MPSC Line 5 Post-Mortem, pt. 3

by Jeffrey Insko | Dec 11, 2023 | 2 comments

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.

MPSC Line 5, Post-Mortem, pt. 2

by Jeffrey Insko | Dec 6, 2023 | 3 comments

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

Enbridge-MPSC Post-Mortem Series (2023 edition)

by Jeffrey Insko | Dec 4, 2023 | 3 comments

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).

Enbridge Re-re-writes Michigan Law

by Jeffrey Insko | Dec 1, 2023 | 0 comments

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:

You Can’t Believe Anything Enbridge Says, Part– well, I’ve lost count

by Jeffrey Insko | Oct 6, 2023 | 0 comments

The thing about spending more than a decade documenting Enbridge’s endless parade of fabrications, falsehoods, fibs, prevarications, dissemblings, distortions, deceptions, casuistries, inaccuracies, misinformationings, truth-stretchings, misleadingnesses, and ass-coverings is that there’s always another one.

Here’s the latest, courtesy of the National Wildlife Federation. 

Feel free to peruse the archives here for countless more examples, like this one or this one or this one or this one or this one or this one and so many more…

(Shameless) Summer Reading Suggestion

by Jeffrey Insko | Jul 2, 2023 | 0 comments

On Wildfires, Enbridge, and Line 5

by Jeffrey Insko | Jun 28, 2023 | 0 comments

The next essay in our ongoing series How to Know About Line 5 will drop soon (I hope you’ve read the first four!). In the meantime, as I look out at the haze and smoke and read the news that the Michigan air quality today is probably the worst it’s been since the Canadian fires began, I’ve been having a few thoughts about Enbridge and Line 5. Believe it or not, these things not unrelated.

As readers of this blog know, this is not the first time an ecological disturbance way up in Alberta has had a dramatic effect upon Michigan. The last time was in 2010. But rather than wildfires, it was tar sands oil extracted in Alberta, and transported via pipeline through Michigan. Enbridge’s Line 6B ruptured and spilled over a million gallons of the stuff into the Kalamazoo River. By now, we all know most of this story by heart.

But it wasn’t just the river that was spoiled. Air quality was pretty bad then too. In fact, benzene concentration levels were high enough to require evacuation near the spill site. And we still don’t know what else was released into the air and breathed in by nearby residents. To this day, there have been no human health studies on the effects of those airborne toxins.

But there’s more. Back in those days, Enbridge was running around talking about its “Tree for a Tree, Acre for An Acre” program. It was supposed to be a way to neutralize the company’s planetary footprint. From 2009 to 2013, for example, they claimed to have planted some 800,000 saplings (that’s less than the number of gallons of oil they spilled into the river btw!).

Where did they plant all those saplings? They sure as hell didn’t plant them in my backyard, where they cut down over 100 trees. So it’s hard to say for sure. But it appears that a lot of those trees were planted in… Alberta! https://createyourforest.ca/partner/enbridge-pipelines-inc

You see, that’s where a lot of trees get planted—in large “tree plantations” created as part of those “carbon offset” schemes that oil and gas companies love so much. They get to pretend like it somehow gets them off the hook. Here’s a great, informative twitter thread on the role of tree plantations in the current wildfires.

Enbridge stopped talking about the “Tree for a Tree” program about a decade ago. It’s not entirely clear why, but my hunch is that it’s because the program was always designed as greenwashing p.r. for their ill-fated Northern Gateway project. When that project died, or so it appears, so too did their tree program.

But they still love talking about “net zero” and about planting trees. In fact, not so long ago they were planting trees over in Lambton county—which just happens to be where Line 5 ends.As far as I know, those tree plantations aren’t currently ablaze. But the air there is still pretty bad…

But then again, for some populations, the air there has been very bad for a very long time, not because of forest fires, but because of the refineries Line 5 feeds that emit toxic pollutants (into the water and soil as well as the air).

All of which is to say that while Enbridge isn’t directly responsible for the Canadian wildfires, they are a major player in a system that inevitably produces those fires, a system they work hard to sustain and perpetuate. And a system, more importantly, that also produces lots of other harms, including global warming, that are often less visible and less dramatic but in many ways far more devastating even than the current fires.

New Series: How to Know About Line 5

by Jeffrey Insko | May 7, 2023 | 2 comments

Introduction

If you’ve stopped by the blog in the past few weeks, you have probably seen The Line 5 Syllabus I created. As I explain there, it’s an expanded version of a syllabus I prepared for the summer M.A. course I’m currently teaching on “Literature and Social Engagement.” I’m fortunate to have six amazing, smart students in the course. As part of their semester’s work, I’ve asked them each to write guest blog posts. It is my great pleasure to introduce those short essays now.

Both the course and the collection of essays seek to situate Line 5 in a number of broad cultural, historical, and theoretical contexts. The essays are especially interested in telling stories about Line 5 that don’t always get told (or don’t get told enough). What does it mean to think about Line 5 beyond the fear of an imminent spill? What gets obscured when the conversation is framed only by questions of safety or jobs or gas prices? How might we re-frame the discussion of Line 5 to highlight questions and problems that don’t lend themselves easily to slogans or radio commercials? What might we gain by looking away briefly from the Great Lakes and toward the termination points of the line, like Sarnia and Detroit?

We might describe this work of re-framing as a shift from what we know about Line 5 to how we know about Line 5. By making this an epistemological question, I am following the lead of the petro-critic and cultural theorist Imre Szeman in his essay “How to Know About Oil: Energy Epistemologies and Political Futures.” Szeman begins with the premise that while we already know about the planetary and social harms wrought by our oil dependence, we nevertheless seem unable to rectify these harms because “we are people who live in societies so saturated with the substance that we cannot imagine doing without it.” Thus, he asks, “what could we possibly learn by thinking about how we know oil, as opposed to thinking about the ways in which we have lived with it and what we need to do to live without it?

This is a question equally applicable to the debate over the future of Line 5. What can we learn by thinking critically about how we know Line 5, rather than just thinking about the ways in which we have lived with it and what we need to do to live without it? 

The six essays that comprise this series each take up this question in different ways. Shannon Waite and Lourd Razooq wrestle with both the urgencies and the difficulties Line 5 presents to us conceptually and culturally. Focusing on the climate crisis, Waite invites us to imagine a world where we are unburdened from the pressures and anxieties of the status quo, which Enbridge desperately wants to maintain. Razooq, in turn, identifies that status quo with even more specificity; her essay highlights the way Line 5 emblematizes a key feature of the culture of oil: that we are, as she puts it, “shaped by the very thing that damages our environment.” A key challenge both essays identify, then, is how we extricate ourselves from what Waite describes as “life as we live it now.”

In a second set of essays, Sydney Wendling and Paige Therrian consider more specific contexts for Line 5. Wendling provides a helpful primer on the 1977 Pipeline Transit Treaty between the U.S. and Canada, which the Canadian government formally invoked in 2021 to protect Enbridge’s interests. But as Wendling notes, both the history of that treaty and its legal particularities have received little detailed public attention to date. Wendling also observes, pointedly, that this emergent geopolitics of Line 5 excludes from consideration other treaties between sovereign nations; namely, those between the U.S. and Native American tribes. Therrian’s essay, in turn, examines the foundations and the importance of those treaties from the point of view of indigenous peoples, for whom “water is life.” In elaborating upon that maxim, Therrian emphasizes key differences in indigenous and settler epistemologies.

The final two essays in this series take us “downstream” to the termination points of Line 5 and in doing so, emphasize environmental injustice. Ava Gardiner focuses on pollution in Detroit, especially near the Marathon refinery that receives feedstock from Line 5. Gardiner reminds us that Line 5 threatens more than just tourism and the freshwater of the Great Lakes; it’s part of a larger interconnected system that has long contributed to other very real harms. Those harms reach across the border, as Alma Dukovic shows in her consideration of Sarnia’s “Chemical Valley,” which surrounds the Aamjiwnaang First Nation. But more than just a recounting of toxic devastation, Dukovic tells a fascinating story about the origins of Line 5, a story that is as much about resistance as it is about injustice, with powerful resonances for the Line 5 battle today.

