Lansing — A state regulatory body that took years to review the environmental effects of an oil pipeline tunnel under the Straits of Mackinac must go back to the drawing board under a Friday order issued by the Michigan Supreme Court.
The Supreme Court’s 6-1 decision found the Michigan Public Service Commission, while examining the environmental effects of tunnel construction, failed to consider how the continued operation of the controversial Line 5 oil pipeline and the accompanying continued consumption of hydrocarbons would impact the environment. The MPSC also failed to consistently examine potential alternatives and failed to take into account effects on public trust resources, the high court found.
The decision is likely to delay tunnel construction for years more. In the meantime, Enbridge’s 73-year-old twin oil pipelines sitting on the bottomlands of the Straits of Mackinac will continue transferring oil at the nexus of Lakes Huron and Michigan. Separate court efforts to shut down the existing line have failed.
“We conclude that the PSC erred by not examining whether the replacement project would be the proximate cause of further environmental harms by extending Line 5’s lifespan,” Justice Elizabeth Welch, a Democratic-nominated justice, wrote in the majority opinion. Welch is the former president of the Michigan League for Conservation Voters, a left-of-center environmental group.
State regulators failed to “determine whether the replacement project would ‘pollute, impair, or destroy’ the public trust,” Welch wrote in the ruling, issued on the last day of the court’s term.
Prior to Friday’s ruling, lower courts had found the MPSC had little authority to examine impacts on the public trust because it was an issue of common law and the regulatory body was a creature of the Legislature, which is largely superseded by common law.
That was an error, Welch wrote.
“On remand, the PSC must determine the replacement project’s effects on the public trust pursuant to the common-law principles discussed in this opinion.”
Justice Brian Zahra, the court’s only Republican-nominated justice, wrote in a dissent that the Michigan Public Service Commission’s expertise should be given some deference, not micromanagement, by the court. He also disagreed that the continued operation of Line 5, in and of itself, is an “adverse environmental effect fo the replacement project.”
“This conclusion is poorly reasoned and illogical; worse yet, it creates a moral hazard,” Zahra wrote.
The state court fight is one of several legal battles that Enbridge is engaged in at the state and federal levels over the future of the dual pipeline. Court decisions, so far, have allowed for the continued operation of Line 5 where it currently sits on the underwater bottomlands of the Straits of Mackinac.
The Michigan Public Service Commission in December 2023 ruled that the relocation of Enbridge Energy’s Line 5 oil pipeline from the lakebed of the Straits of Mackinac to a yet-to-be-constructed tunnel beneath the lakebed was the “best option” to improve safety while still securing the “public need” for fossil fuels.
The groups challenging the approvals ― several Native American tribes and the environmental group For Love of Water ― have argued that the commission should have done a more comprehensive environmental review under the Michigan Environmental Protection Act and public trust doctrine. That review, they argued, should have included the environmental effects of the complete line, not just the Line 5 segment that runs through the Straits of Mackinac.
eleblanc@detroitnews.com
This article originally appeared on The Detroit News: Michigan Supreme Court halts Line 5 tunnel project, orders more review
Reporting by Beth LeBlanc, The Detroit News / The Detroit News
USA TODAY Network via Reuters Connect
By Beth LeBlanc, The Detroit News | USA TODAY Network
