Just when the disheartening spectacle of snow in late April threatened to extinguish the last remaining shred of hope that springtime in Michigan would ever return, we experienced this afternoon what for months has seemed an impossible fantasy, nothing more than a (ahem) pipe dream: a view of our backyard utterly free of visible green steel pipe. It’s true! Just look:
Of course, there’s still the orange fence and the shredded remains of our beloved trees and the big yellow tractor-things and all the piles of timber and the mud…. But hey, we’re trying to look on the bright side: the steel pipe is gone!
This morning we’ve fought our way to the surface from beneath a mountain of end-of-term student papers to bring you a brief tour of local news reports. Line 6B construction activity has been pretty quiet recently owing first to frost-law restrictions and, more recently, to rain, rain, rain. (We hope you’re staying dry!) But other things are happening, among them negotiations with landowners along phase two (about which we hope to bring you more very soon). In the meantime, we’ll just call your attention to some recent local news reports, some of them rather revealing (and not in a good way):
[Township Treasurer Jonathan] Hohenstein said the lines were likely breached sometime in March while Enbridge was boring underground to make room for new pipeline.
For now, the damaged portion of the sewer line has been abandoned and sewage is being hauled from a pump station to the treatment plant. The damaged portion of the water line has been plugged to halt leaking.
The article contains no statement from Enbridge on the damage, but it will be interesting to see how satisfactorily this situation is resolved. Generally, we don’t like to indulge in “I-told-you-sos,” but surely someone on the Howell Township Board of Trustees is wishing they would have enforced their pipeline ordinance months ago– an ordinance that, despite Enbridge’s and the Howell Township attorney’s claims, appears to be entirely enforceable and not pre-empted by federal law, at least according to a recent federal Circuit Court decision.
Moving westward, last week a group of demonstrators gathered outside the Enbride offices in Calhoun County to protest against tar sands oil– the stuff that spilled into the Kalamazoo River, the stuff that spilled into a suburban neighborhood in Arkansas earlier this month, the stuff that the proposed Keystone XL pipeline would transport. The stuff that will be flowing through our backyards. In response to the protests, Enbridge spokesman Jason Manshum offered this extraordinarily disingenuous comment:
“The term tar sands is a misnomer. That is a slang term. There is no tar, there’s never been tar in it,” Manshum said, “It is a normal crude oil it’s just a different type. so no it is not more environmentally damaging.”
It is true that “tar sands” is a colloquial term and it is true that there is no tar in diluted bitumen. But those facts are apropos of nothing. Nobody (that we’re aware of) is claiming, or has ever claimed, that the problem with dilbit is that there is tar in it. So Manshum appears to be responding to a phantom of his very own making. It’s part of a name game that Enbridge has been playing for a long time– as our friend Josh Mogerman at the NRDC explained about three years ago.
Even farther west, late last month the good people at The Hermitage retreat center in Three Rivers held their service of lament and hope. We couldn’t make it, but about 50 people attended. As people who know a thing or two about grieving lost trees, we were struck by one ritual in particular that the participants engaged in:
To embody their prayers of lament, the group moved meditatively toward the woods, pausing to pray at several locations. They tied strips of fabric to trees tagged for cutting. The strips came from a sliced painted mural portraying a young man grieving the loss of a cut tree. The group gathered in a circle to dance and sing their prayers of hope.
Cory said a big company like Enbridge gained approval at the state level for the pipeline so the township can’t do much about it. However, he said Enbridge has given its word to work with landowners.
“When a pipeline cuts through residential streets and people’s septics and wells, it’s huge, it’s a big concern for those people,” he said.
Even further east, according to this morning’s Detroit Free Press, Enbridge made a presentation to the Macomb County Commissioners on the Line 6B project earlier this week. The Freep article is devoid of any detail whatsoever; it doesn’t say who was there from Enbridge. Nor does it say whether the Commissioners bothered to ask any questions. It does note, however, that “Some residents in the state and environmental groups have criticized Enbridge for its plans to leave the old pipeline.”
-Part of a pipeline in Michigan will be filled with inert gas to make way for the construction of a new section of the line that leaked in 2010, Enbridge said.
-The company will fill the old section with inert place and leave it in place as per federal safety regulations, the Detroit Free Press reports.
-Line 6B was carrying Canadian crude oil, a type that sinks in water and is more difficult to clean than conventional crude oil.