As I’ve said many times before, Line 5 is about more than just a single pipeline or even the Great Lakes. It encompasses and crystallizes so many of the most urgent social, political, and ecological questions of our time. The bright, passionate student-scholars who have written these essays have a real stake in those questions; their work helps elucidate and bring them into focus. As the essays appear here over the next few weeks, I hope you will read and engage them.

Contents

1. Life as We Live it Now is the Problem, by Shannon Waite
2. Aesthetics and the Dark Gratifications of Petroculture, by Lourd Razooq
3. What is the 1977 Transit Pipelines Treaty? by Sydney Wendling
4. Chemical Valley and the Origins of Indigenous Resistance to Line 5 by Alma Dukovic
5. Building Solidarity Along the Entirety of Line 5 by Ava Gardiner
6. The Great Lakes and the Rights of Water by Paige Therrian

Join Us at the Michigan Climate Summit, June 2!

by Jeffrey Insko | May 2, 2023 | 0 comments

You may have seen that last week I unveiled the Line 5 Syllabus— a resource for anyone who wants to understand the matter in its most complex and historical dimensions. Thanks to everyone who took a look.

I mention this because you can bet that Line 5 will be a topic of conversation one month from today when people from around the state convene for the annual Michigan Climate Action Network’s Climate Summit. I’m especially excited that this year’s summit will be hosted by my very own Oakland University. I can tell you with certainty it’s going to be fun and exciting– much more that dry policy discussions.

The theme for this year’s Summit “Climate S.O.S”.: an opportunity for “Sharing Our Stories” amid Michigan’s moment for the movement. So in addition to the science and policy panels, the summit promises more intimate interactions, featuring the arts, culture, and healing. The idea is to build camaraderie and catalyze the emotional engagement needed to spark social action toward solutions to today’s crisis.

In fact, here’s a little sneak preview: if you attend this year’s summit, along with lots of other arts, you can see the sixteen-foot whale my students made in our “Literature and Environment” course this semester. His name is Ishwhale and he is currently on display in the Kresge Library. But he’ll migrate over to the Oakland Center for the summit.

And if that’s not enough, to kick things off we’re holding a cool storytelling event the night before at the Crowfoot Ballroom in Pontiac. It should be fun as well!

I hope you’ll join us; I’d love to meet some new folks in person. You can register here. Please do! 

The Line 5 Syllabus

by Jeffrey Insko | Apr 28, 2023 | 2 comments

This public syllabus started out modestly, as a short syllabus for the Summer course I’m teaching on Literature and Social Engagement. I wanted to teach a course that was rooted in local and regional social concerns and chose to focus, which should come as no surprise to anyone who knows me, on the Line 5 movement. But as I began to pull together that syllabus (which you can see here), it just kept growing and became far too extensive for a short 7 week course.

But I couldn’t let it go. So I took inspiration from the amazing Standing Rock Syllabus, assembled some years ago by a collective of indigenous scholars, and decided to make a public version, which I’m calling “The Line 5 Syllabus.” But it should really be called a Line 5 syllabus, since it is hardly, nor is meant to be, either definitive or exhaustive. In fact, the version here (believe it or not) is itself pared down. Perhaps I’ll yet let it grow and develop. If you have comments or suggestions, I’m happy to receive them.

At any rate, the basic premise here is that it’s one thing to know the facts of the Line 5 matter, but it’s quite another thing to understand its deeper origins and more profound implications. These readings therefore aim to situate Line 5 in a handful of much larger contexts, contexts that often don’t get as much attention as they might (or should) in public debates. Or, to the extent that they do get some attention, they are not always (perhaps of necessity, given the forums in which such debates ordinarily play out) as historically informed or theoretically nuanced as they might otherwise be. I’ve also obviously emphasized a set of questions that I think are especially important. Which is not to say that those issues that do tend to dominate the Line 5 debate– jobs, “energy security,” gas prices and tourism, pipeline safety, engineering standards, and state vs. federal authority, for example– aren’t important. But it is to say that those matters can’t be– our ought not to be– divorced from broader ethico-historical questions involving climate change, indigenous sovereignty, environmental justice, and forms of resistance. I’ve sought to highlight and illuminate those latter questions here, aiming to provoke by drawing upon the insights of scholars from across disciplines (literary studies, history, anthropology, geography, sociology, for instance) as well as from literary artists and others. I think they have much to teach.

But having said that, I should also add that over the past decade or so that I’ve been thinking and writing and reading about and working against that rickety pipeline in the Straits, I’ve learned from many teachers myself: journalists, lawyers, advocates, activists, water protectors, ordinary citizens, and many others, I hope this syllabus, whether you read any of it or not, will be taken as a gesture of solidarity.

A final point: I can imagine some readers who might wonder where the Enbridge perspective is in this syllabus. To that I would only reply that the Enbridge perspective is the very air we breath– both literally and figuratively. For more on this point, see the “Petroculture” section.

Note: this is still a bit of a work in progress. I have linked to as many files as possible. In the coming weeks I’ll try to link to the rest. (If you encounter difficulties, please let me know.)

I. Background: The Great Lakes, the Kalamazoo River, & the Straits

• • Bonnie Jo Campbell, Once Upon a River. Norton, 2012.
  • Inside Climate News, The Dilbit Disaster
  • National Transportation Safety Board, “Enbridge Incorporated Hazardous Liquid Pipeline Rupture and Release Marshall, Michigan July 25, 2010,” 2012.
  • J.R. McNeil and Peter Engelke, “Introduction,” The Great Acceleration: An Environmental History of the Anthropocene Since 1945. Harvard UP, 2016.
  • Jeff Alexander and Beth Wallace, “Sunken Hazard: Aging Oil Pipelines Beneath the Straits of Mackinac an Ever-present Threat to the Great Lakes,” National Wildlife Federation, 2012.
  • Gretchen Whitmer, Notice of revocation and Termination of Easement
  • Nessel v Enbridge
  • Mary Annette Pember, “Enbridge Takes the Gloves Off in Line 5 Battle,” Indian Country, May, 2022.
  • Bad River Band of the Lake Superior Tribe v. Enbridge Energy Co.
  • Erik Ness, “‘We’re in Our Forever Home‘,” Isthmus, May 2023.
  • Jeffrey Insko, “Line 5: Dismantling as World-Building,” Energy Humanities, June 2021.
  • Jessica A. Knoblauch, “One Tribe’s Fight to Protect the Great Lakes,” Earth Justice, April 2023.
  • Andy Horowitz and Jacob A. C. Remes, “Introducing Critical Disaster Studies,” Critical Disaster Studies, Eds. Jacob A.C. Remes and Andy Horowitz. U of Pennsylvania Press, 2021.
  • Zoe Todd (Métis), “Fish, Kin and Hope: Tending to Water Violations in amiskwaciwâskahikan and Treaty Six Territory,” Afterall: a Journal of Art, Context, and Enquiry (2017): 102-107.

II. The Big Picture: Climate Change, Climate Justice, Settler Colonialism, & Indigenous Sovereignty

Climate Change

• • David Wallace-Wells, “The Uninhabitable Earth,” New York Magazine, 2017 and “Beyond Catastrophe: A New Climate Reality is Coming into View,” New York Times, 2022.
  • Rob Nixon, “Slow Violence,” Chronicle of Higher Education, 2011.
  • Dana Luciano, “The Inhuman Anthropocene,” Avidly, 2015.
  • Kyle Powys Whyte, “Against Crisis Epistemology,” Handbook of Critical Indigenous Studies. Eds  A. Moreton-Robinson, L. Tuhiwai-Smith, C. Andersen, and S. Larkin. Routledge, 2021: 52-64
  • Min Hyoung Song, “The Practice of Sustaining Attention to Climate Change” Climate Lyricism. Duke UP, 2021.
  • Caroline Levine, “Preface” and “Toward an Affirmative Instrumentality,” The Activist Humanist: Form and Method in the Climate Crisis. Princeton UP, 2023.
  • Sarah Jaquette Ray, A Field Guide to Climate Anxiety: How to Keep Your Cool on a Warming Planet. U of California Press, 2020.
  • Rebecca Solnit, “Difficult is Not the Same as Impossible,” Not Too Late: Changing the Climate Story from Despair to Possibility. Haymarket Books, 2023.
  • Mary Annaïse Heglar, “Here’s Where You Come In,” Not Too Late: Changing the Climate Story from Despair to Possibility. Haymarket Books, 2023.
  • Farhana Sultana, “Decolonizing Climate Coloniality,” Not Too Late: Changing the Climate Story from Despair to Possibility. Haymarket Books, 2023.

