LINE 5 AGAIN

 

STILL UNDER THE WATER AND UNDER THE RADAR

   Just over a couple of years ago I wrote about Line 5 and in the post you will see a picture of the the Sarnia-Lambton MP, Marilyn Gladu pointing toward a sign indicating that many in the area would lose jobs if Line 5 was shutdown. Background was provided along with some sources and you can read it here. 

  If you are like many others, you probably don't recognize Line 5 which is not as well known as Keystone or even the long ago Maginot. It carries fossil fuels from Alberta all the way to Sarnia and beyond. It helps keep things running and people warm. A couple of years ago, Governor Gretchen in Michigan ordered it shut down, which is why I wrote about it. Now a judge in Wisconsin again has ordered it shut off. Canada has objected again and the oil continues to flow. 

  I find it curious that the issue is not much discussed. The more recent Line 5 ruling involves Indigenous rights because the pipeline passes through land occupied by the Lake Superior Chippewa in Wisconsin. I can understand why many don't care about that and I realize that it is likely that you are about to stop reading.

  But, the earlier shut down ordered by Governor Whitmer was requested because of environmental concerns. The pipeline, you see, runs under the Straits of Mackinac and it is argued that a rupture of it would be devastating for not just one Great Lake. Line 5 turned 70 this year and perhaps, in 'pipeline years', it is older than both President Biden or aspirant Trump and age is a factor that should be considered. As well, pipelines can be treated just as roughly as presidential candidates.  Plus, there have been other spills involving Enbridge pipelines including one fairly close by in the Kalamazoo River.

  Even more curious is the fact that it is the Canadian government that opposes the shutdown. It would be less curious, perhaps, if the government was a Tory one. It is not surprising, however, that even Trudeau wants to keep things as is, since state, provincial, federal, international, Indigenous, labour and environmental actors are involved and most Canadians seem not to be worried about a pipe that may not burst.

Sunset on the Mackinac Straits

  Sources:

   This recent piece explains the situation well. It is found in a publication with a fine subtitle: "Michigan Pipeline Standoff Could Affect Indigenous Rights Across the US," Mike Shriberg, The Conversation: Academic Rigour, Journalistic Flair, August 16, 2023. It was republished in The Detroit Free Press on Sept.10, under this title: "Proxy Fight in Straits Could Decide Who Gets to Draw a Line in Sand." The text is presented here and parts of it are bolded by me for emphasis. It is followed by the more recent shutdown ruling.

As the author of the article says at the end, "Your Turn."

The article:

"Should states and Indigenous nations be able to influence energy projects they view as harmful or contrary to their laws and values? This question lies at the center of a heated debate over Enbridge Energy's Line 5 pipeline, which carries oil and natural gas across Michigan and Wisconsin.

Courts, regulatory agencies and political leaders are deciding whether Enbridge should be allowed to keep its pipeline in place, with upgrades, for another 99 years. The State of Michigan and the Bad River Tribe in Wisconsin want to close the pipeline down immediately.

My expertise is in Great Lakes water and energy policy, environmental protection and sustainability leadership. I have analyzed and taught these issues as a sustainability scholar, and I have worked on them as the National Wildlife Federation's Great Lakes regional executive director from 2015 until early 2023.

In my view, the future of Line 5 has become a defining issue for the future of the Great Lakes region. It also could set an important precedent for reconciling energy choices with state regulatory authority, and Native American rights.

A Canadian pipeline through the US Midwest

Line 5, built in 1953, runs 643 miles from Superior, Wis., to Sarnia, Ontario. It carries up to 23 million gallons of oil and natural gas liquids daily, produced mainly from Canadian tar sands in Alberta.

Most of this oil and gas goes to refineries in Ontario and Quebec. Some remains in the U.S. for propane production or processing at refineries in Michigan and Ohio.

Controversy over Line 5 centers mainly on two locations: the Straits of Mackinac, and the Bad River Band Reservation in Wisconsin, where the pipeline crosses tribal land.

Line 5 crosses through the open water of the Straits of Mackinac in twin pipelines that rest on the lake bottom in some stretches, and are suspended above it in others. The route lies within an easement granted by the State of Michigan in 1953.

The Straits of Mackinac are one of the most iconic settings in the Great Lakes. They include hundreds of islands and miles of shorelines rimmed with forests and wetlands. Scenic Mackinac Island in Lake Huron, a popular resort area since the mid-1800s, is Michigan's top tourist destination.

The straits also have long been spiritually important for Great Lakes tribes. Michigan acknowledges that the Chippewa and Ottawa peoples hold treaty-protected fishing rights that center on the Mackinac region.

The Line 6b spill

In 2010, another Enbridge pipeline, Line 6b, ruptured near the Kalamazoo River in southern Michigan, spilling over 1 million gallons of heavy crude. Line 6b is part of a parallel route to Line 5, and the cleanup continues more than a decade later.

The spill, and Enbridge's slow, bungled response and lack of transparency, led to scrutiny of other Enbridge pipelines, including Line 5.

In a 2014 analysis, University of Michigan oceanographer David J. Schwab concluded that the Straits of Mackinac were the "worst possible place" for a Great Lakes oil spill because of high-speed currents that were unpredictable, and reversed frequently. Within 20 days of a spill, Schwab estimated, oil could be carried up to 50 miles from the site into Lakes Michigan and Huron, fouling drinking water intakes, beaches and other critical areas.

