by Jeffrey Insko | Jan 28, 2013 |
The crack staff of journalists at Inside Climate News— this time, Lisa Song– continues to do outstanding work. This morning comes another excellent article. It seems that Enbridge is not too keen about having to perform more cleanup of the Kalamazoo River. Not surprisingly, that doesn’t sit too well with our friend Deb Miller, on point as always:
We were promised this would be made whole, that the river would be made better than it was before…In my mind, it comes down to a bottom line. They don’t want to put the money into dredging.”
On the bright side, Enbridge did recently write a big, fat check to the Calhoun County Trailway Alliance. So that’s something.
We were also interested in this story, of a religious retreat center that recently withdrew its petition to intervene in Phase Two. Why? Well, pretty much because of Enbridge’s overwhelming power and MPSC complicity (about which, by the way, we’ve had some things to say recently):
“It became really quite clear that [Enbridge] was sure of getting a permit,” [Center director Naomi] Wenger said. She and her colleagues felt anything they did would simply delay the inevitable. Lack of resources to hire a lawyer was also a factor.
Finally, while not directly related to Enbridge or Line 6B, we found this New York Times article on some of the unintended consequences of oil production in North Dakota rather alarming. (And you know whose pipelines transport much of that oil.) We can’t help but note a strange omission from the article, though: couldn’t some of those oil companies just offer health care to their workers?!
by Jeffrey Insko | Jan 27, 2013 |
In our latest series, we’re reporting on some of the arguments and testimony presented before the MPSC on Enbridge’s phase two application. And as we do, we’ve been thinking about and discussing how well the MPSC fulfills (what we view as) its obligations, as a state regulatory body, to the citizens of the state of Michigan. In our first installment, we introduced you to the MPSC’s public engineer Travis Warner, who (to be blunt) appears not to be working all that hard when it comes to analyzing Enbridge’s application. In our second installment, we introduced you to MPSC staff attorney Michael Orris, who does seem to be working hard– that is, working hard on behalf of Enbridge, rather than on behalf of the public that pays his salary.
So far, we’ve mostly left the Administrative Law Judge in this matter, Theresa Sheets, off the hook. But make no mistake, we’re as baffled by her willingness to accept Enbridge’s arguments (at nearly every turn) as we are by Michael Orris’s. In this our third installment, we take a closer look at Judge Sheets and one of the more troubling ways she has allowed Enbridge to frame and determine the direction of the Enbridge proceedings.
To begin, it’s worth taking note of Judge Sheets’s background. She is still listed (on their website) as an employee of the Lansing firm Loomis, Ewert, Parsley, Davis & Gotting. According to her profile there she
is experienced in oil and gas law, including issues of land use, negotiation of oil and gas leases, representation of clients in matters before the Michigan Department of Environmental Quality under oil and gas laws, negotiation of wind leases, and various aspects of wind farm development.
Presumably, it is this experience that got her appointed to be ALJ at the MPSC. Yet we also presume that her “oil and gas law” experience does not entail advocating on behalf of those who might somehow find themselves at odds with large oil and gas interests. Why do we so presume? Well, for one thing, because her (former?) firm:
represents a number of oil and gas producers operating within the State of Michigan. The firm is widely recognized for its expertise in oil and gas law, and has rendered legal services for the oil and gas industry for more than 30 years. Our presence in Lansing, Michigan, results in convenient access to all state regulatory agencies having jurisdiction over oil and gas operations.
And for another thing, Sheets’s Loomis profile also notes that she is (or was) a member of the Michigan Oil and Gas Association. Who are they? Well, according to their website, the MOGA:
represents the exploration, drilling, production, transportation, processing and storage of crude oil and natural gas in the State of Michigan. MOGA has nearly 1,000 members of which includes independent oil companies, major oil companies, and the exploration arms of various utility companies. . . The organization has been described as the collective voice of the petroleum industry in Michigan, speaking to the problems and issues facing the various companies involved in the states crude oil and natural gas business.
And for one more thing, her profile touts the fact that she “has lectured on leasing; title and trust ownership at conferences of the Michigan Association of Professional Landmen.” Who are they? Well, they’re a group made up of “individuals responsible for the acquisition, administration and disposition of mineral and/or surface rights for petroleum exploration and production companies…” That’s right, it’s an organization for people who work as ROW agents (you know, just like the ones so many of us have gotten to know over the past year or so). Judge Sheets is (or was) a member of that organization as well.
Now, what does all this mean? It’s certainly not terribly surprising that someone with the sort of experience Theresa Sheets has had would wind up working for a state agency ostensibly responsible for regulating the same industry clients for whom she worked. This kind of thing is totally routine– as we learned, for example, about PHMSA at the PS Trust conference last November. And, theoretically at least, we’ll even concede that it’s possible that one could spend a significant portion of one’s career advocating for a particular industry and still be impartial as a regulator of that industry.
Nevertheless, this work history gives us some pause. Does it rise to the level of a conflict of interest? We don’t know. But if nothing else, it’s safe to say that Judge Sheets has been trained to approach and think about “oil and gas law” from the industry’s point of view, not from the point of view of those who might be critical or skeptical of the claims made by that same industry, like ordinary landowners. We wonder: is it really too much to ask that those tasked with scrutinizing the claims of an oil company have some genuine experience advocating for someone other than those oil companies? Like, for example, those whom that same oil company might potentially harm or abuse?