Indigenous Sovereignty

• • Janet Lewis, The Invasion (Michigan State UP, 1999)
  • Simon Pokagon, The Red Man’s Rebuke (1893).
  • 1836 Treaty of Washington
  • Elena Bruess, “Treaty rights acknowledged for first time in oil pipeline’s controversial history,” Michigan Radio, March 12, 2021.
  • Joanne Barker (Lenape), “For Whom Sovereignty Matters” in Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination. Lincoln: University of Nebraska Press. Pp: 1-31.
  • Charles Cleland, The Place of the Pike (Gnoozhekaaning): A History of the Bay Mills Indian Community (U of Michigan Press, 2001).
  • Basil Johnston, Ojibway Heritage (Bison Books, 1990).
  • Eve Tuck (Aleut) and K. Wayne Yang. “Decolonization is Not a Metaphor.” Decolonization: Indigeneity, Education, Society (2012): 1-40.
  • Patrick Wolfe. “Settler Colonialism and the Elimination of the Native.” Journal of Genocide Research (2006): 387-409.
  • Mathew L. M. Fletcher (Ottawa), “The Story of the 1836 Treaty of Washington,” The Eagle Returns: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians
  • Kyle Powys Whyte (Potawatomi), “Is It Colonial Deja Vu? Indigenous Peoples and Climate Injustice” Humanities for the Environment: Integrating Knowledges, Forging New Constellations of Practice. Eds, Joni Adamson, Michael Davis, and Hsinya Huang. Earthscan Publications, 2016: 88-104; and “Too late for indigenous climate justice: Ecological and relational tipping points,” Wiley Interdisciplinary Reviews: Climate Change, 2020.
  • “Rights of Manoomin (White Rice),” Center for Democratic and Environmental Rights. (See also White Earth Nation, 1855 Treaty Authority Establishing the Rights of Manoomin).
  • Kathleen Brosemer, et. al., “The energy crises revealed by COVID: Intersections of Indigeneity, inequity, and health,” Energy Research and Social Science (2020).

III. Petroculture

• • Simon Orpana, Gasoline Dreams: Waking Up from Petroculture (Fordham UP, 2021).
  • Warren Cariou (Métis), “An Athabasca Story.” Read Listen Tell, edited by Sophie McCall et al., Wilfrid Laurier UP, 2017, pp. 98-103.
  • Stephanie LeMenager, “Origins, Spills,” Living Oil: Petroleum Culture in the American Century (Oxford UP, 2016).
  • Brett Bloom, Petrosubjectivity: De-Industrializing Our Sense of Self. Breakdown Break Down Press, 2015.
  • Petrocultures Research Group, After Oil. West Virginia UP, 2016.
  • Sheena Wilson, “Energy Imaginaries: Feminist and Decolonial Futures”
  • Daggett, “Conclusion: A Post-Work Energy Politics” from The Birth of Energy: Fossil Fuels, Thermodynamics, and the Politics of Work. Duke UP, 2019.
  • Mark Simpson and Imre Szeman, “Impasse Time,” South Atlantic Quarterly (2021): 77–89.
  • Edward Burtynsky, Oil (photographs)

IV. Crossings: the Border & Infrastructure

• • Agreement Between the Government of Canada and the Government of the United States of America Concerning Transit Pipelines (1977)
  • Imre Szeman, “Pipelines and Territories: On Energy and Environmental Futures in Canada,” On Petrocultures: Globalization, Culture, and Energy (West Virginia UP, 2019): 238-59.
  • Keller Easterling, “Introduction” and “Extrastatecraft,” Extrastatecraft: The Power of Infrastructure Space (Verso, 2016).
  • Daniel Macfarlane, “Fossil Fuels After 1945,” Natural Allies: Canada-US Environmental and Energy Relations, 1867-Present. McGill-Queen’s UP, 2023
  • Lynne Heasley and Daniel Macfarlane, “Negotiating Abundance and Scarcity: Introduction to a Fluid Border,”Border Flows: A Century of the Canadian-American Water Relationship.
  • China Mieville, “Covehithe”
  • Brian Larkin, “The Politics and Poetics of Infrastructure,” Annual Review of Anthropology (2013).
  • Hannah Appel, Nikhil Anand, and Akhil Gupta, “Temporality, Politics, and the Promise of Infrastructure” in The Promise of Infrastructure, Eds. Nikhil Anand, Akhil Gupta, Hannah Appel,  (Duke UP, 2018).
  • Jessica Hurley and Jeffrey Insko, “Introduction: The Infrastructure of Emergency,” American Literature, 2021.
  • Kelly M. Rich, Nicole M. Rizzuto and Susan Zieger, “Introduction,” The Aesthetic Life of Infrastructure: Race, Affect, Environment. Northwestern UP, 2022.
  • Anne Spice (Tlingit), “Fighting Invasive Infrastructures,” Environment and Society (2018): 40-56.
  • Deborah Cowen and Winona LaDuke (Ojibwe), “Beyond Wiindigo Infrastructure,” South Atlantic Quarterly(2020): 243–268.
  • Bruce Braun and Mary E. Thomas, “Beyond Settler Infrastructures,” Settling the Boom: The Sites and Subjects of Bakken Oil (U of Minnesota Press, 2023).
  • Jennifer Wenzel, “Forms of Life: Thinking Fossil Infrastructure and Its Narrative Grammar,” Social Text (2022): 153–179.
  • Lynne Heasley with Daniel Macfarlane, “Water, Oil, and Fish,” The Accidental Reef and Other Odysseys in the Great Lakes. Michigan State UP, 2021.

V. The Other End of the Line: Sarnia, Detroit, Plastic, Pollution, & Environmental Justice

Sarnia

• • Theodore Dreiser, “A Certain Oil Refinery” (1919)
  • David Huebert, “Chemical Valley”
  • Jeffrey Insko, “The Line 5 Disaster is Now,” Line 6B Citizens’ Blog, 2020.
  • Sarah Marie Wiebe, “Atmosphere” and “Skeletons in the Closet: Citizen Wounding and the Biopolitics of Injustice,” Everyday Exposure: Indigenous Mobilization and Environmental Justice in Canada’s Chemical Valley. Vancouver: UBC Press, 2017
  • Canada’s Toxic Chemical Valley, Vice documentary, 2013.
  • Rebecca Altman, “How the Benzene Tree Polluted the World,” The Atlantic, 2017.
  • Max Liboiron (Red River Métis/Michif ), “Introduction,” Pollution is Colonialism (Duke UP, 2021).
  • Amanda Boetzkes and Andrew Pendakis, “Visions of Eternity: Plastic and the Ontology of Oil,” e-flux Journal, 2013.
  • Rachel Deutsch, Cloud Makers (documentary short)

Detroit

• • Jeffrey Insko, “Line 5’s Environmental Calamaties Started When it was Built,” Bridge Michigan, 2019.
  • Allyson Green, “Questions of Environmental Health and Justice Growing with the Petcoke Piles in Detroit,”Scientific American, 2013
  • Virginia Gordon, “Residents sue Marathon refinery over poll,” Michigan Radio, 2016
  • Keith Matheny, “Marathon wants to keep storing pet coke uncovered near Detroit River,” Detroit Free Press, 2019.
  • Derek Seidman, “We consider ourselves a sacrifice zone, because many of the people that live here are Black low-income folk.” Eyes on the Ties, 2022.
  • Terressa A.Benz, “Toxic Cities: Neoliberalism and Environmental Racism in Flint and Detroit Michigan,” Critical Sociology, (2017): 1-14.
  • Martinez, Michelle. “Environmental Justice and Detroit’s Long Shadow,” Gonna Trouble the Water, edited by Miguel De La Torre, Pilgrim Press, 2021.
  • Josiah Rector, Toxic Debt: An Environmental Justice History of Detroit (U of North Carolina Press, 2022).
  • Mohai, Paul, et al. “‘I Didn’t Choose This. It Chose Me.’ Community-Based Environmental Justice Leaders.” New Solutions (2020): 226–36.
  • Julie Sze, Environmental Justice in a Moment of Danger, U of California P, 2020.
  • Environmental injustice and racism in Michigan: A new MLive documentary

