We hope everyone is enjoying the summer. We certainly are, which is why we’ve been (more than) a little neglectful of the blog of late. We hope you’ll forgive us!
Readers of this blog are probably aware of a certain anniversary that’s coming up in a couple of weeks. We’ll be remembering also. If you’re in the area, you should try to make the event.
And while you’re pondering that dark part of Michigan’s history, you might take a moment to think about how we can prevent such a thing from happening ever again. That’s a heavy task, but we can tell you one thing that won’t help: less transparency from pipeline companies.
We’re reminded of this because of a baffling recent post from our friends up at the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA). Thanks to the dedication and hard work of their founder Dave Core, they’ve been helping landowners along pipelines and protecting property rights in Canada for a long time and have done tons of good. We appreciate their efforts tremendously and respect the model they have developed, which is quite interesting.
But earlier this month, they waded into matters down here in Michigan and quickly got themselves in way over their heads. The result is a whole lot of misinformation, shoddy argumentation, and factual inaccuracies. We’re disappointed and sorry to see it. But since they’re taking issue with us specifically– well, they try to take issue with us, but they clearly don’t understand the issue or our position– we think it’s only appropriate to respond.
Honestly, there’s so much wrong with CAEPLA’s take on the proposed changes to Michigan’s FOIA laws— what we’ve been calling the Enbridge Secrecy Bill– that we hardly know where to begin. CAEPLA’s argument is convoluted and, frankly, a little bizarre. And if we didn’t know better, we’d think it was cooked up by pipeline companies themselves. In a nutshell, CAEPLA’s position is this: demanding disclosure of pipeline companies’ proprietary information is ultimately a threat to the protection of individual landowner’s personal or private information.
Now, this is both completely nonsensical and completely irrelevant to the debate at hand (over HB 4540). We explain why below. But first we want to say that virtually every sentence of the post contains something objectionable– if not just plain wrong. For that reason, we’re tempted to dissect it sentence by sentence. But that would probably make for tedious reading and this is going to be long enough as it is. So we’ll just point out three big problems:
1. CAEPLA is needlessly snarky
We’re not sure why, but CAEPLA adopts an unnecessarily snide tone, complete with industry-like caricatures and straw-man arguments. Here’s how they begin:
House Bill 4540 is being depicted as a threat to the public because it would make it more difficult for those who “are concerned about” (read: oppose) pipelines to access companies’ “secret” information.
Now, since CAEPLA takes as its example of the bill’s critics this post of ours, one might reasonably think that the quoted phrase “are concerned about” is something we wrote. But it’s not. We don’t know who are what they’re quoting. The quote seems made up so that CAEPLA can engage in that little bit of parenthetical snark, taking a shot at people who oppose pipelines. What that has to do with Michigan’s HB 4540 we have no idea. Nor do we know what pipeline CAEPLA might be referring to; evidently they just want to conjure up some phantom image of a person who opposes all pipelines. Frankly, we’re surprised by this. It’s the same tired line we’ve heard from the industry time and again. It’s disingenuous and lazy. We’ve responded to it on numerous occasions. The fact is that sometimes, for good reasons, we oppose pipelines; sometimes we don’t.
Here’s a second example of how CAEPLA paints a distorted picture of opponents of HB 4540:
Opponents of the exemption for pipeline companies argue that FOI laws are the only way to protect stakeholders – including landowners – from the growing risks associated with aging pipelines, and from the allegedly more dangerous contents coursing through them.
Again, this is nonsense. We don’t know anybody who has ever said FOIA “laws are the only way to protect stakeholders” from pipeline risks. That would be a foolish thing to argue– which is why nobody is arguing it. Opponents of HB 4540, including ourselves, have advocated many ways to protect against the risk of more pipeline incidents. Transparency is just one piece of a very complicated puzzle.
2. CAEPLA thinks apples are oranges
As we said above, the heart of CAEPLA’s argument is that HB 4540 is essentially a privacy issue. For instance, they say:
The word secret is really just another more ominous way of saying private. As in private property. The private property of pipeline company shareholders, which of course includes proprietary information.
