State panel orders Enbridge permit rehearing after Whitmer’s Line 5 shutdown order

By: - December 9, 2020 4:34 pm

Mackinac Bridge | Susan J. Demas

The small Michigan regulatory panel charged with deciding whether to let Canadian oil company Enbridge build a tunnel-encased pipeline under the Mackinac Straits is shifting gears, announcing Wednesday that it has ordered a rehearing for Enbridge’s application now that the company’s 1953 easement has been revoked by the state.

Enbridge had originally filed an application with the Michigan Public Service Commission (MPSC) in April to replace the existing 67-year-old Line 5 pipeline with a new underground structure. A contested case hearing process was eventually established, and in October administrative law judge Dennis Mack ruled for Enbridge by strictly limiting the scope of MPSC’s case to the tunnel project itself — with no consideration of environmental impacts or other variables.

That scope is now changing once again, in the wake of Gov. Gretchen Whitmer’s order last month revoking and terminating Enbridge’s easement for Line 5. Whitmer and the Department of Natural Resources (DNR) cited repeated violations of the 1953 agreement by Enbridge and ordered that the oil company cease operations of the pipeline in the Straits by May.

Enbridge has since filed a federal lawsuit to fight back against the revocation and shutdown order.

Ryan Duffy, a spokesperson for Enbridge, told the Advance Wednesday that the company “respects” the MPSC’s order for a rehearing but characterizes it as a “procedural delay” caused by Whitmer’s actions.

“The Governor’s unlawful issuance of a notice of revocation and termination continues to cause confusion and now has caused a procedural delay in the consideration of the Line 5 segment replacement project within the planned Great Lakes Tunnel currently before the Michigan Public Service Commission (MPSC),” he said in a statement.

Duffy added that Enbridge “will make its views known to the MPSC at the appropriate time and comply with any new timelines.”

The MPSC on Wednesday said in a statement that its “order today finds that the revocation of the easement requires remanding Enbridge’s motion to limit the scope of the case for a rehearing, stating that clarity on the scope of the case is of critical importance to the proceeding.

“The ALJ’s [administrative law judge’s] previous ruling on the motion, along with the motion itself and responses filed to it, were premised on the existence of the 1953 easement, and the State of Michigan’s revocation of the easement represents a significant change of facts in the case.”

The administrative law judge and parties in the case will now adjust the schedule to allow for the rehearing, and for participants to file new arguments in light of the easement revocation.

The MPSC’s decision to order a rehearing drew praise from Bay Mills Indian Community Chair Bryan Newland, who characterized it as “another important step in an ongoing battle to protect our water.”

David Gover, attorney for the Native American Rights Fund that represents the Bay Mills Indian Community along with Earthjustice, said in a statement: “We applaud the Commission’s decision. More time is needed to consider the impact that the Line 5 Project will have on Bay Mills’ Treaty-protected rights across the length of the pipeline, and in the Great Lakes and Straits of Mackinac.”

The so-called Great Lakes Tunnel Project to replace the 67-year-old Line 5 involves a new easement and a new 99-year lease of public trust property. Environmentalists, tribal communities and many citizen groups throughout the state largely condemn the existence of any oil pipeline in the environmentally-sensitive Straits of Mackinac.

Along with the MPSC, the Michigan Department of Environment, Great Lakes and Energy (EGLE) and the U.S. Army Corps of Engineers are also in charge of the project’s permitting process.

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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.