Which brings us back to the phase two proceedings. Inexplicably, Judge Sheets has had no trouble accepting nearly every argument made by Enbridge throughout these proceedings. In fact, there are only two instances we have come across (perhaps there are others we have missed) where she has in any way contravened the claims or wishes of Enbridge: there was the moment when, at an August hearing, she stated that she believed that the state constitution required Enbridge to seek local consent before beginning construction; and there was her ruling granting intervenors additional time in order to review the just-released NTSB report.
Of course, neither the statement nor the granting of additional time has made any substantive difference since, in both cases, Judge Sheets also ruled that neither the “local consent” provision in the state constitution nor the NTSB report were relevant to the MPSC matter at hand; in fact, she has specifically excluded both from the proceedings. And this is the crucial point here: Enbridge attorneys have labored to so limit the scope of the MPSC’s authority so severely as to cripple it– and Judge Sheets has helped them succeed.
We’ll explain precisely how she has facilitated Enbridge’s strategy in a separate post (installment 3.1!), as this one has already gotten much longer than we’d planned. Stay tuned.
by Jeffrey Insko | Jan 26, 2013 |
When we got up this morning, Sam (that’s the dog) said he’d like to wander the neighborhood to see the pipe. So we did. One of the construction workers, noting what a handsome boy Sam is, asked if he is an Irish Wolfhound. The answer is no. He is a German Wirehaired Pointer. But the real point of telling you about that little exchange? Well, judging from the guy’s accent, he is yet another worker who is not from Michigan.
by Jeffrey Insko | Jan 25, 2013 |
We work pretty hard here at the Line 6 Citizens’ Blog to keep our cool. It’s not always easy. Case in point: yesterday, we linked to a recent editorial piece by Doug Ross of the Times of Northwest Indiana. To be frank, the piece is so bad, so reliant upon Enbridge talking points (he appears to have taken almost everything he says from one of Enbridge’s brochures, like this one) , and demonstrates such an astonishing ignorance of even the most basic facts of the Line 6B “replacement” project and citizen concerns about it, that we could hardly believe a reputable paper would publish such a thing (and make no mistake about it, reporters at that paper have done some excellent work).
What doesn’t Doug Ross understand? Let’s take a look:
The most extraordinary thing about Ross’s op-ed is that there is no mention whatsoever of Marshall. Ross seems to think that Enbridge just one day decided to make an enormous capital investment in a new pipeline because they just care so much about safety. Here is what Ross says:
The company should be commended for recognizing the need for a new pipeline, to both minimize the danger of leaks and to increase the flow capacity.
Enbridge “should be commended for recognizing the need for a new pipeline”? Honestly, in the six months or so since we started reading, researching, documenting and discussing all things related to Line 6B, this has got to be the most extraordinary statement we’ve heard yet. Ross seems to be suggesting that the replacement project is some sort of preemptive action on the part of Enbridge, when in fact everybody knows– everybody, that is, except Doug Ross– that the ONLY reason Enbridge is replacing Line 6B is because in 2010 the old pipeline ruptured, spilling more than a million gallons of diluted bitumen into Talmadge Creek. Prior to that spill (frankly, it makes us angry to have to rehearse this yet again), Enbridge disregarded known defects in the pipe. Why? That’s not entirely clear, but one reasonable theory is that it’s because they did NOT want to make the sort of capital investment they would have had to make to repair those defects.
But what about after the spill– the most expensive inland spill, we would remind Doug Ross, in U.S. history? Did Enbridge then “recognize the need for a new pipeline”? Well, no, they did not. In fact, just two weeks after the spill, Enbridge sought permission from PHMSA to restart the line. And PHMSA denied their request, finding Enbridge’s plans for a safe restart inadequate. Soon after this, Enbridge began a number of “integrity digs” to replace or repair sections of the pipe here and there along the route (including in our neighborhood). It wasn’t until later, in August of 2011, that Enbridge applied to the Michigan Public Service Commission to “replace” the pipeline. Why? Well, Enbridge likes to say it’s because replacing it would mean fewer maintenance activities on the old pipe and less disruption to landowners (which may or may not be true)– a claim that Ross is all too happy to parrot: ” Installing a new pipeline means less maintenance, so there would be fewer disruptions to property owners,” Ross writes.
But more importantly, the real reason Enbridge decided to replace the pipeline had very little to do with landowner disruptions or safety and everything to do with making money. Here’s what Enbridge says in their application to the MPSC:
Enbridge has conducted numerous discussions and meetings with its shippers regarding their current and future transportation requirements on Line 6B. These discussions have played an important role in Enbridge’s decision to replace the remainder of the Line 6B pipeline segments because shippers have expressed a present need for additional pipeline capacity. However, with Line 6B expected to operate at pressures below the previous maximum operating pressure, the available pipeline capacity on Line 6B would be reduced. By replacing the remaining segments of Line 6B with new pipeline, Enbridge will be able to achieve the original ultimate capacity and also provide the pipeline capacity necessary to meet its shippers’ current transportation requirements.