The word secret is not another way of saying private; it’s a way of saying undisclosed. We have no idea why CAEPLA would try to smuggle the word “private” into this discussion. Presumably, it’s meant to push all sorts of buttons, since we all know that privacy is sacrosanct. You don’t want your privacy invaded, do you? That’s actually the line that CAEPLA takes. We’re not kidding. They say so very explicitly:
Threat to Pipeline Privacy is a Threat to Your Privacy
Now that’s just plain weird. In fact, there is no way whatsoever in which this statement is true. It violates about four different logical fallacies, maybe more. Aside from its implied slippery slope (ask the pipelines to reveal their emergency response program and pretty soon you’ll be forced to reveal what goes on in your bedroom!), it conflates things that are actually quite distinct. First, it conflates the ostensible “privacy” of pipeline companies with your personal privacy. But that’s just plain false. Corporations do not have rights to personal privacy like you do. In fact, the U.S. Supreme Court just recently made that very clear. Secondly, CAEPLA conflates property rights with privacy rights. But those things, too, are very different. We don’t want to bore you, but we hope you’ll trust us when we tell you that, historically, the whole idea of a right to privacy depended upon distinguishing it from the right to property (in fact, that little bit of history is sort of a thing for us). Thirdly, it conflates pipeline companies’ proprietary information with the public records they are required to submit to state and federal governments. Those things, too, are distinct. It’s the latter that are covered by FOIA laws. The former is irrelevant.
So to sum up: property is not privacy. A corporation’s proprietary information has nothing whatsoever to do with your right to privacy. Nothing. In the same way, Michigan’s FOIA laws (especially as rewritten by HB 4540) have nothing whatsoever to do with your “personal and business documents.” There is simply no way to get from the one to the other. They’re apples and oranges. CAEPLA’s attempt to force the one on the other is at best confused and at worst a cheap ploy designed to scare you. One might even call it–to borrow a term CAEPLA applies to us– “alarmist.” In fact, if you want an example of alarmism, you really couldn’t do better than this:
But the power of government to pry open a privately owned pipeline company’s proprietary information is the same power to pry open any business’s private affairs and property, including yours.
That sounds bad, frightening even. The problem is that the government here is not prying open any company’s proprietary information. Nor is it prying open any individual’s “private affairs and property.” CAEPLA is just making this up.**
3. Which brings us to our final point: CAEPLA doesn’t understand anything at all about HB 4540 or, it appears, FOIA laws generally.
What we’re talking about here– what Michigan’s HB 4540 is about, what FOIA laws are always about– is access to public records, not to proprietary information. Opponents of HB 4540 aren’t seeking to “pry open” anything. They’re seeking to prevent pipeline companies from concealing even more information (that is, public information, such as documents submitted to government agencies) than they already do. This is CAEPLA’s biggest mistake. They appear not to understand the first thing about what HB 4540 says or why people like us think it is a very bad bill. Instead, they mischaracterize the whole debate over the bill as some attempt on the part of “opponents” to gain access to so-called “private” things they don’t already have access to, to try and “snoop” on the pipeline companies. That’s just plain silly. The debate over HB 4540 has nothing to do with “expropriat[ing] a private enterprise’s informational property.” CAEPLA is making that up, too.
Let us be extra clear on this point: nobody– NOBODY– is suggesting that pipeline companies don’t have the right (the property right) to keep certain kinds of information from the public, whether for proprietary or for security reasons. In fact, as we make very clear in the post that CAEPLA links to (which they apparently either didn’t read or didn’t comprehend), both federal and state laws already provide exemptions for that sort of information. We don’t have a problem with that.
The reason that HB 4540 is objectionable is because it goes far beyond those existing rules and laws. It would potentially allow pipeline companies to reveal even less than they reveal now. In fact, the bill’s language is so vague that it could allow pipeline companies to exempt almost anything from disclosure. And we’re not talking here about trade secrets or the emails that Enbridge executives send to their spouses, we’re talking (it bears repeating) about public records, things like emergency response procedures, the results of internal corrosion inspections, and integrity management systems– the kinds of things that would allow the public to participate in safety accountability.
To once again put this more simply: CAEPLA would have you believe that opponents of HB 4540 have embarked upon some kind of invasive endeavor to gain access to (so-called “private’) information they can’t currently access. We’re not sure if CAEPLA seriously believes that or if they are deliberately distorting the situation. Nor are we sure what CAEPLA has to gain by distorting the debate. But whatever the case, the truth is that what we really oppose is a bill that would prevent the public from gaining access to public information.
Honestly, we have no idea why CAEPLA has suddenly decided to carry water for the industry (and Enbridge in particular). Nor do we know why they suddenly decided to weigh in on matters about which they clearly don’t have even the most basic understanding. We hope they continue their good work, advocating on behalf of landowners. We applaud those efforts; we always have. But we also suggest that they might want to do a little more homework or take a little more care before weighing in on matters beyond their immediate purview.
** Even if CAEPLA’s fictional scenario were real (which it is not), here is a clear example of just how far-fetched and ill-informed it is. These are two of the existing exemptions from disclosure in Michigan’s FOIA law specifically designed to protect privacy:
“(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”
“(b) (iii) [Law enforcement records that would] Constitute an unwarranted invasion of personal privacy.”
