Nessel got Line 5 shut down, for now. Enviros say Whitmer can shut it down for good.

By: - June 27, 2020 7:34 am

Laina G. Stebbins

At long last, environmentally minded Michiganders got their wish this week as Canadian oil company Enbridge was forced to halt operations on its controversial oil pipeline, Line 5.

Attorney General Dana Nessel had called for, and was subsequently granted, the court-ordered shutdown on Thursday. That action, however, is only temporary. Long-term solutions rely on Gov. Gretchen Whitmer’s actions — although all roads still lead to the courts.

So what would it take to permanently make good on the now decade-old rallying cry to “shut down Line 5?”

Damage to anchor support on east leg of Line 5 | Enbridge photo

Environmentalists told the Advance that a combination of three steps would be the most effective at halting the Line 5 oil pipeline, which every day transports roughly 23 million gallons of oil under the environmentally sensitive Straits of Mackinac.

Line 5 splits into two parallel 20-inch pipelines underwater that run from Mackinaw City to St. Ignace, just several miles west of the Mackinac Bridge. Jurisdiction over both the east and west leg of the underwater pipeline is held by the state through a 1953 easement with Enbridge.

“Barring action from the company itself, the final authority to shut down Line 5 will ultimately lie with the courts,” Nessel spokesperson Ryan Jarvi told the Advance Friday. “The Attorney General’s office is pursuing that goal through her litigation, which has resulted in, at least, a temporary shutdown of Line 5.

“Should the circumstances necessitate future action by the state to shut down Line 5, those actions will likely end up before the courts either as a result of the state bringing its own claim or Enbridge challenging an action by the state,” Jarvi said.

Enbridge spokesperson Ryan Duffy denied that any kind of Line 5 shutdown is necessary.

“We have not found any damage to either pipeline,” Duffy told the Advance on Wednesday, adding that “the west leg is 1,300 feet from the east leg and doesn’t have any safety or integrity issues and was restarted after fully updating our environmental regulator, PHMSA.”

Enbridge Line 5 anchor support damage | Laina G. Stebbins graphic

Whitmer spokesperson Chelsea Lewis did not respond directly to an inquiry about whether the governor plans to take either of the two avenues at her disposal, but said: “The governor directed the Department of Natural Resources [DNR] last year to conduct a review of the easement, which is not yet complete.”

DNR spokesperson Ed Golder said in an email Thursday that the review is still ongoing, and the department does not have a timeline for its completion.

So what, exactly, would it take to force Enbridge’s hand in shutting down both underwater segments of Line 5? Here are the three main actions environmentalists say need to happen. The first is already in the works.

Option 1: Court-ordered emergency shutdown

On Monday, Nessel took advantage of the most significant option at her disposal as attorney general when she successfully called on circuit court Judge James Jamo to put a (temporary) emergency halt to both legs of the Line 5 pipeline.

In his decision granting the motion Thursday, Jamo wrote that Nessel “retains a duty to protect public trust lands, and it is currently unable to do so as a result of [Enbridge’s] failures. Furthermore … the danger far exceeds the risk of financial loss to defendants if the west pipe of Line 5 is shut down pending hearing and further related court order.”

Enbridge responded Thursday evening with a statement expressing its “disappointment” with the ruling, but indicated that it had complied and ceased operation in both legs of Line 5.

The motions for a temporary restraining order and preliminary injunction were filed in Nessel’s ongoing lawsuit against Enbridge in the Ingham County Circuit Court, in Nessel v Enbridge Energy LP, et al., which ultimately seeks to decommission Line 5.

The grounds for Nessel’s actions stem from decisions made by Enbridge following significant damage to one of Line 5’s anchor supports discovered last Thursday. Enbridge initially shut down both legs of the pipeline, but did not wait for an OK from state officials before resuming operation of the west leg.

Whitmer’s calls for a full shutdown and further information about the damage before proceeding were largely ignored by the company. Enbridge said federal regulators at the Pipeline and Hazardous Materials Safety Administration (PHMSA) had no objections to Enbridge’s plan to restart the pipeline.

Since Jamo has now granted Nessel’s request, the timeline for further actions within the case depends on the pace he sets for subsequent proceedings. Oral arguments on Nessel’s motion for preliminary injunction are currently scheduled for 1:30 p.m. Tuesday.

The amount of time that Line 5 could stay shut down also hinges on the pace set by Jamo. Either way, the order legally forces both lines out of operation until Enbridge is able to appeal.

