Article courtesy of MIRS for SBAM’s Lansing Watchdog newsletter
The Michigan Supreme Court did not stop the Line 5 tunnel project, but it did hold Friday that state regulators need to conduct a more comprehensive environmental review.
The court sent the matter back to the Michigan Public Service Commission (MPSC) for additional consideration of how the proposed tunnel and the resulting extension of Line 5’s lifespan could affect the Great Lakes and other resources protected under the public trust doctrine.
The decision represents another potential delay for Enbridge Energy’s nearly decade-long effort to replace the section of Line 5 that crosses the Straits of Mackinac with a pipeline housed inside a tunnel beneath the lakebed. However, the court did not grant opponents’ request to overturn the MPSC’s Dec. 1, 2023, approval of the project.
Ryan Duffy, a spokesperson for Enbridge Energy, said the Canadian-based company disagrees with the court’s ruling and is “disappointed” by yet another delay for a project that has been under review for nearly a decade.
“Placing Line 5 in a tunnel deep below the lakebed at the Straits would make an already safe pipeline even safer,” he said. “Enbridge continues to review the opinion and assess our legal options, but one thing remains unchanged: We are fully committed to the safe and responsible operation of Line 5, incorporating enhanced safety measures in the Straits and continuing to safeguard Michigan’s natural resources now and for future generations.”
The court’s opinion from Justice Elizabeth Welch found the Michigan Public Service Commission failed to consider the impacts on Michigan’s public trust resources, including the Great Lakes and the public’s rights to use them for navigation, fishing and recreation.
“We conclude that the (MPSC) erred by not examining whether the replacement project would be the proximate cause of further environmental harms by extending Line 5’s lifespan,” wrote Welch, the former president of the Michigan League for Conservation Voters, a left-of-center environmental group.
Prior to Friday’s ruling, lower courts and the MPSC concluded consideration of the public trust doctrine belonged to other state agencies, but the Supreme Court disagreed.
Justice Brian Zahra, the court’s lone Republican nominee, agreed that the case should return to the MPSC for additional findings related to the issue of public trust doctrine, but he dissented from the rest of the majority’s opinion.
Zahra held that the MPSC’s expertise should have been given some deference rather than the court micromanaging, and he believed the majority’s expanded scope of analysis under the Michigan Environmental Protection Act (MEPA) is “poorly reasoned and illogical; worse yet, it creates a moral hazard.”
Michigan’s tribes and Earthjustice as well as the Traverse City-based environmental group For Love of Water, now called Flow Water Advocates, asked the court to vacate the MPSC’s Dec. 1, 2023, order approving Enbridge’s permit and allow them to submit additional evidence so the MPSC can make a fuller analysis of the risks under the MEPA.
The National Wildlife Federation said Friday’s ruling shows the proper care, concern and prudence needed to protect the Great Lakes.
“The Michigan Supreme Court has affirmed what we knew all along: the Line 5 tunnel cannot bypass the scrutiny that our Great Lakes deserve,” said Beth Wallace, Great Lakes climate and energy director for the National Wildlife Federation. “We are grateful to the court for upholding the rule of law, but we also need permanent reforms from Michigan’s elected leaders to protect our wildlife, water, and region from corporate greed.”
Earlier this month, Enbridge secured its last state-level permits.
Meanwhile, Gov. Gretchen Whitmer took to social media Friday to criticize the federal government’s latest court filing siding with Enbridge. In the filing, the government said Michigan doesn’t have a say in whether the pipeline runs through the Great Lakes, Whitmer said.
“My response? Hell no,” she said. “The pipeline is a ticking time bomb. And in the past, Enbridge caused millions of gallons of crude oil to dump into the Kalamazoo River, creating the worst inland oil spill in U.S. history.”
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