Imagine a law that says that Enbridge or ET Rover is not required to disclose to you basic facts or details about the pipeline that runs through your backyard.
Sounds ludicrous, doesn’t it? And yet, that is exactly the law that the Michigan legislature is trying to pass. According to House Bill 4540, basic information “about the production, generation, transportation, transmission, or distribution of fuel or energy” would be exempt from Michigan’s Freedom of Information Act. That means, potentially, that the pipeline company that has access to your property — a company like Enbridge or Vector or Rover– would not have to tell you what materials are getting pumped through the pipeline on your property, where that product is going, or what plans the company has in the event that the pipeline ruptures on your property.
In fact, the language of the bill is so laughably broad that it would exempt pipeline companies from even having to disclose the specific locations of their pipelines– despite the fact that those same pipeline companies are required by federal law to mark the locations of their pipeline right of ways. The pipeline company would also not have to disclose information about its emergency response plans– something of vital importance to all of us. Think about this for a second: according to the proposed law, you would not have the right to know the same details about the operation of the pipeline in your yard that the government knows.
We’re not making this up.
As we noted on Thursday, Keith Matheny has a story on the proposed bill in the Detroit Free Press from earlier in the week. Also this week, the great Jack Lessenberry weighed in on the issue, reminding us why our legislators “don’t deserve our trust”:
They demonstrate daily that they don’t work for us, or care about what we think. Here’s the latest example: Kurt Heise, a Republican state representative from Plymouth, introduced a bill this week to prevent all of us from getting information about things like oil and gas pipelines in this state.
Currently, a lot of people are worried about a pipeline Enbridge has under the straits of Mackinac. If it broke, that would utterly devastate the Great Lakes.
Enbridge, as we know too well, had a pipeline break five years ago, sending more than a million gallons of heavy crude oil into the Kalamazoo River. Its pipeline under Mackinac would be old enough to collect Social Security, if it were a person. If that were to break it could be the worst environmental disaster in our history.
But Kurt Heise doesn’t want us to be able to find out much about it. We wouldn’t be able to find out much about high-energy power lines either, or other critical and potentially dangerous energy sources. He would exempt their owners from the state Freedom of Information Act.
To cover their backsides, the sponsors of the bill, including Kurt Heise, want to pretend that this is a national security issue. Here’s what Heise told the Free Press:
“We do not want people who may have ill intent to be able to locate the exact location of underground utilities, the pumps and surface machinery that may exist with those underground utilities, so they are protected from harm,” Heise said.
But national security risks are nothing new. Nor are pipelines in this state, which have been operating in this state for decades. So why this concern now, all of a sudden? The timing is peculiar to say the least. One plausible explanation for this timing– far more plausible than Heise’s “national security” canard– is that Enbridge’s Line 5 has been the topic of a great deal of scrutiny and concern by the public recently. It’s clear that Enbridge would rather not disclose certain information about that line and its other operations in the state (we can only speculate as to why). So they somehow managed to convince shills like Heise to type up a law for them– a law that would also apply to their industry peers, like Rover.
Whatever the reason for the bill’s appearance now, what is clear is that it won’t ensure public safety. In fact, it will do just the opposite. We know from the Marshall spill– and dozens of other similar spill all across the country— that the oil and gas industry’s failures to comply with safety regulations (and their own safety protocols) pose a far more immediate threat to property, communities, and the environment than terrorists. For that reason, what we need now is more transparency, more scrutiny– not less. Because of the failures of the industry and state and federal regulators, it is more critical than ever to provide citizens with greater information to protect themselves. Yet this bill contains language so broad and so sweeping that a pipeline company could say that almost anything related to the operation of their pipelines “could be useful to a person planning an attack on critical energy infrastructure.”
Put simply, the bill places all of us at even greater risk. What could our legislators possibly be thinking?
Two final points before we ask you to take action:
The sponsors of this legislation– by which we mean both elected officials and oil and gas companies like Enbridge– would have you believe that this bill simply mirrors federal law. Don’t believe them; it’s not true. The bill does takes language (verbatim) from federal regulations put in place by one agency (NOT the legislature) to define a process for the request or protection of potentially sensitive information. The Michigan bill goes far beyond that; it gives oil and gas companies legal protection for keeping secrets from you.
Secondly, the Michigan FOIA already has a provision that allows certain exemptions for safety and security (see section Y). HB 4540 just provides special (or extra) accommodations for oil and gas companies, like Enbridge and Rover.
