Last week I wrote about Enbridge’s “fact sheet” about their Line 5, which threatens to destroy the Great Lakes. The Great Lakes are a major source of drinking water, both tap and bottled. But what happens to that drinking water if Line 5 breaks and spills a few million gallons of light crude oil?
The company has had newer pipelines rupture under terra firma, creating horrible but localized devastation. But if Line 5 breaks at any point under the Mackinac straits, it will cause a tremendous disaster over such a broad area that it will make the Flint water disaster look like a minor misunderstanding. And just like Flint, a Line 5 spill would be something that should have been prevented before it could happen.
I became aware of the “fact sheet” because Enbridge has ads on TV. I took the “fact sheet” at face value, assuming it to omit unfavorable facts but not distort any facts it does present. Well, at least one of the fact sheet “facts” deserves much closer scrutiny than I gave it last week.
FACT: Enbridge voluntarily signed a series of three agreements with the State of Michigan, culminating in a commitment to build the tunnel to house a replacement segment of Line 5 at the Straits. The validity of these agreements has been affirmed through a Court of Claims decision.
Of course that conveniently leaves out the fact that those agreements were made with Governor Rick Snyder (R, Michigan, 2011 — 2018). That Rick Snyder, the one that bears great moral responsibility for what happened in Flint, and also the one who might still escape accountability in the courts. Anything involving Rick Snyder and water needs to scrutinized very seriously.
On the other hand, an incoming governor can’t just undo her predecessor’s agreements with other states and nations. As candidates, both Governor Gretchen Whitmer (D-Michigan) and Attorney General Dana Nessel (D-Michigan) promised they would shut down Line 5 on Day 1 (January 1, 2019).
The agreements Snyder made tied their hands, and now the deadline is May 21 of this year. Pray to God nothing bad happens before then. But of course Enbridge executives care more about their profits today than they care about consequences tomorrow. They don’t want to ever shut down Line 5.
And thanks to their agreements with the former governor, they feel they will never have to. Jim Olson, founder of For the Love of Water (FLOW) wrote an article that really puts those agreements into the proper legal perspective.
It’s not surprising that Enbridge, a foreign corporation operating in the United States for its own advantage, has a history of disdain for the rule of law. (Enbridge said on January 12 that it won’t comply with Michigan Governor Gretchen Whitmer’s Line 5 easement revocation, and plans to continue operating the pipelines.)
Look at the slippery manipulation of rules by the same corporation that caused the Line 6b disaster along the Kalamazoo River in 2010. Look at Enbridge’s repeated resistance to turning over information to the Attorney General of Michigan from 2014 until today. The corporation sat on information it had about the strong currents scouring under the existing dual pipelines in the Straits of Mackinac and the addition of band-aid support structures over the past 15 years. The corporation dragged its feet on reporting the first anchor strike in 2018, and claimed it would never happen — and then it became public knowledge that it happened again when early last summer Ingham County Circuit Court Judge James Jamo ordered Enbridge to turn over information and reports that confirmed that fact that two more dangerous anchor strikes and a cable dragged along the Line 5 pipelines.
No responsible official would wait for the next strike or next band-aid to prop up a sagging pipeline. Under the state’s solemn duty to protect the Great Lakes and its citizens before serious harm occurs, Governor Whitmer and DNR Director Dan Eichinger, after a thorough 15-month review of information—including strong currents, failing pipelines from scouring and support structures that suspend the pipeline four feet into the water column, sitting in wait —had no choice but to issue the Notice of Revocation and Termination of the 1953 Easement for the existing pipelines.
What’s an easement? According to Black’s Law Dictionary, an easement is a right a property owner grants to someone else to use their property for a special purpose that is not inconsistent with the property owner’s rights of ownership.
So, if I’m understanding this correctly, the property owner may revoke an easement if they decide that the special purpose is not consistent with their ownership rights. Like, if I let you run a cable through my backyard for a few years, I could one day decide I will no longer allow you to run the cable through my backyard and you must take your cable out of my property.
It’s not the best analogy, it’s of course a lot more complicated with Line 5. But Michigan voters have made it clear, by electing Gov. Whitmer, that they want the Line 5 easement revoked. Since she represents the owners of the Mackinac Straits, Gov. Whitmer has the right to revoke the easement.
Similarly, Attorney General Nessel had no choice but to file a lawsuit in Ingham County Circuit Court to enforce the revocation and terminate Enbridge’s gamble that it can extract over $1 million a day at the risk of a major rupture or leak that according to experts would cause over $6 billion in damages and devastate the State’s economy for many years. ...
