by Jeffrey Insko | Dec 5, 2012 |
A couple of interesting news items worthy of your attention:
First, yesterday’s NPR program “Stateside” featured a segment on the use (and perhaps abuse) of eminent domain. And guess what company was the primary subject of the discussion? Our friends Carol Brimhall and Connie Watson are featured in the story. Following the piece is a conversation with attorney Alan Ackerman, who has represented Line 6B landowners. At the end of the piece, Ackerman provides an example of a company that has done things right. Who, you ask? Well, it shouldn’t come as a surprise given who took the time to talk with us at the Pipeline Safety Trust conference last month.
The second item is an article in the Livingston Daily Press & Argus featuring Connie and Tom Watson— fine, decent, kind, ordinary people. Do they look like a “special interest group” to you? Do they strike you as people who will just “never be happy.”
by Jeffrey Insko | Dec 5, 2012 |
As we reported yesterday, the Brandon Township Board of Trustees voted to approve an agreement with Enbridge at the end of a very long meeting Wednesday night. The agreement, the precise language of which has yet to be finalized, puts an end to any litigation against Enbridge on the part of Brandon. We attended the meeting– all five exhausting hours of it. And while we have not seen the agreement document, we can provide some details based on the information presented and discussed at the meeting. But since there’s so much to report, we’re launching it as a new series. This is our first installment.
The Enbridge representatives who attended the meeting were Project Manager Thomas Hodge, attorney Mike Ashton, and General Counsel Mark Curwin. We were struck by the absence of any of Enbridge’s public relations representatives (what ever happened to Joe Martucci, anyway?), which was a pretty clear indication that at this meeting, Enbridge meant business– and also perhaps an indication that in previous meetings with Brandon, Enbridge did not really mean business. After a brief presentation to the Board by Tom Hodge restating the basics of the project, the new Board was sworn in. They then conducted their regular business and then convened a closed session– which lasted nearly two hours!
(Teaser: It was during this break that we introduced ourselves to Curwin, Hodge, and Ashton; we’ll make that encounter the subject of another installment of this series.)
We assume that during the closed session, the township attorney walked the board through the terms of the drafted agreement. It is our understanding (based on discussions that proceeded when the Board returned) that the agreement is based on a “Sample Enbridge agreement” that has been circulated to townships by the Michigan Townships Association. We happen to have a copy of that document. It’s not clear whether the MTA created it or initiated its creation–it reads to us as if it were written by Enbridge– or why the MTA would want to create such a thing, especially given that a month ago they filed an amicus brief in federal court in support of POLAR’s attempt to enforce the Michigan Constitution’s “consent” requirement. Whatever the case, the sample agreement says this:
WHEREAS, the Township of ____________, (hereinafter referred to as the“Township”), a Michigan municipal corporation whose address is _______________ asserts that pursuant to Article 7, Section 29, of the 1963 Michigan constitution and MCL 247.183 consent to cross certain roads and/or public rights-of-way within the Township for purposes of installing underground pipelines is required to be obtained from the Township (hereinafter referred to as the “Consent”), which Consent is not to be unreasonably withheld by the Township…
But then a little farther down, it says this:
WHEREAS, Enbridge asserts that the provisions of Article 7, Section 29, of the 1963 Michigan Constitution and MCL 247.183 do not apply to Enbridge’s Line 6B pipeline system, nor the Project; that to the extent Township consent is required that consent was given to Enbridge upon initial construction of the pipeline in 1969; and that the Township has waived any right to assert these requirements at this time.
So what we have here is a document that evidently has townships giving consent even though the document does not insist that Enbridge is actually required to seek that consent. Of course, one could argue that this is a nice compromise measure; we would imagine that this is what Enbride would say. However, the obvious problem with that is that most of us don’t get to craft compromises when it comes to complying with the laws of the state; we just have to comply.
Aside from making it clear that Enbridge is NOT agreeing that they are legally required to seek consent, the agreement doesn’t really do very much. It says Enbridge will pay the township a thousand bucks, will have insurance, and will behave during construction. And that’s pretty much it.
We don’t know how closely the Brandon agreement adheres to the MTA’s sample document. We don’t know, for instance, whether the Enbridge-asserts-it-does-not-need-consent clause is included in the Brandon agreement. What we do know is that Brandon insisted upon some modifications and amendments, which Enbridge agreed to. These are as follows (again, as best as we can piece together from discussion without having seen the final document itself):
- As a settlement with regard to the Brandon Woodlands Ordinance, Enbridge will pay the township $10,000 in addition to supplying replacement trees (80 trees per acre) for the estimated 6 acres of clearing on the township. We’ve got some things to say about this tree replacement program also, but we’ll save that for another post.
- Enbridge will post a bond in the amount of $5ok for road restoration; this seems like a very good thing, especially since the laughable bond required by the Oakland County Road Commission is for a mere $5000.
- Enbridge agreed to the use of a construction supervisor or inspector, hired by Brandon but paid for by Enbridge, whose job it will be to oversee compliance with construction agreements with landowners. This is, we think, a stroke of brilliance– something that’s been needed in Livingston and Ingham counties (and elsewhere) for a long time. Every single township should insist on the same. Brandon deserves ENORMOUS kudos for coming up with this measure as a way of helping to protect its citizens.
- Lastly, Enbridge said they were rolling out an “environmental stewardship” program that would make funds available to every township along the line. The amount has yet to be determined and it will evidently vary depending upon township population and other factors. But the money can be used for a variety of measures and perhaps even for local groups as long as it meets certain criteria for environmental stewardship. This, too, we are happy to say, sounds like a great idea. Yet– and this seems to be Enbridge’s specialty–the program is soured somewhat by the fact that Enbridge didn’t just do it in the first place, months ago. It would appear that Enbridge only acts like a good neighbor after they’ve been challenged, sued, had their construction activities halted, and received a fair amount of bad press.