The bottom line is this: it’s a very bad bill. Bad for all of us. It’s quite clearly a bill conceived, promoted, and written not by Kurt Heise or his colleagues, but by Enbridge’s cadre of lawyers and lobbyists. Nor is it a bill that will protect you or your fellow Michigan citizens or our magnificent natural resources. If anything, it will just put us all at more risk.
For that reason, we’re asking you to take action. Please take a minute to write to your state representatives. A hearing by the Oversight and Ethics Committee is scheduled for Thursday. Below are links to contact information for the members of that committee. Joe Graves has been particularly responsive to constituent concerns on such matters. But please contact your representative also. Don’t allow Enbridge to write yet another of our state’s laws.
This matter is especially urgent if you are along the Enbridge, Vector, or Rover pipelines. Don’t you think you have the right to know as much as possible about the operation and condition of the pipeline that runs through your yard?
Michigan Oversight and Ethics Committee
Ed McBroom (R) Committee Chair, 108th District
Martin Howrylak (R) Majority Vice-Chair, 41st District
Joseph Graves (R) 51st District
Lana Theis (R) 42nd District
Rose Mary Robinson (D) Minority Vice-Chair, 4th District
Kristy Pagan (D) 21st District
We knew it would come to this. MLive is reporting today that Rover is suing landowners in Washtenaw over their right to survey. This is a matter we discussed in some detail months ago.
Rover’s actions here are bad enough: they continue to fail to cultivate good relations with landowners in Michigan. Just as bad, however, is Michigan attorney John DeVries, who seems to want to pretend that there is something unusual here, that landowners who are refusing to grant permission are extremists and outliers:
DeVries said the cases are a rarity in his career of about 40 years working on about 20 pipeline projects.
“This is the first time, on one pipeline project of many that I’ve worked on, where surveyor permission had been denied,” DeVries said.
Frankly, we’re not buying it. Either that or none of those “20 pipeline projects” are projects from the 21st century.
Over the past few years, we’ve grown accustomed to Michigan public officials’ willingness to allow pipeline companies to have their way with Michigan citizens. We can’t for the life of us understand why so many of our politicians and regulators seem so much more interested in protecting out-of-state corporations rather than the citizens they have been elected (or appointed) to serve. But we fear that the pattern is continuing with ET Rover. Have ANY officials other than township supervisors stepped up to support and assist the landowners in their districts?
The latest instance of this failure of leadership in Michigan comes from Lapeer County Prosecutor Tim Turkelson who has apparently decided to weigh in on the thorny survey question that has been the source of controversy over the past couple of weeks. According to the Lapeer County Press (see the image at right), Turkelson this week issued a memo to county law enforcement supporting ET Rover’s right to survey without landowner permission. Why? Well, Turkelson apparently assigned his assistant prosecutor Mike Hodges the task of looking into the matter and Hodges went and generated what we believe is a serious misreading of the law, which Turkelson appears to accept.
Interestingly, Hodges did not turn to the UCPA that ET Rover has cited in its letters to landowners. Rather, Hodges cited a different Michigan statute, one that may or may not be applicable to the matter at hand; we’re not sure. We’re also not sure whether ET Rover has altered its legal strategy or whether Hodges and Turkelson have taken it upon themselves to apply a different statute to the matter. We’re still investigating these questions with the help of our crack team of brilliant legal minds. Stay tuned for our full analysis.
In the meantime, here is one example of how Hodges is mistaken that we’re pretty confident about: At one point, Turkelson’s memo warns property owners about disturbing the survey stakes that ET Rover is sure to place on their properties: “Property owners need to be aware that removing survey markers is a 180 day misdemeanor,” the memo says. This is a very serious warning; Hodges is telling landowners that they can be arrested (and possibly jailed!) for removing the survey markers ET Rover places on their property.
However, this appears to be a very basic misreading of the law– either that or a fundamental misunderstanding of what the ET Rover survey crews will do. We don’t know which.
Here is the part of the law Hodges refers to, section 54:210(d):
(1) A person who defaces, destroys, alters, or removes a corner monument or reference monument is guilty of a misdemeanor and shall be punished by a fine of not more than $1,000.00, or imprisonment for not more than 180 days, or both, and shall be responsible for the costs of reestablishment and replacement of the monument and filing of the corner record by a surveyor.
However, section 54.202 very clearly defines the terms “corner,” “monument” and “reference monument.” Here’s what the statute says:
(d) “Corner”, unless otherwise qualified, means a property corner, a property controlling corner, a public land survey corner, or any combination of these.
(f) “Monument” means a marker that occupies the position of a corner and that possesses or is made to possess a magnetic field.
