by Jeffrey Insko | Dec 11, 2023 |
Part 3: The Commission Speaks
Last week, in part 2 of my new series on the MPSC’s Line 5 decision, I wrote about relations. Or rather, I wrote about how the rules of the MPSC proceedings are designed to sever relations, to deny relations, to ignore relations, to pretend like things that are inextricably connected are somehow not connected at all. This kind of partitioning, I argued, effectively doomed the proceedings from the start, since that narrow way of thinking about the matter is exactly how Enbridge wanted the Commission to look at the matter. Even worse is the fact that Enbridge didn’t really need to persuade the MPSC to adopt their narrow view; the MPSC also prefers to look at things narrowly. It helps them evade accountability.
In this the third installment of my series on the MPSC decision, I planned to take up another dimension of that narrow view. But then on Friday, as if on cue, one of the Commissioners, Dan Scripps, illustrated the point of my previous blog post perfectly. So I’m afraid this series just got a little longer; the discussion of harm and violence I promised will have to wait until later in the week. You see, we have to talk about Dan Scripps.
If you missed it, Scripps appeared on WDET radio’s Detroit Today with Stephen Henderson to discuss the Commission’s decision. To his credit, Scripps appears to recognize that Line 5 poses a serious risk to the Great Lakes. And in justifying the Commission’s decision to approve Enbridge’s application, Scripps leaned heavily on the idea that the tunnel “virtually eliminates the risk of an anchor strike and is a much safer option and more protective of the Great Lakes than what exists today.”
I’m sure that sounds like a quite reasonable view to a lot of people. The problem is that it’s a view that, among other things, is astonishingly short-sighted. Scripps talks about the tunnel as if it’s simply going to materialize overnight, like slipping one’s arm into the sleeve of a new shirt. But the reality is that this “safer option” is at least ten years away from getting built, probably more. Enbridge’s estimates on how long tunnel construction might take certainly can’t be trusted. And ten years from now, at the current rate of global greenhouse emissions, we will have reached the dangerous global warming threshold of 1.5 degrees Celsius over preindustrial temperatures. The visible and inescapable effects of reaching that limit will make a billion-dollar investment in fossil fuel infrastructure look even more reckless and foolhardy than it does now.
But that explanation for the MPSC decision was hardly the most striking thing about the interview. In fact, one statement Scripps made nearly caused me to crash my car. Here’s what he said:
We [the MPSC] didn’t get a say in whether or not the tunnel gets built.
It’s hard to know if Scripps believes what he’s saying here. But regardless, his remark displays how absurd it is to try and separate that things that can’t possibly be separated. “Who has what responsibility in this process?” he went on to ask, in what seemed like an attempt to distance the MPSC from its decision. He explained that the agencies responsible for approving the tunnel are the Michigan Straits Corridor Authority and the Department of Energy, Great Lakes, and the Environment. The MPSC, he continued, was only tasked with the question of whether to approve the relocation of Line 5 inside that tunnel. “The actual question of building the tunnel wasn’t for us,” Scripps demurred, “That’s the Straits Corridor Authority.”
Now, in the strictest, most technical sense, what Scripps said on the radio is true. The MSCA and EGLE are the agencies charged with approval and oversight of the tunnel. And as per the ruling of the Administrative Law Judge in the MPSC case, the Commission was charged only with approval of the re-route of the portion of Line 5 inside the tunnel, not with approving tunnel construction itself. So sure, on a purely formal level—that is, in terms of which agency issues which permit—the MPSC didn’t get a say in whether or not the tunnel gets built.
But that technical, formal distinction is completely nonsensical. It is nonsensical because the re-route and the tunnel are inextricable; they’re a package deal. After all, it’s not as though Enbridge would construct a tunnel without permission to put a pipeline inside of it. The re-route, in other words—the specific decision before the MPSC—was the precondition for tunnel construction. No re-route, no tunnel. Which means that despite Scripps’s attempt to pretend otherwise by relying on an absurd technicality, “the actual question of building the tunnel” was absolutely the question before the MPSC. The MPSC had all the say as to whether the tunnel gets built.
But Scripps wasn’t done. He then went on to explain that the MPSC is guided by a Michigan law, Act 16 from 1929. Under that Act, Scripps said, the Commission had to consider three questions: is there a need for the line? Is the route reasonable? And does it meet or exceed safety standards? According to Scripps, the answer to all three of these questions in the eyes of the MPSC is: yes.[i]
There’s just one problem here: there is nothing in Act 16—nothing whatsoever—that confines the MPSC to those three questions. In fact, those three questions, questions treated as utterly binding by the Administrative Law Judge who oversaw the case, by the MPSC Staff, and by Dan Scripps and his fellow Commissioners, don’t appear anywhere at all in Act 16. Nowhere. Yet strict adherence to those three questions is the source of all those exclusions I wrote about last week, exclusions that precluded the intervenors in the case from introducing their most powerful and important arguments into the record.