VI. Resistance

• • Walter Mignolo, “Introduction,” The Darker Side of Modernity: Global Futures, Decolonial Options. Duke UP, 2011.
  • Andreas Malm, How to Blow Up a Pipeline (Verso, 2021).
  • Thea Riofrancos, “A Burning Planet: Should the climate movement embrace sabotage?,” The Nation, 2022.
  • Ted Hamilton, “The Valve Turners, Part 1: Breaking the Law to Make the Law,” Beyond Fossil Law: Climate Courts, and the Fight for a Sustainable Future. OR Books, 2022.
  • Darin Barney, “Beyond Carbon Democracy: Energy, Infrastructure, and Sabotage,” Energy Culture: Art and Theory on Oil and Beyond, ed. Imre Szeman (West Virginia UP, 2019); and “Sabotage and the Politics of Pipelines” (lecture)
  • Jeff Diamanti and Mark Simpson, “Five Theses on Sabotage in the Shadow of Fossil Capital,” Radical Philosophy, 2018.
  • Kai Bosworth and Charmaine Chua, “Beyond the Chokepoint: Blockades as Social Struggles,” Antipode: A Radical Journal of Geography, 2023.
  • Brian Holmes, “What Can Art Do about Pipeline Politics?” South Atlantic Quarterly, 2017: 426–431.
  • Julian Brave NoiseCat (Canim Lake Band Tsq’escen) and Anne Spice (Tlingit), “A History and Future of Resistance,” Jacobin, September 8, 2016.
  • Kyle Powys Whyte, “Indigenous Environmental Movements and the Function of Governance Institutions,” Oxford Handbook of Environmental Political Theory. Eds. T. Gabrielson, C. Hall, J. Meyer & D. Schlosberg. Oxford UP, 2016: 563-580.
  • Kai Bosworth, “Introduction,” Pipeline Populism: Grassroots Environmentalism in the Twenty-First Century. U of Minnesota P, 2021.
  • Leanne Betasamosake Simpson, “Constellations of Coresistance,” As We Have Always Done: Indigenous Freedom Through Radical Resistance. U of Minnesota Press, 2020.
  • Elizabeth LaPensée, Thunderbird Strike (game)

Additional Resources:

• • IPCC Sixth Assessment Report on Climate Change
  • Michigan Clean Water Action’s Line 5 timeline
  • FLOW (For Love of Water) Line 5 page
  • Oil and Water Don’t Mix
  • Michigan Public Service Commission Line 5 Case Docket
  • Bay Mills Indian Community Enbridge Information Portal
  • Enbridge Line 5 Issues within the Bad River Reservation
  • Water is Life | Indigenous Lifeways Threatened by Enbridge’s Line 5
  • Enbridge Lakehead System map
  • Line 5 spill map
  • Enbridge Line 5 webpages

Enbridge Fined Again, Again.

by Jeffrey Insko | Oct 17, 2022 | 0 comments

Look, I’ve written this same post I don’t know how many times, so I won’t belabor it. But what’s the point of a system that pretends to hold corporations accountable without ever holding them accountable. I mean, I appreciate that the DNR Commissioner wants to pretend like this is some hard-ass action, but let’s get real. I don’t even have the patience to link to all the times I’ve linked to similar situations. It’s all in these archives and it’s a joke. Sigh.

Here’s the story: https://www.cbsnews.com/minnesota/news/enbridge-to-pay-millions-in-fines-for-line-3-water-quality-violations-aquifer-breaches/

Enbridge Does Not Learn from Its Mistakes

by Jeffrey Insko | Sep 19, 2022 | 2 comments

Do you get déjà vu?

Among the very first assignments I gave myself when I started this blog more than ten years ago was to read and draw some lessons from the comprehensive report released in July 2012 by the National Transportation Safety Board (NTSB) after its investigation into the causes of the 2010 Enbridge oil spill in Marshall, Michigan. (You can read the three-part series here.) At the time, the report made a lot of headlines, not least because of the scathing comments of then-NTSB chairwoman Debbie Hersman, who likened Enbridge’s handling of the spill to the “Keystone Kops.”

Last month, almost exactly ten years after the Marshall report, the NTSB issued another one: the results of their investigation into the horrific 2019 Enbridge gas pipeline explosion in Danville, Ky. The rupture of the 30-inch Line 15 pipeline killed one person, injured 6 others, and caused property damage and the evacuation of people from nearby homes.

The new report is very important, not least because of matters here in Michigan, where Enbridge is trying to convince the Public Service Commission that they can be trusted to build a billion dollar tunnel to house a new Line 5), but also because of matters in Wisconsin, where the Bad River Band of the Lake Superior Tribe of Chippewa Indians is trying, with only partial success, to stop Enbridge from trespassing on tribal land, and matters in Minnesota, where the effects of Enbridge’s recklessness while constructing Line 3 are still not entirely known.

But the report is also important because of what it makes stunningly, if unsurprisingly, clear about Enbridge: that they have hardly changed at all since the last NTSB report. In what follows, I’ll provide some details about the new report, which I’ve read carefully in full. But if you just want the the tl;dr version, it basically amounts to this: “oops, we did it again.”

What makes this especially appalling is the fact that Enbridge has essentially been on a decades long campaign to convince us all that the Marshall spill was a come-to-Jesus moment for the company, that following that calamity, they came to see the light, underwent an almost religious conversion emblematized by the creepy iconography they expect their employees to wear as a reminder of their sinful past.

Their public displays of repentance began almost immediately after the 2012 report, as I pointed out at the time. They’ve continued ever since. Here, for example, is Enbridge spokesperson Ryan Duffy two years ago in a report occasioned by the ten-year anniversary of the Marshall spill:

The result of the spill in Marshall is a company with increased awareness of safety and focused attention on proactive measures to maintain safe operation. Enbridge transformed itself to prevent a similar incident from happening in the future.

But the new NTSB report reveals these pious displays as a hollow sham, a kind of corporate televenagelism designed to dupe the credulous. It’s a lot like the link on the Enbridge website about “What’s Changed Since Marshall”: a road to nowhere.

All of which is to say that for anyone familiar with the report on the Marshall spill, the Kentucky findings will be disturbingly familiar. In both cases, Enbridge knew about defects in their pipeline years earlier but failed to take mitigating action. Also in both cases, Enbridge had in place procedures and protocols in place to help them respond in a timely way to a rupture, but they failed to follow those procedures. It’s the same old situation.

As a result, the new report at times seems practically to be copy-and-pasted from the 2012 one.  In the older report, NTSB takes Enbridge to task for “deficiencies” in its integrity management program (the company’s procedures and practices for ensuring the safety and integrity of the pipeline), describing the “inadequacy” of Enbridge’s program to “accurately assess and remediate” known defects in Line 6B. The new report finds that a contributing factor to the Kentucky rupture was, that’s right, “Enbridge’s integrity management program, which did not accurately assess the integrity of” Line 15.

More specifically, the new report shows, Enbridge failed to “estimate the risk from interacting threats” just as, in 2010, they failed to account “for uncertainties associated with the data, tool, or interactions between cracks and corrosion.” In both cases, Enbridge generated interpretations of data gained from its in-line inspections that permitted them to keep operating pipelines with known problems. “After the Marshall accident,” the 2012 report says, “Enbridge’s inspection contractors reexamined [previous] in-line inspection data and determined that the features were misclassified.” Similarly, in the new report the NTSB determines that “insufficient data were available to support Enbridge’s classification of the threat” of defects in Line 15 as low. In other words, Enbridge “underestimated the risks” of the defects in Line 15 before 2019, just as a decade earlier they “chose a less-than-conservative approach” to the risks posed by the known defects in Line 6B.

Equally troubling, if not more so, are the operational failures outlined by the two reports. As I mentioned above, the 2012 report describes in ugly detail Enbridge’s “tolerance for procedural deviance,” Enbridge’s disregard for its own safety protocols and procedures. “Inadequate training of control center personnel,” the 2012 report found, “allowed the rupture to remain undetected for 17 hours and through two startups of the pipeline.