(g) “Reference monument” means a special monument that does not occupy the same geographical position as the corner itself but whose spatial relationship to the corner is recorded and that serves to witness the corner.
In other words, corner monuments and reference monuments are stakes or other markers that are meant to establish the boundaries lines of a property. But that’s not what ET Rover’s survey crews are seeking to establish. Frankly, they don’t care much where one property ends and another begins (although they’ll need to know that). At this point, they just need to know where they can put their pipe– and that’s what their survey crews will mark. They will establish what the boundaries of their easements and temporary workspaces might be as well as where the pipeline might be placed. They need to know what kinds of things they might need to go around or under and so forth. So the stakes they put in the ground– the “monuments” are unlikely to be at corners. They’re going to be in all sorts of other places.
Obviously, we are not encouraging people to mess with survey stakes. Rather, our point here is simply that the law that Hodges and Turkelson are citing is completely inapplicable to the case at hand. Which just goes to show that they really don’t understand the situation. As a result, their hasty attempt to inform themselves and render some sort of guidance to law enforcement is inaccurate at best– and inaccurate in ways that could negatively affect landowners, not ET Rover.
Three quick conclusions about this:
First, if Turkelson and Hodges get something as basic as this matter of “reference monuments” wrong, there is plenty of reason to doubt their other claims about the law.
Secondly, this is a terribly unfortunate situation. If citizens can’t get any helpful clarity about the law from the public guardians of the law, where in the world are they supposed to turn?
Thirdly, one can’t help but wonder what motivates such sloppy legal research on the part of these public officials, It appears– and we would like to believe that this is not the truth– that their legal conclusions are based upon a predisposition to do what is in the best interests of a big corporation like ET Rover rather than the interests of the residents of their very own county.
Stay tuned for more as this story develops.
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.
Enbridge is up to some dirty tricks.
Before we explain, we need to share something positive. A few months back, we had some fairly serious problems on our property related to pipeline construction that needed to be addressed. After more phone calls and emails than should have been necessary, we finally touched base with our land agent, who took up our concerns, called in the restoration contractors to see what could be done to resolve our problems, and followed through on resolving the issues. Because of those contractors in particular, it turned out to be one of the best, if not the best, experiences we’ve had with Enbridge since this project began.
That new restoration contractor is Bowman’s Excavating. A while ago, we’d heard some good things about Bowman’s from some of our fellow landowners. We’re glad to report that we, too, think they’re doing excellent work and that, unlike Enbridge’s previous contractors– careless outfits from Wisconsin and Idaho–we believe that the crew at Bowman’s genuinely wants to do right by landowners and therefore treats them with respect and works hard to makes sure they’re well taken care of. We’re sure such care and responsiveness has a lot to do with the fact that Bowman’s is a local company. And unlike Enbridge, the good people from Bowman’s really are our neighbors. Honestly, based on our dealings with Bowman’s, we can’t say enough good things about them.
The sad part, however, is that they may be stretched a little thin, since they’ve been tasked with RE-DOING pretty much ALL of the restoration work along Phase One– because the “work” done by Enbridge’s first contractor was so bad, so shoddy, and so terribly sloppy. Because Enbridge hired such thoughtless, hurried contractors the first time around and allowed them to get away with a bunch of half-assed work, Enbridge is now paying a new contractor to do it all over again. How’s that for efficiency and good business? We’ve heard tales that those other crews are still around working on Phase Two, though we’re not certain. But we will offer this bit of advice for Phase Two landowners: if you see trucks from Indianhead Pipeline (they’re from Wisconsin) or Blue Sky Construction (from Idaho) in your area, contact your land agent and tell him or her that you’d rather have Bowman’s doing restoration on your property.
Now to our main point: while this latest interaction was for us, on the whole, a very positive one, it was very nearly spoiled when our land agent asked us to sign a document releasing Enbridge from further restoration obligations as a precondition to settling our outstanding problems. We had heard some stories that Enbridge was pulling this trick with other landowners. So we weren’t altogether surprised. But we were taken aback, particularly since the problems we were settling had nothing to do with restoration; they were about damages to our property. For that reason, the demand that we sign off on restoration sounded to us like some kind of extortion tactic, an attempt to strong-arm us into releasing Enbridge from further obligation– and that’s exactly how we responded at the time. Fortunately, the agents backtracked before we really blew our stack. And while we have great confidence that Bowman’s has done a great job restoring our property, we have not signed off on restoration nor are we under any kind of obligation to do so–now or ever. Neither is any other landowner, despite what a land agent may tell you. You may choose to sign one of those waivers, but you do NOT have to.