Without knowing all of the final details, we would say that this is not a bad agreement for the citizens of Brandon and, perhaps, for landowners all along the route, assuming that other townships step forward and insist that they be treated similarly. Whether one is disappointed that Brandon won’t push the legal questions any further, we think that everyone owes Supervisor Thurman and the trustees genuine thanks.
We’ll fill in details as they become available to us. We hope that we haven’t got anything wrong here; we’ve had to piece these things together based on what we witnessed at the meeting. Stay tuned for more in this series– including further descriptions of our brief chat with the Enbridge reps and more details of some of the drama (and there was drama!) that unfolded during the meeting– as soon as we can get to it.
by Jeffrey Insko | Dec 4, 2012 |
Major news out of Brandon Township: at the end of a very long and exhausting meeting last night, the new Brandon Township Board of Trustees voted to approve a (not quite finalized) agreement with Enbridge. Full details are forthcoming and we will, of course, write about them once they’re available. But this agreement effectively ends any further litigation (assuming Enbridge complies with all of the agreement’s provisions) on the part of Brandon. They won’t intervene in the POLAR suit again.
A lot happened at the meeting and there were some interesting new developments. On the whole, we’re ambivalent about this turn of events (perhaps because we don’t have all the details yet). It’s good in some ways and perhaps not so good in others. But one thing is for sure: it’s going to take a series of posts to get through it all. Right now, we can only offer a few teasers:
- We heard a couple of new ugly landowner stories. Interestingly, Enbridge hopped right to it with one of them. We hope to follow up to see whether and how the situation gets resolved.
- Other Michigan townships should take note: Enbridge agreed to take some very positive steps that should also be taken with regard to EVERY township along the route. You can bet that we’ll be contacting some township supervisors.
- Speaking of those positive steps, we’ll spend some time asking the obvious question: why didn’t Enbridge just do these things way back in July or so?
- Finally, we approached Tom Hodge during a break in the meeting and asked if he’d be willing to do a little Q&A with us for the blog, since he’s made himself so available to the media of late. He did not jump at the opportunity. Instead, he and Enbridge General Counsel Mark Curwin said that they’re trying to figure out who the right person is for us to talk to. We’re not sure exactly what that means, but we’re pretty sure that if we have questions we’d like to ask Tom Hodge that the right person for us to talk to is… well, Tom Hodge. We’ll see what comes of this.
Oh, residents and landowners of Brandon Township: get ready for the dozers. We suspect they’re fired up and chugging already this morning.
by Jeffrey Insko | Dec 3, 2012 |
The new Brandon Township Board of Trustees is meeting tonight. On the agenda is a “presentation” from Enbridge– on what we don’t know, though we suspect it’s going to be a (frustrating) Line 6B “replacement” 101 for the new board members–and a closed session to discuss further litigation.
It is our understanding, however, that Brandon and Enbridge have recently been in talks, trying to negotiate some sort of agreement. Talks and agreements, we suppose, are good things. But it still irritates us to an end that Enbridge can treat a set of legal requirements– gathering permits, complying with local ordinances and state laws– as things that are negotiable. Perhaps we’ll try to negotiate with our township the next time they want us to get a building permit…
At any rate, the meeting is at 7 pm tonight at the Brandon Township offices. We’ll be there and we encourage you to attend as well. It could be interesting. Plus, it’s a rare opportunity for ordinary landowners to actually gaze upon the elusive and exotic creatures known as Enbridge executives. Ordinarily, they only show themselves to newspaper editorial boards.
by Jeffrey Insko | Dec 1, 2012 |
Given enough time, we could probably hold forth at at much more length about the remarks of Stephen Wuori and Thomas Hodge during their editorial board stops last week. Wuori’s attempt to waive away concerns about the transportation of dilbit, for instance, is ripe for some serious scrutiny, though we’ll just refer you to this recent piece by our friend Anthony Swift, which speaks almost directly to Wuori’s remark about tar sands and corrosiveness.
We’ll let the rest pass for now. But not without a brief final thought or two:
Firstly, we’ll echo a point our friend Beth Wallace made this week: if Wuori and Hodge were serious about addressing concerns citizens have had about this project and serious about having real conversations about Enbridge’s practices, they could have taken their road show down to the Pipeline Safety Trust conference in New Orleans last month and faced landowners, pipeline safety advocates, regulators, and some of their (more responsive) industry peers. But they did not. Instead, unlike almost every other company at the conference, Enbridge sent only a pack of PR sloganeers– a revealing fact, we think.
Secondly, while here in Michigan last week, they also could have taken the time to meet with some real landowners, rather than talking about the easily-dismissed imaginary ones they’ve conjured in their heads. We would have been more than happy to round up a whole bunch of decent people affected by this project for a sit-down conversation. But then Wuori and Hodge would not have been able to control the message the way could in their little newspaper meetings. They would have had to face some of the realities of how their company and its representatives have conducted themselves in Michigan since 2010. And that, we have said time and again, appears to be something Enbridge is completely– stubbornly, intractably, steadfastly– unwilling to do.
by Jeffrey Insko | Dec 1, 2012 |
As we mentioned this past week, we finally received a response from Enbridge regarding their claim that certain features of the new pipe exceed federal regulations. We are very grateful to Enbridge’s Terri Larson for getting us a reasonably thorough answer. Terri strikes us as genuine and reliable.
But federal regulations are a complicated affair, which makes scrutinizing Enbridge’s claim fairly tricky. We’re working on it. In the meantime, we thought we’d link to this excellent and very important article at ProPublica by way of providing some context for the discussion that’s to come. Plus, you get to read the remarks of one of our heroes: Carl Weimer, the Executive Director of the Pipeline Safety Trust. You don’t want to miss Carl saying this:
Given the limitations of government money and personnel, it is often the industry that inspects its own pipelines. Although federal and state inspectors review paperwork and conduct audits, most on-site pipeline inspections are done by inspectors on the company’s dime.
The industry’s relationship with PHMSA may go further than inspections, critics say. The agency has adopted, at least in part, dozens of safety standards written by the oil and natural gas industry.
