The ET Rover news in the last week or so has not been good. First, Lapeer prosecutors performed some very shoddy legal research which led them to issue a misinformed, Rover-friendly memo regarding Rover’s right to survey. Our guess is that some crafty ET Rover lawyer whispered some sweet legal nothings in the prosecutor’s ear, seducing him into adopting Rover’s (mistaken, we believe) view of the law.
Meanwhile, some ET Rover executives had a sit down this week with some local officials and state representatives. At a meeting at the Groveland Township offices (that’s our township), ET Rover officials met with a half dozen township supervisors, State Senator Dave Robertson, and State Representative Joseph Graves. According to Groveland Supervisor Bob DePalma, ET refused to hold a public meeting. Frankly, that’s unsurprising: refusing to communicate openly with the public is typical of the industry (because they’re both secretive and cowardly). Enbridge did the same thing.
It’s hard to get too worked up about ET Rover’s tactic, which, while reprehensible, is totally predictable. What’s more infuriating about this is the fact that the township supervisors agreed to play by ET Rover’s rules instead of calling their bluff. The supervisors could have (and should have!) just refused to have a closed door meeting, then informed FERC and the press about Rover’s unwillingness to deal openly with Michiganders. We’re reasonably confident Rover would have caved, just like Enbridge did.
The same goes for Lapeer County Commissioners, who also gave in to Rover’s stealth approach and participated in a similar closed door meeting. But that meeting appears mainly have to confused matters, rather than providing any clarity (more on this soon).
In better news, Rep. Graves has organized a Town Hall meeting for this coming week, Oct. 15 at Holly High School from 6:30 to 7:30 p.m. Evidently, Rover has not accepted Graves’s invitation to participate– because, as we said above, they are cowardly. A Town Hall is a great idea and we’re glad it’s happening, even though we have a conflict and can’t attend. On the other hand, we’re more than a little worried about what kinds of information will be presented at the meeting. It’s not clear who is going to be in charge of this town hall and how knowledgeable those persons are.
For example, we understand that Graves has invited a representative from the Michigan Public Service Commission “to give a broad outline of property owners’ rights.” Honestly, we find that prospect terrifying, for several reasons. First, the MPSC has no role to play whatsoever in regulating interstate natural gas pipelines, so they’re an odd choice to participate in this town hall to begin with. Secondly, even in those areas where the MPSC does have a role, they really don’t have much to do with property rights (although we think they should). Lastly, even worse is that we can tell you from experience that the MPSC is no champion of property rights; frankly, they seem to us rather indifferent to them (see our full series on how the MPSC failed Line 6B landowners). So while someone from the MPSC might be able to provide some general remarks about eminent domain– the sort of thing you can get from, say, the Pipeline Safety Trust or FERC’s Citizens’s Guide, they certainly are not going to be equipped to speak about the realities and complexities of negotiating easements and preparing for a pipeline construction project on your land. Put simply, an MPSC rep is a bad choice for this very important task.
We’re going to write to Rep. Graves today to share our worries about the meeting. And we’re encouraging some people we know who really are informed to attend. Hopefully, this will help counteract or clear up any incomplete or bad information.
Unfortunately, that little problem only points to an even bigger one, which involves the way (mis)information about projects like this is parceled out by various parties, some of whom may not be trustworthy (the pipeline companies), some of whom are a bit too inclined to believe those who aren’t trustworthy (state representatives and regulators), and some of whom may not be sure what to believe or may not understand these complicated processes (local officials, ordinary citizens). This is a serious problem, one that, if news accounts are accurate, is illustrated vividly by last week’s closed door meetings. The remarks by some of the officials who attended those meetings seem to indicate that at least some of those officials are either confused or credulous. Either way, that’s not going to allow them to inform vulnerable landowners and concerned citizens very helpfully.
We’ll discuss specific examples of this confusion and credulity in a follow-up post. In it, we’ll try to bring a little more clarity and accuracy to some not-so-clear and not-so-accurate statements we’ve seen in newspaper accounts about those exclusive meetings between Rover reps and local officials. Please stay tuned.
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.
Now, here’s a coincidence: the very same week that Energy Transfer Partners announced a massive new pipeline construction project that will affect a large number of Michigan citizens– including, evidently, many Line 6B landowners– state officials announced the formation of a new pipeline safety task force.
You might think that’s good news– and at first glance, we thought so too. But then we saw who is on that task force, or rather, who is NOT on it. The task force is made up entirely of representative of the very agencies that have thus far failed to protect landowners, municipalities, and the environment. Frankly, it’s outrageous.
For that reason, just this morning, we sent the letter below to Attorney General Schuette and Michigan DEQ Director Dan Wyant. Please feel free to share.