So what does Act 16 say, you might be wondering? Well, to put it in layman’s language, basically it says the MPSC can consider whatever the hell it wants. It gives the Commission very broad authority to establish its own rules and regulations. In fact, the language of the law itself is exactly the opposite of the narrow view taken by the very Commission to which the law grants authority. Here, for example, is Section 8 of Act 16:
The commission is hereby authorized and empowered to make all rules, regulations, and orders, necessary to give effect to and enforce the provisions of this act.
That’s it. No explicit restrictions on the scope of review of an application. Not a bunch of limitations on what the Commission can and cannot consider. Nothing about any three-part test. And the worst part of all of this? That narrow framework, stated so clearly by Dan Scripps last week as the sole criteria by which the MPSC is to be guided in its decision-making: it is almost entirely an Enbridge invention. I recounted that history right here on this blog a full decade ago.
But nobody, it seems, is reading Act 16; they’re only reading Enbridge’s self-serving interpretation of it. Which is a shame because if you were to read all of Act 16, you might come across something else it says, like this in section 2b:
A pipeline company shall make a good-faith effort to minimize the physical impact and economic damage that result from the construction and repair of a pipeline.
If you’re like me, the phrase that stands out here is “good-faith effort.” Enbridge has exerted a great deal of effort on a great many things here in Michigan over the past decade. But very few of them have been undertaken in good faith. Just spend some time in the archives of this blog; it’s ten years of carefully documented examples of Enbride’s bad-faith efforts.
Which, to return to the thesis of this series, is yet another problem with the system: it appears to include no mechanism which can account for and contend with bad-faith actors. It presumes, rather than interrogates, the good faith of applicants like Enbridge. Intervenors can’t simply claim—or even show—that Enbridge has a long history of being full of shit, of lying to regulatory agencies of various kinds. That sort of intervention, too, according to the MPSC’s current procedures, would be “beyond the scope of review.”
[i] I want to note that the intervenors in the case produced many excellent arguments demonstrating how Enbridge’s plan does not satisfy these three criteria.
by Jeffrey Insko | Dec 6, 2023 |
Part 2: Relations
This week I started a new series of posts in response to last Friday’s MPSC decision approving Enbridge’s application to relocate a portion of Line 5 inside a tunnel beneath the bedrock in the Straits of Mackinac. The decision has produced in me a feeling of déjà vu, hearkening back to the MPSC decision a decade ago that approved Enbridge’s “replacement” of Line 6B. It echoes, too, as a friend reminded me this week, the more recent but equally short-sighted decision by the Minnesota Public Utilities Commission approving Enbridge’s re-route of its Line 3.
The hard truth is that in all three cases, the opposition never really stood a chance. And that’s not because opponents aren’t on the side of what is right, what is just, and what in the long term is best for human and more-than-human life. It’s because, as I stated in my first post, the system is built in such a way as to set aside, to bracket, what is right and just in favor of what is most expedient—by which I mean what is best for commerce. These public commissions might pay some lip service to what is right and just—in the form, say of “tribal consultation” or basic compliance with some fairly weak environmental protections (if they exist)—but those things are at best secondary, subordinate, minor checks on the economic imperatives that are the primary concern of the proceedings.
This is not a bug in the system, as they say; this is a feature.
In my last post, I emphasized two other features of the system. I highlighted the way that it is unjust because it is exclusionary both in form—limiting, in practice, who gets to participate—and in content—limiting the kinds of things that are permissible as matters of consideration. Here I want to elaborate on the latter of these two points, especially on the way the proceedings’ emphasis on process, on establishing and adhering to certain rules that define the field of play, encourages, even requires, what I called “conceptual partitioning or discreteness.”
Of course, the Commission simply calls this establishing the scope of review, which of course is necessary. Yet there’s no question that the inclination of the Commission, and certainly of the Commission Staff, is for a narrower, rather than more expansive scope. Recall the Staff’s remark that “without reasonable and legally sound limitations,” the intervenors’ “anything-goes-approach would expand and weigh down the evidentiary record until it buckles.” Staff seems to want to treat this as a practical and therefore neutral observation about process; no proceeding, after all, can take up everything. But the remark is disingenuous on its face; the intervenors weren’t arguing that “anything goes;” they were simply asking that a specific set of questions be allowed to go. But what’s even more astonishing is just how little consideration Staff’s process-oriented thinking gives to whether and how a narrow review might advantage one side and disadvantage the other.
