Happy 2015, everyone! We’re sorry we’ve been away for a while. Since before the holidays, we’ve been attending to some life-matters and over the past few weeks, we’ve been getting back into the swing of a particularly busy new semester.
We do have a bit of news to share, however. Interestingly, the always-excellent Dave Hasemyer at Inside Climate News had a new story out last week featuring our friend Dave Gallagher. The story’s focus is on the incompleteness of restoration on the Line 6B replacement, a good companion piece to Rebecca Williams’ excellent Michigan Radio report a couple months back. Unfortunately, Hasemyer’s story doesn’t really take note of the many and varied other lingering issues on the Line 6B project: it’s not just a matter of restoring people’s land: all sorts of other promises that are not dependent upon the growing season– payments for damages, payments for crop loss, those makeup payments, among other things– have yet to be fulfilled also.
The timing of the ICN story is especially interesting because on Wednesday, we spent about an hour and a half meeting with Steve Wuori, Enbridge’s Strategic Advisor to the CEO; Leo Golden, Vice President of Major Projects; and Jason Manshum. The purpose of the meeting was to address matters like the above– as well as Enbridge’s shabby treatment of landowners generally– in the hopes of getting someone, finally, to take some swift and unequivocal corrective action. As so many readers of this blog already know, Enbridge has shown not even the slightest bit of urgency in attending to these things. Instead, they’re still haggling, hassling, foot-dragging, nickle-and-diming, or just plain ignoring landowners and their remaining concerns. For years, Enbridge has been willing to pay $2000 in attorney’s fees to fight against paying a landowner $1000. It’s time this stops.
We said all of this and more to Wuori, Golden, and Manshum. We did our best to explain– calmly, but in detail– that the mistreatment of landowners on the Line 6B project has been unconscionable, widespread, systemic, and continues still after all of this time– more than 3 years for some of us! We did our best to impress upon them that it is well past time for somebody, anybody, to step up and take charge, since the hapless (or just plain uncaring) people who have failed to get the job done to this point cannot be counted on. As one small example of the current state of things, we described an issue with some landowners who are trying to get compensation they were promised for a fence that was promised but never built. But their land agent is haggling with them over a paltry sum, stalling, and evading. What we said to Wuori is this: “Why not just write the damn check and be done with it? Why continue to torture these people, to frustrate them, to make enemies of them? Just write the damn check.” If Enbridge really wants to begin to try and repair the relationships they’ve damaged, they need to just write the damn checks.
That statement goes for just about everything. People have written agreements stipulating payments for crop loss: just write the damn checks. People have legal agreements for replacement trees: just get them the damn trees. People have unfixed damages to their homes and properties: just fix or pay for the damn damages. Many of these things can be resolved now, immediately, so that everybody can just move on.
The (possibly?) good news is that Wuori, Golden, and Manshum listened very attentively, took notes, and asked questions. At no point did they engage in excuse-making, “explaining,” or justifying of any kind. Frankly, this was a completely new experience for us in our dealings with Enbridge– and a refreshing one. Of course, based on past experience, we have every reason to be skeptical about the assurances we were given. But if we’re being honest– and that’s always been our policy here at this blog– it was probably the best interaction with Enbridge representatives we’ve ever had. For that reason we have some reason for (cautious) hope. For the first time we felt as if we were talking to people who were willing to concede (and they did) that they have failed to live up to their rhetoric and their corporate values and willing to take steps to make things right. We are very grateful they took the time to hear us out.
Most importantly, Wuori and Golden said they were going to get on this; we even received a follow-up email re-stating that pledge. For our part, we vowed to hold them to it– and offered to help in whatever way we can. So if you’re a Line 6B landowner with some outstanding issues or unfulfilled promises, let us know and we’ll be happy to pass them along.