The new report details a similar pattern. For example, just a few months before the terrible Kentucky explosion, one of its local operators—the same operator on duty the day of the rupture– didn’t know what actions to take in the event of a shut-down emergency. And yet, the report reveals, Enbridge took no steps to teach or retrain the employee. Thus, the NTSB concludes, “had Enbridge Inc. disqualified, requalified, or provided remedial training to the Danville compressor station operator after he displayed a fundamental lack of knowledge during the May 8, 2019, emergency shutdown, the operator’s closure of [a valve] during the August 1, 2019, rupture may not have been delayed, potentially reducing the volume of gas released.”

So way back in that series of posts from 2012, I asked: does Enbridge learn from its mistakes? At that time, I was skeptical but willing to give them a chance. But now, after ten full years spent exhaustively detailing example after example of the same mistakes, misrepresentations, and shenanigans, and after reading yet another scathing NTSB report, I know the answer all too well.

The far more urgent questions now are whether the judges in the pending Line 5 cases know it, whether the Army Corps of Engineers knows it, whether the Michigan Public Service Commissioners know it. And if they do, how are they going to act on that knowledge?

Enbridge Trespassing, Rules Federal Judge

by Jeffrey Insko | Sep 8, 2022 | 1 comment

I’m on vacation this week, enjoying the Lake Michigan paradise so many of us are working to protect. For that reason, I don’t have time to provide any real analysis here. But I do want to note that major news has come from federal court in Wisconsin: a judge has rule that Enbridge has indeed been trespassing on land of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

This is a very important decision, not least for its recognition of tribal sovereignty. The judge did not go so far as to order the immediate shut down of the line (as, in my opinion, he should have). But he did grant the Band’s claims of unjust enrichment– meaning Enbridge will have to pay for their trespass.

This is big, big news and, I think, of no small significance to the State of Michigan’s case against Enbridge and Line 5. I’ll try to expand on that next week if time allows. But the important thing is that this ruling, finally, shows proper respect to the authority and sovereignty of the Bad River Band.

News here. And here is the full text of the ruling. 

The New Worst Thing Enbridge Has Ever Done

by Jeffrey Insko | Sep 1, 2022 | 3 comments

Shameful. Reprehensible. Disgusting. Settler colonialism in action, 2022-style.

A year or so ago, I wrote about Enbridge’s cheap pr stunt aimed at sowing division among tribal members. At the time, I said it was probably the worst thing they’d ever done. But this week, they called in their pals from the Canadian government who said, “hold my beer!” 

What did they do? Well, in a flagrant attempt to disregard– no, it’s worse than that, to legally destroy– the sovereign authority of the Bad River Band of the Lake Superior Tribe of Chippewa Indians, Canada has tried to invoke that 1977 pipeline treaty in the Bad River Band case. For years now, you will recall, Enbridge has been operating Line 5 illegally on the Band’s reservation in defiance of an expired easement and the Band’s order to leave their land. It’s a clear and indisputable violation, one that the courts have already allowed to continue for far too long.

But apparently just thumbing their noses at the Bad River Band’s legal rights and sovereignty isn’t enough. Now Enbridge is colluding with a federal government not only to override that authority but to set a precedent that could have far-reaching ramifications for indigenous sovereignty elsewhere and into the future. It’s a maneuver that should once and for all expose as a complete sham the hollow rhetoric of Enbridge that it cares about tribal rights as well as the Canadian government’s attempts to have you believe they respect or recognize the authority of First Nations.

Enbridge continues to say that they would like to settle the matter “amicably.” But it’s clear that only means settling it in a way that is suited to their own corporate interests, interests that the Canadian government apparently has decided are far more important than tribal rights or, say, justice. If the Biden administration has any courage or moral compass they will step in here and make it very clear that they denounce Canada’s action and that they won’t be party to upholding a recent Treaty between settler nations over and above the Treaty and sovereign rights of indigenous peoples that both precede and supersede any such agreement.

Folks, it just doesn’t get any worse than this.

Remembering the Kalamazoo River Spill 12 Years Later

by Jeffrey Insko | Jul 25, 2022 | 1 comment

Today marks twelve years since Enbridge Line 6b ruptured near Marshall, Michigan and spilled a million gallons of diluted bitumen into the Kalamazoo River. As of this writing, I haven’t seen any acknowledgment of the grim anniversary from Enbridge, even though they still to this day like to talk about how they’ll never forget it. They even created some creepy iconography that they apparently give to their employees as a reminder of the incident. However, they seem to have a little trouble remembering the date of the rupture. The remembrance link above and this Enbridge’s timeline commemorate and begin, respectively, with July 26. It’s a weird and disturbing habit, this attempt to remember by trying to makes us all forget.

More importantly, this matter of the date of the spill offers a cautionary tale: if Enbridge can’t be trusted to tell the simple truth about what they claim is one of the most important events in the company’s history, how can regulatory bodies (and concerned citizens) in Michigan and Wisconsin trust there assurances with regard to their proposed re-routes of Line 5?

So for a corrective commemoration of the date of the spill, I’m re-posting a blog from way back in 2014.

—

from July 29, 2014

A History Lesson for Brad Shamla

Looks like Enbridge needs another history lesson. To mark last week’s anniversary of the Marshall spill, Enbridge VP Brad Shamla penned an editorial that was published in the Battle Creek Enquirer and the Detroit News. A version of the op-ed also appeared as a “letter” (that is, a paid advertisement) in the Detroit Free Press (and probably elsewhere, we’re not sure).

It’s a fine-sounding letter, carefully crafted, we’re sure, by a whole committee of people in the vast Enbridge public relations department. The trouble is, it’s also disingenuous, starting with its very first sentence. See if you can spot the problem:

July 26, 2010, is a day that no one at Enbridge will ever forget.

Yep, that’s right: in an article whose central point is memory and commemoration, the importance of always remembering what happened in Marshall, Shamla gets the date of the spill wrong. July 26, 2010 is NOT the day the “Line 6B pipeline failed near Marshall.” As everybody knows, the failure occurred on July 25.

So what gives? Is it possible Shamla doesn’t know this? Is it merely a typographical mistake? Or might it be, once again, a willful distortion of the facts on the part of Enbridge? You won’t be surprised to learn that we think it’s the latter. Shamla (and Enbridge) date the spill on July 26, presumably, because it allows them to forget what happened the day before, when Enbridge ignored evidence of a problem with the line, ignored its own safety protocols, turned up the pressure on the line, and gushed oil out of the ruptured seam in Line 6B for 17 hours. Here’s the National Transportation Safety Board’s account of what happened:

On Sunday, July 25, 2010, at 5:58 p.m., eastern daylight time, a segment of a 30-inch-diameter pipeline (Line 6B), owned and operated by Enbridge Incorporated (Enbridge) ruptured in a wetland in Marshall, Michigan. The rupture occurred during the last stages of a planned shutdown and was not discovered or addressed for over 17 hours. During the time lapse, Enbridge twice pumped additional oil (81 percent of the total release) into Line 6B during two startups; the total release was estimated to be 843,444 gallons of crude oil. The oil saturated the surrounding wetlands and flowed into the Talmadge Creek and the Kalamazoo River. Local residents self-evacuated from their houses, and the environment was negatively affected.

So far from remembering the Marshall spill, Shamla and Enbridge are actually re-writing history in order to conveniently erase some key facts from the historical record– facts that point directly to the real causes of the spill and its severity.

This revisionism is part and parcel with all of the new measures Shamla touts as Enbridge’s response to the lessons they learned from the spill. Mainly, those measures consist of throwing a lot of money around. Don’t get us wrong, some of the measures Shamla describes seem like good things. But not one of them gets at the core of the problem. Not one of them addresses or acknowledges the principle reason (according to the NTSB) the Marshall spill was so very bad: Enbridge’s “culture of deviance” from following its own safety protocols. Prior to the Marshall spill, Enbridge had all the tools it needed to prevent the spill: detection equipment that found anomalies, control center rules that could have shut down the pipe right away. But Enbridge disregarded or ignored those things. Spending money on new equipment, putting in place new rules and protocols isn’t going to matter one little bit if Enbridge doesn’t change its culture. The former is easy; the latter is very difficult– even more difficult if you’re unwilling even to acknowledge the problem.