What’s interesting here, however, is what Enbridge does NOT say. Why was the existing “Line 6B expected to operate at pressures below the previous maximum operating pressure”? Enbridge’s way of putting this makes it seem like that is a fact beyond anyone’s control, as if operating pressures just sort of ebb and flow like the tides. But the truth of the matter is that Enbridge was under a corrective order from PHMSA to reduce operating pressure. And why were they under that corrective order? Because the pipeline had just ruptured and spilled over a million gallons of diluted bitumen into Talmadge Creek!
So no, Enbridge ought NOT to be “be commended for recognizing the need for a new pipeline.” They were forced by circumstances–circumstances created by their own neglect and operational failures, according to the NTSB– and by financial exigencies to replace the pipeline. Had Marshall never happened, you can bet that there would be no replacement project.
Let’s consider some of Ross’s other claims. Ross says that “What has brought so much public attention to this project is the need to expand the easement through people’s yards and fields.” This is only partially true. Certainly the expansion of the easement is a (totally valid) concern for many landowners, one to which Ross appears not to have given much thought. In some cases, that easement is astonishingly close to people’s homes; in other cases, it will disrupt portions of people’s property– trees, gardens, and other spaces– that mean a great deal to homeowners. Yet even considering that, the real problem isn’t that Enbridge needs (or wants) additional easement rights. The problem is the way they’ve gone about acquiring those rights in so many cases: strong-arming landowners, negotiating in poor faith, misleading and misinforming people. Stories of bad behavior and bad faith dealings abound along the Line 6B route; we’ve documented many of them here (and heard dozens more that we have not written about).
What’s more, the additional easement is just one of the many things that “has brought so much public attention to this project.” There’s also Enbridge’s use (or taking) of additional temporary workspace, their flouting of local ordinances and state laws, their general litigiousness, their refusal to meet and talk with local municipalities (until forced to do so), their unfair and disrespectful treatment of landowners and local officials, their violations of construction agreements— all the things that we and others have been documenting for months. Has Doug Ross bothered to look into any of this? Did he have even one conversation with anyone other than Tom Hodge and Enbridge spokespersons before writing his editorial?
Oh, but there’s more. Ross also repeats Enbridge’s claim that “building the new pipeline will create more than 1,000 temporary and permanent jobs, which,” Ross says, is “a big plus in itself.” Ross seems to think that these will be local jobs, even though Enbridge doesn’t even make that claim; instead, they just say, vaguely, that “Many workers will be drawn from the local workforce.” How many? It’s impossible to say. Enbridge can’t (or won’t) even say. They only speculate with the help of some mathematical magic. (Unscientifically, we can tell you that we’ve spoken to about 30 construction workers in our area and so far only 3 have been from Michigan.) At best, Enbridge’s claims of job creation and local economic benefits are unverifiable– and thus hardly a basis upon which to build a trenchant argument in support of the project– unless you’re as gullible as Doug Ross.
Two quick final points:
Cheerfully, Ross says that “This is a necessary project, and public input — which Enbridge has sought out and is receiving — is essential.” It is true that Enbridge has done a relatively good job seeking public input in Indiana with regard to Phase Two of the project. But it’s pretty clear to us up here in Phase One– where Enbridge did no such thing— that they’ve done so mainly because of all the push back and bad press they’ve received. In other words, the public input they’ve sought in Indiana is, in part, just damage control.
Lastly, Ross says that the Line 6B project “is not the Keystone XL pipeline, but a smaller project with major economic and environmental potential,” which once again just goes to show how little he really knows about this. As one of the commenters to his op-ed notes, Line 6B is part of one of the largest crude pipeline systems in the country and will be transporting the same tar sands oil that has been the source of such concern about Keystone.
So what to take away from all of this? The point of this post is not really to argue that Doug Ross is wrong. After all, his version of this matter is so simplistic as to make that a moot point. As we have said countless times, we ourselves do not “oppose” the replacement of Line 6B. Rather, the point of this post is that Doug Ross doesn’t really know what he’s talking about. He does not appear to understand the history or the context of the project; he doesn’t show that he understands the range of concerns that reasonable people have about the project; and he seems not to have made the slightest attempt to verify or question in any way the claims made by Enbridge about the project. And yet, despite all of that, he still thinks he is in a position to make confident pronouncements about it.
by Jeffrey Insko | Jan 24, 2013 |
Way back at the beginning of October, we submitted an op-ed piece to Doug Ross at the Northwest Times of Indiana. The editorial board obviously decided against running it. And, evidently, they didn’t bother to read a word of what we’ve been documenting on this blog all these months. What leads us to that conclusion? Why, this simplistic, credulous, ill-informed op-ed by that same Doug Ross.
You can bet we’ll have some things to say about it (when time allows).
by Jeffrey Insko | Jan 24, 2013 |
A couple of days ago, we posted some pictures of Enbridge construction crews exceeding the TWS boundaries on our friend Carol’s property. We’ve got more pictures from Carol’s property this morning. This is a 14 foot open hole–it’s been open for days– with no construction fencing surrounding it. Aside from the obvious safety hazard, Carol notes, the lack of fencing is a violation of a stipulation in her construction agreement.