“This isn’t like the fox guarding the hen house,” said Weimer. “It’s like the fox designing the hen house.”
by Jeffrey Insko | Nov 30, 2012 |
Forgive us for this morning’s flurry; it’s just that the latest media effort featuring a couple of Enbridge heavy-hitters—Stephen Wuori, the president of the Liquids Pipelines Division, and Thomas Hodge, Line 6B Project Manager— have got us all on fire. We’ve already discussed Hodge’s dismissive characterization of landowner displeasure (twice now). But we’ve yet to take a look at Wuori’s comments. Partly that’s because the Lansing State Journal doesn’t quote him at all.
In retrospect, that may have been a good idea, because when Wuori does speak (to the Daily Press & Argus) it does not go well. This is what Wuori says about Marshall:
Wuori said the 2010 oil spill has been unfairly represented in the press, namely claims that Enbridge had knowledge of how to prevent the spill but didn’t act on it.
Wuori said the spill was caused by a series of cracks in that section of Line 6B, and that company officials did not have prior knowledge that line break would occur.
This is extraordinary. Two years later and top executives from Enbridge are STILL, as our friend Susan Connolly pointed out yesterday, unwilling to take full responsibility for Marshall? They’re still portraying themselves as victims of unfair treatment by the press? Even if what Wuori says here were true (and we’re getting to that), how can he not recognize that this sort of self-presentation is a very poor way to try and win people over?
But let’s get to the facts. Wuori appears not to have read the NTSB report. We don’t know what “claims that Enbridge had knowledge of how to prevent the spill” he’s talking about, exactly. But we do know what the NTSB says about Enbridge’s knowledge of the series of cracks that eventually caused the pipe to rupture. Let’s review:
Among the NTSB’s most important findings was:
The inadequacy of Enbridge’s integrity management program to accurately assess and remediate crack defects. Enbridge’s crack management program relied on a single in-line inspection technology to identify and estimate crack sizes. Enbridge used the resulting inspection reports to perform engineering assessments without accounting for uncertainties associated with the data, tool, or interactions between cracks and corrosion. A 2005 Enbridge engineering assessment and the company’s criteria for excavation and repair showed that six crack-like defects ranging in length from 9.3 to 51.6 inches were left in the pipeline, unrepaired, until the July 2010 rupture.
In other words, in contradiction to Wuori’s claim, Enbridge DID have knowledge of serious “crack-like defects” in the pipe, the very defects that caused the rupture. Yet they failed to repair them– for FIVE years.
Again, the NTSB:
The Enbridge crack management plan operated under the premise that defects in an aging pipeline with disbonded coating could be managed using a single in-line inspection technology and that prioritization of crack defects for excavation and remediation could be effectively managed through engineering assessments based strictly on the crack tool inspection data.
The program did not account for errors associated with in-line inspections and the interaction of multiple defects on a pipeline. The 51.6-inch-long crack-like feature that eventually led to the Line 6B rupture was one of six features that had been detected on the ruptured segment during an in-line inspection conducted by Enbridge’s integrity management program in 2005. Non-detection and improper classification of the defect are inherent risks when relying solely on in-line inspection data to ensure the integrity of the pipeline, yet for nearly 5 years following the inspection, the integrity management program failed to identify the 51.6-inch crack feature located adjacent to the weld as a threat to the pipeline.
And here are a few more of the NTSB’s findings about Enbridge’s failure to adequately address the crack issue:
Enbridge applied a lower margin of safety when assessing crack defects versus when assessing corrosion defects.
In 2005, Enbridge had no procedure that accounted for the interaction between corrosion and cracking and the potential influence on crack depth reporting.
Enbridge did not have a procedure to account for wall loss due to corrosion when it was evaluating the in-line inspection crack-tool-reported data and was preparing the excavation list.
Enbridge integrity management did not adequately address the effects of a corrosive environment on crack growth rates.
Enbridge’s crack management program and reinspection interval selection is inadequate because it fails to consider all potential crack growth mechanisms that are prevalent in its pipeline.
And this is just a small taste. We encourage you to read it for yourself. Oh, and none of this even addresses the actions of Enbridge following the rupture, like the way they ignored their own safety protocols.
So, did Enbridge “company officials have prior knowledge that line break would occur”? Well, Wuori’s way of putting it suggests that they couldn’t have had a crystal ball– and that’s probably true. So no, maybe they didn’t “know that line break would occur.” But, did company officials know (for five years) that there were serious defects in the pipe? Yes, they did. And did they also know that such defects could, possibly, lead to line break? Certainly. Yet, according to the NTSB, they chose not to take steps necessary to prevent it. These aren’t mere representations in the press; these are the facts discovered by an exhaustive investigation conducted by a federal agency.
by Jeffrey Insko | Nov 30, 2012 |
You may have noticed in the last couple of days that Enbridge executives have been very chatty– with some newspaper editorial boards: first, the Lansing State Journal and then the Livingston Press & Daily Argus. This is a very curious turn of events and we’re curious to know how these meetings came about. We suspect that Enbridge initiated them as a kind of extension of the PR campaign they launched with those bizarre Free Press ads (we know that we still owe you all an analysis of the last one; it’s coming…). And, as Katy pointed out in a comment a couple of days ago, we also suspect that it’s because Wuori and Hodge were in town to bend the ear of the governor as he prepared to announce his new energy plan.
Whatever the case, we find ourselves pretty appalled by the things Wuori and Hodge have been saying– even though it’s mostly stuff we’ve heard before. Hodge, for instance, continues to find ways to dismiss legitimate landowner concerns, portraying those who have spoken out as an impossible-to-please tiny fringe element. Aside from the fact that this is yet another example of Enbridge’s unwillingness to take landowner concerns seriously, we crunched some numbers yesterday (unscientifically, we admit) that suggest the number of disaffected landowners is far greater than Hodge would have you believe.
Yet he persists. This is what he told that Daily Press & Argus this week:
Hodge said the majority of landowners in the project area have not complained about the project, but some living within feet of pipeline easement have had to contend with large machinery nearby their homes.