Dear Mr. Wyant and Attorney General Schuette,
This week, the Texas-based pipeline company Energy Transfer announced plans to build a new network of pipelines to transport natural gas from the Marcellus and Utica shale formations in West Virginia and Pennsylvania across the country. Nearly two hundred miles of that pipeline network would traverse Michigan, much of it crossing through the property of Michigan citizens already reeling from the recent replacement of the Enbridge Line 6B pipeline. During the latter project (which is still not complete), landowners have been mistreated, lied to, misinformed and have watched helplessly while Enbridge uprooted their lives, destroyed their property, and abused its easement rights. Many local officials had similar experiences, as Enbridge evaded local ordinances and treated townships and municipalities with disregard (at best) or disrespect (at worst). To my knowledge, neither the Attorney General’s office nor other state officials or agencies have taken even the slightest interest in this series of events .
I mention these facts as important background and context for your announcement, also this week, of a new pipeline safety task force. Although it is a very late-arriving development, I welcome this news, especially considering the many oil and gas expansion projects planned or already in progress across the state.
Having said that, it is more than a little distressing to learn that the task force that has been assembled includes not a single landowner advocate, local official, or other member of the general public (much less a representative from an environmental or conservation group)– all people who have a profound stake in protecting public health and the environment. Landowners and local officials, in particular, are on the front lines of these pipeline projects. They are the people who assume virtually ALL of the risks of these expansions (yet earn none of the rewards). They are also the people most familiar with the conditions on the ground– private property and natural resources– where many of these pipelines will be placed. In addition, they are the same citizens, as you well know, whose interests your positions exist to protect. They deserve a seat at the table and a strong voice in these matters.
I realize that pipeline operators’ dealings with landowners and local governments may not be central to the task force’s mission. However, recent experience has shown clearly that the way pipeline companies treat these stakeholders reflects the way they operate their pipelines, which affects the safety of those pipelines. Given the terrible incident in 2010 in Marshall, I’m sure you can appreciate the many and varied concerns Michigan citizens have about further oil and gas development in our state. Those concerns include a widespread perception that state officials and regulatory agencies are working more on behalf of corporate interests than on behalf of ordinary citizens. Routing and permitting decisions, for instance, already in effect exclude the very people who are most directly affected by those decisions. Excluding these citizens from this task force will only further alienate them and do little to change perceptions that state agencies fail to understand the affects their decisions have on the daily lives of regular people.
It is worth noting that a great many Michigan citizens have been working toward the goals the task force has set for itself for quite a long time. In fact, there are currently three Michigan residents (including myself) on the Board of Trustees of the national Pipeline Safety Trust. In addition, the recent “replacement” of Enbridge’s Line 6B has created a large group of citizens with first-hand experience of pipeline planning, permitting, and construction. Their experience is an invaluable resource. In short, you should have no trouble finding any number of committed, knowledgeable, thoughtful, and collaborative-minded members of the public to participate on your task force. I implore you to seek them out.
As some of you know, we were fortunate enough to participate in a forum about tar sands oil development in the Great Lakes Region a couple of weeks ago. Organized by our friend, fellow Line 6B landowner, and Notre Dame University professor Patricia Maurice and hosted by the John J. Reilly Center for Science, Technology, and Values.
Patricia and I were joined by MSU’s Steve Hamilton, who has been a consultant on the Kalamazoo River cleanup, and Beth Wallace, who you surely know by now. Each of us presented for 15 or so minutes and then we took questions from a wonderful and wonderfully-engaged audience.
We thought the event was a smashing success. The room was full and the audience interested, each of my fellow panelists was smart, passionate, and informative. We were even able to meet some people face to face whom we’ve only interacted with through the magic of the internet. It was wonderful to put some faces to some names. Our only regret (but not a surprise), no one from Enbridge attended. Still, the forum went so well that we are hoping to reprise it elsewhere in the months to come. Stay tuned.
In the meantime, you can watch the whole thing online, thanks to Prof. Greg Madey for filming and to Notre Dame’s engineering pubs/graphics crew for getting it posted online:
Thanks, finally, as well to all who attended and, especially, for Patricia for her warm hospitality and her hard work bringing everything together.
Welcome to 2014 everybody! In the spirit of the New Year, we’re taking a bit of time to look back by counting down our Top Ten posts of the year that just was. If you missed the bottom five, you can read about them here. But just to recap them quickly:
10. Line 6B Earns Pulitzer Prize
9. Pet Coke
8. Red Herrings
7. How Not to Write About Line 6B
6. IJNR Kalamazoo River Institute
Now on to the final five:
5. PHMSA. Last summer, we were lucky enough to be invited by the National Wildlife Federation to participate in a lobbying “fly-in” to ask some of our elected officials to support the NWF petition seeking some new rules on pipeline safety from PHMSA. We also wanted to meet with PHMSA officials themselves, but they declined. This did not please us, especially since, in our view, PHMSA is already far too insulated from the concerns and viewpoints of ordinary citizens– as opposed to the concerns and viewpoints of industry. We’ll have much more to say about PHMSA in 2014, especially once we return to writing about the PS Trust conference last November. And we are likely to once again adopt the tone of this post that we wrote upon our return from the D.C. trip.
