Enviros win appeal for state agency to consider Line 5 tunnel climate change impacts

By: - April 21, 2021 2:24 pm

Mackinac Bridge | Susan J. Demas

The three-member Michigan Public Service Commission (MPSC), one of three state agencies with the power to grant Canadian oil company Enbridge the permits needed for the company’s proposed tunnel-encased oil pipeline under the Mackinac Straits, said Wednesday the agency will consider the tunnel’s climate change impacts in hearings.

Although the MPSC’s ruling also denied a bid to revisit whether there is a public need for the 641-mile-long Line 5 pipeline as a whole, it marks the first time a Michigan agency will be considering greenhouse gas emissions as part of a MEPA (Michigan Environmental Protection Act) analysis.

The MEPA review will be limited to the approximately 4-mile segment of Line 5 under the Mackinac Straits which Enbridge plans to replace.

“The Commission found that greenhouse gas emissions are pollutants under MEPA and permitted parties to introduce evidence addressing greenhouse gas emissions ’and any pollution, impairment, or destruction arising from the activity proposed in the application,’” the MPSC’s statement reads.

“Finding that the construction of the new 4-mile pipeline segment could not be separated from the products flowing through it, the Commission will also allow evidence to be presented on the greenhouse gas emissions resulting from the fossil fuels being transported through the replacement segment.”

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Intervening parties, of which there are 15 total, will now be able to include climate change considerations in their arguments before the commission. Intervenors include four Michigan tribes, six environmental advocacy groups, the Michigan Department of Attorney General, the Mackinac Straits Corridor Authority, the national and state branches of the Propane Gas Association and the Michigan Laborers’ District Council.

The MPSC notes that parties will also be able to submit evidence and arguments regarding pollution impacts and bases of comparison if Gov. Gretchen Whitmer succeeds in shutting down the Straits portion of Line 5.

In November, Whitmer ordered the state to revoke and terminate Enbridge’s 1953 easement due to numerous and incurable violations. That order to cease operation of Line 5 goes into effect on May 12, but the state and Enbridge are currently locked in court battles over it — making it unclear when (and if) Whitmer’s order will have the legal backing of a court order.

“The Commission said it was not prejudging the issue but wants a full record on which to base potential decisions if the Straits portion of Line 5 is no longer operational,” the MPSC’s statement reads.

Enbridge first filed the application in question  with the MPSC on April 17, 2020. The commission’s ultimate ruling on application will be crucial for Enbridge’s plans for the tunnel-encased Line 5 replacement, as the MPSC has siting authority for crude oil and petroleum pipeline projects in Michigan.

Enbridge spokesperson Ryan Duffy released a statement Wednesday afternoon praising the commission for deciding to only consider the proposed tunnel project rather than the entire pipeline, but left out any mention of the climate change ruling.

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“Enbridge is pleased that the Michigan Public Service Commission (MPSC) agreed with the Administrative Law Judge’s rulings that the project under consideration is the four-mile pipeline segment replacement and that ‘the replacement of the four-mile segment of Line 5 in the Straits is not cause for a review of the entire pipeline system,’” the statement reads. “… Enbridge will continue to work with the Commission on its review of our application and towards a successful conclusion to this proceeding.”

In February, Administrative Law Judge Dennis Mack had ruled against two pro-environment intervenors that had argued for climate change to be a consideration in the permit hearings. 

Those intervenors — the Grand Rapids-based Environmental Law & Policy Center (ELPC) and the Traverse City-based Michigan Climate Action Network (MiCAN) — swiftly filed an appeal with MPSC to fight Mack’s ruling, which they partially won on Wednesday.

“This is an important win for everyone who cares about the climate crisis,” said MiCAN Director Kate Madigan.” “We applaud the Commissioners for including evidence of climate change in their review of the proposed oil tunnel. In this time of climate emergency, leaders must consider climate change in all decisions — especially in decisions about building pipelines that would carry millions of gallons of oil every day for up to 99 years.”

Margrethe Kearney, Senior Attorney at ELPC, said Wednesday’s decision “reflects the fact that Michigan’s environmental protection act was written so that state agencies recognize our evolving understanding of the environmental impacts of permitted actions.”

“The Commission correctly recognized that they are required to look at the full scope of environmental impacts from projects like Enbridge’s proposed tunnel and oil pipeline underneath the Mackinac Straits,” Kearney said.

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, so far, to grant Enbridge permits for the project.


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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. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).