“There is a small minority that I think you hear the most from in the press and on the radio, and they’re making the loudest noise about the way they’ve been treated. Most of those, I believe, are residents who are affected most adversely by this project,” Hodge said.
It is probably true that “the majority of landowners have not complained.” But that’s hardly the point. Is that what matters to Enbridge? A simple majority? Is their goal to reach amicable agreements with 51 percent of landowners? In fact, what is their goal? Do they consider it a successful project if they only alienate one-quarter of landowners?
Furthermore, what is the point of Hodge’s statement that the “small minority” “making the loudest noise” are “residents… affected most adversely by this project”? Wouldn’t you think that those affected most adversely would be the people Enbridge would work hardest to treat fairly– just out of simple decency? Yet Hodge seems to think of them as little more than wartime casualties. We also can’t help but add that we are certain that we are NOT among those most adversely affected by this project, even though we are among those making the loudest noise. So Hodge’s statement is not even true. He would know that if he ever bothered to actually talk with some of us.
As frustrating as Hodge’s remarks are, however, they may well be outdone by the astonishing things his boss Stephen Wuori has to say. We’ll make those remarks the topic of a separate post– because shedding light on them is going to take some serious doing.
by Jeffrey Insko | Nov 30, 2012 |
Oh, boy. Stuff’s happening. Which means we’ve got a lot to write about. Not least, we need to bring some much-needed perspective to the latest remarks from Enbridge’s new PR duo Stephen Wuori and Thomas Hodge. They say some things to the Livingston Daily Press & Argus that almost curled our hair. More on that this morning.
We also finally received a gracious and reasonably detailed reply from Enbridge’s Terri Larson to our question about features of the new pipeline that exceed federal regulations. She promised answers and she got them to us– which is much more than Tom Hodge can say. So we are very much appreciative to Terri for these efforts. Unlike with Hodge, knowing the ins and outs of the projects technical specifications ins’t really her job. Anyway, we’re scrutinizing her response and seeking input from some of our smart friends who know a lot more about this than we do. Stay tuned for more on that.
Finally, and perhaps most importantly, there’s also news out of Brandon Tonwship. We attended a meeting at the township offices last night. Well, it was a closed session meeting, so we sat in an empty room chatting with Jeff Axt. Our hope was that the board would emerge and renew their resolution to take whatever legal steps necessary to enforce Township ordinances and Michigan state laws. However, this is a new board and, as we sort of expected, they’re playing it a bit cautious. So instead of either joining or intervening in the POLAR suit, now in state court, they’re going to have a meeting with Enbridge– again (sigh!).
That meeting is scheduled for this Monday, Dec. 3. We will, of course, be there. But we mentioned to the new board last night that while a meeting is theoretically a good thing, the Township has been down this road before (as have we, in a myriad of ways). Based on that experience, what will happen is fairly predictable: Enbridge will show up, smile, talk about working together and being good neighbors; they’ll say lots of pleasing-sounding things; they’ll try and make it look like they really do want to work with the Township; they’ll also patronize and condescend (because they can’t help it)– and then they’ll leave and continue to try and do whatever it is they want. In fact, what’s so irksome about these “meetings” is that even if we were to believe that they are good-faith efforts on the part of Enbridge to work something out with Brandon, the fact is that they are treating local ordinances and state laws as if they are things that can be negotiated. And that in itself is offensive.
by Jeffrey Insko | Nov 29, 2012 |
Well, the Wuori-Hodge road show/media blitz continues. My goodness how they’re accessible to the media these days. We wonder why? And as you can imagine, we’ve got LOTS to say about this one. We’re working on it. Meantime, we’ll just say that we sure wish these guys would sit down for some questions from OUR editorial board.
by Jeffrey Insko | Nov 29, 2012 |
We’ve been doing a little math.
You see, we were more than a little flummoxed by yesterday’s article in the Lansing State Journal— the one where “Enbridge executives address local homeowner opposition.” There’s a lot that’s baffling about the article: Why are Enbridge executives talking to the paper’s editorial board? Why all of a sudden does Tom Hodge appear to be taking the role of spokesperson? Why did Stephen Wuori emerge out of nowhere? Why doesn’t he have anything to say in the article? And most baffling of all, as our friend Donna Taylor has pointed out, why aren’t these two talking to directly to landowners themselves instead of to a newspaper in Lansing? Wouldn’t that be a more appropriate way to “address” our concerns?
But of course, they aren’t really addressing our concerns. Instead, they are addressing what they would prefer to describe as “opposition”– taking a page out of Larry Springer’s book and pretending (or insinuating) that all of us who are speaking out “oppose” the project, even though, as we’ve said over and over and over, we do not oppose the project. We simply object to the ways Enbridge has conducted itself throughout the project, to the way it has flouted local and state ordinances and laws, to the way it has treated landowners.
So how do these execs “address” this “opposition”? Well, here is Project Manager Thomas Hodge, who we thought was a straight shooter (oh, how naive we were back in September!):
Thomas Hodge, the head of Line 6B replacement project, said he’s never seen the kind of organized homeowner resistance that the company has faced here in Michigan, likely because of simmering distrust over 2010 spill.
“I’ve been in the pipeline business for close to 30 years,” Hodge said. “I’ve never seen the scrutiny, the level of concern or the organized opposition as we’ve faced in getting this pipeline replaced.”
Now, it is almost certainly true that much of the scrutiny this project has received is attributable to “simmering distrust” over Marshall, though it’s not clear whether Hodge recognizes or would concede that such distrust is entirely unsurprising, totally warranted, and completely reasonable. But what is equally true is that that is only one of many reasons why this project has received such scrutiny and caused such a high level of concern. This blog has been devoted to explaining the myriad reasons why landowners are– and should be– deeply concerned, why we continue to have trouble trusting Enbridge.
