State panel doesn’t have to consider climate change in Line 5 tunnel permit decision, judge rules

Gov. Gretchen Whitmer’s order for Canadian oil company Enbridge to shut down Line 5 by May will not have any bearing on at least one part of Enbridge’s permitting quest to build a replacement pipeline after all, much to the disappointment of many environmentalists.

Administrative Law Judge Dennis Mack ruled Tuesday that although the Michigan Public Service Commission (MPSC) must consider environmental impacts of Enbridge’s proposed Line 5 tunnel project, those impacts will not include the context of climate change and the need for Line 5 oil overall.

Environmentalists had praised the MPSC decision in early December to hold a rehearing in light of Whitmer’s move to revoke Enbridge’s long-held easement with the state, arguing that it may have significantly changed the scope of the case.

But Mack’s decision says otherwise. According to the ruling, Whitmer’s actions do not require a shift in scope to include climate change-related factors in the pending case before the three-member panel.

“The Commission’s jurisdiction under Act 16 is over the proposal to relocate the existing pipelines into the Utility Tunnel, and a component of that jurisdiction is examining the environmental impacts of that conduct, consistent with the judicial and Commission construction of that term, under MEPA [Michigan Environmental Protection Act],” Mack’s ruling reads.

“The issuance of [Whitmer’s Nov. 13 notice] does not expand the MEPA inquiry to include the environmental effects of the operation and safety of Line 5, or those arising from the production, refinement, and consumption of the oil transported on Line 5,” Mack concludes.

Enbridge spokesperson Ryan Duffy said Mack’s decision is an “important step in securing the timely construction” of the tunnel project.

“We support the judge’s decision,” Duffy said. “… We look forward to working with the MPSC to address citizen concerns as the MPSC gives ample opportunity for all Michiganders to be heard — while preventing the process from being misused to promote issues unrelated to the project.”

Enbridge first filed the application in question on April 17 before the MPSC. The company seeks a state permit to replace the nearly 70-year-old Line 5 pipeline with a new, tunnel-enclosed pipeline under the 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. EGLE is the only state agency to grant Enbridge permits for the project so far.

Mack had previously ruled for Enbridge in October by strictly limiting the scope of MPSC’s case to the tunnel project itself and without consideration of variables like environmental impacts.

Based on the now-rescheduled hearings and filing deadlines, case #U-20763 before the MPSC is set to heat up in mid-August. The latest filing deadlines have been pushed back to October.

While the MPSC’s decision in December to order a rehearing had drawn praise and optimism from environmentalists, Tuesday’s ruling has caused some of the same groups to now express their disappointment.

For the Love of Water (FLOW), the Environmental Law & Policy Center (ELPC) and the Michigan Climate Action Network (MiCAN) all plan to appeal the decision.

“Administrative Law Judge Dennis Mack rejected our argument and we respectfully disagree with his conclusion,” said Margrethe Kearney, senior attorney at the ELPC.  “It is still our view that Gov. Whitmer’s Revocation and Termination of the existing Line 5 dual pipelines should have changed the context of the climate question in front of the Michigan Public Service Commission. We intend to appeal Judge Mack’s decision.”

Sean McBrearty, campaign coordinator for the anti-Line 5 Oil & Water Don’t Mix coalition, said the MPSC should consider climate change impacts anyway.

“There should be no disputing that a major proposed project like the Great Lakes Tunnel requires decisions made at the highest level.  When that decision involves constructing a massive tunnel under the Straits that has already doubled in projected costs and will contribute to greenhouse gas emissions for 99 years, Michigan can’t go the route of rubber stamping this project,” McBrearty said.