Line 5: Enbridge, MPSC, Déjà vu

by Jeffrey Insko | Apr 22, 2020 | 3 comments

As part of their ludicrous plan to build the infrastructure of the mid-20th century, last Friday Enbridge filed an application with the Michigan Public Service Commission (MPSC) seeking approval to replace and relocate a segment of Line 5 under the Straits of Mackinac. It’s a strange application, since Enbridge simultaneously seeks MPSC approval and claims that it already has MPSC approval from 1953 and therefore doesn’t need the MPSC to approve it again. So thoughtful of them to give the present Commission this convenient time-saving alternative!

Reading Enbridge’s filing this week, I experienced a bit of déjà vu. It took me back to 2012-13 when Enbridge sought MPSC approval for the Line 6B “replacement” project. They’ve even hired the same attorney, Michael S. Ashton of the firm Fraser Trebilcock, to lead the new effort (I had a run-in or two with him back in the day). As this process begins, it might be instructive to re-visit how things went the last time around. It’s not a pretty story.

The short version is this: the analysis of that project provided by the commission’s public engineer consisted mainly of taking Enbride’s word for things, the MPSC staff attorney spent a significant amount of time laboring on behalf of Enbridge, the rulings of the Administrative Law Judge who oversaw the proceedings favored Enbridge’s tendentious claims at almost every turn, the MPSC attorney who wrote the final ruling in the case mocked and ridiculed public intervenors, and, worst of all, by the end Enbridge had effectively re-written Michigan law.

That last fact is crucial. Without going into too much detail here (you can read more about it if you’re so inclined), what happened was that Ashton and his team of crafty lawyers helped narrow the scope of the MPSC’s authority, preventing the Commission from taking all sorts of factors into consideration when approving pipeline applications. Instead, the Enbridge lawyers seemed to convince the Commission that its only legal charge is to determine three things: whether a pipeline project “will serve a public need, is designed and routed in a reasonable manner, and meets or exceeds current safety and engineering standards.” At the time, I expressed concern about what this severely limited framework might mean in the future. Here’s what I wrote in 2013:

the worst part is that now that the standard has been invoked and endorsed (by Judge Sheets) and repeated and reiterated (in the MPSC press release, in news articles), it will surely take on even greater weight and authority; it will surely be cited in future cases before the MPSC and treated as settled law (even though it is not).

Already, I worry that my fears are being realized. In the first petition to intervene that has been filed in the Line 5 case, for example, the Michigan Environmental Council cites the Line 6B ruling as the MPSC’s criteria for approval:

Of course, the MEC goes on to challenge the Line 5 application on each of these grounds, which is all well and good. The problem is that adopting this narrow framework plays right into Enbridge’s hands by severely limiting what the MPSC can and cannot consider. This restricted framework will preclude discussion of all kinds of other important questions that the MPSC might otherwise take into consideration– and which they can take into consideration– since the relevant law here, known as Act 16, gives the Commission much broader authority than what Enbridge (and the MEC, apparently) would have you believe. Those things might include, for example, Enbridge’s safety history (like the 2010 Marshall spill), the sovereign rights of tribal groups, future-oriented energy policy in Michigan, and of course the urgencies of climate change.

But mark my words: when intervenors try to raise these questions, Enbridge will ask that they be ruled inadmissible because they are beyond the scope of those three criteria. And they’ll most likely get their way. This is exactly what happened last time, when the ALJ disallowed, for instance, the National Transportation Safety Board’s report on the Marshall spill as evidence in the matter.

Maybe things will be different this time. There are new commissioners, new MPSC staff attorneys. Hopefully, these changes include a change in outlook, a greater commitment to the public good than was on display in 2013.  But if I’m being honest, I’m wary.

We may get our first indication today, when the MPSC meets on the matter, electronically, at 2:30. The meeting will include time for public comments. The public may also submit comments on the case docket here. The case number is U-20763