A ramble through our archives will provide plenty of specific examples of those reason. For now, we’ll give just one. It’s one we’ve mentioned over and over and over. More than two months ago, Thomas Hodge looked Supervisor Kathy Thurman and the other Brandon trustees right in the eyes and promised, like a good neighbor, to get them answers to a handful of perfectly reasonable questions. To date, he has still not gotten them answers. Does that sort of action foster trust? neighborliness? respect? honest communication?
Which gets us closer to the math. We got pretty worked up when we read this:
Most homeowners agreed to the company’s compensation offers for the land or for restoration of damaged property, but more than 70 in Ingham and Livingston counties refused for various reasons. Enbridge took those homeowners to court through a process called condemnation to force them to give up their land.
Hodge said some homeowners were never going to be happy with the company’s offer, no matter what Enbridge did.
“We will do everything we can to work with individual homeowners, as long as they’ll talk to us and let us on the property to tell them what work space we need,” he said.
This is the sort of thing we’ve heard from Enbridge reps before. One of their favorite tactics is to pretend that anyone who expresses any sort of concern is unreasonable, “a special interest group,” someone who is “never going to be happy” After all, those sorts of people are much easier to dismiss. And further, those folks are just a fringe element, unlike “most homeowners” who aren’t unreasonable troublemakers. (And we have to say, it is deeply disappointing to hear Tom Hodge playing this card.)
Even worse, Hodge seems to think– or so he would have readers of the Lansing State Journal believe– that there’s a bunch of landowners out there who are simply refusing to allow Enbridge to come and talk with them. Maybe he even really believes this. Whatever the case, here is something we believe: we believe that Thomas Hodge doesn’t have the faintest idea of what goes on in private negotiations between landowners and ROW agents. If he did– and if he were willing to take landowners seriously, rather than dismissing them, and if he were willing to take a cold, sober look at those agents’ practices and tactics– he might well experience a genuine awakening. He might come away with a very different picture of the relations his company cultivates with landowners.
That picture comes into focus with a little math. Here’s what we did: we went to the MPSC and found the list of homeowners to whom Enbridge sent the original MPSC “Notice of Hearing” on phase one. This is the list of potentially affected landowners along the pipeline route. We then counted up the number of those landowners who live in Livingston and Ingham counties. That total, according to our search, is 317. Of those 317, according to the newspaper article, 70 landowners were taken to condemnation by Enbridge. That’s 22 percent of landowners– a very high number in our view. That percentage is even higher when you consider that a significant number of the homeowners on the list aren’t actually affected at all by the project– there’s no easement of workspace on their property; they’re just close by (like our next-door neighbors). So let’s say, conservatively, that that’s 10 percent of the list. That gets us to 25 percent of landowners who were taken to condemnation. So is Tom Hodge saying that a full one-quarter of the people on the pipeline route in Livingston and Ingham counties are just unreasonable, are people who will never be happy with Enbridge no matter what? Is that really his view of the good people of the state of Michigan?
And what happens if we add to this number all of the people (like ourselves) who are mightily displeased by the way Enbridge has treated them personally and conducted itself publicly? People who reached agreements but who are nevertheless unhappy. How high would the percentage of dissatisfied landowners then be? Enbridge’s portrait of “most” landowners might well begin to look very different.
by Jeffrey Insko | Nov 29, 2012 |
This morning, there’s a fine article by Lisa Song at Inside Climate News on the POLAR lawsuit. In it, our friend Jeff Axt is dead on the money:
“We want Enbridge to follow the existing laws,” said POLAR founder Jeff Axt, who owns property along the route. “These aren’t obstructions recently created to stop a pipeline. These are existing laws, regulations and ordinances that have been on township books for years, that need to be complied with before the project proceeds.”
And here:
Axt emphasized that the lawsuit is not about opposing a pipeline, but rather about forcing Enbridge to abide by local regulations. “I think we can all agree the existing laws and permits should all be followed, whether you’re building a pipeline, a house, a road, or a dog house.
What else needs to be said?
by Jeffrey Insko | Nov 28, 2012 |
Well, this has got to be among the strangest articles we’ve encountered yet— and a very odd way of “addressing” local homeowner opposition. We’ll explain when we have more time.
Until then, we’ll just say what we’ve said before: Beth Duman and Carol Brimhall (like so many other landowners we met) are totally awesome.
by Jeffrey Insko | Nov 28, 2012 |
As we reported last night, Judge Cleland of the U.S. eastern District Court in Michigan has finally issued a ruling on the POLAR lawsuit. We’ve read the ruling and are now prepared to offer some more detail. The ruling isn’t ideal, but it isn’t entirely bad either. Most importantly, there is still plenty of life left in the case and it is headed back to state court, which in our view is better for POLAR anyway– largely because the substantive issues in the case (of local consent and the enforcement of municipal ordinances and permits) are state issues anyway.
Judge Cleland ruled on two matters: the “threshold” question of whether POLAR had “prudential standing,” (which we’ve discussed before) and Enbridge’s motion to have the case dismissed. On the first, Cleland found that POLAR lacks prudential standing. On the second, he denied Enbridge’s motion to dismiss and remanded the case back to state court. He did not rule on Brandon Township’s motion to intervene in the case (more on that in a minute). We’ll discuss each of these a bit in turn. But first we’ll say that in our view the only clear winner in this ruling is Judge Cleland himself, who found a way to avoid getting his hands dirty by having to rule on (or even hear) any of the substantive issues. Basically, he just told everybody to take their quarrel some place else.