And there was never any question as to which side would benefit by this narrower scope. As I mentioned in my last post, Enbridge argued for exclusions at every turn. Here’s just a brief list of things Enbridge sought to have excluded from consideration:
- The need for Line 5
- Construction of the tunnel
- The current operational safety of Line 5
- Climate change
- The environmental effects of the extraction, refinement, or consumption of the oil transported by Line 5
- Tribal treaty rights
- Examination of terrestrial archaeological sites in the Straits
- The 2010 Line 6B spill
Enbridge got its way with almost all of this. In fact, even in those instances where some allowances were made—for consideration of greenhouse gas emissions, for example—those allowances came with absurd restrictions: only greenhouse gas emissions related specifically to the activity of re-routing Line 5 into the tunnel could be considered.
These restrictive rules about what was and was not permissible in the proceedings required everyone to act like the tunnel plan exists in a vacuum—as if the 4-mile stretch of pipeline in the Straits is connected to nothing, as if the oil the pipeline transports comes from nowhere and has no destination, as if global warming is a localized phenomenon, as if the pipeline has no past and no history, as if causes have no effects, as if time doesn’t exist, as if pipelines have no social consequences. All that’s left, after one has adopted such a myopic and morally bankrupt view, are narrow, mystifying technocratic matters: welding procedures, construction specifications, leak detection systems.
And this, in turn, dictates not just what kinds of arguments intervenors can not make; it dictates, too, the kinds of arguments they have to make if they want to be a part of the proceedings. But this is like requiring an NBA basketball team to compete in the NHL finals. Because they’re talented and tenacious the ballplayers will compete, but ultimately they don’t stand a chance because it’s not their game. The same goes for the National Wildlife Federation, FLOW, the Bay Mills Indian Community, and the rest. Techno-engineering, the maintenance of extractive capitalism for short-term economic interests: that’s just not their game. Instead, they have urgent and vital ethical, political, and social arguments to make. Their primary concerns, their commitments and convictions and claims, involve the public trust, thriving ecosystems, the preservation of lifeways, cultural and spiritual practices, treaty rights, sovereignty, justice, a habitable future for all lifeforms.
But the kind of thinking required to safeguard all that stuff is the very opposite of partitioning and segmenting and separating and bracketing and excluding. It’s about relations. The problem with the system—as these proceedings and their inevitable outcome painfully demonstrated—is that it is insufficiently mindful of relations.
Coming soon, Part 3: Harm and Violence
by Jeffrey Insko | Dec 4, 2023 |
Ten years ago in 2013—I really can’t believe it’s been a full decade—I wrote a series of posts in response to a Michigan Public Service Commission case involving Enbridge. At issue then was the “replacement” of Line 6B across the state and at the time, I’m sure I never imagined I’d be writing a similar series again. But here I am.
Welcome to the Enbridge-MPSC Post-Mortem Series, 2023 edition.
By now, I’m sure you’ve heard: on Friday, the Michigan Public Service Commission approved Enbridge’s application to re-route a portion of Line 5 beneath the Straits of Mackinac inside a concrete tunnel. I know this sounds preposterous, what with a planet on fire and the urgent need to decarbonize as rapidly as possible. But it’s true.
A decade ago, in response to the similarly disappointing outcome, I called the MPSC “a terribly weak-kneed, embarrassingly toothless regulatory body,” “an agency with very little power (and perhaps even less will).” Sadly, not much has changed over the past decade.
But let’s start with the brutal reality: the MPSC was never going to deny Enbridge’s Line 5 application.
I don’t mean to suggest that the Commissioners are somehow corrupt or that they are bought and paid for by Enbridge. This is a completely different trio of Commissioner’s than last time. And anyway, it’s not as simple as corruption. In fact, it would have taken genuine courage to deny Enbridge’s application. And despite what I said about the Commission’s lack of will a decade ago, I honestly hoped these Commissioners might possess some courage. They don’t. But that’s also not really the reason why approval was basically inevitable either. It’s more complicated than that, too.
The problem is the system.
