Over the past several days, we’ve been commenting upon Christopher Behnan’s Daily Press & Argus story, an article (in our opinion) that advances Enbridge’s claims that they are exempt from seeking local consent. This morning, a similar story by Eric Lawrence appears in the Detroit Free Press. Lawrence, who has done some very fine reporting on the Line 6B project, is (appropriately) somewhat more skeptical toward Enbridge’s position than Behnan. Just note the difference between the two headlines. Here’s Behnan’s, which states Enbridge’s position as if it is established fact:

Enbridge line exempt from local ordinance

Now here is Lawrence’s, which recognizes that Enbridge’s position is not a fact, but an arguable claim:

Townships set out demands for pipeline, but Enbridge says it doesn’t need consent

We touched on this problem with Behnan’s article in our first post on this topic. We also discussed Enbridge’s argument that the language of the Howell ordinance itself contains exceptions which apply to Enbridge and, perhaps, exempt its project from the ordinance. Today, we return to that topic.  

We return to it because the provision of the Howell ordinance upon which Enbridge bases its claim of exemption (which we conceded may have merit, though it’s far from certain) is not the only argument Enbridge makes. Their more expansive argument when it comes to the question of local consent—whether it’s the Howell ordinance or the Brandon Township resolution— is that they are subject only to federal, not local, oversight. That is what they told Howell township. Here is the rather confusing way this is presented in the Behnan article:

Township Clerk Carolyn Eaton said Enbridge said the township’s legal counsel agreed the local ordinance doesn’t apply to the Enbridge project.

“He said that our ordinance really wouldn’t hold water because they’re under the federal government as a utility. Our ordinance doesn’t mean anything,” Eaton said.

It’s not clear here why Carolyn Eaton cites what Enbridge says the Howell attorney says. Nor is it clear why the Howell attorney appears so ready to give in and accept Enbridge’s view on this question. Lawrence reports it this way:

Carolyn Eaton, the clerk and zoning administrator in Howell Township, said the township’s attorney told her that the ordinance would not hold water because of federal regulation. She noted that the township has no funds for a legal battle.

Now, Carolyn Eaton’s position is perfectly understandable; few, if any, townships have the funds to take on a protracted legal battle with a behemoth like Enbridge. But that unfortunate practical consideration has nothing whatever to do with the legal question at stake. The Howell Township attorney’s position– “that the ordinance would not hold water because of federal regulation”– makes little sense at all; it just parrots Enbridge’s dubious claim. Again, from Lawrence’s article:

Enbridge attorney Michael Ashton said in a letter to the township that the community’s ordinance is not applicable because pipelines are federally regulated and the line that the pipeline is replacing was in place 30 years before the ordinance was adopted.

It’s hard to know what exactly Ashton is asserting here. Is he saying that because pipelines are federally regulated, they are subject to no other oversight? That sort of claim is absurd on its face, as Ashton knows very well. Otherwise, why would Enbridge have sought approval from the Michigan Public Service Commission? Why would they apply for permits with the Michigan Department of Environmental Quality? Federal regulations don’t somehow automatically exempt pipelines from complying with local ones. That’s why Enbridge is (sort of) complying with (some) local ones, such as those I’ve just mentioned.

The real question is whether Enbridge has to comply with the Michigan state constitution and statutory law– and this takes us back to some ground that we’ve covered before. For that reason we’ll be brief. Lawrence gets to the crux of the matter in two succinct paragraphs:

A community’s enforcement powers may hinge on the interpretation of a 2004 Michigan Supreme Court decision. In it, the court affirmed an appeals court ruling that said Wolverine Pipe Line would need permission from Lansing before building a gas pipeline there.

But the law was amended in 2005 to explain that entities defined as a utility under federal guidelines would not need local consent for projects. That could mean a court would ultimately decide the issue.

There’s a bit of sordid legislative history here that I won’t dwell upon. Suffice it to say that after that 2004 court decision, some Michigan legislators were all too willing to do Wolverine’s bidding and amend the law to gave them exactly what they wanted.

But what matters to us more immediately is that, In the course of the MPSC proceedings, Enbridge has mostly been able to evade confronting these legal questions. Pushed to do so (and Brandon Township has tried to push), they will probably lean on that 2005 amended law. However, that amended law is very narrow; it just applies to pipelines adjacent to interstate highways. What’s more, that amended law might well be unconstitutional.

All of which leaves us with this: the situation is exactly as Lawrence describes. Sooner or later (we hope sooner) a court is going to have to decide this issue. That’s why the Brandon resolution is so very important. That’s why it’s so important that other townships and the Michigan Township Association (we very much applaud MTA Executive Director Larry Merrill’s remarks on this point) support Brandon and take their own action. That’s why it is so important that YOU contact your local and state elected officials to get them to exert whatever pressure they can on behalf of local authority and autonomy.