But here’s the bigger problem: we know that Enbridge has been employing this tactic with lots of other landowners as well: withholding restitution owed for damages and other things (like those makeup payments) until landowners agree to sign off on restoration. We think almost anyone would agree that this is wrong, unfair, unethical, and certainly unneighborly. We can’t help but wonder if Enbridge’s senior executives know about this or whether it’s some scheme cooked up by the land services department. More importantly, we can’t help but wonder whether this coercive little ploy is even legal. Perhaps some of our readers from the law firm of Fraser Trebilcock Davis & Dunlap can look into that question and let us know. In the meantime, we’re going to see if any of the journalists we know can find that out. We’re also going to ask the Consumer Protection Division of the Michigan Attorney General’s office what they think about it.
We’ll let you know what we learn. In the meantime, we would recommend that you not allow Enbridge to pressure you into signing any documents releasing them from further restoration obligations if you do not feel completely, totally, 100% comfortable doing so. Enbridge has a legal obligation to restore your property to pre-construction condition and to compensate you for damages incurred during construction– and that obligation is NOT contingent upon you signing any documents whatsoever. Don’t let your land agent tell you otherwise. But don’t just take our word for it. If you’re not sure what to do, contact an attorney.
We just received word that the Michigan Cats protestors have been convicted on all counts. We are angered and saddened by the news. More coming soon.
We’ve been caught up with some matters not directly related to Enbridge (though not completely unrelated either!). Some companion legislation to a bill giving tax breaks for oil and gas development proposes to eliminate some protections for property owners subject to condemnation when a pipeline company comes a-calling. That should sound familiar to folks along the Line 6B route. We know first hand how the kind of disregard a pipeline company can have for landowners. At the very least, if our state is going to encourage the building of more pipelines–and we’re not convinced at all that that’s a good idea– protections for property owners should be considerably stronger, not weaker. So if you haven’t already, please take a moment to contact your House representative and register your objection to HB 5254.
But that’s not the point of this post. We’ve been so focused on this matter, we’ve failed to update you on another one: the MI CATS protestors– the ones who attached themselves to Enbridge equipment at a work site last summer are currently on trial in Ingham County. To catch up on the deliberations the past few days, you can read news articles here and here and here and, in even more detail, at the MI CATS web page.
We hope you will show them a bit of support. The form of protest they engaged has its risks, to be sure– and they know that. But the felony charges they’re facing are, in our view, totally disproportionate and appear to be the result of a pointlessly aggressive prosecutor trying to be a hardass and a judge who, for reasons that aren’t at all clear, is oddly petulant and self-indulgently blustery. We fail to see how the harsh prosecution of these three individuals–Barb Carter, Lisa Leggio and Vicci Hamlin– in any way protects the public or serves the public interest– especially when the state (in the form of the Governor, the legislature, and the MPSC) has failed so miserably to protect the public and landowners from Enbridge’s misbehavior and its attempts to skirt regulations, flout local ordinances, violate its permits, and abuse its easement rights (go ahead, check our archives). Is there anybody who seriously thinks, to take one small example, that what these protestors caused more public harm than what Enbridge did to Ore Creek? This prosecution is a vivid example of how wealthy and powerful get to have their way while those without wealth and power who try to call foul take it on the chin. That is not kind of justice.
This is why, although we’re not likely to go chaining ourselves to any construction equipment any time soon, we still support the MI CATS.
As we said yesterday, we learned some things– not all of them very helpful or comforting– by watching the morning’s House Energy and Technology Committee hearing on House Bills 4885, 5254, and 5255. One thing that became very clear is that the legislation is not, as we at first supposed, aimed principally at encouraging fracking (although it certainly doesn’t rule it out). Rather, the bill is primarily driven by Enhanced Oil Recovery, a process of extracting more oil from existing wells by injecting CO2 to help carry it to the surface. Relative to other kinds of oil and gas development, as we understand it, EOR isn’t so bad.
This bit of clarification came, in part, courtesy of the testimony of an executive at Core Energy. Who, you might ask, is Core Energy? Well, according to their website:
Core Energy, LLC is actively involved in innovative oil production technologies and is the only company in Michigan currently performing CO2 Enhanced Oil Recovery (EOR) operations, which is making Michigan’s economy stronger and more energy independent while sequestering CO2. In addition to CO2 EOR, Core Energy is leading the way for Geologic CO2 Sequestration in Michigan by hosting a public/private partnership to research the storage potential of Michigan’s geology. Geologic CO2 Sequestration is a world changing technique that could help clean the atmosphere by removing CO2 and permanently storing it deep underground.