Corporate executives say the darnedest things! This week, Enbridge CEO Al Monaco got to have a little sit-down to talk with the Duluth News Tribune–reminding us of the time Enbridge President Steve Wuori got to have a sit down with the Ed. Board at the Lansing State Journal— and causing us to wonder anew why these executives get a special audience with these papers. Why doesn’t the Duluth News Tribune invite, say, Richard Smith from the Friends of the Headwaters in for some of that friendly shoulder-rubbing? In the interview, Monaco says some pretty hilarious things (the paper calls them “insights”), none more hilarious than his comments about environmentalists:
Misperception we’re “fighting environmentalists”
“I think maybe there’s a perception that we’re fighting environmentalists. My approach to this has always been, ‘Let us work with you. Let us figure out how we can improve the project.’ So if there are some ideas — whether (from) a community member, whether it’s a government agency, or whether it’s an environmentalist — we’d like to hear those ideas, and if it makes the project better we’ll look at it. I’m trying to make a point here that it’s not necessarily them and us. It’s what’s best for the project (and) what’s best for the communities so we protect the environment. That’s what our goal is.
“We do sit down with environmental groups, and our approach is to try and engage them, to try and understand their point of view, and hopefully they can try and understand our point of view. … Our first focus is to do what’s best for the environment and to make sure were operating safely.”
Obviously, we have no way of knowing whether Monaco actually believes this, is making some sort of joke, or just thinks it’s good p.r. to say such absurd things, knowing that the newspaper Ed. Board will just dutifully type it up and print it in their paper. What we do know, however, is that Monaco’s comments are funny enough to earn him a regular gig on one of the late night talk shows, or maybe his own HBO special.
Unfortunately, reality is slightly less amusing. Let’s just recall a quick example of how Enbridge really deals with each of these groups: environmentalists, “community member[s],” and “government agencies”:
Here is Monaco’s predecessor Patrick Daniel explaining how environmentalists are “revolutionaries” out to upend society as we know it.
Here is Enbride spokesperson Graham White making up a demonstrably false and disparaging story about a concerned community member (and a follow-up).
And here is Enbridge Vice President Richard Adams looking a major government agency– the EPA– straight in the eye and telling them something other than the truth.
It seems to us that the only groups Enbridge really cares to “sit down” with to share their point of view are friendly, credulous newspaper editorial pages willing to grant them “exclusive” interviews.
What follows is the first of a couple of comments we’ll be submitting to FERC expressing our concerns about and opposition to the ET Rover pipeline. In addition to all of the other serious and compelling issues raised by Michiganders, we think it’s important that FERC recognize the failures of its own processes.
October 28, 2014
Ms. Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20426
Re: Docket PF14-14-000
Dear Ms. Bose
I am writing with regard to the Rover Pipeline project (Docket #PF14-14), which is currently at the pre-filing stage. While I share many of the concerns expressed by my fellow southeast Michigan citizens (a very large number of whom have submitted their own comments to this docket) about the lack of necessity of this project, its limited benefits to our state, the disruptions it will cause to private property, and the threats the proposed route poses to sensitive environmental areas, here I will limit my comments to a very important procedural matter: public engagement.
Rover Pipeline, LLC has failed to comply adequately with basic conditions of the FERC pre-filing process and for that reason its application for a Certificate of Public Necessity and Convenience ought not to be accepted by FERC, much less approved.
In its order no. 665 (issued Oct. 7, 2005) mandating participation in the pre-filing process, FERC stressed that “it is desirable to maximize early public involvement to promote the wide-spread dissemination of information about proposed projects”and encouraged applicants “to cooperate with state and local officials, as required by EPAct 2005.” While Rover Pipelines, LLC has held a series of Open Houses along its pipeline route, those meetings, as clearly illustrated by the numerous and uniform comments of local officials listed below (it would be easy to produce dozens more similar comments from landowners), have in no way fulfilled Rover’s obligations as described by FERC. To wit:
Mundy Township Supervisor Dave Guigear said during the meeting he believes more people are concerned about the lack of transparency from Energy Transfer, parent company of ET Rover, rather than [sic] pipeline.
“Nobody I’ve encountered seems to be in favor of this project,” [Mundy Township attorney F. Jack] Belzer said. “There’s not a lot of information forthcoming from them that’s consistent.”
“I think it was an orchestrated disaster in terms of a meeting,” [Atlas Township Supervisor Shirley] Kautman-Jones said. “There was limited parking, the facility was way too small and they only had one set of maps for each county.”
Grand Blanc Township Supervisor Marilyn “Micki” Hoffman said ET Rover’s lack of transparency has raised questions among community leaders and residents. Grand Blanc Township has postponed voting on the issue in hopes of getting more clarity on the project “This hit us so fast and we had so many bad relationships established with ET Rover for how arrogant they were when surveying properties,” she said. “And the lack of transparency has also been an issue. We don’t want to rule it out, but at the same time we have a lot of unanswered questions.”
