As the anniversary of Enbridge’s refusal to shut down Line 5 approaches, groups press Biden admin

Updated, 6:16 p.m., 5/10/23

As the two-year anniversary approaches since Canadian oil company Enbridge began defying a state shutdown order, environmental groups this week are renewing their call for the Biden administration to take immediate action to protect the Great Lakes from a controversial 70-year-old crude oil pipeline.

“There’s no place for old technology that pumps crude oil through Lake Michigan,” said Sean McBrearty, coordinator for the anti-Line 5 group Oil & Water Don’t Mix. “Whether or not Line 5 in the Straits of Mackinac is ever replaced some day, right now it is a ticking time bomb. That’s why the State of Michigan acted to shut it down and that’s why President Biden must urgently act to protect the Great Lakes before it’s too late.” 

In November 2020, Michigan Gov. Gretchen Whitmer set a six-month deadline for Enbridge to cease operation of the two 20-inch underwater pipelines in the Straits of Mackinac while ordering the company’s 1953 easement with the state to be revoked and terminated. That deadline expired on May 12, 2021. 

Saturday will mark two years since the energy company has refused to comply.

Enbridge is fighting a federal lawsuit filed by Michigan Attorney General Dana Nessel in 2019 seeking to return the case to state court. That case currently sits before the U.S. Court of Appeals for the Sixth Circuit, with Democratic leaders, with Democratic leaders in Michigan recently urging the Biden administration to intervene on behalf of the state.

Whitmer’s order terminating Enbridge’s Line 5 easement agreement cited numerous violations by Enbridge, including missing anchor supports, missing protective coatings, and pipeline damage, including from multiple ship anchor strikes.  

Enbridge argues that the pipeline tunnel they are seeking to build through the Straits would eliminate the chance of problems like an anchor strike while vastly reducing the possibility of oil ever leaking into the Great Lakes. 

“The tunnel makes what has always been a safe pipeline even safer, ensuring energy access and reliability, and supporting jobs and the economy throughout the Great Lakes Region,” Enbridge spokesman Ryan Duffy told the Michigan Advance. “As we proceed with this modernization project, we remain committed to operating Line 5 responsibly with enhanced safety measures in the Straits that protect Michigan’s natural resources and infrastructure in the Straits.”

While Biden has not taken a public stance on Line 5, Oil & Water Don’t Mix says his administration successfully challenged the oil industry in a Colorado case before the U.S. Supreme Court with similarities to the Line 5 controversy, keeping it within the jurisdiction of Colorado’s state courts.

That case made its way to the high court after the Denver-based 10th U.S. Circuit Court of Appeals in February ruled none of the issues cited by the oil companies supported giving federal courts jurisdiction. The Biden administration also urged the justices not to take up the companies’ appeal as no federal questions had been raised. 

“The court needs to hear from the United States through the Solicitor General, who in the Colorado case stood against allowing the oil industry to thwart Colorado laws,” said Christy McGillivray, Sierra Club Michigan Chapter political and legislative director. “Michigan’s public trust doctrine and environmental laws required the governor to protect the Great Lakes from the very real threat of an oil pipeline failure in the Straits of Mackinac.  She did her job, now the President must do his and support the State of Michigan and the 40 million citizens who rely on a healthy Great Lakes.”

However, Duffy says they remain confident that the August 2022 decision by Federal District Judge Janet Neff is correct. 

“The judge found that ‘policy considerations as judicial economy, fairness, convenience, equitable administration, and consistent results as counseling for keeping this case in federal court,’” he said. “The AG seeks to undermine these considerations and promote gamesmanship and forum shopping, while ignoring the substantial federal issues that are properly decided in federal court and not state court.”

Tribes, activists from across U.S. gather up north in solidarity of Line 5 fight

Meanwhile, an emergency filing was made Tuesday by the Bad River Band of the Lake Superior Chippewa in Wisconsin seeking to close the Line 5 pipeline after extensive flooding in the area. 

“Just 11 feet of bank remains between the Bad River and Line 5,” read the request for an injunction in U.S. District Court to halt the pipeline’s operations. “Once Line 5 is exposed at the meander neck, the length of exposed pipeline could expand rapidly and unpredictably, resulting in pipeline failure and the release of oil in as little as one storm event.”

“Enbridge insisted that it would be years before we would see this kind of erosion. Yet, here we are facing an imminent catastrophe,” said Beth Wallace, freshwater campaigns manager for the National Wildlife Federation. “Not only is Enbridge knowingly trespassing on sovereign territory, but they appear to be gambling with an entire ecosystem to continue to pocket millions a day.” 

Before Enbridge’s Line 5 flows crude oil through the Straits of Mackinac, it moves through that section of pipeline before crossing from Wisconsin to the Upper Peninsula. From there it flows through the Straits to the Lower Peninsula of Michigan, and then to refineries in Sarnia, Ontario and Detroit. 

“This 70-year-old pipeline is operating a full 20 years past its design lifetime. Line 5 threatens Tribal Nations and violates the State of Michigan’s shutdown order,” said Debbie Chizewer, an attorney for Earthjustice representing the Bay Mills Indian Community on Line 5 issues in Michigan. “It’s time to retire Line 5. Every day that oil flows through the pipeline is another day we risk unacceptable environmental, economic and cultural disaster for Bay Mills and across the Great Lakes.”

Duffy said that Enbridge is “disappointed” by tribe’s actions, calling them “outrageous.”

“Enbridge is extremely disappointed that the Bad River Band of Lake Superior Chippewa Indians filed an unnecessary application with the Court without any discussion with Enbridge. On May 8, Enbridge staff, Band officials and others toured the Meander and saw first-hand that the pipe is not exposed and there is no cause for alarm. To be clear, the Band and its litigation funders are bent on shutting down this piece of critical infrastructure regardless of who will be hurt by their actions,” he said.

Duffy said that Line 5 “remains in full compliance with all applicable codes and regulations” established by the Pipeline and Hazardous Materials Safety Administration.

“There is no change to the operating condition of the pipeline. While some erosion has occurred due to recent flooding, there is still considerable bank between the river and Line 5 and there is currently no risk to the pipeline, which continues to operate safely,” he said.

Correction: This story has been updated to correct details on the court action involving Line 5.