Line 5, the Mackinac Straits and oil spill concerns

Tunnel option passes one Michigan hurdle, encounters two more

MICHIGAN – The battle over the length of the Line 5 pipeline that runs along the lakebed through the Straits of Mackinac is heating up—with victories declared on each side.

The stakes are huge. Much of the heating fuel and propane on both sides of the borders in Eastern North America depends on the Enbridge Line 5 pipeline, with thousands of jobs on the line. On the other side of the ledger, the pipeline poses a potential threat to a huge swathe of the shorelines of Lake Superior and Lake Huron, including a good portion of Manitoulin’s south shore and West End.

Enbridge has refused to shut the pipeline down while it pursues an alternate route through a tunnel which would run far beneath the lakebed. That tunnel, which is slated to begin this year and would be totally privately financed at $500 million, is planned for completion in 2024.

Enbridge was initially successful in moving the court battle from state to federal court, but that decision has not been finalized.

The Canadian and Ontario governments have been pressing hard on both Michigan Governor Gretchen Whitmer and new US president Joe Biden to rescind the governor’s order to shut down the pipeline by mid-May. A number of neighbouring states whose economies and fuel supplies also depend on the pipeline have joined in that call, while 17 state attorney generals have called on the court to uphold the state’s right to govern the environment within their borders and to send the case back to the state level.

“Clearly Line 5 is an important issue for the Government of Canada…at the same time we need to be advancing on a co-operative basis the work we’re doing on climate action,” said Canada Environment Minister Jonathan Wilkinson earlier this month in comments to Rueters.

Enbridge spokesman Ryan Duffy agreed, noting that a negotiated solution would be in the best interests of all parties.

Canada has focussed on the pipeline in dozens of bilateral meetings, including 23 virtual meetings between lawmakers and US members of Congress, according to a spokesman for Canada’s Natural Resources Minister Seamus O’Regan, who has characterized the continued operation of the pipeline as “vital.”

To that end Ottawa is even considering invoking the never-before-used 1977 Transit Pipelines Treaty, designed to stop US or Canadian public officials from impeding the flow of oil in transit.

Also expressing support for the case’s remand to state court are several environmental groups and Indigenous communities, including the Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians and the Nottawaseppi Huron Band of the Potawatomi. 

“…the state’s actions that are the subject of the lawsuit are a legitimate exercise of its authority, under state law, to protect land, waters and treaty-protected resources that have deep cultural, spiritual, and economic significance to the tribal amici,” admonished the American tribes in their filing.

Scott Archer, business agent with Local 663 Pipefitters Union in Sarnia, where three of Ontario’s refineries are located, described Line 5 as the “spinal cord of Ontario’s infrastructure” in recent testimony before Canadian lawmakers. “Shutting down Line 5 will in effect kill my hometown and many more places like it in Canada and the US,” he said.

The United States imports more crude oil from Canada than any other nation, at about 3.7 million barrels per day, or about 80 percent of Canada’s crude output.

In another win for the energy company, the Michigan Public Service Commission, which is considering Enbridge’s application to replace the section of its Line 5 that runs beneath the Straits of Mackinac that in evaluating whether to issue a permit, it would not pass judgment on whether the entire 1,038-kilometre line that runs across northern Michigan and Wisconsin should keep operating, saying that bridge had been crossed a long time ago.

But in a more troubling decision for the tunnel proponents, the commission ruled that emissions of climate-warming gases would be among factors it considers in determining whether to issue the permit. The commission did not elaborate on the weight those factors would be given in its deliberations.

The commission said it was required under the Michigan Environmental Protection Act to consider not only pollution from building the tunnel and new pipeline segment, but also from the petroleum liquids they transport.

The issue has taken on partisan shades, as Democratic leaders in 16 states and the District of Columbia have taken Michigan’s side in the fight to have a state court, not a federal judge, decide whether the state has the authority to shutter Enbridge’s Line 5 oil pipeline in the Straits of Mackinac. The states argue that federal courts don’t have the jurisdiction to rule on disputes over state property rights even if the pipeline alleged to be in violation of those property rights is federally regulated.

Enbridge removed the pipeline case to federal court, while also suing to stop the closure on the premise that regulation of the pipeline is exclusive to federal authorities with the Pipeline and Hazardous Materials Safety Administration.

The court challenge is scheduled to be heard on May 12.

According to Enbridge, recent surveys indicate most Michigan residents support the Great Lakes Tunnel project, including the replacement pipeline.