In a Move that SBAM Opposes, Gov Moves To Revoke Line 5 Easement, Pipelines Would Close In May 2021
November 17, 2020
SBAM supports the 2018 tunnel agreement as the best solution to ensure uninterrupted and affordable energy supply under the Straits of Mackinac; we also oppose undoing properly enacted legislation through the use of legal technicalities by the executive and judicial branches.
Gov. Gretchen Whitmer Friday notified Enbridge that the 1953 easement allowing it to operate the dual Line 5 pipelines in the Straits of Mackinac is being revoked and terminated.
The notice requires Enbridge to cease operations of the dual pipelines by May 2021, allowing for an orderly transition that protects Michigan’s energy needs over the coming months, according to Whitmer’s office Friday. The state is also calling for Enbridge to “permanently decommission” the pipelines.
Whitmer said the state is revoking the easement for violation of the public trust doctrine, given what she said was the unreasonable risk that continued operation of the dual pipelines poses to the Great Lakes. The termination is also “based on persistent and incurable violations of the easement’s terms and conditions.”
Michigan Department of Natural Resources (DNR) Director Dan Eichinger said that “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.”
The state found that the 1953 easement violated the public trust doctrine from its inception, according to Whitmer’s office, because the easement does not make the necessary public trust findings.
“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 governor’s office said. “The dual pipelines are vulnerable to anchor strikes, similar dangerous impacts, and the inherent risks of pipeline operations.”
The state said Enbridge’s easement requires the company to exercise due care in operating the pipelines and to satisfy numerous specific conditions. But Whitmer’s office said Enbridge “has failed for decades to meet these obligations under the easement, and these failures persist and cannot be cured.”
Enbridge spokesperson Ryan Duffy said Friday the company “remains confident 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.”
Duffy said the pipelines are “an essential source of energy for not only Michigan but for the entire region” and that “any disruption would have devastating consequences, especially in the winter months.”
He also said the DNR conducted its review of Enbridge’s easement compliance “in a non-public manner” by rejecting the company’s “offer to allow technical experts to discuss any questions or clarifications related to its review.”
The company said “this failure to engage reflects a lack of understanding or worse, a continued failure to meet the State’s commitments under” a 2018 agreement struck between the state and Enbridge that “contemplates periodic meetings on pipeline issues to avoid just this kind of situation.”
The governor’s office said action Friday to revoke and terminate the 1953 easement for Line 5 does not prevent Enbridge from continuing to seek legal approvals to construct a tunnel, which is pending before the Michigan Department of Environment, Great Lakes, and Energy and Michigan Public Service Commission for various regulatory approvals.
The governor also announced the filing of a lawsuit asking the Ingham County Circuit Court to recognize the validity of the move to terminate the easement.
Attorney General Dana Nessel’s office said 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.
In the suit, Nessel’s office argues that Enbridge “publicly” maintains that the 1953 easement is lawful, doesn’t violate the public trust doctrine, and that they’ve complied with the terms of easement, and that a 2018 deal between Michigan and Enbridge allows the company to operate the existing Line 5 until it’s replaced by the proposed tunnel project.
“Therefore, actual controversies between the Parties exist on those subjects, warranting declaratory judgment,” Nessel’s office said in the filing.
Environmental groups cheered Whitmer’s decision, including Oil & Water Don’t Mix, National Wildlife Federation (NWF), Clean Water Action (CWA), For Love of Water, Michigan Climate Action Network, Michigan League of Conservation Voters and the Michigan Environmental Council, many of whom have called for a revocation of the easement and also for opposing the Line 5 replacement pipe Enbridge wants in its proposed underground Straits of Mackinac tunnel.
The NWF called the governor’s action “a historic win for the Great Lakes, wildlife, and climate action.” The CWA said that “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.”
Others who reacted favorably to Whitmer’s move Friday include U.S. Sen. Gary Peters (D-Bloomfield Twp.), Sen. Jeff Irwin (D-Ann Arbor), Progress Michigan and the Chippewa Ottawa Resource Authority.
But the Consumer Energy Alliance said the move to revoke the easement is “not only irresponsible, reckless and purely political, it puts millions of families and the economies of Midwestern states at risk in the middle of a pandemic for absolutely no reason.”
The Great Lakes Michigan Jobs Coalition – a group of both business and labor interests that back Line 5 and the proposed tunnel – said Friday that shutting down Line 5 would “kill Michigan jobs and send fuel costs skyrocketing for homeowners, workers and employers.”
Included in the coalition’s press release were statements from the Michigan Laborers Union, Michigan Chamber of Commerce, Michigan Pipe Trades Association, Michigan Manufacturers Association, Michigan Chemistry Council, National Federation of Independent Business, Michigan Petroleum Association and the Michigan Association of Convenience Stores.
Separately, Michigan Chamber President and CEO Rich Studley responded to the news on Twitter by saying the move would cause “a propane shortage for Upper Peninsula homeowners; lost jobs for construction workers; less revenue for local governments across northern Michigan and the UP; higher gas prices for motorists; and years of costly & uncertain legal expenses for state govt.”
Sen. Jim Stamas (R-Midland) said Friday if Whitmer prevails in getting Line 5 shut down, “she will not only freeze Northern Michigan homeowners and workers, she will also freeze our entire state economy and millions of struggling families and small businesses throughout Michigan.”
Read SBAM’s Position on Line 5