Thankfully, the UPI article makes the one published earlier this month in a local Macomb County paper seem almost less bad by comparison. And while we think it’s perfectly appropriate to take a national, 100-year old news outlet to task for shoddy work, it gives us no pleasure to pick on little guys like reporter Matthew Fahr. But, as the Brandon Citizen’sSusan Bromley has amply demonstrated, there is no reason why a local reporter can’t be clear, thorough, and effective. Unfortunately, Matthew Fahr also doesn’t seem to have a strong understanding of the basics of the project, which he reports ” is currently going through the regulatory approval process in Oakland, Macomb and St. Clair counties.” We confess that we’re not really sure what that means. Even worse, though, is this:
Enbridge will be replacing 285 miles of natural gas pipeline, referred to by the company as Line 6B, that spans from Griffith, Ind., to Port Huron. The pipe delivers natural gas across the state to cross the border for use in Ontario, Canada.
And not to nitpick, but in addition to correcting such basic factual errors, the teacher in us would also like to help Fahr correct some of his awkward verb constructions: the project, he writes, “will be affecting counties.” Enbridge, he says, “will be replacing” pipeline. And then there’s our favorite, which gave us a chuckle not for its use of the passive voice, but for its unique rendering of the name of a familiar Enbridge spokesman: “Jason Mansion, from the Enbridge Public Affairs group, explained all aspects of how the company will be handling the project both locally and statewide.”
If those names sound familiar, and they should, it’s because they’ve featured us (and by “us,” we mean landowners along Line 6B) in a number of their reports. They were recognized not just for the brilliant series “The Dilbit Disaster,” about the Marshall spill and its aftermath, but also for the follow-up stories they did on the difficulties faced by landowners like ourselves (like this one and this one and this one and this one). Here is the list of stories the Pulitzer committee cited specifically. We’ve been praising and promoting their work for months and we are so pleased that they’ve received this prestigious national honor. Hooray!
We sincerely hope that all of our readers who have dealt with Enbridge were able to figure out how to report to the IRS. Enbridge– as one might expect– did not make it easy by reporting payments on the wrong form (or so tax experts told me). But to bring a little levity to a day that’s typically not much fun for anyone, we thought we’d share this brilliantly hilarious parody. Enjoy!
It’s been a while– about four months– since we last provided an update on the lawsuit filed by POLAR (the non-profit legal defense fund Protect Our Land and Rights started by our friend Jeff Axt) in Oakland County Court. If you’ll recall, the suit sought an injunction against Enbridge, seeking Enbridge’s compliance with the “local consent” provision of the Michigan State Constitution, the state Highway Act, and the securing of all requisite environmental permits. If all of this is new to you or you’ve simply forgotten, our archives will provide you with a primer and some extended discussions of these matters.)
Eventually, Enbridge sought to remove the case to federal court, where they expected to get a friendly hearing and have the case dismissed. The federal judge did not dismiss the case, though he did rule that POLAR lacked standing in federal court. As a result, he remanded the case back to Oakland County. This seemed, at the time, potentially good news for POLAR (or so we thought), since the county court, we hoped, would have much more interest in addressing the substantive state Constitutional matters at stake– waters into which we never thought the federal judge would want to wade. We were even more hopeful given the history of the Oakland County Judge assigned to the case, Phyllis McMillen, who ruled favorably toward landowners in some of Enbridge’s condemnation suits.
Well, two weeks ago, Judge McMillen dismissed the POLAR case, finally ending the suit. The grounds of her dismissal? Not surprisingly, it was the old issue of standing. The ruling states, “At issue in the present case is whether POLAR has alleged damages of a special character distinct and different from the injury suffered by the public generally.” Then, after rehearsing POLAR’s claims about damages to its members, McMillen says,
To the extent that these paragraphs allege damages to the community as a whole, they would not qualify as special damages. As it relates to allegations of damage to POLAR’s members’ property, the alleged harm does not result from Enbridge’s alleged violation of the laws cited, i.e., failure to obtain consents and permits. Even if the proper consents and permits are acquired, Enbridg’e activities will have the same impact on the members’ proerty, and same will be perfectly lawful. Without a showing that the potential harm is “resulting from” the failure to obtain the consents and permits, POLAR has failed to allege special damages. Because POLAR has failed to allege special damages, it lacks standing to pursue the claims.
On the bright side, what this means is that Judge McMillen– not unlike the federal judge– did not rule on the substantive questions in the suit (ie, whether Enbridge is required to seek “local consent,” whether Enbridge is a “common carrier,” etc.). What’s more, Enbridge asked to have the suit dismissed “with prejudice,” which essentially would have meant that POLAR could not refile the suit. But McMillen chose to dismiss “without prejudice,” which means that her ruling was confined strictly to the procedural matter of standing. So the substantive questions live and could be raised again in a new filing.