For one thing, the system is fundamentally unjust, structured in such a way as to advantage large corporations like Enbridge, which possess unlimited resources to spend on armies of attorneys to represent them in the proceedings. Meanwhile, others who wish to formally intervene—ordinary individuals, cash-strapped non-profit organizations, or Native American tribes—either have to search desperately for legal funds (and therefore constantly worried those sources will dry up), convince civic-minded attorneys to take on their cause pro bono, or simply remain on the periphery of the process. This “pay to play” system, as the scholar Kathleen Bosemer has called it, is an example of “procedural energy injustice.” And while the MPSC pays lip service to those features of the system that do not require legal fees, like public comments and so-called “tribal consultation,” such opportunities “do not form part of the [formal] record of proceedings.” What’s more, since “they are filtered through staff reports and are not subject to cross examination… their influence on decision making is limited.”[i]
Nor is access the only basic problem with the system. Just as the form of the proceedings is exclusionary; so too is the content of the proceedings extremely limited.
Specifically, the MPSC doesn’t exist to decide what is good or right or just. It’s not designed to take up messy ethical or historical questions. For that reason, it’s not really equipped to scrutinize, to question, to be skeptical. Instead, its purview is commerce and its job is to enable, to facilitate, to permit—but to do so within certain limits. But importantly, those limits are also not ethical or historical, not matters of what is good or right or just. Those limits, instead, are almost entirely processual. What matters to institutions like the MPSC, in other words, is process, ensuring that i’s are dotted, that t’s are crossed. Such dottings and crossing will then, in turn, somehow yield the appropriate outcome. This is why, for example, in her remarks at the MPSC meeting on Friday, Commissioner Katherine Peretick invited the outspoken opponents of Enbridge’s application to take (cold?) comfort in the process, despite its outcome. “I know that many of you will be disappointed by the decision,” Peretick said. “But I can genuinely say that your comments, whether in writing, verbal, here in person or over the phone or (webinars), did make this process better.” Process absolves.
Let me put this another way. The MPSC exists to follow and enforce rules, not to make judgments. This is why the rules matter so much. Enbridge’s army of lawyers certainly understands this, which is why they worked so hard in these proceedings, just as they did a decade ago, to make sure the scope of what could be considered in the hearings was as narrow as possible. Tunnel construction? Out of bounds! Climate change? Out of bounds! The entirety of Line 5? Out of bounds! The past? Out of bounds! The future? Out of bounds! And so on and so on.
Now, in some instances, the MPSC did allow very limited consideration of some of these matters—to the extent that they could yoke them specifically to a rule, like the Michigan Environmental Protection Act. But those allowances themselves were severely restricted, requiring the acceptance of a conceptual partitioning or discreteness—a way of thinking that willfully forgets that the knee bone is connected to the thigh bone—that is almost comical. (I’ll have much more to say about this in another post in this series.)
But beyond these minor allowances, Enbridge once again had its way in defining the field of play, in establishing the rules of the game, in reducing the question before the Commission to an extremely narrow “three-part test.” Honestly, I’ve been hollering about that so-called test since 2013, so I’m not going to rehearse it again. But I will just say once more that I predicted this a decade ago, long before anyone ever dreamed up a ridiculous tunnel.
The more important point, however, is that Enbridge’s success in narrowing the scope of the proceedings isn’t because they are somehow smarter or better or more persuasive than the lawyers for FLOW or the National Wildlife Federation or the Environmental Law & Policy Center or the Bay Mills Indian Community or any of the other intervenors. Rather, their success is explained by the fact that they speak the same narrow procedural language as the Commission itself. By the fact that the MPSC also prefers a narrow scope of review. The rule-and-process- minded MPSC staff, for example, is entirely amenable to rulemaking of the kind that makes what otherwise might be difficult questions—by which I mean complex, messy, multifaceted, ethically-involved—simple and straightforward, their answers determined not by the hard, careful thought of individuals, but by the disembodied rules themselves. The MPSC all but admitted as much in one of its filings in the case: “without reasonable and legally sound limitations,” they wrote in March 2021, “the Joint Appellants’ anything-goes-approach would expand and weigh down the evidentiary record until it buckles.”
In other words, for the MPSC some contexts count and other contexts don’t. And this fact– this erasure– makes all the difference.
[i] This is a textbook example of the difference between equality and equity. While theoretically anyone can intervene in the proceedings (equality), the vast difference in financial resources available to potential intervenors advantages some and disadvantages others (equity).
by Jeffrey Insko | Dec 1, 2023 |
Today, in an inexplicable and astonishingly short-sighted decision, the Michigan Public Service Commission approved Enbridge’s Line 5 tunnel scheme. I’m still digesting and thinking and reading about the decision, so more after I’ve had some time. In the meantime, I will refer back to what still to this day remains the most important thing I’ve ever written on this blog. This is from 10 full years ago:
