by Jeffrey Insko | Nov 26, 2020 |
Took a morning run with my dog Murphy today on the land of the Potawatomi now called northwest Indiana and found myself thinking how grateful I am for all of the water protectors and land defenders and fire keepers out there, all the pipeline fighters and safety advocates, the climate activists and the keep-it-in-the-grounders, the disgruntled landowners and outraged citizen activists, the passionate young and the resilient old, the nature lovers and the lovers of the Great Lakes, the birders and the wildlife conservationists, the tree huggers and hippies and greens and enviros, the lefties, socialists, commies, and EJ- and SJ- and eco-warriors, the environmental attorneys and the environmental humanists, the long-sighted policy makers and the direct action activists– all the people undeterred by the unimaginative naysayers saying what can’t be done, the people working instead to ensure a habitable planet for the future and trying to envision and build a more just world devoted to the collective, mutual, interconnected flourishing of all human and nonhuman life. I see you. I give you my thanks.
by Jeffrey Insko | Nov 13, 2020 |
By now, you’ve probably heard the day’s amazing news: Governor Whitmer has notified Enbridge that the state is revoking its easement to operate Line 5 in the Straits of Mackinac (coverage here and here and here) This is a rare act of remarkable courage on the part of a strong, far-sighted governor.
And as always, I try to read up on the details so you don’t have to. I am happy to report that AG Nessel’s filing on behalf of Governor Whitmer seeking injunctive relief for the state’s notice to revoke the Line 5 easement is absolutely devastating. Hastily composed, here are some highlights:
The state revokes the easement on two grounds. First, for violating the public trust. And secondly, for violations of the easement’s “due care” clause. The latter is the more powerful charge in my opinion. Its enumerations are scathing.
- The complaint states that “has persistently and incurably violated its due-care and specific compliance obligations under the Easement.” For instance, the easement stipulates pipeline supports every 75 feet. Yet “for virtually the entire life of the Easement, Enbridge disregarded its obligation to comply with the 75′ pipe span requirement, and even failed to take corrective action when pipe spans exceeded 200′ in length.” When it comes to supports, the AG says, Enbridge has “exhibited an astonishing lack of candor and indifference to its due-care obligations under the Easement.”
- The easement also requires Enbridge to maintain protective coating on the pipeline. Yet, “by failing to undertake a detailed examination of the condition of the pipeline coating/wrap despite being on notice of the need to do so for 13-14 years…..evidences a pattern of indifference to, and violation of, the conditions of” the easement
- The easement also has specific requirements regarding the curvature of the pipeline. But “Enbridge ignored the pipeline curvature mandate of… the Easement, perhaps from the very beginning… Noncompliance with the curvature condition continues today and remains uncorrected.
- The bottom line is a version of something I’ve been saying about Enbridge in various contexts for many years: “There is nothing Enbridge can do to change its past behavior and callous disregard for its duties under the Easement, and its breaches of the Easement’s terms and conditions cannot be corrected or otherwise cured.”
Lastly, I don’t want to neglect entirely the public trust argument, which is also strong. The AG notes that the state has an obligation to protect the public trust, including the Great Lakes. However, the complaint states “Recent events have made clear that continued operation of [Line 5] cannot be reconciled with the State’s duty to protect public trust uses of the Lakes from potential impairment or destruction… transporting millions of gallons of petroleum products…..each day through two 67-year-old·pipelines that lie exposed in the Straits… presents an extraordinary, unreasonable threat to public rights b/c of the very real risk of further anchor strikes… and the foreseeable, catastrophic effects if an oil spill occurs at the Straits.”
As far as I know, Enbridge has yet to respond publicly. I’ll be sure to provide more summary and analysis as this matter unfolds. For now, we should feel really great about the state’s strong executive leadership. Thank you, Governor Whitmer. And congratulations to all the amazing individual and groups who have worked so tirelessly for so long to get us to this point!