Under the U.S. Constitution and law of the U.S. Supreme Court and our own Supreme Court, Michigan took absolute title and sovereign control of the waters and bottomlands of the Great Lakes into a legally enforceable public trust on admission to statehood in 1837. Under public trust law, the state and its officials are trustees, ..., and are charged with a solemn duty to prevent impairment, alienation, and subordination of this public trust, including attempts by private corporations to control it. This public trust protects the rights of citizens, communities, and property owners along the Great Lakes and our inland waters for fishing, boating, navigation, drinking water, sustenance, health, swimming, and other recreation. These rights and these public trust lands and waters are paramount to any private rights.
When Michigan took title in trust, all the United States government reserved for the nation was a navigational servitude ... But the United States and Congress did not reserve the power to pass laws that erase, interfere with, or subordinate the State’s public trust duties and the rights of citizens as legal beneficiaries. If the federal government can’t interfere with the State’s paramount public trust, certainly no foreign corporation can do so.
Yet, Enbridge sent a 7-page letter this week to Governor Whitmer and our state officials falsely stating that the State has no legal authority over the existing pipeline, and that the corporation and its officials refuse to comply with the Notice of Revocation and, presumably, any state court order that would enforce the revocation and shutdown this dangerous line. Enbridge also claimed that its lame-duck agreement with the Snyder Administration in late 2018 gives it the right to locate a tunnel and new tunnel pipeline under the Straits in these public trust bottomlands and waters and the right to continue the existing line until it gets its tunnel.
No wonder that’s not mentioned in Enbridge’s “fact sheet.”
As it turns out, the easements and 99-year lease for the tunnel deal haven’t been authorized under public trust law either. When the 2018 tunnel deal is examined closely, it reveals that Enbridge thumbed its nose at the rule of law and never obtained approval for these conveyances and use agreements under the Great Lakes Submerged Lands Act and the law that authorizes utility easements on public trust bottomlands.
When will Enbridge stop flaunting the law and stop trying to use its big buck advertising, political, and legal muscle? Since when did Enbridge become the trustee for Michigan’s Great Lakes? The public trust doctrine is perpetual, and when a use like the Enbridge 1953 dual lines in the Straits is no longer compatible with the protection of the public trust and rights of citizens, the state can revoke the use. Enbridge’s attempt to remove the State’s necessary and prudent actions to protect the public trust in the waters and bottomlands of the Great Lakes that it holds for citizens doesn’t float because it’s full of holes.
If the U.S. Congress can’t pass laws that take over or interfere with the absolute public trust rights and title of the Great Lakes in the States, surely a foreign corporation cannot expect to, no matter how much money and power it uses to back up such defiance. And those of us who live in the Great Lakes Basin—40 million of us—won’t let this defiance destroy the rule of law of our State. Thankfully, Governor Whitmer, Director Eichinger, and Attorney General Nessel know this, and rather than look the other way, have the courage to stop it under the rule of law.
Just in case anyone thinks I’m being overly alarmist about this, consider the worst case scenario simulations conducted by experts. Beth LeBlanc reported for the Detroit News in 2018:
A worst-case scenario spill from the Enbridge Energy Line 5 pipeline through the Straits of Mackinac would affect more than 400 miles of shoreline in Michigan, Wisconsin and Canada, according to a state-ordered risk analysis.
Such a spill would release 32,000 to 58,000 barrels of crude oil into the Great Lakes and put 47 wildlife species and 60,000 acres of habitat at risk, according to Michigan Technological University researchers.
Clean-up, liability and restoration costs related to such a spill would add up to nearly $1.9 billion, according to the analysis of 4,300 spill simulations by Guy Meadows, director of Michigan Tech’s Great Lakes Research Center, and 41 experts.
Hmm… so if Enbridge makes $1 million a day from the line, that would mean $365 million a year. So $1.9 billion would erase more than five years’ worth of profits. But Olson’s estimate is $6 billion, roughly fifteen years’ worth of profits.
I think it would go way past $6 billion, to at least $1 trillion. And I don’t think Enbridge can afford that, and I don’t even have confidence they would pony up the $1.9 billion. But I don’t want to ever be proven right or wrong on this, I want it to never happen at all.
The 396-page draft analysis released Thursday [July 19, 2018] studied a worst-case scenario in which both Line 5 pipelines ruptured at the same time primary and secondary safety valves failed. The study looked at "events with low probabilities of occurrence but high consequences," according to the Michigan Department of Environmental Quality.
Both pipelines break at the same time and all the safety valves fail at the same time? That would never happen. At least that’s what they say before it actually happens. Just do a little research on the Deepwater Horizon disaster of 2010 that killed a dozen BP workers and contaminated the Gulf of Mexico with millions of barrels of oil.
I accept without dispute Enbridge’s argument that shutting down Line 5 would cause major disruptions. But I believe that the serious short-term pain of that would be insignificant compared to the devastation that would ensue from the destruction of the Great Lakes.
If you haven’t done so already, please sign FLOW’s petition asking President Biden to support the Line 5 shutdown.