid plan to replace Line 5? The announcement rolled out from the Governor today lacks long-term planning, financial backing and legislative approval to even begin to make such a monumental shift away from this pipeline.

“The lack of leadership and carelessness from the Governor’s office in not understanding bi-national energy security protections granted in NAFTA, now the USMCA, that disallow any state to act independently to alter or cancel such easements before making a rogue move like this is truly astounding. I see this announcement today as nothing more than a political stunt that causes unnecessary hurt and worry for the residents and working class union men and women who keep our pipelines safe every single day in Northern Michigan.”

The Sault Tribe of Chippewa Indians also released a statement on the actions by the governor, attorney general, and DNR, applauding the decision:

“The Sault Tribe is enormously relieved that this ongoing threat to the health of the waters of Lake Michigan is ending,” Sault Tribe chairperson Aaron Payment said. “We have been asking the state of Michigan to take action on this matter for many years and today is a day to celebrate.”

The Sault Tribe first called on “any government” to take the necessary action to stop the flow of oil through Line 5 in a resolution dated February 2015. Since then, the tribe has pursued this through all legal channels, in hearing rooms and meeting rooms as well as at information gatherings, demonstrations and peaceful protests. Often led by women, these protests have informed the public about the importance of tribal lifeways and culture and the tribe’s values of respect for water, land and other beings.

“In our culture, women bear the responsibility for protecting the water, with men’s assistance,” Hessel area tribal board representative Catherine Hollowell said. “Our tribal fishing grounds are under direct threat of an imminent catastrophe from these aging pipes.”

Payment said, “Our tribal ogitchidaakwe (warrior women) have been persistent voices for stopping the oil before a disaster strikes, especially those on our tribal board of directors – both those currently seated and those who previously served. They’ve led the way to shut down Line 5. Therefore, it is particularly satisfying that the women leading the state of Michigan have taken this responsibility seriously and taken this action today.”

The Sault Tribe congratulates Governor Whitmer, Attorney General Nessel and the rest of the Michigan government for this historic and wise action, and looks forward to the day, 180 days from now, when we no longer have to worry about a breach in those pipes."

Bryan Newland, board member of the Chippewa Ottawa Resource Authority and chair of the Bay Mills Indian Community also released the following message in relation to Friday’s Line 5 developments:

"The Chippewa Ottawa Resource Authority strongly supports the decision by Governor Whitmer and the Department of Natural Resources to revoke and terminate the 1953 easement for Enbridge’s Line 5 through the Straits of Mackinac. In doing so, Michiganders will no longer have to live with the threat of a catastrophic oil spill in the Great Lakes.

"The Straits of Mackinac is a place of cultural significance for all Anishanaabe people and the fishing by tribal members there is a vital part of our economy and culture. We have a responsibility to protect our environment and this area for future generations. The decision to terminate the easement will protect our state’s environment, economy and drinking water, without the threat that Line 5 has imposed.

"We are thankful for the efforts and coordination of our state’s Native American tribes, allied organizations and grassroots organizers who have all come together in this cause, protecting our lakes and rivers that are vital to our daily lives.

"Enbridge has repeatedly failed to maintain this pipeline to the standards that protect Michiganders, with numerous occurrences of broken supports, dents and corrosion. The company’s same failure in managing pipeline issues led to the Kalamazoo River oil spill disaster in 2010. The Canadian-based company has proven it is unworthy of the state’s trust.

“CORA tribes will work with state and local officials to ensure adequate supplies of propane are available throughout the state after the line is closed. We believe this decision should also end Enbridge’s plan for a tunnel under the Straits for Line 5, a project with numerous questions including a negative impact on ancient archeological findings recently uncovered. We call on the state to take steps to deny further action on that project as well.”

Members of the Great Lakes Michigan Job Coalition offered comments on Friday’s announcements:

Shutting down Line 5 would hurt workers and it would hurt families," said Geno Alessandrini, business manager of the Michigan Laborers Union. “Labor and business, Republicans and Democrats, we all support the Great Lakes Tunnel because it creates and protects jobs and affordable energy.  Today’s move would kill jobs and increase fuel costs.  That’s the last thing Michigan needs as we work to overcome the coronavirus pandemic.”

Said Mike Alaimo, Director of Environmental and Energy Policy at the Michigan Chamber of Commerce: “Businesses and consumers across the state rely on the jobs, the fuel, and the affordable energy delivered by Line 5. Shutting down the pipeline would threaten them all.  Instead, let’s focus on a solution that works for everyone – building the Great Lakes Tunnel.”

“Michigan workers and members of the Michigan Pipe Trades rely on Line 5 and we’re counting on the Great Lakes Tunnel,” said Price Dobernick, President of the Michigan Pipe Trades Association.  “Shutting down Line 5 would hurt pipe fitters and would hurts our families.  Instead, let’s build the Tunnel.”

“Shutting down Line 5 would kill thousands of jobs in Michigan, severely impact manufacturing, and cost our economy hundreds of millions of dollars when the State is already reeling from a pandemic,” said Mike Johnston, Vice President of the Michigan Manufacturers Association.  “The DNR’s move is an affront to Enbridge, its customers and employees, which will dramatically increase the cost of heating homes in the UP and increase costs on industry in Michigan, when the company is taking unprecedented positive steps to fund and build a long-term solution – the Great Lakes Tunnel.  The unreasonable approach hinders positive progress for Michigan citizens and damages Michigan’s business climate.”

Said Amy Clickner, Chief Executive Officer of the Lake Superior Community Partnership in Marquette: “The Great Lakes Tunnel and Line 5 are essential to ensuring our families, homes and businesses safely get the energy they need.  This is not just an Upper Peninsula issue.  It is critical to the entire state.”

Said John Dulmes, Executive Director of the Michigan Chemistry Council: “Line 5 safely supplies our state with essential raw materials, including energy and ingredients for products everyone uses in their daily lives.  We support Line 5 and the Great Lakes Tunnel because they support the more than 80,000 jobs in Michigan’s business of chemistry, and those workers matter. Today’s announcement jeopardizes our economy and those jobs.”

“Winter is coming, and this is just another strike against small businesses in the Upper Peninsula that are already on the ropes from the Covid-19 pandemic,” said Charlie Owens, State Director for the National Federation of Independent Business. “The closure of Line 5 would have an immediate and crippling effect on the state’s economy as prices skyrocket and small business would be among the first to suffer the consequences of such a short-sighted action.”

Said Mark Griffin, President of the Michigan Petroleum Association and Michigan Association of Convenience Stores: “We find this latest action by the Administration to be disappointing, misguided, and devastating for the thousands of men and women who rely on Line 5 for their jobs. In the end, we knew there would be further court action.  Sadly, court action not only wastes the States resources, but potentially puts the economic well being of the people of Michigan and the Great Lakes region at risk.”

The coalition has also submitted to Michigan regulators nearly 5,000 individual public comment cards and petition signatures from individuals who support construction of the Great Lakes Tunnel.

This story will be updated as more information is released.

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