Now, the fact that we are talking about a bill more or less specifically designed, evidently, to help advance Core Energy’s interests is plenty troubling– but in an unsurprising sort of way. Far more troubling, however, is that the guy from Core Energy seemed to be the only one in the room who knew much about the particular bill in this grouping that has us most upset: HB 5254. That’s the one that would change some language in Act 16 from “landowner” to “owner of agricultural property.”
A few of the Committee members, notably Collene Lamonte and Marylyn Lane asked about this change specifically. The main sponsors of the legislation, Aric Nesbitt and Rick Outman, didn’t have a clue. They were clearly just following orders (which is pretty appalling; is it too naive to expect that sponsors of legislation understand the legislation they are sponsoring?!). The closest anyone came to providing a clear answer came from the guy from Core Energy and the representative of the MPSC.
Their claim is that the change is just a “technical change.” They insist that the original intent of the section of Act 16 in question was only to provide provisions for agriculture. Therefore, changing “landowner” to “owner of agricultural property” is merely to clarify the original intent of the law. We suspect that quasi-explanation satisfied some of the members of the committee. However, there are serious problems with this “explanation”:
First, it may very well be true that the legislators who passed the law in 1929 were thinking mainly of farm land. That certainly seems plausible. But then again, it might not be true. After all, the line with the proposed change is not the only place in that section of Act 16 where the word “landowner” is used. For example, here is the change we’re talking about:
3) Any offer to
a landowner an owner of agricultural property for an easement for the purpose of locating, constructing, maintaining, operating, and transporting crude oil or petroleum pipelines on agricultural property in this state shall include all of the following information:
In fairness, it may well be that the change indicated above does clarify that sentence somewhat. However, in the context of the rest of the section, it’s not all that helpful. For instance, this is what it says just below (3):
(a) The anticipated physical impact of pipeline construction on the landowner’s property.
Does landowner here mean “an owner of agricultural property”? Or what about a little later in the section, where it says this:
(g) That the landowner has rights under the uniform condemnation procedures act, 1980 PA 87, MCL 213.51 to 213.77, and a copy of the act to the landowner.
Does the word landowner here also only mean “owner of agricultural property”? Or is the use of the term this time describing any landowner? The point is this: if the original intent of the law was to apply only to agricultural property owners, why did the original law sometimes use that term and other times use the term “landowner”? Or, if those terms are supposed to be interchangeable, why doesn’t the newly proposed law change the word landowner throughout? Better yet, why doesn’t it just clarify this in the “definitions” at the top of the section and be done with it?
So there are two problems here: first, the intent of the original law is not at all as clear as Nesbitt and others want to convince us it is. Secondly, the attempt to clarify that matter by the drafters of the new bill (whoever they are; clearly it’s not Nesbitt) is also not clear. In fact, it is a really awful attempt at clarification. Maybe that’s why Aric Nesbitt is so willing to make it clear that he did not draft it. We don’t blame him.
But that’s not all. So secondly, even if one wants to accept that the “intent” of this part of the law pertains only to agricultural property, the law as written appears to cover non-agricultural landowners as well. Given that fact– though this is a matter of legal interpretation of the sort that we’ve discussed before— why would lawmakers not simply want to err on the side of more landowners being protected rather than fewer? What do the citizens of Michigan have to gain by limiting the people to whom these very minimal protections apply?
Thirdly, even the clarifying term “agricultural property” isn’t especially clear. What is the definition of agricultural property? For instance, we have a very large garden here and fruit trees. Does that make ours an agricultural property? We also have friends who raise goats and chickens for their own use. Does that property count as agricultural?
Fourthly, once again contrary to what Nesbitt & co. would have us believe, there are very good reasons why the protections in the section of the act in question should apply to all landowners. Here, for example, are some of those protections:
(b) Written assurance that any agricultural drainage tile that is damaged or removed during the construction or repair of a pipeline will be repaired or replaced to preconstruction working condition. As used in this subdivision, “drainage tile” includes any surface or subsurface system by which the movement of water is redirected.
(c) Written assurance that topsoil that is disturbed due to construction or repair of a pipeline is properly separated and replaced. As used in this subdivision, “topsoil” means surface soil that is presumed to be fertile as distinguished from subsoil.
(d) The method by which property will be appraised.
Let’s take these each, briefly, in turn: (a) there are plenty of properties, like ours, that used to be farmland. And many of those properties have drainage tile on them. Why would that drainage tile be exempt from these rules? (b) the mixing of topsoil has been a serious problem on the Line 6B project, even on our very property. Why shouldn’t the separation of topsoil issue apply to everyone’s property? After all, it’s not just crops that need good topsoil; trees do too. And (c) lots of us have concerns about how our property was appraised by Enbridge. Those appraisals were the source of a great deal of contention during compensation negotiations. Why wouldn’t the legislature want all landowners to know how their property is being appraised?
