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.