Three core issues for landowners, residents: Part 2

Aug 2, 2012 by

Core issue #2: Local consent

When a right of way agent from Enbridge knocked on our door carrying a map showing the route of Line 6B, a copy of Michigan’s eminent domain laws, and the bad news that we were going to see the stand of very large trees and the perennial garden in our backyard totally razed, we didn’t quite know what hit us. We’d seen Enbridge in the neighborhood two years earlier doing “integrity digs” and we had received notice that they had plans to “replace” the pipe that runs across our property. But that’s about it. It was months into our negotiations before we got word of any public forums at which the project would be discussed, news stories about the project were pretty much non-existent, and our local municipality appeared to have very little interest (at least formally) in the project.

It was as if Enbridge’s sudden appearance in our township was just a change in the weather: a natural occurrence like rain or fog, something hardly worth mentioning, much less something anyone could do anything to change. 

What’s more, the only state agency charged with approving such projects, the Michigan Public Service Commission, happily waved Enbridge onward with little questioning, skepticism, or concern for the rights of individual landowners, public safety, or the state’s national resources. Whatever Enbridge wants, Enbridge gets. In their view, MPSC approval is a green light.

Except (and here I am indebted to Jeffrey Axt, president of POLAR, and attorney Gary Field) that it turns out that MPSC is not the green light; it’s only one green light of many. There are many more intersections (literally and figuratively) through which Enbridge must pass before it can commence construction. In fact, according to the Michigan state constitution, Enbridge is required to seek local consent (from cities, towns, villages, and townships) before beginning construction. This is from Article 7, Sec. 29 of the Michigan constitution:

No person, partnership, association or corporation, public or private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village

In fact, in 2004 the Michigan Supreme Court ruled that another pipeline company, Wolverine, had to seek the approval of the city of Lansing before constructing a pipeline within city limits (you can read about the case at the MPSC website). The court’s decision cited the state Highway Act, which states:

(1) Except as otherwise provided under subsection (2), telegraph, telephone, power, and other public utility companies, cable television companies, and municipalities may enter upon, construct, and maintain telegraph, telephone, or power lines, pipe lines, wires, cables, poles, conduits, sewers or similar structures upon, over, across, or under any public road, bridge, street, or public place, including, longitudinally within limited access highway rights-of-way, and across or under any of the waters in this state, with all necessary erections and fixtures for that purpose. A telegraph, telephone, power, and other public utility company, cable television company, and municipality, before any of this work is commenced, shall first obtain the consent of the governing body of the city, village, or township through or along which these lines and poles are to be constructed and maintained.

As matters stand now, it would appear that Enbridge either disputes this requirement of state law (although the basis upon which they dispute it is not clear) or they are simply trying to circumvent or ignore it.

Whatever the case, here’s the thing: unless individual municipalities step up and raise the question of local consent, Enbridge can ignore it. To date, as far as we know, only Brandon Township has pursued this matter of local consent. It has been the topic of two successive board meetings. And while the outcome of their deliberations is yet to be determined, the other forty-plus townships in Michigan– and who knows what the laws are, say, in Indiana– should follow their lead.

So, what can you do? Well, you can contact your local officials– your mayor, council members, your township supervisor and trustees– and help inform them of this requirement and its importance. It probably doesn’t matter much to an operation the size of Enbridge if one small township asks some tough questions. But if twenty, or thirty, or forty of them, if dozens of municipalities all along the construction route, decide to assert the authority and autonomy granted them by the state constitution– well, then Enbridge will have to take notice.

Of course, the obvious question at this point is what good it will do for local municipalities to demand that Enbridge seek their consent? What is to be gained? Well, one major answer to that question is the main topic of the third and final part of our series. Stay tuned:

Up next: safety

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  1. Three core issues for landowners, residents: Part 3 | Line 6B Citizens' Blog - [...] (and that’s pretty much all of us!) we discussed individual landowner negotiations and local consent. In our discussion of …
  2. Enbridge flouts local ordinances | Line 6B Citizens' Blog - [...] Part 2 of our series on Core Issues for Landowners a couple of week’s ago, we wrote about the …
  3. More on what leadership looks like | Line 6B Citizens' Blog - [...] (more on the latter in a moment). The legal authority for such enforcement would derive from the “local consent” …
  4. On Enbridge and exemptions, Part 3 | Line 6B Citizens' Blog - [...] to comply with the Michigan state constitution and statutory law– and this takes us back to some ground that …
  5. Crude oil or petroleum? A legal thicket | Line 6B Citizens' Blog - [...] the case that has been cited a lot in Line 6B filings: the Wolverine case (we’ve discussed it here). …
  6. Michigan Townships Association supports POLAR lawsuit | Line 6B Citizens' Blog - [...] issue, of course, is one that we have discussed again and again. The MTA’s brief makes a careful and …
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