Straits of Mackinac | Laina G. Stebbins
An Enbridge executive’s letter sent to Gov. Gretchen Whitmer and the Michigan Department of Natural Resources (DNR) Tuesday morning made it clear that the Canadian oil company has no intention of shutting down its controversial Line 5 pipeline by May, setting up what is likely to be an ugly legal battle between the Canadian oil company and the state as Whitmer’s shutdown order date grows closer.
Whitmer directed on Nov. 13 for the DNR revoke and terminate Enbridge’s 1953 easement with Michigan, and for Enbridge to shut down Line 5 by May 12. All three entities are now locked in both state and federal lawsuits over the issue that will begin seeing action soon.
Enbridge has attempted to remand the state’s Nov. 13 suit to a federal court as well with the goal of having it dismissed, but Michigan is opposing that motion and U.S. Western District Court Judge Janet Neff has not yet ruled on the matter.
Attorney General Dana Nessel’s 2019 lawsuit against Enbridge to shut down the pipelines on public trust grounds also remains ongoing in circuit court.
In response to Enbridge’s letter, DNR Director Dan Eichinger released a statement Tuesday criticizing the company’s effort to selectively abide by laws and agreements.
“This letter is Enbridge’s attempt to power wash the company’s long history of violating the terms of the 1953 Easement, and their current non compliance. The continued presence of the dual pipelines in the Straits of Mackinac violates the public trust and poses a grave threat to Michigan’s environment and economy. Enbridge cannot unilaterally decide when laws and binding agreements apply and when they do not,” Eichinger said.
“We stand behind our efforts to protect the Great Lakes, and we stand behind the substance of the November 2020 revocation and termination of the Easement. We look forward to making our case in court, not via letters and press releases.”
A spokesperson for Whitmer’s office did not immediately respond to a request for comment. DNR spokesperson Ed Golder said Eichinger’s statement can stand as the administration’s response.
Vern Yu, Enbridge executive vice president and president of Liquids Pipelines, writes in the letter Tuesday that the company believes Michigan lacks the authority to revoke or terminate Enbridge’s easement with the state.
“For these reasons, we intend to operate the Dual Lines until the replacement pipeline under the Straits within the Great Lakes Tunnel is placed into service,” Yu writes.
The Great Lakes Tunnel Project to replace Line 5 with a new, tunnel-encased underground pipeline is facing regulatory roadblocks itself and some believe it may take up to seven to 10 years to complete.
Opponents of Line 5 say that this is far too long to leave an aging pipeline in operation in the environmentally sensitive Straits of Mackinac.
Yu’s letter proceeds to lay out in detail every issue it finds with Whitmer’s notice of revocation and termination. He claims that the state has not specified what issues exist with Line 5, and the ones that the state has specified are incorrect.
“Accordingly, the Easement will not terminate or be deemed ‘revoked’ at the end of the 180-day period, as the Notice seeks,” he writes.
Whitmer made the decision to revoke Enbridge’s 1953 agreement in November based on the company’s “violation of the public trust doctrine,” and to terminate it “based on a longstanding, persistent pattern of noncompliance with easement conditions.”
Environmental groups opposing Line 5 chimed in on Enbridge’s letter, calling it a “slap in the face.”
“Enbridge’s irresponsible refusal to comply with Gov. Gretchen Whitmer’s decision is a slap in the face to Michigan families who care about our Great Lakes and clean drinking water more than Big Oil profits,” said Lisa Wozniak, executive director of Michigan League of Conservation Voters (LCV).
“Enbridge’s latest comments show this habitual corporate bad actor believes they can operate outside of the rules, above the law and only care about their massive profits – not our Great Lakes and the families who rely on clean drinking water to live. We continue to support Gov. Whitmer and state regulators in holding Enbridge accountable for its shoddy record on safety, transparency and their continued refusal to follow basic guidelines,” Wozniak said.
Sean McBrearty, campaign coordinator for the anti-Line 5 Oil & Water Don’t Mix coalition, said in a statement that Yu’s letter is a “threat” and an “attempt to bully Michigan’s governor.”
“The Canadian oil transport giant’s desperate attempt to weaponize United States federal courts and bludgeon Michigan with an army of corporate lawyers is a delay tactic that will ultimately fail,” McBrearty said. “Enbridge would like to ignore its multiple and incurable violations of its easement agreement and Michigan’s laws protecting the Great Lakes.
“Burying Michigan in an avalanche of legal maneuvers and threats is an insult to every Michigan resident who cares about the Great Lakes State. The fact that it comes as Michigan residents are in the midst of the worst public health threat in our lifetime is not just a distraction but an outrage.”
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