Which isn’t to say the ruling is not interesting. For instance, on the standing question, Cleland did not exactly accept Enbridge’s argument that POLAR is claiming rights that only belong to municipalities– that is, the right to enforce their laws and ordinances. Instead, Cleland takes issue with POLAR’s claims about the harm– or “special damages”– its members will suffer if those laws and ordinances are violated. He finds that POLAR does not establish that Enbridge’s (alleged) violations of the state constitution and municipal ordinances will cause harm to POLAR’s members. He cites the example of a county permit:
POLAR argues that its Members’ property will be damaged if Enbridge begins construction without securing the required environmental permits. For example, Enbridge allegedly has not yet obtained the Soil Erosion and Sedimentation Control Permit from the Berrien County Drain Commissioner. POLAR argues that if Enbridge begins construction without obtaining that permit, it will harm the soil on its Members’ property, thereby causing special damages. This argument assumes that Enbridge will damage the Members’ soil only if it fails to obtain the permit. Yet such an outcome is neither guaranteed, nor does it logically follow: Enbridge may either meet or violate Berrien County’s safety standards for soil erosion whether it obtains the permit or does not. POLAR, in this example, has not offered any evidence to show that its Members’ land located in Berrien County will be harmed “resulting from” Enbridge’s failure to secure a permit.
For Cleland, this example shows that “POLAR has not met its burden of alleging that its Members will suffer special damages as a direct result of Enbridge violating the Michigan laws. Therefore, POLAR does not have prudential standing to bring its public nuisance claim.”
However, just because POLAR lacks standing (because of its failure to establish special damages resulting from Enbridge’s violations), it does not follow for Cleland that the suit should therefore be dismissed, as Enbridge requested. And here the question for Cleland is quite simple (in fact, you can almost hear him breathing a big sigh of relief) because “a federal court has no subject matter jurisdiction over a case where a plaintiff lacks constitutional standing.” In other words, having found the POLAR lacks standing, the substantive questions in the case– including the questions of whether to dismiss it and whether to accept Brandon Township’s motion to intervene– can’t be heard or ruled upon in federal court. Instead, the case has to go back to state court where it all began.
So, what does all of this mean for the lawsuit? Well, for one thing, it means that the case lives on, which is obviously a good thing, perhaps even a minor victory, since it’s pretty clear that the whole reason Enbridge dragged it into federal court in the first place was because they thought that would sink it. It’s also good news because the standards to establish standing in Michigan state court aren’t nearly as strict as federal standards. Additionally (and this is pure speculation on our part), a state court judge might well be more inclined to relax the standard for standing because he or she thinks the substantive issues– enforcement of the state constitution and local ordinances–do deserve to be heard, whereas Judge Cleland, we’ve always suspected, never really wanted to dig around in that muck at all.
Of course, the other outstanding and unresolved question has to do with the Michigan Townships Association and Brandon Township. Will the MTA intervene or, at least, file an amicus in state court? Will Brandon once again intervene? After all, there is no doubt about their standing. And it’s hard to see why Brandon wouldn’t continue (as they publicly resolved to do). They’ve come this far and the issues haven’t really changed: Enbridge is no less intractable now than they were two days ago– and they are certainly no more in compliance with the laws than they were two days (or two months) ago. What has changed, interestingly enough, is the Brandon Township board. As we noted in our tribute to them a couple of weeks ago, this is a period of transition. It’s hard to know whether the incoming board is going to be as willing to take this battle on as the steely-eyed group they’re replacing. However, as we’ve said before we fully trust Supervisor Kathy Thurman and her resolve. The coming days and weeks should be very interesting.
by Jeffrey Insko | Nov 27, 2012 |
This just in: Judge Cleland has finally ruled on the POLAR lawsuit and (we hate to be smug about it), it’s as just as we’ve been predicting to friends for a while: a mixed bag:
1. He ruled that POLAR does not have standing (not great news, but not a surprise);
2. He denied Enbridge’s motion to dismiss and instead remanded the case back to the state court (good news, in our view).
This ruling means that he did not have to rule one way or another on Brandon’s motion to intervene. Presumably, that will be filed in state court.
We’re in a rush. More tomorrow. But at least the suit lives on…
by Jeffrey Insko | Nov 27, 2012 |
You think regulatory oversight– owing to indifferent public officials and a toothless Public Service Commission– in Michigan is lax? Well, you should hear about how the Enbridge project is being handled in Indiana. In fact (teaser!), this is a story we’ll be bringing you very soon as part of a whole new series. For now, we’ll just note that Enbridge doesn’t even have to seek approval from the Indiana Utilities Regulatory Commission. The only state agency with any oversight at all that Enbridge has to face is the Department of Environmental Management, which issues permits pertaining to wetlands and other environmentally sensitive areas. This is exactly why our friend Nate Pavlovic and the other good people at Save the Dunes have been working so hard.
A public hearing on Enbridge’s application to IDEM has just been scheduled. It will be held on Dec. 18, from 1-4 pm at the LaPorte County Public Library. Nate notes that this meeting represents:
one of the key opportunities to achieve improvements to Enbridge’s plans to construct their new pipeline, including implementation of Independent Environmental Monitors, alternative routing to avoid wetlands and other areas of concern, and ensuring it does not impact endangered species.
If you are able to attend, please do. Raise questions. Express concerns. Meet your fellow citizens and affected landowners. More information about Enbridge’s application is available at the IDEM website.
by Jeffrey Insko | Nov 27, 2012 |
Before the Thanksgiving break, we took a short drive around our area. As things stand now, it’s not at all clear how Enbridge is ever going to get any oil flowing through the new pipe– since there are long stretches of land between its various existing segments. A couple of miles to the east of us (the first two pictures here) is the border with Brandon Township. Nothing is happening east of that point pending the POLAR lawsuit in federal court. And starting just two properties to the west of us (maybe 500 feet or so), there has been no construction at all– and that appears to be the case for several miles heading west. The last three photos here are in Springfield Township, a few miles to our west. In the absence of any signs of activity– no construction crews, no stakes, no flags–we can’t for the life of us figure out how the pipe in our backyard is going to connect to this one, even though we know it eventually will.
Of course, it’s no mystery as to what is to account for this odd state of affairs. As one construction worker said to us recently (and cheekily), Enbridge “has had some land acquisition issues.”
by Jeffrey Insko | Nov 26, 2012 |
We are back home after a nice Thanksgiving break. We hope everyone enjoyed their family time as much as we did– but didn’t eat quite as much as we did. Looking out back, we notice that no new work has taken place on our property.