“We will not forget the Marshall incident,” Shamla tells Michiganders, which may be true. Unfortunately, the incident Enbridge has “memorialized,” the incident Enbridge vows not to forget appears to be a fictionalized version of the incident, only loosely based on actual events. 

The Latest from the MPSC: Mixed Feelings

by Jeffrey Insko | Jul 8, 2022 | 4 comments

By now, you’ve probably heard the news: the Michigan Public Service Commission yesterday declined to rule definitively on Enbridge’s application to re-route a portion of Line 5 beneath the Straits of Mackinac inside a concrete tunnel. Instead, the Commission reopened the case and asked Enbridge to provide additional information.

I spent part of the day reading the Commission’s order and, honestly, it’s hard to know what to make of it, other than one thing: in one way or another, this was inevitable. As I (and plenty of others) have said from day one, Enbridge’s timelines for their silly tunnel project have always been completely ludicrous (more on this in a minute).

Most Line 5 opponents have taken this as good news. FLOW’s Jim Olson, for example, calls it “a step toward victory for the public and Great Lakes.” And Oil & Water Don’t Mix applauded what they called “the Commisioners’ prudent order.” I very much understand these responses. But I confess I’m also a little torn. On the one hand, the order basically castigates Enbridge, subtly, for failing to provide sufficient evidence in support of their safety assurances or of their compliance with some basic conditions in their three agreements with the State (agreements that were essentially big fat gifts from the Michigan legislature). What measures has Enbridge taken to enhance the safety of Line 5? Did Enbridge conduct the Close Internal Survey they agreed to? What were the results of their inspection of the coatings on the dual pipelines? Where is their work plan to repair bare metal on the pipelines? The record doesn’t say; Enbridge was silent on all this and more. Why? Is this just their usual sloppiness? More disregard for state authority and the seriousness of the proceedings? Or do they have something to hide?

Whatever the case, the Commission is certainly right to call Enbridge out on this lack of information. On the other hand, the Commission’s order essentially grants Enbridge a do-over. I find this rather baffling. After all, Enbridge had ample opportunity—two full years of hearings and filings—to present their case. But, as these question marks demonstrate, they clearly failed to make a satisfactory case regarding these important safety matters. On that basis alone, the Commission should have simply denied the application, rather than giving Enbridge a second chance. This just feels to me instead like the same situation we’ve observed repeatedly over the past decade: no matter how bad their behavior, Enbridge almost always gets a free pass.

I’m also feeling some ambivalence about the focus of the reopened proceedings. That is, it is certainly a very good thing that the Commissioners are taking seriously the potential dangers and risks of the tunnel project. They’ve asked Enbridge to provide additional information regarding its leak detection systems and the potential for fire or explosion in the tunnel. Yet the implication seems to be that the Commission’s final decision is likely to turn on the answers to these questions, as if they are the most important considerations in the matter. But from the point of view of other, far more important objections to the project—namely, climate change and indigenous sovereignty—leak detection and explosion risk are neither here nor there. Even if Enbridge could somehow prove that the tunnel is 100% safe and completely risk-free (which they can’t), it’s still a terribly bad idea. The last thing our overheated planet needs right now is a billion dollar investment in new fossil fuel infrastructure. Full stop. I’m worried the Commission doesn’t see it that way.

Then again, even that point might be moot because, as I’ve always maintained, the tunnel is a chimera; it’s never going to happen anyway. This is just another of what has been and will continue to be a very long series of delays, pushing the fantasy tunnel into an ever-receding future. And that suits Enbridge just fine, since they don’t really want the tunnel either. So I guess this is the last way in which my feelings about this non-decision are mixed: on the one hand, it’s certainly better than approval. On the other hand, it doesn’t hasten us, as it should have, toward the resolution of the matter we all want to see: a final, decisive, and permanent shut down of Line 5.

MPSC Comments: Our Shared Future

by Jeffrey Insko | Mar 11, 2022 | 1 comment

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

You can’t believe anything Enbridge says (again)

by Jeffrey Insko | Sep 28, 2021 | 2 comments

It is entirely possible that the world doesn’t need one more example illustrating the headline of this post. They are legion. This blog is full of them— almost a full decade’s worth of them. And the troubling thing about this surfeit of examples, this disturbing excess, is that it doesn’t seem to matter. It appears to make almost no impression whatsoever on most of the people who are in a position to actually do something about it, the people who actually could hold Enbridge accountable for their appalling record of looking the public in the face and, without so much as a twitch, uttering rank falsehoods.

But like you, dear reader, I care about the truth. So I keep documenting these things anyway. And today I have another one that’s sort of been stuck in my craw this past week. You see, over the weekend, I was lucky enough to take part in a session at the annual Michigan History Conference organized by the Historical Society of Michigan. Beth Wallace from the National Wildlife Federation and I presented on Line 5. My talk, based upon research that I’ve been conducting (with the help of my amazing research assistant, the brilliant and tenacious Alma Dukovic) for the book I’m currently writing.

As I was putting together my presentation, I was reminded of a claim that Enbridge has often made over the course of the past few years, a claim designed to make them look like responsible stewards of the environment, like they are a corporation that cares about the Great Lakes and acts accordingly. And in this case, it’s a specifically historical claim. Here it is on the Enbridge website:

Enbridge’s Line 5 underground pipeline was built in 1953 to remove oil-carrying tanker traffic from the Great Lakes. It also eases roadway and air emissions by avoiding oil transportation by truck and rail.

And here it is in the mouth of none other than Enbridge CEO Al Monaco in the Washington Post:

Line 5: Dismantling as World-Building

by Jeffrey Insko | Jun 15, 2021 | 3 comments

For Enbridge, Ignoring the Law is Business as Usual

by Jeffrey Insko | May 11, 2021 | 6 comments

Webinar: What Will it Take to Shut Down Line 5 for Good?

by Jeffrey Insko | May 3, 2021 | 0 comments

Tomorrow, I’m pleased to join a panel discussion on Line 5 as part of the Michigan League of Conservation Voters’ People, Planet, Public Health Webinar series. Here are details including a link to register.

In 2010, nearly a million gallons of oil was spilled into the Kalamazoo River, costing more than a billion dollars and taking years to clean up. Who caused that spill? Enbridge Energy.

This Canadian company continues to threaten Michigan waterways with their outdated, 68-year-old Line 5 pipeline in the Straits of Mackinac. Thanks to Governor Whitmer, this pipeline is set to be shut down on May 12. But we know Enbridge won’t go down without a fight. Join us, Michigan LCV, and a panel of experts to discuss what it will take to shut down this ticking time bomb for good.

Register for the “Line 5: Shutting Down the Ticking Time Bomb” webinar here.

Who: Michigan LCV, Jeff Insko, Professor of English at Oakland University, Whitney Gravelle, President, Bay Mills Indian Community, Riyaz Kanji, Tribal Litigator at Kanji & Katzen and Michigan LCV Board Member

When: Tuesday, May 4, 5 p.m.

Where: via Zoom and Facebook Live. Register here.

Sign up for Michigan LCV’s People, Planet, Public Health webinar: “Line 5: Shutting Down the Ticking Time Bomb”

Thank you for your support!

Earth Day Good News: MPSC to Consider Line 5 Climate Impacts

by Jeffrey Insko | Apr 22, 2021 | 0 comments

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.

—

* Special shout-out to all the groups who intervened and helped make this happen:

The Worst Thing Enbridge Has Done

by Jeffrey Insko | Apr 14, 2021 | 0 comments

it’s been almost a full decade now that I’ve been documenting, right here on this blog, Enbridge’s many misdeeds, mistakes, mistreatments, missteps, falsehoods, fabrications, dissemblings, distortions, and dishonest dealings with people in Michigan and beyond. It’s an appalling record, so appalling in fact that it’s frankly astonishing that anyone, much less anyone in a position of any authority, could possibly trust them or believe a word they say. And yet, a stunning number of willing dupes, including the Republican-led legislature just a few years ago, continue to do this company’s bidding (while the planet burns).

But the past week brought an example of what might very well be the worst thing Enbridge has done yet.