Lastly, the final provision in this part of the Act is as follows:
(g) That the landowner has rights under the uniform condemnation procedures act, 1980 PA 87, MCL 213.51 to 213.77, and a copy of the act to the landowner.
According to the sponsors of the bill, “landowner” here means “an owner of agricultural property” (even though, as we noted above, they’re not changing this language). Why in the world would legislators not want ALL landowners, agricultural or not, to be notified of their rights under the uniform condemnation procedures act? What could possibly be gained by NOT requiring that a copy of that act be given to all landowners?
The bottom line is this: there is absolutely NOTHING to be gained by the public if the changes proposed in HB 5254 are passed. Nothing. The only benefits bestowed by the changes would go to oil and gas companies, who would have to be somewhat less careful with regard to their dealings with non-agricultural landowners. Furthermore, what the Act presently requires is so very minimal that it in no way harms those same oil and gas companies in the slightest. In other words, HB 5254 is completely inessential to this legislation as a whole. The ONLY thing it does is removes protections for landowners. That is its only effect. Why would a single legislator, Republican or Democrat, possibly vote for such a thing?
On Friday, we brought you the disturbing news of some new legislation introduced in the Michigan House of Representatives by Rick Outman. HB 5254 makes a very subtle and seemingly small change to Act 16, the Crude Oil and Petroleum Act, removing the word “landowner”and replacing it with “owner of agricultural property” from the section of the bill describing the rights of those whose property will be acquired through eminent domain.
This, in our view, is a proposal that should trouble everyone. Whatever your view of the use of fracking or oil and gas development or state energy policy or climate change, it’s hard to imagine anyone– with the exception, it appears of Rick Outman and his compatriots in Congress– who thinks that pipeline companies should get to do whatever they want, without any rules or restrictions, with your private property. Trust us, when some company comes knocking on your door, backed by the state, to dig up your back yard (and you can’t stop it), you will hope that there are as many rules and regulations in place to make sure they behave and treat you and your property respectfully as possible. Just ask these people. As it stands right now, there are precious few such rules. After this bill, there will be even fewer.
Which is why we believe this is an issue that should create bipartisan coalitions. EVERYONE should be troubled by it, from conservative anti-government champions of private property rights to liberal environmental groups looking to halt or at least slow oil and gas development. We’ll be interested to see if such groups, whether alone or together make any noise about this bill. We certainly plan to and we have already written our state representative Joseph Graves. We’ll be sure to update you on his response.
In the meantime, there’s a bit more to this story that we need to share. As it turns out, this legislation is not solely about fracking, although that is certainly an element of it. It is actually part of a suite of interrelated bills designed to promote gas and oil development (an effort that, according to an MiLive story this morning, has yet to pay off). In fact, the two bills we mentioned on Friday (HB 5254 and 5255) will only take effect with the passage of another bill HB 4885. That bill, sponsored by 16 House Republicans, including Joseph Graves would give tax breaks to oil and gas developers by significantly reducing the severance tax those companies currently have to pay to the state for the oil and gas they extract.
In fact, something else we learned after looking in to this is that CO2 is not just used for fracking. It is also commonly used for oil extraction as part of what is called “Enhanced Oil Recovery.” So this suite of bills is not only promoting fracking, but further oil development as well.
But, again, you don’t have to oppose HB 4885 and the encouragement of more oil and gas exploration– personally, we do oppose it; we think it’s the wrong path for Michigan and poses too many dangers to our precious natural resources–to oppose its companion legislation. Indeed, it’s astonishing to us that the sponsors of the tax break bill aren’t proposing exactly the opposite sort of companion legislation: a bill that would give landowners MORE, not fewer, protections. That would seem to be a way to make the prospect of more development and more pipelines more palatable to those who might otherwise oppose it.
Instead, for reasons we simply can’t fathom our state elected officials– too timid and cowardly even to require energy companies simply to behave themselves on the properties of those constituents the official have been elected to serve– seem to want even more Michigan citizens to endure the pain and misery experienced by Line 6B landowners.
Please call or write your state representative and urger her or him to stand up for private property rights, and for the protection of the interests of you and your fellow citizens, not those of the oil and gas industry.
Note (Jan. 28, 2014): the House Committee on Energy and Technology held a hearing on this legislation this morning. Here is a brief overview of what happened. More to come.