Line 5 MPSC Summary: Enbridge’s Weak Case
Sheltering in place this week, I’ve spent some time reading comments and other filings on the Line 5 case before the Michigan Public Service Commission— work I happily take on so you don’t have to! It’s heartening to see so many Michigan citizens adding their voices to the proceedings. Hundreds of people have written to express their opposition to the tunnel plan, while only a handful have written in support. Let’s hope the Commissioners take seriously the “Public” in the agency’s title.
It’s been especially inspiring to see the comments of so many tribal groups, in my view the most important voices to be heard in these proceedings. In fact, I encourage everyone to seek out and read the comments of the Sault Ste. Marie Tribe of Chippewa Indians, the Bad River Band of the Lake Superior Ojibwe, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, the Keweenaw Bay Indian Community, the Lac Vieux Desert Band of Lake Superior Chippewa Indians, the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Sokaogon Chippewa Community, the Bay Mills Indian Community, the Little Traverse Bay Bands of Odawa Indians, and the Nottawaseppi Huron Band of the Potawatomi if only to be reminded of the vital living presence of indigenous peoples in our state and region. Taken together, these comments also provide a remarkable and remarkably important history lesson– of settler violence, (broken) treaties, and violations of tribal sovereignty—that every citizen should know. As James Williams Jr, Tribal Chairman of the Lac Vieux Desert Band puts it, “descendants of the Ojibwe [have] inhabited and maintained life from these lands for time immemorial. Our lives are tied to these lands and we have consistently been at the mercy of Enbridge and the State of Michigan as our lives are still tied to our historical waters.”
Recounting that history and ensuring that indigenous groups have their say in the present is precisely what makes Enbridge’s heavy-handed attempt to hobble this process by seeking a declaratory ruling under an Order granted in 1953 so galling. As Richard A. Peterson Tribal Chairman of the Red Cliff Band says in his comments, granting Enbridge’s request would “deprive…impacted tribes the opportunity to participate in the proceedings.” That would simply be unconscionable and in my view is reason enough alone to rule against Enbridge.
Others have weighed in as well. I appreciated the comments of the Michigan Resource Stewards, who call Enbridge’s request for declaratory relief a “ludicrous and a self-serving act.” Senator Jeff Irwin submitted a thoughtful letter emphasizing that “Line 5 also advances climate change and threatens energy security” and making the excellent point that the tunnel plan is backward looking. “Tunnelling will take a decade or more to complete,” Irwin writes, “by 2030, many communities are aiming to eliminate fossil fuels. This ruling would counter these productive goals.”
Attorney General Dana Nessel’s office also filed yesterday. The AG focuses upon the absurdity of Enbridge’s claim that the Line 5 tunnel project is merely “maintenance” rather than new construction in a new location. The AG also makes the particularly devastating point that the last time Enbridge embarked upon a “maintenance and rehabilitation” project– the “replacement” of Line 6B– they applied for MPSC approval, a fact that blatantly contradicts their current position that such approval is not required.
Other filings reiterate these arguments and add to them as well. The comments and objections from the Environmental Law & Policy Center and Michigans Climate Action Network eloquently describe Enbridge’s reliance upon the 1953 approval as an attempt “to freeze that determination and transport it forward in time forever” as if (as I have pointed out on more than one occasion) we’re still living in the twentieth century. Attorney Margrethe Kearney explains,
That 1953 determination of the public interest did not have the benefit of 67 years of accumulated knowledge regarding the Great Lakes. The Great Lakes are home to 20 percent of the fresh surface water on the planet, provide drinking water to hundreds of thousands of people, and anchor a thriving tourism industry. We know and recognize that the Straits of Mackinac is one of the most ecologically sensitive areas in the world.
The success of this especially urgent argument, as I pointed out in my last post, depends upon recognizing the broad authority the MPSC possesses in these matters. It is heartening, therefore, to see the latest filing on behalf of the Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians, Tip of the Mitt Watershed Council, and the National Wildlife Federation taking up the argument I made in my last post regarding the narrowness of the three-part framework Enbridge worked hard to codify during the Line 6B MPSC proceedings. This time, attorney Christopher Bzdok emphasizes the fact that Act 16 “provides the Commission with broad jurisdiction to approve the construction, maintenance, operation, and routing of pipelines delivering liquid petroleum products for public use” and authorizes the Commission “to make all rules, regulations, and orders necessary to give effect to and enforce the provisions of this act.” Therefore, Bzdok asserts, “the commenters believe the scope of the Commission’s review should be broader than these three standards, in recognition of modern realities.” Bravo!
Which brings me finally to Enbridge’s latest filing, which is so strange, so tortured, and so poorly written that it’s almost laughable. As if reflecting just how impoverished Enbridge’s position really is, attorney Michael Ashton ties himself into knots to make something stick. That something is Rule 447, which outlines requirements for applications pertaining to the construction of pipelines and electric facilities. Ashton is trying to claim that under Rule 447, an application for the Line 5 project is not required. But it’s an argument that requires such contortions that Ashton winds up producing barely coherent, ungrammatical sentences like this:
In interpreting the type of construction that subject to Rule 447, meaning must be provided to the phrase “to be furnished” and the term “new” which modifies the type of “construction” or “extension” in Rule 447.
Ashton means to appeal here to the “plain language” or “plain meaning” of 447. But he then spends four pages trying to beat the terms “to be” and “new” into proper submission. Now, I am by trade a Professor of English; interrogating the slipperiness of language is my stock-in-trade. There are decades-long theoretical debates among literary scholars regarding whether meaning is inherent in language or whether it is a thing that “must be provided.” I also happen to adhere to Herman Melville’s dictum in Moby-Dick that “in this world it is not so easy to settle… plain things. I have ever found your plain things the knottiest of all.” But all of that is why literary critics, unlike lawyers, rarely make appeals to “plain meaning”– because we recognize that if it takes you 200 words to try and convince someone, for example, that the word “new” doesn’t apply to a massive, $500 million construction project to install a section of pipeline of a different size in a different location than the ones that are already in place then what you are really arguing is that the meaning of the rule isn’t “plain” at all. Either that or you are simply engaging in deliberate, outlandish obfuscation: war is peace, freedom is slavery, ignorance is strength.
The same goes for Ashton’s weird argument about “to be.” Because Rule 447 has requirements regarding descriptions of “the nature of the utility to be furnished,” Ashton wants to pretend that “to be” only refers to services “not yet provided, but to be provided in the future.” But he’s just grasping at straws. Anyone who’s ever watched a tv show that ends “To Be Continued” knows that services (whether narrative or the delivery of petroleum) can both already be provided and be provided in the future. Duh.
All of which is to say that it seems to me quite, um, plain that Enbridge has an extremely weak case with regard to their request for a declaratory ruling. It would be utterly irresponsible for the Commissioners to fast-track such a high-profile project of such massive scale in such an ecologically sensitive area with so much opposition.
This is going to be a very long process.