What’s happening on your property?
by Jeffrey Insko | Jan 23, 2013 |
This week we kicked off our new series on the MPSC hearings of Phase Two of the Line 6B project. Among other things, we’re using this series as an occasion to explore the regulatory function and performance– weak and ineffectual, in our view– of the Public Service Commission. In our first installment, we introduced you to the MPSC’s public engineer Travis Warner. In this our second installment, we will introduce you to another MPSC employee. But first, a final thought about the MPSC’s public engineer:
Our intent was not to pick on young Mr. Warner. We understand that he’s simply part of a system that appears to actively discourage the slightest skepticism or tough questioning toward companies like Enbridge. For instance, we are more than a little nonplussed by just how thin Warner’s analysis of Enbridge’s application really is. After all, the MPSC relies heavily on Warner’s testimony about such matters as whether the proposed pipeline meets or exceeds current safety and engineering standards. Yet consider this exchange during his testimony (the questioner is attorney Gary Field):
Q: For a petroleum pipeline project, what standards do you review?
A: What standards do I review?
Q: Yes.
A: Well, Michigan doesn’t have standards for petroleum pipelines. It would be the Pipeline Hazardous Materials Safety Administration Standards.
Q: Do you review those standards?
A: Very generally. I’m not extremely familiar with them.
Or consider this exchange regarding the very important matter of how the project will affect landowners:
Q: Have you, as to this project, conducted a review of the effect on landowners?
A: Yes.
Q: What did that consist of?
A: That consisted of going page by page through a series of maps in order to possibly look at a potentially different route or mainly to review the proposed route for the impact on landowners.
. . .
Q: You didn’t talk to any landowners, did you?
A: I have spoken with some landowners over the phone.
Q: But in the context of determining whether a route was disruptive to landowners or not, you haven’t spoken to any landowners specifically on that topic, have you?
A: Well, as we went over before in this case, the landowners aren’t yet aware of the specific route on their tracts. I did talk with landowners in the other case but — and they had more specific route plans. So I guess no in this case.
Similarly, consider his response to a question about whether the existing Line 6B could be sufficiently repaired: “I relied on Enbridge’s opinion on that matter.” Or a question about how much additional capacity (or petroleum) is appropriate for Line 6B: “I relied on Enbridge’s opinion on that matter.”
Yes, this is your “Public Service” agency at work. In this matter, they appear only to be serving the interests of Enbridge, not the public. Which brings us to Travis Warner’s colleague, MPSC staff counsel Assistant Attorney General Michael J. Orris. To be honest, we don’t really understand what, exactly, Orris’s role entails. What we do know, however, is that virtually everything he has said or done during the course of the proceedings has been for the direct benefit of Enbridge.
For example, on the day of cross-examinations of witnesses (November 13, 2012), all four of Enbridge’s witnesses– Mark Sitek, Tom Hodge, Enbridge Environmental Analyst Rachel Shetka, and our old pal Doug Aller— appeared for questioning by Gary Field (on behalf of the intervenors) and Steven Fischer (representing himself). One would think, in such a proceeding, that the attorney hired to advocate on behalf of the public (the MPSC is, after all, a public agency) would at least have a few questions for the applicants (Enbridge). Yet Orris had not a single question for Sitek, Shetka, or Aller. He did ask Tom Hodge a brief question, the purport of which is not altogether clear, regarding route variations. But other than that, he was idle.
But not entirely idle. Orris had plenty of objections to make during Fields’s cross-examinations. In fact, on one point, Orris was quite tenacious. You see, while questioning Tom Hodge, Field dared to mention the NTSB report on the Marshall spill. When he did, Enbridge attorney Michael Ashton immediately objected and Orris was only too happy to weigh in in support of Ashton’s position.
Now, bear with us for a moment. To understand what happened at this point in the proceedings requires a bit of context–and, we’re sorry to say, some legalistic nitpicking. You might remember that way back in July, the intervenors in Phase Two requested a delay in order to review the NTSB report. Enbridge, not surprisingly, argued that the report was not relevant to these proceedings (an extraordinary argument to make, in our view). The delay was granted (in part) in order to give the intervenors time to review the report, even though Administrative Law Judge Theresa Sheets also stated that the NTSB report “is not admissible in these hearings under federal statute.”
It’s this last statement that is the sticking point. The federal statute to which Sheets refers is federal code 49 U.S. C., section 1154, which states:
No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.
Now, on the face of it, this legal provision makes good sense. After all, if a report like the NTSB’s report on Marshall could be used in a civil lawsuit, then those who work for a company likely to be sued (like Enbridge) would be reluctant to speak freely to investigators; doing so might well cost their company a lot of money. The question, however, is whether the same sort of idea applies to other sorts of proceedings, like applications before the MPSC.