So, although this is the most significant action Nessel could have taken for a swift shutdown of both lines, it is also the most temporary option — and Enbridge has already signaled that it intends to fight the motion vigorously in court.

As for PHMSA’s decision to let Enbridge reboot the west leg of Line 5, despite Whitmer’s request for it to remain closed, much is still unclear.

A spokesperson at PHMSA’s central region enforcement office declined to issue a statement on the record Tuesday about the decision-making process for allowing Line 5’s operation to resume and said the agency is monitoring the situation.

PHMSA is housed under the U.S. Department of Transportation (DOT) and headed by Howard “Skip” Elliott, a former railroad executive who’s a political appointee of President Donald Trump.

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Elliott also has served as DOT’s acting inspector general since May, when Trump fired his predecessor and others at inspectors general offices and appointed his own choices to oversee departments. Elliott’s appointment, in particular, has come under scrutiny, as he essentially serves as a watchdog for the same department which houses the agency he leads.

Elliott has said he will recuse himself from any inspector general actions regarding PHMSA.

Option 2: Whitmer and Nessel join (legal) forces

The next two courses of action to shut down both dual pipelines rely on Whitmer.

One of those is, again, in the courts.

If Whitmer joins Nessel’s lawsuit to decommission Line 5, Nessel v Enbridge would be strengthened considerably, environmentalists say. It would also be a show of solidarity between two of Michigan’s top officials against Enbridge’s presence in the Great Lakes.

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“That would strengthen the attorney general’s case, as well as show unity within the state that the easement for this pipeline is no longer something that is in the interest of the state of Michigan,” said Beth Wallace, a pipeline safety advisor and Great Lakes Freshwater Campaigns Manager at the National Wildlife Federation (NWF).

Environmental activists have long expressed disappointment about Whitmer’s decision to hold off on joining the lawsuit. A spokesperson for Whitmer did not comment specifically on the subject.

Last year, Jim Lively of the Traverse City-based Groundwork Center for Resilient Communities told the Advance that this has been “a point of frustration” among his and other environmental groups in the state — especially as Whitmer (like Nessel) ran her campaign on a promise to shut down Line 5.

“The governor didn’t choose to join that lawsuit … it would be much stronger if [Whitmer did], as opposed to just the AG suing on behalf of the state of Michigan. It’s a stronger case if we have the governor with us,” Lively said in September.

However, even if Whitmer does come on board, this option is by no means a guarantee. The final ruling could still be well down the road — and could ultimately end in favor of Enbridge.

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In the case that Nessel does come out on top, such a ruling would translate to an orderly, court-ordered decommissioning of Line 5. That’s about as permanent as it gets, but it’s still far from being an immediate and guaranteed method of shutting down both underwater segments of Line 5.

That’s where the third option comes in.

Option 3: Complete revocation of Line 5 easement

The third — and what environmentalists view as possibly the most effective option — involves Whitmer dissolving the original agreement that allows Enbridge to operate in the Straits in the first place.

That easement was agreed to by the state of Michigan in 1953, giving Enbridge (then known as Lakehead Pipe Line Company) the authority to transport oil across the public trust-protected bottomlands between Lake Michigan and Lake Huron as long as the company adhered to a set of rules ensuring the area’s safety.

The agreement can be terminated by the state if Enbridge is found to have breached those terms and conditions. Based on the emergency situation caused by Line 5’s significant anchor support damage and Enbridge’s restart of the west leg without state input, there likely are more grounds to do so now than ever before.

Enbridge Line 5 rod stuck in Straits more than 5x longer than 1st reported to state

And even if Enbridge reports to PHMSA rather than the state on matters of pipeline operation and safety, as the company has argued is the case, the 1953 easement explicitly puts Michigan in charge of both Enbridge’s sitting location under the Straits of Mackinac and the company’s due care of operating those underwater lines.

“The state can completely and wholly go after those two parameters, and the governor absolutely should,” Wallace said.

Citing the emergency situation and Enbridge’s violations of the easement, Whitmer could order the DNR to fully revoke Enbridge’s easement with the state. Dissolving that agreement means Enbridge would no longer have any legal permission from Michigan to operate in the Straits and would presumably be forced to decommission those segments of Line 5.

