Next week, Michigan officials plan to publicly release a highly anticipated draft report about potential alternative routes for an aging oil and gas pipeline in the Straits of Mackinac between Lakes Michigan and Huron.
It’s another milestone in a process that officially began three years ago when state officials formed a task force to develop an action plan on Enbridge’s Line 5 which, until then, faced relatively little public scrutiny. The process has also been a collective reaction to Enbridge’s 2010 oil spill in Kalamazoo, the largest inland oil spill in U.S. history.
Following two years of stakeholder meetings, advisory groups and other studies, next week’s report, paid for by Enbridge, will likely influence how top-level state officials move forward with the pipeline. There will be a 45-day public comment period on the draft report, and a final report is expected in the fall.
Clean energy advocates hope the report will show that alternative routes exist to move oil and gas to refineries in southeast Michigan and Ontario, Canada, prompting state officials to begin decommissioning the 4.6-mile portion of the pipeline in the Great Lakes.
But advocates also see the multi-year report process as a delay tactic to keep the pipeline operating through the administration of Gov. Rick Snyder. Up until last week, there was to be a second independent study focused on the economic risks of Line 5 rupturing. The contract for that report was terminated after the state found a conflict-of-interest with one of the employees at the firms doing the report. It’s unclear whether that independent report will be revived.
“This conflict-of-interest is threatening to further postpone any meaningful decision-making that will protect the Great Lakes,” said environmental lawyer Liz Kirkwood, executive director of the organization For Love of Water (FLOW).
“I’d say the operative word is ‘uncertainty,’ for a variety of reasons,” added David Holtz, chairman of the Michigan chapter of the Sierra Club. “We’ve been going through this process and awaiting these studies with no guarantee from the state that they’ll actually do anything with it. There is no legal structure or real process you can hang your hat on with these studies. It’s going to entirely be up to Rick Snyder and (Attorney General) Bill Schuette whether to even follow through on anything submitted.”
Holtz and other advocates also question the forthcoming report’s integrity.
“In addition to delaying any action, with so much of the studies being done by oil industry firms, there really is a lot of expectation that what we’re going to get is the oil industry’s version of what we should do to protect the Great Lakes,” Holtz said.
When asked how the forthcoming study will affect Enbridge’s plans for the line, Enbridge spokesperson Ryan Duffy said: “Enbridge has supported this public process and the drafting of the report from the beginning. We look forward to engaging in the process as it moves forward and a respectful dialogue about the need for Line 5 in the Straits and our commitment to its on-going safe operation.”
In the ‘public trust’
The Sierra Club and dozens of other groups, municipalities and businesses are part of the Oil & Water Don’t Mix coalition pushing for the closure of Line 5. The coalition has steadily grown over the past few years, echoing what public polling has shown is increasing opposition to the pipeline.
Coalition members and attorneys at FLOW argue that Enbridge has continuously violated an easement agreement with the state over multiple issues, including by concealing information about corrosion and failing to adhere to federal and state emergency spill response laws. Kirkwood also points to anchor support violations lodged against the pipeline in 2014 and 2016.
“The state of Michigan has had numerous opportunities to enforce legal violations related to Enbridge occupying the lakebed with its pipelines,” Kirkwood said.
The state takes a different position, maintaining that it’s premature to pursue a legal case.
FLOW also says the state is required to limit the public’s risk from the pipeline under the public trust doctrine, the “principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public’s use.”
The doctrine was first invoked by the U.S. Supreme Court in 1892 involving the Illinois legislature giving a deed to the Chicago waterfront to a railroad company. Under the doctrine, Kirkwood said, the state can’t abdicate its duty to protect the Great Lakes “no more than it can abdicate its police powers.”
“There is sufficient information at this point for the state of Michigan to investigate and enforce (the law) and ultimately decommission the pipeline,” she said.
The Snyder administration and Schuette say they will not make any decisions on the pipeline until the study and public input process is complete.
“The information in the Line 5 pipeline alternatives report will be key in deciding how to move forward regarding Line 5,” said Snyder spokesperson Anna Heaton. “We also encourage all Michiganders to express their views on the draft report because it’s important that the report is as comprehensive and accurate as possible and they all have a voice in the process.”
Schuette spokesperson Andrea Bitely said the alternatives study “will be one of the key pieces of information for the attorney general to move forward on developing a timeline for something to happen with Line 5 or to not happen with Line 5.”
However, Schuette said publicly in July 2015 that the pipeline’s “days are numbered,” leaving advocates wondering why he hasn’t taken a more direct course of action. Political observers speculate that Schuette’s expected run for governor next year is a factor, and the pipeline studies give him political cover to delay action.
Republican state Sen. Tom Casperson, who represents counties across the Upper Peninsula, also said he is waiting for the alternatives study — which he called “critical” — before saying whether Line 5 should be shut down. Casperson said pipeline opponents are being too “emotional,” and not considering the economic impacts of closing the pipeline.
Among other things, he said the Upper Peninsula could suffer if the pipeline is shut down since it could interrupt the peninsula’s supply of propane. Advocates have disputed this claim. Casperson also pointed to recent pressure tests on the pipeline that did not indicate any problems.
“I’ve said it all along: If they find a problem with it and need to shut it down, we should be working on alternatives if they’re viable,” Casperson said.
He is also critical of advocates who have said alternative routes exist but can’t guarantee the company would be able to get permits for those routes.
“The alternatives need to be looked at, but I think it’s very unfair if people just run around saying there are alternatives for rerouting or new pipelines to go around it if they don’t produce a permit in the process,” he said.
However, that sentiment is not shared by all Republicans in the legislature or in Congress. There has been bipartisan support at the state and federal level for decommissioning Line 5, and for a variety of bills to tighten oversight of Great Lakes pipelines.
State Sen. Rick Jones, a Republican from mid-Michigan, has sponsored legislation in the past two sessions that would require decommissioning Line 5 if it poses too great a risk. And Jones says flatly that he thinks Line 5 should be shutdown, a position rooted in Enbridge’s 2010 pipeline spill in Kalamazoo, which forced his mother-in-law to sell her home to Enbridge.
“The (Mackinac) pipelines should be shut down, period, and no pipelines carrying oil should ever be put under the Great Lakes again,” Jones said. “Most of the oil goes to Sarnia (Ontario) anyway and is simply taking a shortcut through the state of Michigan and the Straits, the most dangerous place you can put an oil pipeline.”
Jones said Line 5 should at most be kept open until an alternative route is found. He again introduced legislation on March 30 to decommission Line 5. However, it has sat dormant in the Senate Committee on Natural Resources — which is chaired by Casperson.
“We all know it’s not a matter of if the pipeline is going to break, it’s when,” he said. “It’s going to happen sooner or later.”