So POLAR’s not finished yet. They are pursuing other legal avenues as well, including appeals of the MPSC rulings in both Phases 1 and 2, appeals that are still pending. We will do our best to keep you updated.
As the rain rains and the poor, nervous dog shakes and cowers from the thunder outside, we’re playing some catch-up here on the blog. Frankly, we’re a little swamped with posts-that-need-to-be-posted and not quite sure which ones to type up first. Earlier today, we brought you news of a promising legal development in Indiana, and we’ve got bad legal news from Michigan to share as well. We’ve also been bookmarking links to articles about the dreadful spill in Arkansas and plan to do a roundup post about that incident and its relation to Line 6B. And there are restoration matters to discuss and describe– specifically, an overdue tree post–as well. We’re not sure if we can get to all of it today, but we’ll get to some of it.
But this post is about none of those things. Instead, it’s an update on the frustrating dirt story we brought you last week. If you recall, construction crews mindlessly piled a mountain of subsoil right on top of our top soil– something that is not just bad practice, but in clear violation of their own stated procedures and our line list agreement. Needless to say, we contacted our right of way agent to try and resolve the matter.
As we’ve said before, during the construction phase of this project, our ROW agent has been quite responsive (more so, as we understand it, than many other agents, unfortunately). So last week, he came out along with the project’s environmental inspector. The inspector confirmed that we had, as he put it, a “legitimate gripe” and agreed that all of our top soil was compromised. To rectify the matter, our agent agreed to add to our line list a couple of important revisions: significant decompaction of our subsoil– our property has taken a real beating with heavy equipment, as it has more or less been the primary staging area for the immediate neighborhood– and, equally important, bringing in new top soil to replace the stuff ruined by mixing last week.
In terms of (hopefully) restoring our property to some remote semblance of what it was before– a green-wall of beautiful trees and a lush perennial garden, this is very important and give us a glimmer of hope that plants will grow and flourish back there again.
One of the things we have said repeatedly here at the blog is that Enbridge is largely in control of what we write about them. They have no one but themselves to blame that most of what we’ve written here has been critical. But here’s a post that illustrates the former point: on this matter of our dirt, Enbridge worked with us promptly, efficiently, and cooperatively to correct their mistake. We’re grateful for that.
There is some interesting– and promising– news out of northern Indiana this week. As you may recall, the hardworking folks at Save the Dunes have been trying to ensure that the Line 6B replacement does not harm sensitive wetlands. In that effort, they have been talking with local officials in LaPorte County. Now the LaPorte Herald-Argus reports that LaPorte County officials plan to “require a review of the project because it appears to fall within the regulations of its joint zoning ordinance.”
The wind in LaPorte County’s sails comes from a recent federal court decision. On March 25, the U.S. 4th Circuit Court issued a ruling in Maryland stating that federal law does not preempt the enforcement of local zoning laws. (Super legal nerds can read the ruling here.) Specifically, the Court upheld an earlier court ruling dismissing a complaint from Washington Gas Light Company declaring that the National Gas Pipeline Safety Act (PSA), the Natural Gas Act (NGA) and state law preempt Prince George County zoning plans. Washington Gas therefore sought an injunction preventing the county from enforcing its zoning laws.
But the Court rejected Washington Gas’s complaint, noting that the federal laws apply to matters of safety, not to siting and routing. The Court ruled:
the PSA does not preempt the County Zoning Plans because the PSA only preempts safety regulations and the County Zoning Plans are not safety regu- lations; and (3) the NGA does not preempt the County Zoning Plans because the NGA only preempts state and local laws governing interstate natural gas operations and, per the NGA, Washington Gas is a local distribution company.
In our view– and, evidently, in the view of the LaPorte County attorney– this ruling bodes very well for the efforts of local municipalities to have some input into the Line 6B project. Our regular readers might recall that, just like Washington Gas, Enbridge’s response to local governments has always been “pipelines are regulated at the federal level”– a misleading claim at best, as we’ve discussed before on more than one occasion. And had the 4th Circuit Court’s ruling been handed down some months ago, it might well have helped Brandon Township and Howell Township enforce their ordinances, which like the Zoning Ordinances of Prince George County do not attempt to regulate pipeline safety. Looking ahead to Phase Two of the Line 6B project, this ruling might yet be of some use not just to LaPorte County in Indiana, but some Michigan townships as well– if you’re on Phase Two, you might mention this to your township supervisor. The ruling might also be of some help to POLAR in its ongoing cases (about which we hope to post in detail later today).
