Dear Commissioners-

I am writing to encourage you to deny Enbridge’s application to relocate the twin pipelines beneath the Straits of Mackinac into a tunnel. I hope you will please consider the following:

1. The limited scope of review adopted by the ALJ and supported by Enbridge and the MPSC Staff is legally mistaken and works against the public interest.

The legal basis for the limited framework adopted in these proceedings, comprised of a so-called “three-part test” and a MEPA review, is tenuous at best. Despite Staff’s claim that this framework has been “long used” and Enbridge’s claim that the MPSC has “repeatedly applied” it, this framework has only appeared in three cases before the Commission (including the extant one) and two of those three cases have involved an Enbridge application. Knowing that the narrowest possible scope of review best serves its interests, Enbridge has worked hard and successfully in these cases (beginning with U-17020) to convince the Commission to adopt this framework in an exclusionary manner. To be frank, the ALJs and the MPSC Staff in each of the latter two cases have been, for reasons that are hard to understand, willing dupes in accepting what is plainly and demonstrably Enbridge’s self-interested misreading of the law.

It is a misreading of the law because there is nothing whatsoever in the text of Act 16 (nor even in the first of these cases, the 2002 Wolverine case, U-13225) that precludes the Commission from considering matters beyond need, routing, and engineering standards. In other words, while those are all certainly things the Commission can (and should) consider, the Commission need not be bound by those factors alone. The Commission has ample authority under Act 16 to adopt whatever additional criteria the Commission deems appropriate. The fact is that a narrow review is advantageous to Enbridge and Enbridge only. A broad review is advantageous to the public, whose interests, unlike Enbridge’s, are myriad.

2. The plan to relocate a segment of Line 5 inside a tunnel beneath the Straits is itself a risk, full of dangerous uncertainties.

Enbridge and Staff repeatedly contend that relocating the dual pipelines inside a tunnel will virtually eliminate the risk of a spill into the Straits. Staff concludes, for example, that “the project’s risk-reducing benefits outweigh the impairments from construction.” Yet this conclusion (itself contestable) rests on a (shaky) assumption that has gone virtually unexamined in these proceedings: that a tunnel beneath the Straits of Mackinac can and will be constructed in a timely manner.

If the Commission approves Enbridge’s application, there are only two likely outcomes, neither of which serves the public interest and both of which represent a tremendous risk of precisely the sort Staff identifies in its definition of “risk”: the “combination of the likelihood of a negative outcome and the severity of the consequences that result from that outcome.”

The possibility that Enbridge could construct a tunnel and relocate Line 5 within it before the end of this decade strains credulity. Enbridge’s own most optimistic estimates, under ideal conditions, forecast 3-5 years (a forecast that their legal department is very quick to qualify in written statements!) after receiving all required regulatory approvals. But that timeframe is clearly more public relations than reality. Earlier speculation from Enbridge estimated that construction would take 7-10 years. And neither of those estimates takes into consideration appeals and other legal challenges that are sure to delay the beginning of construction. Nor do they take into consideration ordinary construction delays caused by accidents, mishaps, and weather and other conditions. Ironically, the severe weather events that are the result of the global warming caused by the oil Line 5 transports will inevitably produce conditions that pose a significant challenge to the construction of a tunnel which will in turn only further compound unpredictable and intensified weather events.

All of which is to say that one extremely likely “negative” outcome of the approval of Enbridge’s application is that Enbridge commences construction on a tunnel beneath the Straits of Mackinac that never gets completed, because of catastrophe or because the bottom falls out of the market. After all, given the recommendations by the IPCC on the urgent need to reduce fossil fuel production and combustion and initiative commenced by states, like Michigan, to transition as quickly as possible to renewable energy sources, the construction of new fossil fuel infrastructure in 2030 or 2035 is going to appear even more foolish and reckless than it does now. Michigan might well wind up with a half-built tunnel beneath the Straits, a great deal of disturbance (including disturbance to important indigenous archaeological sites), all for nothing.

The second—and, in my view, less likely—outcome is that Enbridge, some time well into the next decade or beyond, does complete its tunnel and relocate the dual pipelines. That outcome might be even worse for the public interest (and the planet), since it will only prolong and compound the climate crisis by encouraging the continued production and consumption of oil. After all, corporations do not make billion dollar investments without the expectation of long term returns; nor are corporations likely to strand lucrative assets. Staff contends that “it is incorrect to assume that halting a primary petroleum transportation route or method to the region will reduce demand for Line 5 products.” But this is a lazy and simplistic economic assumption. The history of energy infrastructure development, including the construction of Line 5, make clear that production produces and drives demand (it’s why companies, including energy companies, spend so much money on advertising!).

Put differently, a tunnel might seem like a solution to the real danger of a spill in the Straits. But it is a chimerical solution. And even its dubious success presents, without question, its own set of long-term dangers and risks.

3. The realities of climate change can neither be ignored nor partitioned.

Since the Commission ruled that GHG emissions would be considered in these proceedings, Enbridge and Staff have labored to restrict how those emissions should be measured. It is nonsensical and ethically short-sighted to think that the only emissions that should be considered are those directly associated with the project. As modes of conveyance, pipelines do not exist independent of sites of production and use; decontextualizing them from their function is an irresponsible exercise in willful blindness, especially given the realities and exigencies of climate change. For that reason, some researchers have begun to develop more holistic—and hence more accurate– ways of measuring emissions, such as the “bottleneck method,” which calculates emissions across all phases, from production to refining. Using these methods, researchers found that oil and gas pipelines are by far the largest contributors to GHGs. (See https://www.mdpi.com/1996-1073/13/15/3932). To only consider emissions specifically associated with “the project” is to make the Commission’s recognition of the importance of considering climate effects look like a fake gesture, a way to pretend to take GHG emissions seriously without actually doing so.

4.  The Commission has an opportunity to stand for indigenous sovereignty—and should take it.

Finally, I urge the Commission to give far more consideration to the tribal intervenors than has been given by Enbridge or Staff. When Line 5 was built in 1953, tribes along the entire route of that pipeline were given no opportunity whatsoever to make independent decisions regarding how it might affect their lifeways, their sacred sites, or their treaty rights. Since that time, governments and regulatory bodies have taken steps to ensure tribal “consultation.” But the historical record shows clearly that too often consultation is a show rather than a reciprocal process resulting from genuine respect for sovereign rights or legal agreements such as the 1836 Treaty of Washington. Once again, Enbridge and Staff have worked to restrict, limit, or curtail the extent to which tribal groups could intervene or have a hearing in these proceedings. In doing so, they have—albeit under the guise of consultation—once again duplicated the injustices that have historically dispossessed indigenous peoples. The Commission here has a chance to refuse to reproduce those injustices.

The fact is, this application represents a kind of watershed moment—for the protection of the Great Lakes, for finally addressing the climate crisis, and for redressing some of the historical wrongs inflicted upon indigenous peoples. Admittedly, that is a lot for a single state commission to shoulder. Yet here we are. It will take courage and foresight for the Commission to deny this application, but doing so is within the law and the authority of the Commission. And more importantly, doing so is what’s right for our shared future, if not for one corporation’s short-term profits.

Thank you for your consideration,

Jeffrey Insko
Groveland Township, Michigan