And believe me, I know that’s saying something. This is the same company, to cite just three of the very worst examples, that struggles even to tell the truth about when the Kalamazoo River spill happened, that straight-up lied to the U.S. Environmental Protection Agency, that just brazenly (I thought they’d never stoop lower than this) made up an unflattering story about a single ordinary citizen and spread it around publicly.

The latest, however, is simply unconscionable. It involves turning tribal relations into a crass public relations stunt. Out of respect, I will let tribal leaders and others speak for themselves about this serious and sensitive matter (see the links below). I will just observe that this episode shows that if Enbridge is not actively and deliberately engaged in fomenting division among tribal groups and members, they are at the very least self-servingly exploiting whatever divisions may exist. Either way, it’s utterly shameful. If Enbridge were truly and genuinely serious about “peacemaking” or listening or cultivating relationships with indigenous peoples based on trust and reciprocity, they would just shut up and work on it, rather than trying to make a public show of it.

Here’s the story in a few different places:

Tribal Leaders Denounce Enbridge for Manipulative Video About Indigenous Peacemaking

Tribal members criticize Enbridge claims of ‘peacemaking’ attempts

Did Enbridge intend to mislead press and public? (statement of the Anishinaabek Caucus of Michigan)

Enbridge taps new approach for pipelines (which reports on a similar strategy in Minnesota with Line 3)

Line 5, the MPSC, and Fundamental Transformation

by Jeffrey Insko | Mar 25, 2021 | 5 comments

This week saw a flurry of activity on the MPSC’s Line 5 docket. As part of my ongoing effort to read things so you don’t have to, I spent some time this week looking over the new filings. Specifically, Enbridge and the MPSC Staff filed responses to the current appeals to the Administrative Law Judge’s last ruling. Those appeals from the Michigan Environmental Council, the Environmental Law & Policy Center, the Bay Mills Indian Community, and FLOW—all of which, in my view, make some of the strongest arguments they’ve made yet– seek to overturn the ALJ’s exclusion from consideration questions related to public need, the entirety of Line 5, and climate change, among other things.

I’m especially struck by the arguments presented by MPSC Staff in response to those appeals, not only because I suspect they carry particular weight with the Commissioners as I think they have with the ALJ (though I hope I’m wrong about that!) but also because the arguments are, well, just so very bad.

And it’s not just the arguments. I frankly don’t really understand the general mindset the MPSC staff has brought to these proceedings from the beginning, a mindset that, like Enbridge’s, seems to want to limit the scope of review as much as possible. It’s easy to understand why Enbridge would want a severely narrow review, of course. But it’s less easy to understand why those who literally work for and on behalf of the public would want anything less than the most careful, comprehensive review possible. Nevertheless, in their latest, the MPSC staff is oddly melodramatic about the matter, insisting that “without reasonable and legally sound limitations, the Joint Appellants’ anything-goes-approach would expand and weigh down the evidentiary record until it buckles” (p. 7). The metaphor here seems rather overwrought, as if due diligence is just somehow too much to ask of a public agency. Honestly, it just winds up sounding like Staff doesn’t want to have to do any extra work, like a teenager complaining about household chores.

The substance of the Staff’s argument is no better. As has been the case all along, the long and the short of it is that the MPSC Staff, like Enbridge, wants to severely limit the scope of the proceedings. But the argument they present for doing so is, in my opinion, extraordinarily weak. I find it baffling and a little disheartening that it has carried the day with the ALJ so far.

In the latest filing, the MPSC Staff argument begins with a tenuous claim, one that I’ve written about before—going all the way back to 2013. Here’s the latest iteration of the argument in Staff’s filing:

The Commission has historically considered three criteria in deciding whether to approve or deny an Act 16 application: whether (1) the applicant has demonstrated a public need for the proposed pipeline; (2) the proposed pipeline is designed and routed in a reasonable manner; and (3) the construction of the pipeline will meet or exceed current safety and engineering standards. (p. 8)

The claim here is misleading, to say the least. For one thing, “historically” is an exaggeration. The three-part framework cited here appeared for the first time in an MPSC proceeding less than 20 years ago, in the Wolverine pipeline case in 2002. Secondly, as I have explained in detail numerous times, even then these three criteria were never meant to be exclusive. Left out of this citation are the parts of the 2002 ruling that mention the Commission’s “broad authority” as well as the term “generally” (not “only” or “solely” or “exclusively”) that precedes even the enumeration of these three criteria. More troubling still is the fact that the sleight of hand that seems to have transformed these rough, general (but non-exclusive!) guidelines into hard-and-fast, apparently binding criteria was first performed by Enbridge. Eight years ago, they set the stage for what we’re witnessing now—as I predicted at the time. I don’t have space here to rehearse that full story yet again, but you can read it here and here.

Nor is this the only time that Staff looks to that 2002 Wolverine case for a precedent to limit the scope of the proceedings. With regard to that case, Staff argues that “at no point did the Commission examine: (1) any portion of Wolverine’s existing pipeline system not clearly related to the proposed extension; and (2) whether the pipeline could or should extend the operational life of the existing pipeline system” (10). Now, this assertion is technically true, but it is also once again misleading. The reason the Commission did not consider either of those two things in the Wolvernine case is NOT because they were ruled irrelevant or beyond the scope of review. Rather, it’s because those question were never raised by any intervenors. In other words, no one asked the Commission to consider Wolverine’s existing pipeline system or its operational life. The important point, therefore, is that nothing in the Wolverine case explicitly excludes those considerations any more than it permits them. The Wolverine ruling has nothing at all to say on the matter either way.

Staff’s second example of a precedent for limiting the scope of the proceedings is weaker still.  Staff claims that in case U-17020, the Phase 2 replacement of Line 6B back in 2012-13, the Commission “did not revisit or reanalyze the public need for those existing systems. Rather, the Commission evaluated the public need for the pipeline segments as an important update to the existing pipeline” (11).

This is a baffling claim. The facts plainly contradict it. Both Enbridge’s application and the ruling clearly make the case for need based on the operation of the entirety of Line 6B, not just the “replacement” of some noncontiguous segments. For example, a key reason Enbridge claimed the replacement project is in the public interest was that it “restores the ultimate pipeline capacity of Line 6B” (p. 8). Similarly, in its approval of Enbridge’s application the Commission cited as the basis for its public need determination the fact that “Line 6B is the only pipeline ‘that can transport the large volumes or types of crude oil and petroleum produced in western Canada or the Williston Basin to refineries served in the region of the Project,’ noting, in particular, the expansion of the Marathon refinery in Detroit (p. 22).

Thus, both Enbridge in its application and the Commission in its ruling quite clearly and quite explicitly considered the public need for Line 6B as a whole as well as existing regional pipeline systems. In arguing otherwise, Staff cites the testimony of an Enbridge witness who referred at one point to the public need for “the project.” But elsewhere—in the Commission’s own ruling, as a matter of fact!—the Commissioners cite the very same Enbridge witness arguing for need based upon restoring “the ultimate capacity of Line 6B” and avoiding what is called “apportionments” on the entire line (the situation where shipper demands exceed pipeline capacity) (p. 7). None of this should this be remotely surprising, of course. It makes no sense in the first place to pretend like it’s even possible to talk about the “need” for a pipeline without talking about the entire pipeline.

In fact, in that same case, Enbridge never asked the Commission, as they are doing now, to exclude consideration of the pipeline as a whole or even to exclude discussion of regional pipeline systems. Quite the contrary: situating the project within that broader context was obviously advantageous to Enbridge’s case. But now that it’s not, they’re trying to change their tune and trying to rewrite MPSC history—aided and abetted by the MPSC staff.

Likewise striking is the fact that in the U-17020 case, Enbridge did not claim, as they’re claiming in the current Line 5 case, that they already have a determination of need for Line 6B. This is a curious fact, given that Line 6B was granted approval in 1969 and Enbridge could have tried then, as they’re doing now, to argue that the pipeline was already determined to be in the public interest. But they did no such thing. One can speculate as to why (for example, the fact that the project faced far less scrutiny and opposition than the Line 5 case), but whatever the case what this means is that Staff is just plain wrong to assert that there is no precedent for a re-determination of need. Here is Staff’s claim on this point

the Joint Appellants do not, and cannot, cite any substantive law that a pipeline that has been determined to be in the public interest must once again prove those benefits in an Act 16 proceeding to continue to operate into the future. (p. 21-22)

But as we’ve just seen, U-17020 is exactly a case where a pipeline that has been determined to be in the public interested once again had to prove those benefits in an Act 16 proceeding to continue to operate into the future. Enbridge didn’t even dispute that point.

