By now, you’ve probably heard the news: the Michigan Public Service Commission has granted the appeal of intervenors asking that greenhouse gas emissions (GHGs) be considered in Enbridge’s application to relocate a portion of Line 5 in a tunnel beneath the Straits.* You can read news reports here and here and here.
This is excellent news indeed and cause for real Earth Day celebration. Not only does it mean a more thorough review of the Line 5 tunnel matter, it also sets an extraordinarily important precedent. The Commissioners are to be commended for this brave and responsible decision, which even entailed overruling the determination of the Administrative Law Judge in the case. This is no small matter and in my view constitutes an all-too-rare display of foresight and thoughtful leadership by state regulators. Three cheers for Commissioners Dan Scripps, Katherine Peretick, and Tremaine Phillips.
The Commission’s ruling was not, however, a total victory. The Commissioners denied the intervenors’ appeal to reconsider the public need of the entirety of Line 5 as well as their request to make the condition and longevity of the entire line matters of consideration. In other words, the Commission agrees with the ALJ that the proceedings must focus only upon the 4 mile segment of Line 5 to be replaced.
I spent some time yesterday and today reading the full ruling, which you can also read here, and have a few thoughts and worries. But I’ll start with the positive.
Perhaps the most important statement the Commission makes in its ruling is that “the need for a robust record in this case is crucial.” This is exactly what Enbridge (as well as, bafflingly, the MPSC staff) argued against. They argued for an extremely narrow scope of review. But the Commissioners aren’t having it. This is most evident in their ruling, stated with admirable clarity, that greenhouse gas emissions clearly fall within the purview of the Michigan Environmental Protection Act (MEPA). “While some would narrowly constrain the review of pollution to the construction of the tunnel and pipeline,” they note, “such an interpretation is untenable.” Thus, the MPSC has ample authority to regulate the products shipped by the pipeline. And since, MEPA requires the evaluation of potential forms of “pollution,” it quite plainly applies to greenhouse gas emissions. As the ruling nicely puts it,
Nothing in MEPA limits the types of “pollution” that can be asserted by an intervenor as resulting from the “conduct,” and, as the history of both environmental degradation and regulation show, new pollutants continue to be identified.
Unfortunately, this is also where things might get a little bit sticky, since this appropriately expansive understanding of MEPA is apt to conflict with the Commission’s narrow ruling on the scope of the proceedings. Let me explain:
It’s not really surprising that the Commission would find that the question of need for Line 5 as a whole was determined in 1953. Once again, they state the matter succinctly: “The public need for the existing portions of Line 5 has been determined. The public need for the Replacement Project has yet to be determined.” That’s a fair reading, I suppose, even though the basis upon which it is made in the ruling is mistaken. It is simply not true, as I have pointed out before, to say that “the Commission has never examined any portion of existing pipeline that is interconnected with the segment that is proposed in the applicant’s project but not within the proposed route.”
Still, on this point I will at least grant the Commission that it makes sense conceptually to consider the Straits segment of the line independently from the rest of Line 5. The Commission notes, for example, that it is theoretically possible for Enbridge to continue to operate the non-straits segments of Line 5 without the Straits segment by way of some “alternative pipeline and non-pipeline shipping arrangements.”
But at other times, that same act of separation– of segment from entire line– seems nonsensical. This is where I think the MEPA portion of the ruling conflicts with the scope portion of the ruling. For example, the Commission’s ruling states that “the parties are free to introduce evidence addressing the issue of GHG emissions and any pollution, impairment, or destruction arising from the activity proposed in the application” but then also says that “While the project under consideration is limited to the 4-mile section of the pipeline described in the application, this pipeline section would involve hydrocarbons that may result in GHG pollution that must be subject to MEPA review.”
How does one begin to calculate potential greenhouse gas emissions based upon a restriction of the review to a specific segment of the pipeline? Does one have to somehow determine which quantities of oil will, or have, actually make their way through the Straits segment? Do potential emissions or pollution effects have to somehow account for the fact that those quantities of oil will spend part of their transportation time in the other 641 miles of Line 5? that some of the oil Line 5 transports won’t ever actually flow through the Straits segment? Or what about oil that was intended to make it to the Straits segment but doesn’t (because, say, of a leak elsewhere on the pipeline)?
You can bet this is exactly the kind of hairsplitting Enbridge is going to engage in as a way of trying to make all sorts of GHG projections inadmissible. It’s apt to become a quagmire. But regardless, the fact is that, despite the delusional legalistic idea that a segment of Line 5 can somehow be strictly distinguished from the rest of the line, there are inevitably going to be instances where such a distinction simply can’t be made. It’s foolish to pretend otherwise. As soon as Enbridge says a single word about propane needs in the UP or even in the lower peninsula, for example, they’ll be asking the Commission to take into consideration portions of the line that are not part of the Replacement Project. Will the ALJ therefore rule such statements and claims outside the scope of consideration?
Lastly, let me just say one more time that it is very disappointing to see the Commission once again further solidifying the “three-part test” I’ve been complaining about for years and years. It’s especially irksome– and, I would argue, factually inaccurate– to say the Commission has “repeatedly” applied that test, since it has applied it exactly TWO times. Frankly, I think twice is closer to coincidence than it is repetition. Still, the Commission’s statement of that framework here, as a third instance, essentially sets in stone forever. But let’s not forget that in doing so, they are assisting Enbridge in re-writing Michigan law to the advantage of Enbridge.
Despite this worry, I don’t want to end on a sour note. I’d rather be hopeful and there is no question that the climate ruling in this case– which Enbridge, of course, has chose to ignore in its public statements, like a toddler who sticks his fingers in his ear so he can’t hear “no!”– is wonderful news indeed. The Commission’s application of MEPA is a step that is likely to reverberate well beyond these proceedings and might even re-shape, in very positive ways, the state’s environmental laws. That, my friends, is an excellent legacy for these Commissioners to leave and also a very welcome Earth Day gift.
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* Special shout-out to all the groups who intervened and helped make this happen:
For Love of Water, the Michigan Environmental Council, the Grand Traverse Band of Ottawa and Chippewa Indians, Tip of the Mitt Watershed Council, National Wildlife Federation, Bay Mills Indian Community, Environmental Law & Policy Center, Michigan Climate Action Network, the Little Traverse Bay Band of Odawa Indians, and the Nottawaseppi Huron Band of the Potawatomi