Instead of a podium with a few speakers, [attendees] walked into a packed hub of information boards and scattered Energy Transfer representatives. While there was a “Welcome” board, there was no rhyme or reason to the open house that Linden Mayor David Lossing referred to as a “debacle.”
Genesee County Commissioner Tony Brown (District 6) said, “When they don’t include local government in the discussion, my knee jerk reaction is to say it’s shady.” He pointed out that he had no side, for or against it, yet, but that at face value the secretiveness says something underhanded is going on.
“It was a well-orchestrated disaster,” said Kautman-Jones of the Rover meeting. “It was overcrowded and another thing I found really ridiculous is they had one table with a set of maps for each county. Of course, everyone wants to look at the Genesee County map, and you had to stand in line… They met the pre-filing application requirement of having a public meeting, but it definitely was not for the benefit of the public. They were just doing what was required.” “It’s hard to trust a company that is not being as forthcoming with information as you wish they would be,” [Kautman-Jones] said.
“I’m really frustrated because if this is how they treat elected officials, how are they treating property owners?” [Kautman-Jones] asked. “They aren’t even telling us what they are proposing to do. I feel (Rover) not giving information is a way to get to the filing process with as little opposition as possible. It takes people awhile to think about things and if your window of time keeps getting smaller and smaller, your response time is, too.”
[Ernest] Monroe agrees. The Hadley supervisor said he began receiving calls from concerned residents at the end of August. Rover never contacted the township, nor Lapeer County officials, he said, they just started showing up and surveying property.
“I can’t get good answers from Rover, they’ve just done a deplorable job,” said [Groveland Township Supervisor Robert] DePalma. “Now they’ve hired PR people that are going to come out. I’ve been in marketing for more than 30 years and this is the worst managed project I’ve ever seen… Facts have been extremely difficult to get from Rover.”
ET Rover has not endeared itself to [Oxford Township Supervisor Bill Dunn]. “To be quite frank, they jerked me around,” Dunn told the audience. “I’m not real happy with them.” “I don’t like being jerked around,” Dunn said. “They did lie to me . . . They were not forthright.”
[Fenton] Township Clerk Robert Krug said that when he attended the recent ET open house hosted at Spring Meadows in Linden, ET’s public relations representatives continually said they would find someone to answer questions they couldn’t, and never did. “Everybody had smiles, but nobody had answers,” said Krug.
[Fenton] Township Supervisor Bonnie Mathis said, “ET Rover says that they notified township supervisors, but they didn’t.”
State Representative Joseph Graves added, “They could have done it better and because they didn’t, now there are suspicions.”
Such comments convey the overwhelming sentiments of stakeholders along the proposed route in Michigan. Given such widespread dissatisfaction, how can FERC possibly believe that its procedures and processes are working as intended? For instance, in the FAQ for Gas Pre-Filing at the FERC website (under “What happens at open houses?”), it states:
The goal of the Commission’s pre-filing process is to notify all project stakeholders, including potentially affected property owners, so that Company and the Commission Staff can provide a forum to hear the issues relevant to those stakeholders. The Company may then incorporate proposed mitigation measures into the project design from comments received from stakeholders.
As the comments above make clear, stakeholders along the proposed route have NOT received adequate information nor do they believe that “issues relevant” to them have been heard. Rover’s mode of communication with stakeholders has precluded such productive exchanges. As a result, Rover has, at best, only complied with the letter of the pre-filing rule, merely going through the motions in the most perfunctory manner. Rover has certainly not adhered to the spirit of the rules. This makes a mockery of the process and suggests that Rover does not appear to take its obligations to FERC or to the public seriously. What is the point of requiring public engagement on the part of applicants if that engagement is only going to take place in the most superficial and ineffective way?
In its letter approving Rover’s pre-filing request, FERC states “that when ET Rover files its application with the Commission, we will evaluate the progress made during the pre- filing process.” From the point of view of the public, as represented by numerous local elected officials (not to mention dozens of landowners), Rover has made very little progress. I urge FERC to reject Rover’s application for its failure to fulfill even the most basic requirements of pre-filing as well as to protect the integrity of FERC’s own rules and procedures.