Or to put this another way, the question comes down to what, precisely, the sentence in the federal law actually says–because it’s not quite as straightforward as it at first appears. Does that sentence say (a) that a report cannot be admitted into evidence (period); nor can a report be used in a civil action? Or does it say (b) that, when it comes to a civil action for damages, a report cannot be either admitted into evidence or used? See the difference? Obviously, Enbridge argues for “a”– as Gary Field nicely puts it at the hearing, “Mr. Ashton wants to put a period after the first verb”– and the intervenors argue for “b.”
For her part, Judge Sheets says that she does “acknowledge that the language of the statute can be interpreted in two ways.” Yet she also says that she interprets the language “very similarly to the manner in which Enbridge” interprets it. “I think that the language, while it may be a little unclear, I think that that’s the intent,” she says. (Upon what basis she determines this “intent,” however, she does not bother to say.)
But here’s the thing (and this will bring us back to Michael Orris): it’s obvious why Enbridge attorneys favor interpretation A just as it’s obvious why the intervenors’ attorney favors interpretation B. Both of those parties are, by definition, partial. But what about the MPSC attorney? He represents neither the party seeking approval (Enbridge) nor the party seeking to deny approval (the intervenors)? Rather, he represents only the MPSC, whose only interest, presumably, is the collective interest of the citizens of the state of Michigan. What, therefore, would one expect his position to be?
We can think of a couple of possibilities: (1) he could take no position at all, but choose to remain neutral and leave it to the Judge to decide. That would be understandable. Or (2) he could acknowledge the ambiguity in the federal statute (and it is unquestionably ambiguous) and choose simply to err on the side of caution. In this case, erring on the side of caution would almost certainly mean allowing the report into evidence. After all, how can anyone argue that considering MORE information, rather than less– especially when it is information pertaining to the very pipeline that Enbridge is seeking to replace– is bad for the public interest? If the “replacement” of Line 6B really does satisfy the three standards upon which the MPSC must make its decision, it ought to be able to satisfy those standards even in the face of MPSC scrutiny of a factual report released by a federal agency. Right?
Well, no. Following Ashton’s objection to any discussion of the NTSB report, Judge Sheets asks, “any comment by Staff (meaning Orris)?” And here is a part of Orris’s semi-coherent reply:
This report, statute controls whether this report comes in, not what it says on the cover sheet of this report. The statute is a controlling language. I do not think that this report is evidence, can be admitted as evidence in this proceeding. The orders themselves speak for themselves of what Enbridge is going to do to operate the line. This is just background information telling the National Transportation Safety Board and telling the Pipeline Hazardous Materials Safety Administration, who formed the basis for it, but the correction, the corrective action orders are themselves what Enbridge is going to do, not the content here. What Enbridge did in the control room there has nothing to do with Public Act 16 of 1929.
Apparently, even Judge Sheets found this convoluted reply a little unclear because she then asks, “So you think there’s a relevancy issue here as well?” To which Orris responds, “Yes. Yes, I do. I think the statute quite clearly states that this is not evidence, it’s not relevant to the proceeding.” Now obviously, Michael Orris is entitled to his professional legal opinion on a matter of dispute such as this one– and that opinion does not always have to be the same as ours. But to suggest that the language of the statue “quite clearly states” anything (the lack of clarity in the language is the whole reason there is a dispute in the first place!) is just plain disingenuous. At best, it’s a judgment call.
But because of Orris’s argument, siding with Enbridge (at least in part), Sheets decides to sustain the Enbridge objection, which she says, “was essentially seconded by Staff,” and she rules that the report “will not be admissible in these proceedings.”
And this is precisely the problem– with Orris, with Warner, with the MPSC itself: “Staff” invariably “essentially seconds” the view of Enbridge. Orris neither questions nor challenges anything Enbridge witnesses say, for example, but repeatedly objects to Gary Fields’ questions during cross-examination of Travis Warner. And like his view on the admissibility of the NTSB report, those objections almost always have to do with narrowing and limiting the scope of the proceedings; they involve the exclusion, rather than the inclusion of information or comment. It’s as if Orris views his job as ensuring that the MPSC permits the hearing of as little evidence as possible, ensuring that it takes the narrowest, most limited view possible of its regulatory function.
Of course, this is exactly the strategy employed by Enbridge, both inside and outside the MPSC: the less discussion, the better; the less scrutiny, the better; the less the public knows, the better. It’s easy to understand why Enbridge would take this view: they don’t always look so good in the bright light of the facts. But why those who are supposed to work on behalf of the public interest (not Enbridge’s interest), those whose salaries we pay, would take the same view as Enbridge is more than just baffling; it’s betrayal.
by Jeffrey Insko | Jan 22, 2013 |
This weekend, we offered a minor example of construction crews taking liberties with our property. In the comments, our friends Carol and Carol offered up tales of their own (doubtless there are dozens more stories all along the route). Here are a couple of pictures from Carol Banks’ property of construction crews disregarding the boundary fence. Ugh.
by Jeffrey Insko | Jan 21, 2013 |
Today we launch our newest series. As we mentioned a week or so ago, there’s been quite a bit of activity over the last month or so at the Michigan Public Service Commission (MPSC) regarding Enbridge’s application for Phase Two of the Line 6B “replacement” project (running from Lake County, Indiana to Marysville, Michigan).
