Traverse City, Mich. – FLOW today called on the State of Michigan to increase and strictly enforce the requirement for comprehensive oil spill insurance and terminate the 1953 easement that conditionally allows Line 5 to occupy the Straits of Mackinac, triggering the orderly shut down of the dual oil pipelines as soon as practicable after securing alternative sources for residential propane.
FLOW’s request came in formal comments to the state following recent revelations that Enbridge and its subsidiaries lack adequate liability insurance for a potentially catastrophic oil spill from the Canadian company’s decaying dual pipelines snaking across the public bottomlands, where Lake Michigan meets Lake Huron. The new evidence further supports FLOW’s long-standing contention that Enbridge is operating Line 5 illegally while the risk rises to the Great Lakes, jobs, and the drinking water supply for half of Michiganders.
FLOW’s comments are directed to the Michigan Department of Natural Resources (“DNR”) and Michigan Department of Environment, Great Lakes, and Energy (“EGLE”), and intended specifically to aid in the DNR’s "comprehensive review of Enbridge’s compliance with the 1953 easement and other factors affecting its validity,” as ordered by Governor Gretchen Whitmer on June 27, 2019.
“It’s time for the State of Michigan to restore the rule of law on Line 5. We call on the Whitmer administration to commence the shutdown of the dual oil pipelines and direct Enbridge, if it wishes to continue operating its 66-year-old pipelines in the Straits, to apply for permission under public trust law and the Great Lakes Submerged Lands Act,” said Liz Kirkwood, an environmental attorney and executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “Enbridge must prove that its use and operation, including the substantial change in design with hundreds of elevated spans and significant other matters, complies with and is entitled to authorization.”
Until the shutdown is complete, FLOW urges the state to impose immediate emergency measures that reduce the flow of oil in Line 5 to its original limit, a reduction of 40% from current flow. State officials also should implement more stringent requirements for a mandatory emergency shutdown, including a wave height of 3.3 feet or more in the Straits or winds in excess of 18 miles per hour, conditions that render oil spill response equipment ineffective. Based on the level of risk from Line 5 to public waters, the state also should require Enbridge and its subsidiaries to secure adequate insurance, bond, surety and/or secured assets in the total amount of $5 billion.
FLOW’s comprehensive review of eight violations of the state-granted easement--related to design, operation, and maintenance--demonstrates convincingly that Enbridge has committed, and continues to commit through its conduct, omissions, and breaches of the 1953 easement that are beyond correction. It is also clear that there are major “other factors affecting the validity” of the 1953 easement and Enbridge’s continued use and operation of the cracked-and-dented Line 5 dual oil pipelines in the open waters and on the bottomlands of the Great Lakes in the Straits of Mackinac, including the failure of Enbridge to obtain from previous directors of the DNR (and its predecessor Department of Conservation) the authorizations required by the common law of public trust and/or the Great Lakes Submerged Lands Act (“GLSLA”).
Enbridge’s ongoing violations related to anchors and pipeline design threaten the very safety and health of the Great Lakes, and thus trigger the state’s duty to enforce its conditional occupancy agreement with Enbridge. The State continues to have substantial legal and factual cause to terminate the agreement with Enbridge to stop the oil flow.
In support of these comments, FLOW also submitted the multiple reports and comments that FLOW and others have previously submitted to the DNR, DEQ (now “EGLE”), the Attorney General’s office, and Governor’s office over the past six years. It is clear that the Director of the DNR and executive team, as trustees of the Great Lakes and soils beneath them, have the authority and duty to invalidate, direct compliance with, terminate, and/or revoke the 1953 Easement.
The 200-plus anchor supports (constituting 3 miles of elevated pipelines in the water column) represent a substantial change in design from the dual pipelines designed and built pursuant to the specifications of the 1953 easement. Although DEQ (now “EGLE”) approved anchor supports of the elevated lines over the past 18 years, the anchors have been issued only as permits to “place other materials on bottomlands,” and not as a conveyance or agreement for occupancy or use of the bottomlands and waters for the substantial change in the dual pipelines themselves. The Affidavit of Dr. Edwin Timm filed in the consolidated contested cases against the State of Michigan demonstrates seriously increased risks, a total lack of review of applicable risk standards for elevated multiple-span pipelines, and new or substantially changed pipeline that has not been assessed by the state.
“The only real solution now is to apply the law and shut down the 66-year-old Line 5 pipelines permanently to protect the Straits, and nearly 400 other water crossings in Michigan, from the next Enbridge oil spill,” said Kirkwood. “The Canadian oil, which Enbridge does not own, can be sent through other pipelines operated by Enbridge and its competitors. Michigan has no obligation to guarantee Enbridge a shortcut to Ontario oil refineries and the overseas export market.”
For more information, visit FLOW’s website at www.FLOWforWater.org.