Line 5, Line 6B: I Told You So

by Jeffrey Insko | Aug 12, 2020 | 0 comments

Look, I realize that nobody likes the guy who says “I told you so”– especially when he tells you he told you so repeatedly. It’s annoying for sure. I don’t even like that guy. And yet, I am here this morning to say I told you so.

You see, just yesterday, Enbridge made some new filings with the Michigan Public Service Commission in the Line 5 case. Specifically, Enbridge is urging the MPSC to reject petitions to intervene filed by environmental groups, tribes, and Attorney General Dana Nessel. I’ll spare you most of the abstruse legal argumentation. Suffice it to say that there are particular rules and standards for allowing legal interventions into these proceedings and Enbridge’s crafty lawyers, doing what crafty lawyers do, are mining those rules and standards to find ways to eject certain groups from participating in the proceedings or to limit how they might participate– that is, limit what kinds of questions they’re allowed to raise. So, really, you only need to know one thing about Enbridge’s argument and that is when they say this:

The actual issue in this case is narrow.

There you have it. That’s it. What Enbridge wants– what Enbridge desperately needs– is for the issue in the Line 5 case before the MPSC to be as narrow as possible. They want to set aside or remove all sorts of questions from consideration. The narrower the scope of the proceedings, the better it is for Enbridge. So their objections to the petitions to intervene essentially boil down to the fact that Enbridge wants the Commission to rule that groups like FLOW and the National Wildlife Federation and the Bay Mills Indian Community and the Grand Traverse Band of Ottawa and Chippewa and Indians and others are trying to broaden the scope of the proceedings in ways that are disadvantageous to Enbridge’s interests.

Of course, Enbridge doesn’t put it quite that way. Instead, they try to play a trick that has worked for them in the past. And here is where I have to say I told you so. Because, you see, way back in 2013, right here on this blog, I said that this was going to happen. Please bear with me while I roll some tape:

In 2013, Enbridge was seeking permission from the MPSC to “replace” Line 6B. And at that time, various individuals and groups sought to intervene in those proceedings in order to raise all kinds of valid concerns. But Enbridge, just as they’re doing now, worked hard to narrow the scope of what could be discussed. Specifically, they asserted that the Commission could only consider three things:

…whether (1) there is a public need for the Project, (2) the proposed pipeline… is designed and routed in a reasonable manner, and (3) the construction of the pipeline… will meet or exceed current safety and engineering standards.

the insistence on a strict adherence to this standard– an adherence enforced by [Administrative Law Judge] Sheets– hamstrung everybody and prevented a complete and thorough hearing of the case– precisely what Enbridge wanted. And 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).