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 | 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 |
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 |
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 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.
by Jeffrey Insko | Nov 16, 2012 |
We spent a little time skimming the transcript of Tuesday’s MPSC hearing on phase 2. It consists largely of Enbridge attorney Michael Asthon insisting– by way of objections to questions asked to Enbridge employees– that almost nothing whatsoever is relevant to the proceedings; not Marshall, not the NTSB report, not anything pertaining to phase one, and on and on. And when it comes to Marshall and the NTSB report, Administrative Law Judge Teresa Sheets agrees with Ashton:
In addition, I think that anything that did happen with the previous rupture in the Marshall area is not relevant to these proceedings. That is a very specific incident; the correction, corrective action orders addressed what happened, addressed steps that needed to be taken, et cetera, including that which led us to these proceedings, because they I think very clearly directed Enbridge to replace rather than repair, and I’ve said that from the beginning.
Of course, we understand that this is a legal question pertaining to the particular charge of the MPSC and the powers granted to it by the state. Yet this just reveals one of the many problems with the approval process, since in any rational world, the idea that Marshall isn’t relevant to these proceedings is a complete absurdity.
We were also struck by this little exchange between Project Manager Thomas Hodge and intervenors’ attorney Gary Field:
Q: Mr. Hodge, when dealing with landowners from time to time, and to the extent disputes arise, does Enbridge have some type of internal appeal process where the landowners can escalate the dispute to a higher level, or does that not exist?
A: We have various informational packages out there to the landowners that have 800 numbers they can call and leave messages on, you know, we’ve made, we’ve had public meetings where we’ve met with landowners and I’ve handed out my cards, Mark Sitek has handed out his cards at these meetings. As far as a formal appeals, or process for them to escalate a dispute with our field land agents, no, I can’t say that we have a formal process, but we try to get enough information out there to the landowners that they know they have an avenue to escalate the issue if they are not getting satisfaction from the land agent that they are dealing with. I would expect them to, you know, they — these land agents have a supervisor in the field, so I would hope that if there was a dispute that was having, was reaching the point where it was unable to be resolved, it would progress in a logical sequence up the chain until we can get it settled.
Q: But I take it your advice would be to call Mr. Sitek if all else fails?
A: No, that would not be my advice.
We have no idea what these public meeting are; there certainly weren’t any over in our area. And we can tell you first-hand that it is not at all easy to move “up the chain” to discuss one’s individual situation. With the exception of our contact with Mark Sitek– which Tom Hodge here advises against– our attempts to contact anyone “above” our land agent were more or less completely ignored (yes, we’re talking about you, Mike Bradburn and Doug Aller).
And, as we’ve pointed out several times now, we were similarly ignored by Enbridge reps at last week’s PS Trust conference, a fact all the more disturbing in contrast to the way that other companies handled landowner criticisms. In a follow up to the conference we received just yesterday, our new friends and fellow panelists Jon and Bonnie Kruse report that:
. . . we had a serious conversation with a senior TransCanada land agent at the Conference. He came up to us twice. He said he never wanted to sit thru another hour like he experienced during the Landowners presentation. We gave him and Vern Meier specific suggestiions on what they can do to establish positive landowner relations so they would not experience such an hour again. We told them—See the Landowner as your partner, approach the landowner as you would a partner, treat the landowner as your partner, engage the landowner as your partner in the process from siting, thru construction, and reclamantion. Respect the landowner as your partner—-make phone and return phone calls, make appointments, and be consistent.
This is, of course, excellent advice. And it’s not that different from what Enbridge claims to do. But as so many of us can attest, their words are one thing; their actions quite another.
by Jeffrey Insko | Nov 12, 2012 |
So preoccupied with other things (mainly, the PS Trust conference), we totally forgot to post an update on last week’s hearing in federal court. You may recall that the hearing was set to resolve the issue of whether POLAR has “standing” to sue Enbridge for noncompliance with municipal ordinances, state statutes, and the Michigan Constitution. It’s a tricky procedural question– but also what’s referred to as a “threshold” question. If POLAR can’t cross the threshold issue, they can’t enter the room where the more substantive questions– like local consent– reside (and can be addressed).
Just prior to the hearing, however, there was (in our view) a game changer: Brandon Township filed a motion to intervene in the lawsuit. This is important because there is no question at all as to whether Brandon Township has standing– a municipality most certainly has standing to sue to enforce its own ordinances.
We were unable to attend the hearing, but we’ve been debriefed and can tell you this much: Judge Cleland acknowledged the Brandon motion to intervene, but he hadn’t read it and so did not rule (on the question of whether to allow the intervention; we don’t see any reason why he would not allow it, but who knows?). The hearing on POLAR’s standing then proceeded.
According to all accounts from the POLAR side, the hearing went very well. POLAR attorney Bill Tomblin apparently did quite a bang up job, while Enbridge attorneys seemed a relatively ineffectual and bumbling. The POLAR team and its supporters left the hearing feeling reasonably optimistic and Judge Cleland said he would issue a ruling in a week. So we should know something more in the next few days.
We have no idea what will happen from here, but we’ll hazard a guess (based on our own observations and impressions): Judge Cleland doesn’t want this case in his court. He would prefer not to rule on it one way or the other, especially since the real substantive issues at stake are local and state, not federal, matters. So he’s looking for a reason to get it out of his courtroom. That could mean a dismissal (which could be bad for POLAR), but it could also mean– and this is what we’re predicting– kicking it back to Oakland County court, which in our view, could be quite good for POLAR. Please don’t hold us to any of that!
by Jeffrey Insko | Nov 6, 2012 |
Yesterday, Brandon Township filed a “motion to intervene” and a “complaint in intervention” in the POLAR lawsuit in federal court. We have copies of both in our possession and, in our non-legal-professional opinion, the latter is excellent. Not only does it seek to enforce the local consent requirement of the Michigan constitution. It also seeks relief from the court (that is, an injunction against Enbridge) until Enbridge complies with the township’s Woodlands ordinance and other township ordinances.
If we can find some time, we’ll try to post more details. But there are plenty of other matters we also want to get to:
Apparently, we were mistaken about the absence of an Enbridge ad in the Free Press this week. We can’t explain why we couldn’t find it in the copy we bought, but we now have a transcript of it, though not the actual ad. You won’t be surprised to learn that we’ve got plenty to say about it (as we have with the others).
We’ll wrap up our series on our conversation with Enbridge VP Mark Sitek. In our view, our last conversation was on the whole very disappointing (and disheartening), though it was instructive in important ways. And there is one tiny piece of reasonably good news to report.
The Pipeline Safety Trust conference is this week. There will surely be plenty to report.