Groveland Township, MI
If you’ve been paying attention, you might know that up in Canada Enbridge has been all in a flurry to get their Line 9 pipeline reversal online and running. They’ve gone about it in their typically ham-fisted way, despite the legitimate concerns of lots of Canadians, like our friend Emily Ferguson. (And how did Enbridge respond to those concerns? Why, by making up fictional stories about Emily. Seriously!)
Well, last week Enbridge thought they were finally going to get their way– that is until the National Energy Board pointed out that they have failed to meet a basic condition of the project’s approval: installing shut-off valves on both sides of all major water crossings. Just how badly did Enbridge bungle their compliance with this requirement? We’ll let the NEB tell you about it:
As noted above, CSA Z662-11 states that valves shall be installed on both sides of MWCs. The valves do not appear to be placed on both sides of many of the MWCs. Although in its response to Information Request No. 1 for Condition 16, Enbridge added 85 MWCs to its original list of MWCs, Enbridge did not adjust the number of valves to the Project, for example by increasing the number of valves, or explain why the number remained unchanged. As a result, the Board notes that only 6 of the 104 MWCs identified by Enbridge to date appear to have valves installed within 1 km on both sides of the water crossing, while the majority appear to have valves installed more than 10 km from the water crossing on at least one side.
That’s right. Not only did Enbridge fail to accurately identify all major water crossings (the NEB elsewhere says Enbridge needs to revisit their mode of determining MWCs). For the ones they did identify, Enbridge failed to comply with the shut-off valve condition for NINETY-FIVE PERCENT of them.
Just think about this: at a moment when they are under more scrutiny than ever before, when the whole world is looking for their next mistake, when they are desperately trying to convince regulators all over North America to trust them, when changing public perceptions about them has become one of the company’s top priorities– at a moment like that, they fail, abjectly, to abide by a simple regulatory requirement. It almost defies belief.
Is it incompetence or arrogance? We still don’t know which.
There’s been a lot of news about ET Rover this week, owing to an unfortunate incident in which their survey crews entered or tried to enter the properties of some landowners without permission, in one case sparking a potentially dangerous confrontation. It’s unfortunate that it’s come to this, though it was also probably inevitable. ET Rover’s ham-handed dealings with landowners have done nothing but fuel the understandable frustration and anger of landowners. We hate to say “we told you so,” but several months ago, we told ET Rover that the industry’s thoughtless routine ways of communicating with landowners were not going to go over well here in southeast Michigan. They clearly did not listen to us.
At the center of this week’s story, however, is a legal question that we’ve addressed, though only briefly, before. ET Rover is claiming that they have the right under Michigan Law to enter private property to conduct surveys without landowner permission. Here is spokesperson Vicki Granado just this week:
“We do have, under Michigan Compiled Law, the right to enter, knock on the door and, if the landowner isn’t home and we’re following specs, we do have the right to enter,” ET Rover spokeswoman Vicki Granado said. “Again, if the landowner tells us that they don’t want us surveying (we won’t survey).”
And here is Granado in a different article this week:
“We have consulted with many attorneys and many sided with Rover in this particular process,” said Granado. “We have the right to conduct surveys and have given proper notification to landowners we are needing to survey. We would much rather do it in cooperation, that is our goal, but we do have permission from the state. They are not trespassing.”
Setting aside the legal question for a moment, Granado’s comments strike us as a bit contradictory. In the first one, she indicates that Rover won’t survey if the landowner does not give permission– even though this week’s incidents prove that statement not to be true. In the second remark, Granado seems to suggest the opposite: that ET Rover is going to conduct surveys even if landowners do not cooperate. Regardless of the legalities, we have to say that we think that is very bad policy. That sort of aggression and disrespect for property rights is only going to inflame landowners. In fact, even the natural gas industry’s main trade organization agrees with us on this point. The Interstate Natural Gas Association of America (INGAA) recommends avoiding trespass without landowner authority: “Trespassing by pipeline or contractor personnel should be avoided; approval by the landowner or duly authorized state agency of court is required for access to the right-of-way.” (See page 13 of this document)
So ET Rover appears to be violating their own industry standards. But are they violating the law?