A couple of ugly stories have emerged that we’ll be telling in the next few days, along with some other items of note. And we continue to await some sort of word from Judge Cleland’s federal courtroom.
In the meantime, here are a few cringeworthy stories. One is out of Canada, where evidently Enbridge is (big surprise) being less than forthright. The other is from here in Michigan– another unhappy landowner, but not on Line 6B. And finally, there’s the news of a new crude oil leak from an Enbridge pipe in Illinois. But don’t worry because “Enbridge spokesman Graham White said there was little environmental or operational impact” (though others might suggest that it’s part of a pattern).
Welcome back, everybody. We missed you.
by Jeffrey Insko | Nov 20, 2012 |
Last night was the final meeting of the current Brandon Board of Trustees– the principled and courageous bunch who decided not to allow Enbridge to run roughshod through their municipality. We chose not to attend the meeting, but to leave them to their peace for once; they’ve surely (understandably) wearied of sitting through our “public comments” month after month. They deserved a quiet final meeting (we hope it was quiet).
But we do want to once again thank the outgoing trustees– Cheryl Gault, David King, and Tom Stowell– as well as Treasurer Tyrone Beltramo and Clerk Jeannie McCreary. Their thoughtfulness, their mettle, their responsible stewardship of the public interest, and their protection of the township’s natural resources have made us wish they were our township trustees. The whole state of Michigan owes them tremendous thanks. We wish them all well.
Trustee Dana DePalma and Supervisor Kathy Thurman (a true leader) will continue on. We trust (and hope) that the new board will follow their lead.
It bears repeating here once more that Enbridge has STILL not answered any of the questions they promised to answer at the “workshop” with this Board more than two months ago. We find this completely outrageous and can’t figure out why it isn’t a major local news story: four Enbridge representatives sat in front of the Board, smiling and insisting (repeatedly) that they just wanted to be good, friendly neighbors, and promising answers that it now appears they never intended to provide. At this point, it’s hard to see their failure to deliver on their promise as anything but a deliberate affront to the Brandon board. Rather, it is Enbridge thumbing its nose at a local municipality. In our view, this may be the starkest illustration we have of the contempt Enbridge has for its stakeholders, the clearest example we’ve seen of how the things they say simply cannot be trusted.
by Jeffrey Insko | Nov 19, 2012 |
One last post for today (in addition to today’s remarks on the recent Enbridge newsletter and the third installment in our PS Trust conference series):
After about two weeks of idleness, there were signs of life around the segments of pipe in our back yard today. They were welding, sandblasting, and coating today (we know because we asked and they told us so). The green stuff, we’re told, is the coating.
Which reminds us: our conversations with some of the construction workers–generally perfectly nice people in our experience– have given us an idea for a brand new feature– a quite revealing one, we think. As soon as we figure out how to overcome a minor technological hurdle, we’ll launch it!
by Jeffrey Insko | Nov 19, 2012 |
We’ve been thinking a bit about regulatory matters today— and oh! have we got a lot to learn–as we try to get to the bottom of Enbridge’s seemingly unverifiable claim that certain features of the new Line 6B exceed certain federal regulations (which features and which regulations? Enbridge prefers not to say…).
But this put us in mind of some things we heard and learned at the Pipeline Safety Trust conference earlier this month. As we’ve said before, we spent much of that conference being reminded of how much we don’t know about so many things. We also learned, in a couple of instances, that we’re a little naive. For example, the Friday morning keynote address at the conference was delivered by Cynthia Quarterman, chief Administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA), the federal regulatory agency responsible for oil pipeline safety and oversight. As it turned out, that morning we were sitting with our friends Beth Wallace and Robert Whitesides, who mentioned to us in passing that Ms. Quarterman, prior to her appointment to PHMSA, worked for a Washington D.C. law firm and represented oil industry companies including– are you ready?– Enbridge. We did not know this. Which, to be honest, made us feel a little silly.
But back in 2010–when we were nothing more than a gleam in the eyes of our pipeline safety parents– Quarterman, not surprisingly, found herself on the business end of a lot of sharp criticism after the Marshall spill for her ties to Enbridge. In fact, she recused herself from all Enbridge-related matters, no easy task when Enbridge-related matters were among the most urgent matters with which her agency had to deal. Needless to say, such an intimate relationship between industry and regulatory officials does not engender a lot of confidence, especially in this particular case: you’ll recall that the NTSB report on Marshall is every bit as critical of PHMSA and its “inadequate regulatory requirements” (among other things) as it is of Enbridge and its particular failings and failures.
All of this may well place in context (for us, anyway) one of the more head-scratching, perhaps even inflammatory, remarks of the conference. In a “briefing” on PHMSA’s current activities, another PHMSA official, associate administrator Jeff Wiese, cited the following as two of the “environmental” challenges facing his agency:
- Terribly under-informed populace highly dependent on a fossil fuel fed, overly lean, energy supply chain
- Growing public intolerance to risk – but highly rate sensitive
It’s safe to say that this didn’t sit that well with the citizen advocates at the conference. In fact, for a listener disinclined to give Mr. Wiese some benefit of the doubt (we’re on the fence about this), one might easily see this as an expression of some contempt for the public– ignorant, mindlessly addicted to fossil fuels, and cheap. If we’re being honest, it reminds us a bit of the sort of contemptuous attitude toward ordinary landowners we’ve seen on more than one occasion from Enbridge representatives: Joe Martucci, for instance, at a Groveland Township meeting shifting in his seat impatiently and sighing as landowners express reasonable concerns, then reminding us all (again) that cars use oil.
Wiese’s remarks are also reminiscent of Enbridge insofar as they appear to shift a portion of the blame for his organization’s failures on to others. In fact, we thought much of Wiese’s presentation demonstrated the same tendency we’ve seen from Enbridge to avert its gaze when shown a mirror. Or perhaps we’re just a bit too sensitive on the point: judge for yourself.