It’s no secret that we (and plenty of others) think the MPSC process is deeply flawed. It’s a terribly weak-kneed, embarrassingly toothless regulatory body comprised of just three political appointees. It’s an agency with very little power (and perhaps even less will), circumscribed by a very narrow legislative charge. For instance, when it comes to approval of projects like Line 6B, the MPSC is guided by Act 16 of Michigan law from 1929. The MPSC only has to determine whether
. . . the applicant has demonstrated a public need for the proposed pipeline and that the proposed pipeline is designed and routed in a reasonable manner, which meets or exceeds current safety and engineering standards.
This very narrow function is important because in the proceedings for both phase one and phase two Enbridge attorneys have reminded the commission over and over that anything not directly related to public need, routing, or safety standards is irrelevant. And typically– unfortunately–this argument works.
At any rate, last month, the MPSC staff filed its initial brief on Phase Two, recommending approval of the Enbridge application. The brief states that
Enbridge has met the requirements of 1929 PA 16 by accepting the act and filing a plat of the proposed pipeline and its facilities, and by demonstrating the public need for the proposed pipeline, that the proposed design and route is reasonable, and that the proposed pipeline meets or exceeds current safety and engineering standards . Staff requests that the Commission approve Enbridge’s application.
In subsequent installments of this series, we will discuss at length some of the interventions and arguments, for and against, before the commission. For now, we’d just like to comment on how MPSC staff arrived at this determination. According to the brief”s argument, MPSC staff relied primarily on the testimony of Enbridge witnesses Mark Sitek (our readers will certainly remember him) and Tom Hodge (you’ll remember him as well). In addition, the MPSC placed great weight on the testimony of their own witness: Travis Warner, a “public utilities engineer.”
Now, we have no reason to believe that Travis Warner is not a perfectly competent professional. And, in theory at least, it does seem like a good idea that the MPSC would have its own (presumably) independent expert to testify with regard to the claims made by Enbridge witnesses. However, learning a bit about Travis Warner and a careful reading of his testimony gives us a little pause.
For one thing, it looks to us like Travis Warner is a teenager. Okay, maybe not a teenager, but he just received his BA in mechanical engineering in 2008; he’s very young and for that reason obviously does not possess a great deal of experience with regard to pipeline construction and safety. To be clear (and fair), we’ve got nothing against youth per se and his age obviously ought not disqualify him from providing helpful testimony. Nor are we suggesting that young Travis Warner does not have a bright and shining career ahead of him (we have no idea). But we’re pretty confident in saying that he probably doesn’t know half as much about pipeline construction, regulation, and safety as, say, our friend Robert Whitesides.
Our supposition is supported by his testimony in the MPSC hearings (the same testimony, essentially, he gave during Phase One). For instance, on the question of public need, “Warner testified that replacement of Line 6B would permit it to increase its capacity, and that the refineries would have the capacity to handle this increase.” As far as we know, nobody has ever disputed that replacing Line 6B would permit it to increase its capacity; in fact, it doesn’t really take an engineer to verify that simple fact. Why the MPSC needed to trot out an expert to state the obvious is a little strange. Equally strange is Warner’s testimony that
he had confirmed that the Marathon refinery in Detroit had recently expanded, increasing its capacity from 106,000 barrels a day to 120,000 barrels a day. 6 TR 467. Mr. Warner also testified with respect to integrity issues on Line 6B, stating that data from the Pipeline and Hazardous Materials Safety Administration (PHMSA) from 1991 to 2010 show that corrosion is the leading cause for pipeline failures. 6 TR 470.
A couple of points here: first, anyone, engineer or not, could determine whether the Marathon refinery in Detroit has recently expanded. All you need is access to the internet. The same goes for the data on pipeline failures. That information is also readily available to anyone. Which is to say that Travis Warner’s testimony ought not to carry any particular weight; he simply stated what anybody with some basic research and reading comprehension skills could have stated. Treating Warner’s testimony as if he imparted some important specialized information that could only come from a “public engineer” is sort of like treating Michael Milan’s positive view of Enbridge as definitive simply because he happens to be a doctor and likes wearing camo gear.
Warner also testified on the question of routing, stating that “he had reviewed the maps and aerial photographs of the proposed route.” Based on that review, he “testified that it is Staff’s position that the proposed route is the most direct and reasonable and will have the least impact on the environment.” What’s disturbing here is that Warner (and MPSC staff) evidently believed that looking over some maps and aerial photos “provided sufficient detail for Staff to review the route.” But perhaps they’d have changed their minds if, say, they’d taken a visit to Beth Duman’s house or heard about the experience of Bill Aldrich. What’s more, we don’t at all understand what qualifies a mechanical engineer to make authoritative pronouncements about environmental impacts.
Lastly, Warner testified in the one area where one would think his expertise as an engineer would prove to be of some kind of value. Yet here, Warner has almost nothing to say, other than to note that PHMSA is the federal agency responsible for pipeline regulations and to point out the relevant federal statute. Again, anybody with even a passing familiarity could have testified to that fact.