“Because this is an emergency situation, Whitmer does have executive authority to have a similar situation play out that the AG is doing currently, where she can ask the DNR to set the pace to revoke the easement. And she can invoke emergency authority to call for the shut down,” Wallace said.

Even then, it’s possible that Enbridge stands its ground and refuses to comply by arguing that their jurisdiction falls within the PHMSA rather than the state. It is uncertain how the revocation could be enforced in that case because there is no real precedent, thanks to the uniqueness of the 1953 easement.

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In an absolute worst-case scenario, Wallace said the Michigan State Police could be called in to forcefully ensure Enbridge’s compliance.

“This is new territory. We don’t have an easement like this in any other scenario,” Wallace said. “… [The Great Lakes are] held in public trust, so in order to even be in this location, they have to adhere to what is stipulated in that easement.”

To do that, Wallace said Enbridge also must “view the governor as the keeper of that easement and the keeper of public trust. For us to see [Enbridge’s] about-face on her authority in her jurisdiction is concerning. And I know that she is very concerned about their behavior as a company,” Wallace continued.

There is a good chance that Whitmer’s call for the DNR to revoke the easement based on immediate risk would also end up in the courts, but the emergency injunction that Whitmer would also likely invoke would mean at least another temporary court-ordered shutdown — like Nessel’s — until an investigation occurs. 

“I think it really comes down to the governor having to hold her ground and use her executive authority, as well as the management of our state,” Wallace said.

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A Whitmer spokesperson on Thursday did not rule out this possibility, only telling the Advance that the DNR is still in the process of reviewing the 1953 easement.

The governor had directed the DNR to conduct a thorough review of the easement last June after Whitmer’s negotiations with Enbridge broke down, the company filed a lawsuit against the state and Nessel filed a countersuit against Enbridge. The DNR said this week the review is ongoing and there is not a set timeline for its completion.

Urgency for further action

Wallace said a combination of all three of the available options would put sustained pressure on Enbridge by the state and would be the most effective at shutting down both Line 5 segments. Either way, nothing is certain.

Sean McBrearty, legislative and policy director for Michigan Clean Water Action and campaign coordinator for the anti-Line 5 Oil & Water Don’t Mix coalition, agreed that the second two steps need to be taken as soon as possible.

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“Due to the ongoing threat that Line 5 poses to the waters of the Great Lakes and Enbridge’s most recent violation of the due care clause of the 1953 easement by reopening Line 5 before even knowing what caused the significant damage last week, the time is now for Gov. Whitmer to join AG Nessel’s legal actions and immediately order the DNR to revoke the 1953 easement,” McBrearty said.

“The Great Lakes are at risk and Enbridge has again shown that they can’t be trusted to act with the due care required by the 1953 easement,” he continued.

After Nessel’s action Monday evening, environmental groups and state officials sent out statements applauding her move, as did U.S. Sen. Debbie Stabenow (D-Lansing), U.S. Sen. Gary Peters (D-Bloomfield Twp.) and U.S. Rep. Debbie Dingell (D-Dearborn).

Dingell announced in a statement Thursday that she led the Michigan Democratic congressional delegation in sending a letter to U.S. Transportation Secretary Elaine Chao, urging a federally mandated order to keep Line 5 shut down until a full investigation can occur.

Many groups are urging Whitmer to take action, as well.

“Attorney General Nessel has lived up to the oath she took to protect the public trust waters and bottomlands of the Great Lakes, and we thank her for her leadership,” said Mary Brady-Enerson, Michigan director of Clean Water Action.

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“Governor Whitmer has likewise taken an oath to protect our Great Lakes. We hope she will uphold that oath and join the Attorney General’s legal actions, as well as use her authority as Governor to revoke Enbridge’s easement.”

One concern has been that many U.P. residents use propane from Line 5 to heat their homes in the colder months, which is one of Enbridge’s primary arguments for continuing operation of Line 5.

After talks broke down with Enbridge last June and lawsuits began flying back and forth, Whitmer created by executive order the U.P. Energy Task Force. The panel is tasked with assessing the Upper Peninsula’s energy needs and studying alternative sources of propane transportation to the U.P. outside of Line 5 dependence.

The task force’s work isn’t done, but it presented part one of its recommendations to Whitmer in mid-April. The next meeting is scheduled for 1 p.m. July 15.

Michiganders who wish to submit a public comment regarding the task force or would like to speak during the next meeting may email [email protected].

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins is a former Michigan Advance reporter. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service.