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.