In letters to landowners and comments to the press, ET Rover cites Michigan Compiled Law 213.54(3) as granting the company the right to survey without landowner permission. The law they point to is the state’s Uniform Condemnation Procedures Act (UCPA), passed in 1890, which stipulates “procedures for the condemnation, acquisition, or exercise of eminent domain of real or personal property by public agencies or private agencies; to provide for an agency’s entry upon land for certain purposes; to provide for damages; to prescribe remedies; and to repeal certain acts and parts of acts.”
The section of the law that Rover cites might, at first glance, appear to support ET Rover’s position. Here’s part of what 213.54(3) says (this is the part ET Rover thinks applies to them):
(3) An agency or an agent or employee of an agency may enter upon property before filing an action for the purpose of making surveys, measurements, examinations, tests, soundings, and borings; taking photographs or samplings; appraising the property; conducting an environmental inspection; conducting archaeological studies pursuant to section 106 of title I of the national historic preservation act, Public Law 89-665, 16 U.S.C. 470f; or determining whether the property is suitable to take for public purposes. The entry may be made upon reasonable notice to the owner and at reasonable hours.
There’s a serious problem with Rover’s citation of this section of the UCPA. As Atlas Township attorney David Lattie points out, ET Rover is ignoring another part of the law, 213.54(4), which says this:
(4) If reasonable efforts to enter under subsection (3) have been obstructed or denied, the agency may commence a civil action in the circuit court in the county in which the property or any part of the property is located for an order permitting entry. The complaint shall state the facts making the entry necessary, the date on which entry is sought, and the duration and the method proposed for protecting the defendant against damage.
So it would appear that the best case scenario here, for ET Rover, is that if they’re right and Michigan law does give them permission to survey, they can ONLY do so after first obtaining a court order. ET Rover has NOT received any court orders.
However, theres’ an even bigger problem here, one that even Atlas Township attorney David Lattie overlooks. Both Lattie and ET Rover seem to take for granted the idea that ET Rover qualifies as the sort of “agency” described in the statute above. However, they do not, which means that the very law ET Rover cites does not apply to their activities at all. Here’s why:
The first section of the Act (213.51), provides a list of “definitions” of the key terms used in the Act. One of them, of course, is “agency”– since it is an “agency” to which the part of the law ET Rover cites applies. The definition of an “agency” according to the Act is as follows:
(c) “Agency” means a public agency or private agency.
Because that definition isn’t terribly helpful, the terms “public agency” and “private agency” are also defined. And since ET Rover is obviously not a public agency, we’ll just give you the definition of a private one:
(h) “Private agency” means a person, partnership, association, corporation, or entity, other than a public agency, authorized by law to condemn property.
The important part here is “authorized by law to condemn property.” That means having the legal right of eminent domain (condemnation is the legal term for exercising eminent domain). ET Rover– this is an unassailable fact– does NOT have the legal right of eminent domain. They have NOT been “authorized by law to condemn property.” That authorization is what the FERC application process is for. If FERC approves ET Rover’s application– an application that Rover has not even filed yet— then and only then will ET Rover be “authorized by law to condemn property.”
What that means, then, is that ET Rover clearly– according to the plain language of the very statute they cite– does not meet the definition of a “private” agency (and hence an “agency.”) So while it is true that a private agency can get a court order to survey your property without your permission, ET Rover cannot do so because– again– they are NOT a private agency according to the law.
So ET Rover is either just plain wrong or they are willfully distorting the law for their own purposes. Of course, we can understand why they might think they qualify as a “private agency,” since in their mind receiving approval from FERC (and hence being granted the power of eminent domain) is a foregone conclusion. That’s how oil and gas companies think–and with good reason, given our industry-friendly regulatory agencies. It’s why Enbridge ran around invoking the power of eminent domain in front of Line 6B landowners– they did so with us– before they were even given that power by the MPSC. Here, ET Rover seems to be doing the same thing.
Of course, we’re not attorneys (though we sometimes play one on this blog). Sooner or later, some smart lawyer (we know who we’d like that person to be!) is going to have to make some version of the argument we’ve made above in front of a judge somewhere in order to bring some kind of clarity to this legal matter. Perhaps a township attorney like David Lattie will do it. But if he does, we hope he does not concede the crucial point– not about whether the UCPA gives ET Rover the right to survey that they claim, but whether the UCPA applies to ET Rover in the first place. We think it’s plain that it does not.