Line 5 still halted as judge deliberates

MPSC rules Enbridge can’t evade full regulatory process

By: - June 30, 2020 7:26 pm

Mackinac Bridge | Susan J. Demas

All 645 miles of Enbridge’s Line 5 oil pipeline remain shut down Tuesday evening, after four and a half hours of oral arguments in Attorney General Dana Nessel’s lawsuit against the Canadian oil company did not end in a determination from Ingham County Circuit Court Judge James Jamo.

Tuesday’s hearing hinged specifically on Nessel’s request for a preliminary injunction. That motion was filed last week, along with a request for a temporary restraining order on Line 5’s operations, which Jamo granted on Thursday. 

Nessel and her attorneys assert that following Enbridge’s June 18 discovery of a damaged support anchor on the east underwater segment of Line 5 and an “area of interest” on the west segment, Enbridge failed to provide documentation that the west line was safe before restarting it just days after.

Enbridge complied with Jamo’s temporary restraining order on Thursday, and cannot restart operations until a ruling is made on the preliminary injunction — meaning that both lines must remain shut down until Jamo says otherwise.

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

Like in previous oral arguments in Nessel v Enbridge, Enbridge attorney David Coburn repeatedly attacked Nessel’s understanding of the law and argued that her request for a preliminary injunction is “based on fear, not facts.”

Coburn, who also represented Enbridge following the catastrophic 2010 rupture of the company’s Line 6B pipeline near Marshall, also argued that the integrity of Line 5 itself was never affected by either incident. He said the state has failed to meet the burden of proof to show that there is enough of a safety risk to warrant a preliminary injunction.

Assistant Attorney General Robert Reichel argued on behalf of Nessel, asserting that a temporary suspension of both segments under the Straits should continue until the state receives and is able to review all requested information about the condition of both lines. That request for relief cites both Enbridge’s 1953 easement with the state of Michigan and the company’s “Second Agreement” made with former Gov. Rick Snyder in late 2018, which both lay out terms and conditions of due care that Enbridge must follow. Those conditions include providing the state with documentation of the pipeline’s safety and condition.

Reichel said the state is simply attempting to enforce those terms.

But Enbridge attorneys Coburn and William Hassler denied that the state has purview over deciding when an incident qualifies as dangerous enough to shut down the lines, even temporarily. Both argued that the state of Michigan — despite its easement and other agreements with Enbridge — has “no regulatory rights” over Line 5. That authority, they claim, lies solely with federal regulators at the Pipeline and Hazardous Materials Safety Administration (PHMSA).

Jamo raised concerns about PHMSA’s role in the incident and pressed Coburn on how the agency was able to independently conclude that Enbridge was safe to continue operating the west line. Coburn said the PHMSA’s go-ahead was based on Enbridge’s own assertion that the line was safe.

Hassler also said that the company is still not sure what caused the damage to the east leg’s support anchor, and is likewise unsure what caused the area of interest to the west line. The initial conclusions are that a vessel dragging a thin, light cable across the lakebed caused the disruption of aquatic life on the west line, whereas a medium-sized vessel dragging something else parallel to the east line caused the bent support anchor.

Hassler said the support anchor damage could have occurred any time between June 2019 and when it was discovered this month.

The fact that Enbridge has no way of contemporaneously knowing when incidents occur is itself alarming, Reichel said. He urged Jamo to grant the preliminary injunction that would give the state 14 days to thoroughly review information provided by Enbridge about both segments, and determine whether the company has proven that continued shutdown is not warranted.

Tuesday’s oral arguments did not end with the scheduling of another hearing, but Jamo said he would like further specific information from Hassler about Enbridge’s safety inspections by Wednesday via email.

Sean McBrearty, campaign coordinator for the anti-Line 5 Oil & Water Don’t Mix coalition, emphasized in a statement Tuesday that any ruling from Jamo on the preliminary injunction is temporary.

“Judge Jamo will issue a ruling in the coming days on whether to allow Line 5 to restart, but whatever action he takes will be temporary,” McBrearty said. “Protecting the Great Lakes from a catastrophic oil pipeline rupture deserves more than a temporary, short-term solution.”

As the Advance previously reported, more permanent solutions rely on Gov. Gretchen Whitmer’s actions.

Panel rules Line 5 tunnel must undergo full regulatory process

Earlier Tuesday, the regulatory body in charge of signing off on Enbridge’s permits to build the Line 5 tunnel project unanimously denied the company’s request to move forward on construction without full regulatory scrutiny.

Enbridge had asked the Michigan Public Service Commission (MPSC) in April to either immediately grant its application to construct a new tunnel-enclosed pipeline under the Straits of Mackinac, or declare that Enbridge already had authorization to do so under its 1953 easement with Michigan.

The MPSC had decided to put the application on hold while it deliberated on whether it had the authority to greenlight Enbridge’s project. On Tuesday, the commission decided that it does.

“In today’s order, the Commission found that, based on Enbridge’s application and comments received from stakeholders, the Line 5 project differs substantially from the pipeline approved in 1953, and therefore the company does not have authority for the project under the 1953 order,” a statement from the MPSC reads.

“Whereas the Commission approved in 1953 dual 20-inch pipelines constructed on the lakebed, Enbridge proposes replacing them with a single 30-inch pipeline housed in a concrete-lined tunnel 60-250 feet beneath the lakebed, involving a new easement and a 99-year lease of public trust property.”

The MPSC’s ruling denies the relief sought by Enbridge for a declaratory ruling while also striking down its request for ex parte approval of the Line 5 tunnel project.

A full hearing process has been established for the proposal. The first public hearing will be held virtually on Aug. 24.

In a statement, Enbridge said it “respects” the MPSC’s decision and looks forward to the regulatory process moving forward.

Several environmental groups hailed the MPSC’s decision as a win for the safety of the Great Lakes.

“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16,” said Liz Kirkwood, an environmental attorney and executive director of the Traverse City-based FLOW (For Love of Water).

“Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future,” Kirkwood said.

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. 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.