As we said at the beginning, we’re still learning when it comes to these regulatory matters. And we don’t know that much about either Cynthia Quarterman or Jeff Wiese, so we don’t want to be unfair. But it doesn’t inspire much hope to learn that the two organizations most responsible for the disaster in Marshall (Enbridge and PHMSA)– the two organizations we all have to rely on to ensure there won’t be another Marshall– have such a close relationship. Nor does it help when they appear to exhibit the same troubling set of attributes.
by Jeffrey Insko | Nov 19, 2012 |
We’re back from a nice weekend break from Enbridge-related matters. Hopefully, you also enjoyed some of the nice autumn weather. We’ve got more reports on the PS Trust conference coming— most notably, an account of the terrific environmental panel with Beth Wallace, Anthony Swift, and Gabe Scott. Stay tuned for that. We also have another Enbridge newspaper ad to respond to as well.
In the meantime, we’re perusing the colorful, glossy newsletter from Enbridge that we received in the mail recently. Presumably, many of you received it also. As far as Enbridge communications go, it’s not half-bad (which isn’t saying much), although we can’t help but wonder where this devotion to communicating with the public was back when Phase 1 of the project kicked off. We didn’t receive any glossy newsletters back in February (or March, April, May, June, July, or August) when we were first contacted by a ROW agent. We also weren’t notified of any open houses in our area of the sort Thomas Hodge says Enbridge held last summer:
Enbridge conducted four open houses on this project [Phase 2] in June 2012. Thank you to the nearly 300 people who attended these open houses. Attendees were able to meet with project staff to ask questions, view detailed project maps and provide input.
All of that sounds great. It’s a shame, however, that all four of those open houses were held in a very small area near Kalamazoo and in Indiana. Over here on the east side (and all along the Phase 1 route), no such open houses were held. We haven’t a clue as to why not.
The open house story is not the only part of the newsletter that paints a misleading picture of Enbridge’s public awareness campaign. On the back page of the brochure, there is this very curious paragraph under the heading “Local Residents Offer Feedback on Enbridge Communications”:
This past September, Enbridge conducted focus groups in several communities in Michigan and Indiana. Faocus groups consist of a guided discussion led by a moderator and designed to be casual and interactive. In total, we met with more than 120 people who live and/or work near our pipelines and who shared their thoughts and feedback about us and our operations. We hald these meetings for the primary purposes of developing better communications and building stronger relationships with the communities in which we operate. The results from the focus groups will help guide our future communications and outreach activity as the projects move through the planning, regulatory and construction phases.
This is very curious indeed. For one thing, 120 people strikes us an extremely small sample given the scope of the project. For another, we don’t recall an invitation to participate in any “focus group”– though we have a vague recollection of a mysterious call inviting us to some kind of energy-related meeting. At the time, we though it was a marketing scam, since the caller could not give us any specific details. Was this the Enbridge focus group? If so, it’s a very poor way to gather honest input from affected landowners– though not surprising, coming from Enbridge. Instead of soliciting landowner feedback directly, this would suggest that they just hired some market research firm. But if they really wanted to hear about the experiences of affected stakeholders wouldn’t it have been better (and not very difficult) just to call all of us? Invite us all to fill out some kind of survey? Of course, that might elicit real feedback, not the carefully-controlled, p.r. driven, market research-style input that Enbridge would prefer to generate. As we’ve noted time and again, when it comes to serious, honest, pull-no-punches comments from landowners, Enbridge just doesn’t want to hear it.
One last item in the newsletter worth commenting upon: on a page describing “High Safety Standards for All Enbridge Projects,” we are provided these two intriguing bullet points (among others):
- The new pipeline segments will contain more remotely-operated isolation valves than what is required by federal regulations.
- The new pipeline segments will be internally inspected more frequently than U.S. regulatory requirements, using state of the art in-line inspection technology.
Our regular readers might recall that we have asked questions seeking clarification about this matter of exceeding federal regulatory requirements on numerous occasions. We asked about it directly at the Brandon Township workshop, for instance. More recently, we wrote to Enbridge’s Terri Larson asking her which specific features of the design exceed which regulatory requirements. Enbridge reps couldn’t answer that question at the workshop– and more than two months later they still haven’t answered it. As for Terri Larson, it’s been more than a week now and she still hasn’t gotten us an answer. Now, to be clear: we do not think this is Terri’s fault; we believe her when she tells us she is looking into it. The problem appears to be that the information just isn’t very easy to obtain. But if the claim is true, why should it be so hard to answer such a simple question?
As we await more information from Terri on this, we are also looking into the specific claims cited above (about isolation valves and inspections)– but that involves doing a bit of research into federal regulations– ugh! But once we’ve got some answers, we will pursue this matter in more detail.
by Jeffrey Insko | Nov 17, 2012 |
It was a beautiful late-autumn day today, so we tried not to think about Enbridge for a while. It was a nice break. So here is a picture of Sam the dog. We went for a run.
by Jeffrey Insko | Nov 16, 2012 |
We don’t have any plans to make job listings a new feature of this blog, but when a really good and relevant one comes along, it only makes sense to post it. Perhaps one of our readers has an enterprising young relative looking for a great opportunity. This position with the Pipeline Safety Trust looks to us like one of them.
If we weren’t already gainfully employed (and if we were 20 years younger), we would consider it ourselves. Seriously, the chance to work with Carl Weimer and Rebecca Craven– such kind, committed, good-humored, and super-smart people– is alone a major draw. Check it out. Pass it along.
by Jeffrey Insko | Nov 16, 2012 |
On our way to get our hair cut this morning, we drove across Brandon Township (this photo is in Groveland near Brandon’s western border), where there are very few visible signs of the Line 6B “replacement” project. We had this thought:
If Enbridge had treated Brandon Township and the state of Michigan with respect from the beginning, if they had secured all their permits and complied with state laws and local ordinances, if all the time they’ve spent in court filing for dismissals and waiting for rulings had been spent seeking the consent of townships all along the line, they’d probably already have their pipe in the ground by now.