So what is the value, really, of the one single witness the MPSC hires to help them decide a matter of great importance to the citizens of the state of Michigan? Virtually nothing. In fact, Warner all but acknowledges as much himself. Here, for instance, is how he describes his role at the MPSC when asked about what is involved in his review of pipeline projects:
I analyze the public need of the project and physical impacts that a proposed pipeline will have on the state of Michigan. This analysis includes an evaluation of the proposed route to minimize the amount of new right-of-way utilized, the amount of environmentally-sensitive areas crossed by the pipeline and the effect on land-owners. . . Pipeline projects are handled on a case-by-case basis in which the depth of analysis varies based on the size and nature of the project.
What’s striking here is Warner’s remark about the “depth of analysis.” In this case, it would appear his analysis wasn’t even as deep as the pipe Enbridge will bury in my backyard. He read some information at the Marathon and PHMSA websites and read Enbridge’s claims in their application. We don’t see any evidence that he subjected any of it to any real scrutiny (which, we thought, was fundamental to any careful analysis): he appears not to have considered that “increased capacity” might not automatically equate to “public need”; he appears not to have consulted landowners about “landowner impacts” or environmental advocates about “environmental impacts”; he appears never to have considered that his job as a public employee might be to express even the tiniest bit of skepticism toward the assertions advanced by private corporations seeking the power to impose their will upon his fellow citizens.
And that, in no small part, is why the foreign corporation responsible for the most expensive inland spill in U.S. history– fouling Michigan’s natural resources and disrupting the lives of of hundreds of good people– STILL gets to do whatever it wants.
by Jeffrey Insko | Jan 20, 2013 |
Last week, we mentioned another line list violation on our property. This is, you might recall, an ongoing problem. First there was the matter of moving the neighbor’s dirt to our lot, then there was the dumping of the neighbor’s sludge into a hole on our property. And then this past week, we saw this:
Crews were cutting down trees two properties over. Inexplicably, they then brought the logs over to our property and started dropping them on to our “save” pile. Why? We have no idea. But we can tell you that we didn’t like it. We notified our ROW agent and he made sure they stopped. The explanation was that they thought they were doing us a favor, assuming that we would want more fire wood.
We don’t know whether that explanation is an honest one; perhaps it is. And we also recognize that this is a relatively minor matter; we know that we’re a little sensitive about these things. And it’s not even that we might not want the wood. Rather, it’s the principle of the thing. The issue– you’d think this would be obvious by now–is respect for us and our property. Having a right of way does not mean that crews can do whatever they please, however they please.
by Jeffrey Insko | Jan 16, 2013 |
No offense to Canadian parliament member Marc Garneau, but um. . . . duh! Apparently, Garneau thinks that Enbridge could use some lessons in dealing forthrightly with the public:
“Enbridge needs to learn about public relations. You don’t come in and treat people that way,” said Garneau in an interview On the Coast with Stephen Quinn on CBC Radio One in Vancouver.
Garneau is right on the money, of course. It’s just that we’ve been saying this over and over for months (again and again and again). And even we aren’t telling many readers of this blog anything they don’t already know from first-hand experience. Still, we appreciate Mr. Garneau speaking out, even though the record shows that Enbridge, in fact, does and has come in and treated people that way.
by Jeffrey Insko | Jan 14, 2013 |
Happy Monday! We hope you all enjoyed your weekend. We did not, given what happened in the NFL playoffs (but that’s another matter).
We don’t know what’s happening in your neighborhood (let us know!), but construction crews have been busy busy busy here on Oakhill Road. And just his afternoon– not 10 minutes ago– we watched as crews once again violated our construction agreement. We’ve got pictures and will explain later. In fact, we’ll run down the whole list to date.
In the meantime, we thought we’d share a few remarks by our friend Beth Duman, who has been ruminating on those holiday cherries. Her comments are so spot-on we thought they deserved a bit of space in a post. Here’s Beth:
Neighbors???
We, too, are offended by the “Neighbors’” rhetoric that Enbridge is using. We have great neighbors – they are responsible, friendly and always ready to lend a hand when we need them. Enbridge has invaded our neighborhood – violated our privacy for months; run giant noisy machines past our windows, clogged our yards with clouds of dust, despoiled our landscaping, left piles of tires along our roads, and even planted an outhouse in the middle of one of our good neighbor’s front yard. Let’s get real – Enbridge has not kept their promise to move through our neighborhood quickly so our disturbance would be short-term. Rather than neighbors, they’ve moved in like an alien army, doing what they please, pillaging our land and holding us hostage to their project of financial gain.
….and they think a box of chocolates will make it all better… it sounds like a textbook abusive relationship to us!
by Jeffrey Insko | Jan 11, 2013 |
We have long said that Enbridge’s problems with landowners are easily fixed; it’s just not that complicated. It is so uncomplicated, in fact, that even a child gets it. Here’s proof, courtesy of Kim Savage’s 9 year old son Shaun:
And here is a clear illustration of how Shaun’s system would work:
Thanks to Shaun for letting us publish his solution. We hope Enbridge sees it. Incidentally, we can’t help noting that Shaun’s not just a clever problem solver and a fine artist; he’s also an exceedingly well-behaved young man.
by Jeffrey Insko | Jan 8, 2013 |
Typically, the end of a year and the beginning of another is a time for some reflection. In fact, over the break we were thinking of compiling some “Top Ten” lists in the ordinary “Year in Review” sort of way (a totally unoriginal idea, we realize). Perhaps we still will if we can get to it soon, before the idea has gone completely stale.