Staff has an odd concern with the future in its most recent filing, a concern that leads them to some strange places. Here, for instance, is the next turn their argument takes:

Not only do the Joint Appellants distort “public need” by broadening the “pipeline” under review; they include a new requirement that the applicant demonstrate need for a previously authorized pipeline to continue to operate into the future (p. 12)

Now, this is a very strange framing, as I’ll explain below. But it’s worth noting that there is nothing “new” about such a requirement. Once again, consider U-17020. The demonstration of need produced by Enbridge (and affirmed by the Commission) in that case hinged almost entirely on operating the pipeline into the future. In its application, for example, Enbridge said that it “believes that the upgrades to Line 6B will allow it to meet its shippers’ forecasteddemands for additional pipeline capacity in the future” [emphasis mine]. In sworn testimony, the same Enbridge witness Staff quotes in its most recent filing explained that the project would add additional pipeline capacity “to meet shippers’ current and future transportation requirements” [emphasis mine].

But the real point about Staff’s odd fixation on the future is simply this: how could it be otherwise? Demonstrating need for a pipeline, or even for a segment of a pipeline, by definition implies its operation into the future. At what other time would you seek to operate a pipeline? You don’t apply for approval to construct a pipeline yesterday or last year; you don’t plan to construct a pipeline in order to operate it in the past. Every application before the MPSC is necessarilyfuture-oriented.

Which is why it is completely incoherent for Staff to argue that the Joint Appellants “conflate the public need for the project with the public need for ‘extending’ or ‘continuing’ the life of Line 5” and that the Joint Appellants also “conflate investment in a pipeline with extending the life of a pipeline.” There’s no conflation happening here; these things are simply inseparable. Why would someone assert the public need for something in the past or the immediate present? Why would anyone ever invest in a pipeline if not to extend its life? An investment is literally– by definition— a bet on the future.

In torturing this point, Staff then makes what seems to me a stunningly disingenuous argument, stating that “the life and use of Line 5 is not necessarily dependent on the age of the existing pipeline, but rather economics”:

Although Enbridge may occupy the utility tunnel for 99 years, that does not mean that it necessarily will. That figure is a maximum amount of time, not a statement on how long Line 5 will operate. It is entirely possible that Line 5 could cease to operate regardless of the Commission’s decision in this case. For example, Enbridge might experience a loss of supply, loss of demand, or experience other economic drivers not relevant to this case.

Setting aside Staff’s poor grasp of “economics” (that is, pipeline operators or capitalists of any kind don’t make billion dollar investments in assets that they don’t intend to use for as long as they possibly can), it’s not really clear what Staff is arguing here. That the Commission should take seriously an application to build a pipeline in a tunnel in the bedrock of the Straits of Mackinac that might only be used for a very short period of time? That is absurd on its face.

Enbridge, it’s worth nothing, attempts to make a similar argument that is even more laughable. Enbridge claims that the “sole reason” they seek to relocate the pipeline beneath the Straits within a tunnel is to “fulfill the state policy of better protecting the Great Lakes.” That is, Enbridge seriously tries to argue that the reason for relocating the pipeline is because they entered into an agreement to do so with the state, not because they want to extend the life of the pipeline. But this makes no sense whatsoever since it is obviously the case that the only reason they would ever enter into such an agreement with the state in the first place is so that they could continue to operate the pipeline into the future. Or put differently, the whole point of the tunnel agreement is to better protect the Great Lakes while at the same time extending the life of Line 5. The extension of the operating life of the pipeline is the pre-condition of the tunnel agreement. Without it, there would obviously be no tunnel agreement. It is ludicrous, and frankly insulting to anyone’s intelligence, to pretend otherwise.

This leaves, finally, the question of the permissibility of climate change and greenhouse gas emissions in these proceedings. I’ve already gone on far too long here, so I may need to save that discussion for a separate post. For now, I will just say that Staff’s argument for excluding these things from consideration rests primarily on the claim that doing so “would fundamentally transform the Commission’s review of Act 16 pipeline applications in Michigan, with no basis in precedent or statute.” Now, that claim is probably true. And it’s not really surprising that lawyers and judges would consider themselves as bound by precedent; typically cautious, that’s just how lawyers and judges roll. But the Commissioners need not be bound by precedent and need not be cautious. After all, just as there may be no precedent or statute for considering climate change in Act 16 reviews there is also no precedent or statute expressly prohibiting it.

And here we move from legalities to ethics. At this stage of the climate crisis, it is, frankly, ethically irresponsible not to take into account greenhouse gas emissions. And given the makeup of the current Michigan legislature, dominated by reckless industry-loving Republicans, it’s unlikely that any statutory mandate that regulatory agencies do so is forthcoming. But if we’re serious about addressing this crisis, at some point, someone in a position of authority is going to have to take a stand, even if that means fundamentally transforming the Commission’s review of Act 16 pipeline applications. The MPSC Staff, like Enbridge, might be scared of that transformation, but it’s a transformation we desperately need. And the Commission has the authority to make it.

They just need the courage.

Enbridge Fined Again: where’s the outrage?

by Jeffrey Insko | Dec 4, 2020 | 0 comments

Another day, another hour of my time wasted typing up the same blog post I’ve been typing up for more than 8 years now. Enbridge, once again, has been fined for a series of safety violations. Ace reporter Mike Soraghan has the story at E&E News. Unfortunately, the article is behind a paywall and who knows whether any other outlets will even bother to pick it up. This sort of thing happens with so much frequency when it comes to Enbridge that everybody seems completely numb to it. We’re all expected just to shrug our shoulders, look away, and move along. Meanwhile, Enbridge gets to start construction on Line 3 in Minnesota despite the ethical opposition of tribal and citizen groups. And here in Michigan, people who are supposed to be stewards of the public trust not only take seriously Enbridge’s absurd tunnel plan, they actively work to support it.

The violations, if you’re interested in the details, involve all sorts of things: failing to do a required review after a leak, not following up on aerial patrols, and in one case, federal regulators discovered exposed sections of pipe that lacked appropriate anti-corrosion coating.

These are all serious matters; if they weren’t, there wouldn’t be regulations that are supposed to enforce compliance with them. But what does Enbridge have to say about this? The same old bullshit. Rather than taking responsibility, they wave it off as no big deal and blow the same smoke they always blow:

“It’s important to note that none of the findings show or pose an immediate safety concern,” said Enbridge spokesman Michael Barnes. “Enbridge takes our responsibility to operate pipelines in a safe manner seriously, and we are committed to working with our regulator, PHMSA.”

In other words, “nothing to see here,” Enbridge says, again. But this enforcement action from PHMSA– a notoriously toothless agency, it must be said– comes just months after the EPA fined Enbridge $6 million for a bunch of things that Enbridge likewise treated as No Big Deal. PHMSA has proposed $122,000 in fines, which is itself a joke. That kind of money is lying around as loose change in the break room at Enbridge’s corporate office. If you open your windows, you can probably hear Enbridge executives and attorneys giggling over this right now.

Which is simply to point out that there are no real consequences for these repeated failures and violations. They’re unlikely to be taken up, for example, in any of the legal proceedings Enbridge is currently embroiled in with the state of Michigan. A discussion of this pattern of violations, part and parcel with Enbridge’s pattern of dishonesty, surely won’t be admissible in the MPSC proceedings, which are hamstrung by the narrow framework Enbridge successfully imposed upon those proceedings. And none of this will make any impression whatsoever on the gullible shills in the Michigan legislature who hungrily swallow whatever hollow claptrap Enbridge serves up to them about how they’ve learned so many lessons since 2010.

But Rebecca Craven of the Pipeline Safety Trust isn’t having it:

“If this has been their dramatic improvement since then that makes me more worried.”

There are maybe a handful of people on the entire planet who know more about these matters than does Rebecca Craven. You’d think people might want to listen up. But will anybody else, most importantly anybody in a position of authority in Minnesota or Michigan or Wisconsin, share her worry? Will anyone else share my outrage? I’ve about exhausted my supply.