By Jim Bloch
A coalition of parties recently challenged the permit granted to Enbridge, the giant Alberta-based oil and gas transportation company, by the Michigan Public Service Commission to build a tunnel under the Straits of Mackinac to house the firm’s controversial Line 5.
The MPSC approved the permit in December 2023.
The parties in the appeal included environmental groups, tribes and individuals, consolidating eight individual cases. The court heard the appeal on Jan. 14.
On Feb. 19, the court issued its decision, siding with Enbridge.
The environmental group For the Love of Water summarized the appellants’ arguments and the court’s decision in a post on its website Feb. 20.
The MPSC made mistakes by “limiting its review to the public need for the replacement segment rather than the entire Line 5 pipeline; using improper comparisons in its Michigan Environmental Protection Act analysis; and inadequately analyzing greenhouse gas emissions.”
FLOW argued that “Michigan has sovereign public trust responsibilities that cannot be waived legislatively through the delegation of a public policy decision to an agency.”
The three judges – Presiding Judge Michael J. Kelly, Judge Anica Letica and Judge Randy J. Wallace — saw things differently. They ruled that the “MPSC properly limited its review to the Replacement Project, as the application concerned only that specific segment. The need for the entire Line 5 had been previously established.”
The court said that MPSC’s interpretation of requirements of Michigan Environmental Protection Act was sufficient.
“While the court noted some inconsistencies in comparisons (e.g., comparing rail alternatives for the entire line but not the existing pipeline), it concluded that the MPSC ultimately considered all presented alternatives and that its decision was supported by the
record,” said FLOW in its summary. “Because the MPSC has only the authority created in it by the Legislature, it has no duty to consider the public trust in its decisions.”
The 645-mile Line 5 runs across Wisconsin into the Upper Peninsula in a 30-inch pipe. Just west of the Mackinac Bridge, the pipe splits into two 20-inch lines that run 4.5 miles along the bottom of the Straits. It recombines into a 30-inch line and runs through the Lower Peninsula to Marysville and under the St. Clair River to Sarnia’s Chemical Valley. 540,000 barrels of light crude, light synthetic crude and natural gas liquids flow through the line each day, according to Enbridge. The natural gas liquids are refined into propane.
“Line 5 supplies 65 percent of propane demand in the Upper Peninsula and 55 percent of Michigan’s statewide propane needs,” according to Enbridge.
Ryan Duffy, a spokesperson for the firm, praised the court’s decision in comments to the Associated Press, saying the tunnel will make an already safe pipeline safer.
Opponents of the line fear a spill in the straits. The currents in the Straits frequently switch directions, magnifying the consequences of a spill. In 2016, David Schwab, a hydrologist at the University of Michigan, estimated that a leak in the Straits could pollute more than 600 miles of coastline in Lake Michigan and Lake Huron and affect several islands, including Beaver, Bois Blanc and Mackinac.
The Michigan Climate Action Network was one of the parties in the appeal. MICAN’s director, Denise Keele, pointed out that Enbridge was responsible for the one of largest inland spills of oil in U.S. history when Line 6B ruptured in Talmadge Creek, dumping more than a million gallons of oil into a 40-mile stretch of the Kalamazoo River in 2010. She said Line 5 itself has failed 33 times, spilling more than a million gallons of oil into the environment.
Attorneys for the appellants are weighing the court’s decision. FLOW said it would likely appeal the court’s decision.
“Our legal representatives at the Environmental Law & Policy Center are reviewing the court decision and considering next steps,” said Amanda Robert, network manager for MICAN in a statement. “The U.S. Army Corps of Engineers is considering Line 5 for expedited approval under a new federal Energy Emergency Executive Order. This could limit public input and bypass critical environmental review, putting the Great Lakes at greater risk.”
Jim Bloch is a freelance writer based in St. Clair, Michigan. Contact him at bloch.jim@gmail.com.