Anyway, here is one fun fact that came out of our preliminary looking back over the year: this blog is almost exactly six months old (honestly, it feels older). And in that time, we generated 251 posts (we kicked things off with Marshall, of course!). That averages out to 41 posts a month– more than one a day! Why mention this? Well, partly to say (apologetically) that there is no way we can continue on that furious pace. Honestly, it’s not good for our sanity and, truth be told, not all that good for our “regular” career, either. So while we have no intention of giving the blog up– far too much still demands our attention and the fact is that we’ve grown rather devoted to you, our readers and new friends– we will be posting less frequency in the near term, a few times a week, not a few times a day. We hope you won’t mind if the pace slows!
But speaking of things that still require our attention and vigilance: phase two continues to make its way through the MPSC approval process and it probably won’t be wrong before that approval is granted. But there have been some interesting filings lately (last month). We’ve been looking them over and plan to make this the basis of a new series. Stay tuned for that.
There’s also last month’s “Construction Update” newsletter. We’ve got some things to say about that as well. Plus, it will afford another opportunity to crack a few jokes about Enbridge mascot “Dr. Michael Milan.”
Also, judging from all the new flags decorating our road, it looks like construction activity is about to heat up around here. We’ll watch and take photos.
Finally, there’s a bit of unfinished business from last year we haven’t given up on: the long promised post on the environmental panel at the PS Trust conference, what we learned about Line 6B “exceeding” federal regulations, and a few other things we’ve been mulling over for a long time, like our theory about how Enbridge seems to still be living in the 20th century. We’re continuing to keep our eye on things down in Indiana as well.
We hope you’ll stick around for all of it!
by Jeffrey Insko | Jan 7, 2013 |
Happy New Year, everyone! We’re very sorry for our recent silence. As it turns out, syllabuses do not write themselves and the first semester of 2013 has brought with it far too many early tasks. Not to make excuses for neglecting the Line 6B blog, but we can tell you that we’ve been doing a lot more work this first week of the year than have Enbridge’s pipeline construction crews!
We’ve missed you all tremendously and hope that your holidays, however you celebrated them, were full of food, drink, and conviviality. We were certainly refreshed and pleased to spend some time in our hometown with family and friends. But being out of town for the holidays also meant that we didn’t receive our little Enbridge surprise until well after our fellow landowners received theirs. Yet sure enough, we returned home to a big box:
And what was inside that box? Well, lots of chocolate covered-cherries*, along with a card saying, “Thanks for your patience. Happy Holidays from your neighbors at Enbridge.”
Now, our mother taught us our manners too well for us to be un-gracious for this unexpected gift.** And we have to admit that it was a pretty nice touch, especially so since Enbridge had the good sense to pick a Michigan company (and Glen Arbor, the home of Cherry Republic, is in fact one of our favorite places on all of planet earth). So we have to say, sincerely, thank you, Enbridge. This was a nice surprise.
Yet, however nice the surprise, we can’t resist asking a few questions and making a couple of brief remarks:
We’re assuming everyone else on the route received the same gift? Did people who have yet to settle with Enbridge receive anything? And did “Dr. Michael Milan” receive something extra special? A new hunting jacket, perhaps? Maybe a gun rack for his pickup truck?
Also, we do wish that Enbridge would drop the “your neighbor” stuff. Unless this is part of a new year’s resolution and they really are going to start behaving like neighbors, we really think the “good neighbor” rhetorical ship has long since sailed. To keep it up in the absence of genuine neighborliness is just offensive.
And finally, we’re sure they didn’t intend it, but the card that came with the gift is rather unfortunate. We don’t know about yours, but this is what our card looked like:
The tree, of course, is a little troubling, since it really just serves as a cruel reminder of all the trees Enbridge removed from our backyard that we will never ever be able to replace. And it’s all the worse, of course, since implicit in a card like this is some sort of appreciation for the aesthetic value of trees, something we know first hand that means nothing whatsoever to Enbridge.
Equally unfortunate is that flowing body of water at the foot of the tree. It looks to us ominously dark. Surely it’s not… Talmadge Creek?!
Again, happy new year, everybody. We’re glad to be back!
* All these cherries remind us of a strange passage at the very end of Moby-Dick, one that has always baffled us. Just before Ahab goes down with the whale, his second mate Stubb sees the whale bearing down on him and exclaims,
Oh, oh! oh, oh! thou grinning whale, but there’ll be plenty of gulping soon! Why fly ye not, O Ahab! For me, off shoes and jacket to it; let Stubb die in his drawers! A most mouldy and over salted death, though; – cherries! cherries! cherries! Oh, Flask, for one red cherry ere we die!”
We’ve never fully understood why all of a sudden Stubb starts thinking about cherries. Feel free to discuss this amongst yourselves in the comments section.
** On the subject of manners, see this wonderful bit by our friend Kim Savage.