This, and other research, intensified a burgeoning advocacy campaign by pipeline opponents, including regional and national environmental organizations, Indigenous leaders and advocates and a newly formed network of local and regional businesses.

Pipeline supporters include the American Petroleum Institute and others in the fossil fuel industry, many conservative lawmakers, several key labor unions and the government of Canada. They argue that the current pipeline is safe, violates no federal laws and is a key piece of infrastructure that helps keep energy costs low.

Michigan revokes its easement

After years of scrutiny, including the formation of the Michigan Pipeline Safety Advisory Board and two expert reports commissioned by the state, analyses showed that Enbridge was violating provisions of its easement. Most notably, the section of Line 5 that ran under the straits lacked proper anchors and coating, increasing the threat of a rupture. The state concluded that the easement violated the public trust doctrine — the idea that government should protect certain natural resources, including waterways, for public use.

State reports concluded that the highest risk for rupture was from anchor strikes. Environmental nongovernment organizations found that Line 5 had already leaked more than 1 million gallons of oil and natural gas liquids. On April 1, 2018, a boat anchor struck the pipeline and nearly ruptured it, temporarily shutting Line 5 it down.

In 2019, Gov. Rick Snyder was succeeded by Gretchen Whitmer, who pledged in her campaign to close Line 5. Seeking to avert a shutdown, Enbridge proposed building a tunnel beneath the lake bed to protect the pipeline.

But after more analysis — and another anchor strike that temporarily shut down the pipeline again — Whitmer issued an order in November of 2020 revoking Enbridge's easement and giving the company six months to close Line 5. The state sought a court order to support its decision.

Instead of accepting state orders, Enbridge resisted. The company argued that Michigan lacked authority to tell it how to manage the pipeline, that the project had not required an easement in 1953, and that building the tunnel would mitigate any risks.

Enbridge sued Michigan in federal court, arguing that pipeline safety regulation was a federal issue, and that the state had no authority to intervene in what was essentially international commerce.

Challenging state and tribal authority

Enbridge also faced pressure from the Bad River Tribe in Wisconsin, where some 12 miles of the pipeline runs through the Bad River Band reservation and across the Bad River. Enbridge's easement on parts of the reservation expired in 2013, and in 2017 the tribal council voted to evict Enbridge from their land, calling the pipeline a threat to the river and their culture.

When Enbridge continued operating Line 5, the tribe sued the company in federal court in 2019, charging it with trespass, unjust enrichment and other offenses, and sought to get the pipeline closed.

Today, Michigan's case against Enbridge is bogged down in jurisdictional battles. But on June 16, 2023, the federal judge overseeing the Bad River case ruled largely in favor of the tribe and ordered Enbridge to stop operating the pipeline on tribal land within three years. Enbridge vowed to appeal the ruling, but is also seeking permits for a 41-mile reroute of Line 5 around the reservation.

A national precedent

Line 5 is more than a Michigan issue. It has become a focus for national activism and is a major diplomatic issue between Canada and President Joe Biden, who has worked to balance his ties with organized labor and his support for a clean energy transition, and has avoided taking a side to date.

To continue operating Line 5, Enbridge will have to convince the courts that its interests and legal arguments outweigh those of an Indigenous nation and the State of Michigan. But if the courts rule against Enbridge, it would be the first time an active fossil fuel pipeline has been closed due to potential environmental and cultural damage.

The outcome could set a precedent for other pipeline and fossil fuel infrastructure battles, from the mid-Atlantic to the Pacific Coast. Ultimately, in my view, Line 5 is an under-the-radar but critical proxy battle for how, when and under what authority the phasing out of fossil fuels will proceed.

Mike Shriberg is a professor in the School for Environment & Sustainability at the University of Michigan, a former Great Lakes Regional Executive Director for the National Wildlife Federation, and a former gubernatorial appointee under Gov. Rick Snyder to the Michigan Pipeline Safety Advisory Board. This article is republished from The Conversation under a Creative Commons license. Submit a letter to the editor at freep.com/letters.

Your Turn

Mike Shriberg

The New Shutdown Order

"Undo Line 5 Shutdown Order, Federal Government's Filing Urges U.S. appeals Court, The Canadian Press, Sept. 18, 2023

WASHINGTON — "Ottawa is urging a U.S. appeals court to reverse a Wisconsin judge's order that threatens to shut down the Line 5 cross-border pipeline by June 2026.

Forcing a shutdown would violate Canada's treaty rights, government lawyers argue in an amicus brief filed today with the U.S. Seventh Circuit Court of Appeals.

A Wisconsin court ruling in June gave Calgary-based Enbridge Inc. an ultimatum: reroute the pipeline around an Indigenous reserve within three years or shut it down.

Enbridge plans a 66-kilometre detour to replace the 19-kilometre stretch that runs through the sovereign territory of the Bad River Band of the Lake Superior Chippewa.

Both sides are appealing the decision — Enbridge wants more time to finish the reroute, while lawyers for the band want the taps turned off for good.

The band and its environmental allies fear a spill inside an ecologically sensitive and flood-prone Lake Superior watershed on the Bad River reserve."