We will keep you updated on matters in Indiana. For now, we’d just like to commend folks down there, especially Nate Pavlovic and Michael Hollcraft, and County Attorney Shaw Friedman, for their dedication to the protection of valuable ecosystems.
While not directly about Line 6B matters, we’ve encountered a number of tangentially-related material the past couple of days deserving of your attention, not least of which are some follow-ups to the awful spill in Arkansas, a terrible, vivid reminder of why all of us should be deeply concerned and continue to speak up and help foster public discussion of pipeline safety.
And Lisa Song, who has evidently been extraordinarily busy the past few days, has a terrific article at Inside Climate News linking the Arkansas spill to the recent petition to the EPA and PHMSA filed by the National Wildlife Federation and others for stricter regulations of tar sands oil transport. What caught our eye in particular was this:
The section of the pipeline involved in Friday’s spill in Arkansas was originally built in the 1940s, according to an Exxon spokesperson. The full length of the pipline was used to transport crude oil from Nederland, Texas north to Patoka, Illinois. After lying mostly idle for four years, the pipeline’s flow was reversed in 2006 to carry Canadian dilbit to Gulf Coast refineries. Exxon said the reversal was an industry first, and that it required 240,000 man-hours of work to accomplish.
That’s right: Exxon reactivated a 66 year-old, 20-inch pipe so that they could pump diluted bitumen through it, which must be sort of like sucking peanut butter through a paper straw. And of course, considering that there’s a soon-to-be-idle line in our backyard right now, these examples of pipeline reactivation make us very, very nervous.
Closer to Michigan, the Detroit Free Press has just run two very interesting articles: one about the state of gas pipelines in Michigan and the costs (and difficulties) in repairing them and the second about the dreadful regulatory situation regarding those same lines. The Freep had the good sense to call up our friends at the Pipeline Safety Trust. In the first article, Executive Director Carl Weimer points out the primary difficulty when it comes to repairing these lines (and ensuring public safety!): “What it comes down to in most every state we’ve looked into is, who is going to pay for that replacement?” he said. “It often gets passed along to ratepayers, and public service commissions hate to do that because they catch a lot of grief.” And speaking of the public service commission (which certainly wouldn’t want to catch any grief!) in the second article, the PS Trust’s Rebecca Craven (another of our heroes) notes that the commission’s general haplessness (that’s our characterization, not Rebecca’s) is compounded by the same woeful lack of staffing and resources that plagues PHMSA and agencies in other states:
“They [PHMSA] simply don’t have the number of inspectors they need to adequately oversee the amount of pipeline in the system, and states are in the same boat,” said Rebecca Craven, program director of the Bellingham, Wash.-based Pipeline Safety Trust, a nonprofit organization that advocates for improved energy transportation safety.
Up in Canada, there’s a great article in the Tyee about pipeline safety and landowner advocate Dave Core, who is the founder of the Canadian Association of Energy and Pipeline Landowner Associations (and yet another of our heroes!). Dave recently gave a presentation to a Canadian senate committee. What he had to say will surely resonate with most readers of this blog. Here’s a little taste:
“My goal this morning is to bring perspective to the issues of landowners when confronted by pipeline companies. That is, the issues when private property owners, like yourselves, come up against government supported and subsidized corporations that are allowed to come packing with government regulations to take our lands, our rights and leave us with annual risks, liabilities, a duty of care that we do not want, costs and the pipeline junk which includes the resulting safety and liability issues of historical contamination and pipeline collapse when the companies pack up and leave.
“Before I proceed I would like you to pretend you are sitting around a kitchen table with your family and a ‘land agent’ has just left you with a brown envelope with a Section 87 Notice, an NEB Regulatory Notice, stating that a pipeline company is going to put a pipeline in your backyard and the easement agreement and the compensation offer are included.
“The stress has only just begun. Next come teams of land agents, the men trained in profiling and in telling every tale they can to get the deal signed while they sit at your kitchen table drinking your coffee. He/she might even be your neighbour’s son or daughter. It is like you have stepped into a spaghetti western with cowboys coming to your door, not packing a gun, but a big smile, lots of lies and packing government regulations that allow them to threaten you if you question them.”
And finally, one closer to home. The Livingston Daily Press & Argusran an article a couple of weeks ago that slipped past our radar (thanks for sending it, Beth Duman!). It’s about the dissatisfaction of some landowners– those good people the Nashes and the Watsons– as construction nears completion. The bad news, however, is that even though the construction phase is coming to a close, a whole new round of likely headaches and difficulties is on the horizon: the restoration phase. You can bet we’ll be on the case.