Key Line 5 legal challenge could wrap soon

Canadian oil company Enbridge has not yet shown that its ongoing installation of support anchors along the controversial Line 5 pipeline complies with environmental protection laws, according to a new ruling issued by Administrative Law Judge Daniel L. Pulter.

The 18-page order made public last week rejected all but one of the petitioners’ legal challenges to the state-issued permits Enbridge has received to install the supports. Pulter’s decision stems from a legal challenge filed in May 2018 by the Straits of Mackinac Alliance and Grand Traverse Band of Ottawa and Chippewa Indians against the Michigan Department of Environment, Great Lakes and Energy (EGLE).

The city of Mackinac Island joined the appeal last year, and Enbridge intervened as an interested party in the case.

“We are pleased that the Administrative Law Judge agreed with EGLE in dismissing the claims raised by the Petitioners,” said EGLE spokesman Scott Dean in an email. “EGLE looks forward to addressing the sole remaining issue in the case, which was raised by the Administrative Law Judge himself at the January 28, 2020 hearing.”

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But the sole remaining issue is a big one for the Line 5 opposition’s environmental case against the pipeline: The question of whether EGLE adequately determined that Enbridge’s proposed method for installing the anchors minimized potential harm to the environment and Great Lakes.

Enbridge maintains that the anchors, which elevate the Line 5 pipeline above the lakebed, are necessary to ensure the pipeline is properly supported.

The ruling also allows legal challenges to the Line 5 project to move forward.

“Most of the things our side lost on were long shots with this administrative appeal and we knew it going in,” said David Holtz, spokesman for the Oil & Water Don’t Mix coalition that opposes Line 5. “We were hoping to get a shot at proving our environmental case and that’s what we got.”

That administrative law appeal challenged the permits EGLE has issued to Enbridge since 2018 that gave the green light for the oil company to install additional screw anchors, or anchor supports, to prop up the Line 5 dual pipelines. 

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The petitioners’ argument is that the supports were never part of Line 5’s original design – constituting a fundamental infrastructure change that was not originally approved – and that EGLE failed to do a sufficient job making sure the installation would not cause environmental harm before granting Enbridge the permits.

Line 5’s original design in 1953 called for the dual 20-inch pipelines to be placed in a trench along the Straits of Mackinac bottomlands. Sandbag supports were used to secure the pipeline to the lakebed for many decades.

In the early 2000s, Enbridge designed support anchors to replace the sandbags, arguing that they would not be as vulnerable to water erosion and would allow a more consistent, precise installation than sandbags. The support anchors “provide a more permanent way of securing the pipe,” according to Enbridge.

They were also intended to “decrease the span distance” between supports propping up the 4-mile segment of the pipeline suspended above the Straits of Mackinac lakebed. This new infrastructure, elevated above the bottomlands, breaks away from the pipeline’s original design agreed upon by the state of Michigan in 1953.

From 2002 to 2017, Enbridge installed 128 permanent screw anchors into the pipeline before applying for a permit from EGLE to install 22 more in May 2017. Enbridge applied for an additional permit to install 48 more supports in March 2018, and a third application that September to install three more.

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EGLE granted all three of those permits in 2018 and 2019. Out of those 73 total anchor supports approved by the state, Enbridge spokesman Ryan Duffy said that 59 were installed in 2019. The company plans to install the remaining 20 this year.

Duffy added that the anchor installations are “part of Enbridge’s ongoing maintenance of Line 5” and make the dual pipelines safer.

But reports have shown that these anchor supports were responsible for damage to the pipeline’s protective coating since at least 2014, although Enbridge did not inform state regulators about that damage until 2017.

In his Feb. 7 decision, Pulter notes that Enbridge failed to provide certain documents for consideration, including two of the three applications filed with EGLE for the installation permits.

For the Love of Water (FLOW) is one of the state’s environmental groups opposing Line 5 and a member of the Oil & Water Don’t Mix coalition. In a statement, FLOW President Jim Olson stated that they and other groups advised the state in 2016 that a comprehensive environmental evaluation of the anchor supports should be required.

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“This decision means Enbridge and the state must now prove they have done that, and that the existing Line 5 does not pose more than a minimal potential for harm. We believe a thorough real evaluation of the overall risks of harm and alternatives to avoid that harm will lead to a conclusion that the risks are so far beyond minimal, the Line 5 must be shut down and decommissioned,” Olson said.

Nonetheless, Enbridge appears confident that the case will end up being dismissed.

“Enbridge views the decision as a success,” Duffy wrote in an email to the Advance. “… All that remains of the Petitioners’ case is the narrow question of whether EGLE properly determined that Enbridge proposed a method for installing the anchors that minimizes any potential harm to the environment. In the event the case proceeds to a formal hearing, we expect that once the ALJ hears the evidence on this issue, the rest of the case will be dismissed.”

The sole remaining claim is likely to be brought to a full adversarial trial before the administrative law judge. Since a hearing on the merits of the case is required, a pre-hearing conference is scheduled to be held on Feb. 28.