Lansing, Michigan –In what the State called a “one-two legal punch,” Michigan Attorney General Dana Nessel not only responded to the Enbridge lawsuit filed against the state earlier this month, but simultaneously took the first step to decommission the 66-year-old dual pipelines that run through the Straits of Mackinac by filing a lawsuit in Ingham County Circuit Court, according to a press release from the attorney general.
The Attorney General filed her lawsuit the same day she filed a motion to dismiss Enbridge’s lawsuit filed in the Court of Claims on June 6 seeking to enforce agreements made in the last months of the Snyder administration that purported to authorize Enbridge to build a tunnel and continue operating Line 5.
Significance to Saskatchewan
The 30-inch Line 5 runs from Superior, Wisconsin, through the upper peninsula of Michigan to the Straits of Makinac, where Lake Michigan meets Lake Huron. It then passes through Michigan and crosses the St. Claire River, terminating at the refinery complex in Sarnia, Ontario. The 1,038 kilometre pipeline carries light crude and natural gas liquids (NGLs). Shutting down the pipeline would result in cutting off the feedstock for one of Canada’s critical refining centres.
Enbridge has sought to construct a new tunnel under the strait as a conduit for new, replacement pipelines deep under the strait, as opposed to the current pipeline lying on the lake bottom. The current state government of Michigan is against that proposal, too, despite an agreement with the previous state administration to build the tunnel.
A 2010 spill from that pipeline into the Kalamazoo River had a direct impact on Saskatchewan oil producers while that line was out of operation.
After that, Crescent Point Energy Corp. made sure that each and every one of their significant operating areas had the ability to ship crude-by-rail. They emphasized that point in their quarterly news releases for years. These days, they aren’t doing that, nor are they using rail. The Stoughton rail loading facility is currently mothballed.
Shut down as soon as possible
“I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes,” said Nessel. “Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay.”
Nessel’s lawsuit asks the Ingham County Circuit Court to find that Enbridge’s continued operation of the Straits Pipelines under the easement granted by the State in 1953 violates the public trust doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution impairment and destruction of water and other natural resources, the release said.
The Attorney General’s lawsuit identifies a potential anchor strike as the most significant risk to Line 5. In 2017, the State’s contractor, Dynamic Risk Assessment Systems, Inc., identified an anchor strike as the most “dominant threat” to Line 5.
“The location of the pipelines – which carry millions of gallons of oil each day and lie exposed in open water at the bottom of the Straits – combines great ecological sensitivity with exceptional vulnerability to anchor strikes,” said Nessel. “This situation with Line 5 differs from other bodies of water where pipelines exist because the currents in the Straits of Mackinac are complex, variable, and remarkably fast and strong.”
Nessel also said: “The continued operation of Line 5 presents an extraordinary, unreasonable threat to the public because of the very real risk of further anchor strikes, the inherent risks of pipeline operations, and the foreseeable, catastrophic effects if an oil spill occurs at the Straits. We were extraordinarily lucky that we did not experience a complete rupture of Line 5 because, if we did, we would be cleaning up the Great Lakes and our shorelines for the rest of our lives, and the lives of our children as well.”
The State noted that an April 2018 anchor dragging incident – which ripped through several inches-thick steel cables – brought that threat home in a very real way.
“Although Line 5 was damaged – not ruptured – in that incident because the anchor hit a section lying directly on the bottomlands, if the anchor had dragged across the bottom of the Straits in an area where Line 5 is elevated, the likely result would have been a complete rupture of Line 5,” the release said.
Nessel’s lawsuit seeks an order from the court to shut down and decommission the Straits pipelines as soon as possible after a reasonable notice period to allow orderly adjustments by affected parties.
The Attorney General also filed a motion for summary disposition in the Court of Claims on June 27. That motion argues that PA 359 (2018), which would have created a new Straits Corridor Authority, is unconstitutional, and the agreements that purported to give Enbridge the right to build a tunnel and continue operating Line 5 in the Straits for the estimated seven to ten years it would take to build the tunnel are invalid.
This is consistent with Nessel’s first formal opinion as Attorney General determining that PA 359 – rammed through in a chaotic lame duck session at the end of the Snyder administration – was unconstitutional. Her office then notified all state agencies – including the Straits Corridor Authority – that PA 359 and any agreements relying on the statute, were unenforceable.
“The debate over Line 5 has been raging for over five years,” said Nessel. “Real-world events have shown me we can’t wait another five to ten years for Enbridge to build a tunnel. We cannot prevent accidental or emergency anchor deployments in one of the busiest shipping channels in the Great Lakes. And it only takes one such incident to cause an environmental and economic catastrophe. That is a risk no one should be willing to take.”
Enbridge replied in a statement posted on their website, saying, “We are disappointed the State chose not to accept our offer to advance talks on the Straits tunnel, a project that would make a safe pipeline even safer. The State also ignored our offer to suspend litigation and jointly appoint an independent, Michigan-based moderator to help facilitate the discussions. We also committed to making additional safety enhancements to the current line.
“We remain open to discussions with the Governor, and we hope we can reach an agreement outside of court. The lawsuit will take time to work through the court system, and in the meantime we will continue to safely operate Line 5. Enbridge is deeply committed to being part of Michigan’s future. We believe the Straits tunnel is the best way to protect the community and the Great Lakes while safely meeting Michigan’s energy needs.
“Line 5 is a critical source of 540,000 barrels per day of propane and crude oil supply for Michigan and surrounding areas, and shutting it down would lead to a serious disruption of the energy market. Line 5 serves an estimated 55 per cent of the state’s propane needs, including approximately 65 per cent of the propane used in the Upper Peninsula and northern Michigan, for which no viable alternatives exist.
Enbridge continued, “Line 5 also supplies Michigan and regional refineries that provide the state with various fuels its residents rely on in their day-to-day lives. Refineries served by Line 5 supply a large percentage of the aviation fuel at Detroit’s Metropolitan Airport, an important contributor to the state’s economy.
“Shutting down the line would impact the pocketbooks of Michigan residents, the competitiveness of the state and could lead to job losses for those working at refineries.”
Enbridge concluded, “Line 5 is critical infrastructure that Michigan residents depend on every day, and it would be irresponsible to shut it down. It is safe and well maintained, and we intend to continue to operate it for decades to come.”