Brandon-Enbridge agreement, Part 1

Dec 5, 2012 by

As we reported yesterday, the Brandon Township Board of Trustees voted to approve an agreement with Enbridge at the end of a very long meeting Wednesday night. The agreement, the precise language of which has yet to be finalized, puts an end to any litigation against Enbridge on the part of Brandon. We attended the meeting– all five exhausting hours of it. And while we have not seen the agreement document, we can provide some details based on the information presented and discussed at the meeting. But since there’s so much to report, we’re launching it as a new series. This is our first installment.

The Enbridge representatives who attended the meeting were Project Manager Thomas Hodge, attorney Mike Ashton, and General Counsel Mark Curwin. We were struck by the absence of any of Enbridge’s public relations representatives (what ever happened to Joe Martucci, anyway?), which was a pretty clear indication that at this meeting, Enbridge meant business– and also perhaps an indication that in previous meetings with Brandon, Enbridge did not really mean business. After a brief presentation to the Board by Tom Hodge restating the basics of the project, the new Board was sworn in. They then conducted their regular business and then convened a closed session– which lasted nearly two hours!

(Teaser: It was during this break that we introduced ourselves to Curwin, Hodge, and Ashton; we’ll make that encounter the subject of another installment of this series.)

We assume that during the closed session, the township attorney walked the board through the terms of the drafted agreement. It is our understanding (based on discussions that proceeded when the Board returned) that the agreement is based on a “Sample Enbridge agreement” that has been circulated to townships by the Michigan Townships Association. We happen to have a copy of that document. It’s not clear whether the MTA created it or initiated its creation–it reads to us as if it were written by Enbridge– or why the MTA would want to create such a thing, especially given that a month ago they filed an amicus brief in federal court in support of POLAR’s attempt to enforce the Michigan Constitution’s “consent” requirement. Whatever the case, the sample agreement says this:

WHEREAS, the Township of ____________, (hereinafter referred to as the“Township”), a Michigan municipal corporation whose address is _______________ asserts that pursuant to Article 7, Section 29, of the 1963 Michigan constitution and MCL 247.183 consent to cross certain roads and/or public rights-of-way within the Township for purposes of installing underground pipelines is required to be obtained from the Township (hereinafter referred to as the “Consent”), which Consent is not to be unreasonably withheld by the Township…

But then a little farther down, it says this:

WHEREAS, Enbridge asserts that the provisions of Article 7, Section 29, of the 1963 Michigan Constitution and MCL 247.183 do not apply to Enbridge’s Line 6B pipeline system, nor the Project; that to the extent Township consent is required that consent was given to Enbridge upon initial construction of the pipeline in 1969; and that the Township has waived any right to assert these requirements at this time.

So what we have here is a document that evidently has townships giving consent even though the document does not insist that Enbridge is actually required to seek that consent. Of course, one could argue that this is a nice compromise measure; we would imagine that this is what Enbride would say. However, the obvious problem with that is that most of us don’t get to craft compromises when it comes to complying with the laws of the state; we just have to comply.

Aside from making it clear that Enbridge is NOT agreeing that they are legally required to seek consent, the agreement doesn’t really do very much. It says Enbridge will pay the township a thousand bucks, will have insurance, and will behave during construction. And that’s pretty much it.

We don’t know how closely the Brandon agreement adheres to the MTA’s sample document. We don’t know, for instance, whether the Enbridge-asserts-it-does-not-need-consent clause is included in the Brandon agreement. What we do know is that Brandon insisted upon some modifications and amendments, which Enbridge agreed to. These are as follows (again, as best as we can piece together from discussion without having seen the final document itself):

  • As a settlement with regard to the Brandon Woodlands Ordinance, Enbridge will pay the township $10,000 in addition to supplying replacement trees (80 trees per acre) for the estimated 6 acres of clearing on the township. We’ve got some things to say about this tree replacement program also, but we’ll save that for another post.
  • Enbridge will post a bond in the amount of $5ok for road restoration; this seems like a very good thing, especially since the laughable bond required by the Oakland County Road Commission is for a mere $5000.
  • Enbridge agreed to the use of a construction supervisor or inspector, hired by Brandon but paid for by Enbridge, whose job it will be to oversee compliance with construction agreements with landowners. This is, we think, a stroke of brilliance– something that’s been needed in Livingston and Ingham counties (and elsewhere) for a long time. Every single township should insist on the same. Brandon deserves ENORMOUS kudos for coming up with this measure as a way of helping to protect its citizens.
  • Lastly, Enbridge said they were rolling out an “environmental stewardship” program that would make funds available to every township along the line. The amount has yet to be determined and it will evidently vary depending upon township population and other factors. But the money can be used for a variety of measures and perhaps even for local groups as long as it meets certain criteria for environmental stewardship. This, too, we are happy to say, sounds like a great idea. Yet– and this seems to be Enbridge’s specialty–the program is soured somewhat by the fact that Enbridge didn’t just do it in the first place, months ago. It would appear that Enbridge only acts like a good neighbor after they’ve been challenged, sued, had their construction activities halted, and received a fair amount of bad press.

Without knowing all of the final details, we would say that this is not a bad agreement for the citizens of Brandon and, perhaps, for landowners all along the route, assuming that other townships step forward and insist that they be treated similarly. Whether one is disappointed that Brandon won’t push the legal questions any further, we think that everyone owes Supervisor Thurman and the trustees genuine thanks.

We’ll fill in details as they become available to us. We hope that we haven’t got anything wrong here; we’ve had to piece these things together based on what we witnessed at the meeting. Stay tuned for more in this series– including further descriptions of our brief chat with the Enbridge reps and more details of some of the drama (and there was drama!) that unfolded during the meeting– as soon as we can get to it.

 

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