4. Enbridge Thinks EPA is Stupid. Among the more astonishing Enbridge blunders of the last year was their hapless, thoughtless, tone-deaf, corner-cutting attempt to secure a dredge-site plan in Comstock Township so that they could complete the Kalamazoo River cleanup according to the deadline set by the Environmental Protection Agency. In addition to attempting to skirt local zoning ordinances, they also managed to agitate the owner of one of the state’s best breweries and as a result found themselves in a bit of a pickle. Then, in order to get out of the pickle they found themselves in, Enbridge Vice President Richard Adams went and crafted one of the most desperate, disingenuous, counter-factual, values-violating letters imaginable to the EPA asking for more time– as if the EPA were somehow completely unaware of the facts on the ground. Fortunately, the EPA turned out not to be as blind, gullible, and stupid as Enbridge evidently thought they were.
3. Why Enbridge Can’t Do Better. If you just went and re-visited that little episode, you might be wondering to yourself, as we have on countless occasions, why in the world Enbridge conducts itself this way, why they can’t just do things right, why they can’t act according to– not in opposition to– their professed values. This is something we’ve pondered long and hard, far too much really. In fact, it’s something we’re going to ponder some more in the next week or so as we tell you a little about Enbridge’s just-released “Corporate Social Responsibility Report” for the past year. But back in June, we pondered it somewhat systematically in a series of posts that considered a number of possible theories for why Enbridge behaves the way it does. We’re not sure we arrived at any clear conclusions– but we think our hypothesis rests on some pretty firm evidentiary and experiential ground.
2. Enbridge Re-writes Michigan Law. One would reasonably think, after a disaster like the Marshall spill and all we know about its causes, that public officials and regulatory agencies would scrutinize the company responsible for the disaster very carefully, that those same officials and agencies would be skeptical, hyper-vigilant, extra-tough. But one would be wrong– at least here in Michigan. From the governors (outgoing and incoming) on down, almost no one in a position of authority at the state level uttered a word when Enbridge launched its “replacement” project. Frankly, in our view those officials– especially the Governor– are partially responsible for the nightmare so many landowners have had to endure over the past two years. Or, if we’re being generous, perhaps it’s just that they believed the Michigan Public Service Commission, the agency responsible for approving pipeline projects and entrusted with the solemn power to bestow upon private corporations the power of eminent domain, would do its job.
But one of the biggest stories of the past year is the story of how the MPSC did NOT do its job, failing miserably to protect the public interest and playing the role of Enbridge’s flunky. This became clear during the Phase Two MPSC proceedings, which we covered and wrote about at length, mainly in this series detailing the laughable efforts of their public engineer, the MPSC staff attorney’s seeming advocacy for Enbridge’s arguments, the Administrative Law Judge’s background and Enbridge-friendly rulings, the gloating, mean-spirited, unprofessional final ruling, and more. Frankly (if you’ll forgive us for saying so), we think it’s the most important stuff we’ve written. That’s because, procedurally speaking, in Michigan the MPSC is the only line of defense for landowners and the environment. But rather than working for us, they went to bat for Enbridge. How that happened is a disturbing tale that was never really covered in any detail in the press (save for Inside Climate News). So if we had to choose just one single post that we wrote in 2013 that everyone should read, just one post that Beth Wallace’s mom should send around in one of her promotional blitzes, it would be this one. In it, we explain how Michigan public officials, along with a local Michigan law firm (Fraser Trebilcock Davis & Dunlap) worked together to sell out their fellow citizens to a Canadian corporation and its industry colleagues for years to come.
And yet, not even that vitally important story is #1 on our list. What could possibly top that? We’ll let you know in a final installment coming soon!
Dearest Line 6B readers,
Wanna get involved? This week, you’ve got two opportunities. Check them out:
- At noon on Sunday (July 14th), “Oil and Water Don’t Mix: A Rally for the Great Lakes” will be held at Bridge Park in St. Ignace (just over the Mackinac Bridge). The rally is to call attention to the dangerous aging pipeline owned and operated by Enbridge that runs under the straits of Mackinac. Our friend (and official hero!) Beth Wallace has worked very hard to bring attention to this serious threat to the health of the Great Lakes. And 350.org founder Bill McKibben will the be the keynote speaker at the rally. If you’ve got time and want to take a drive up the the beautiful bridge, please try to attend. More details can be found here. (And when the rally’s over, we recommend you go get yourself a burger at Clyde’s!)
- Or if you’d rather just make a phone call or write a letter, our marvelous friends at the Pipeline Safety Trust are working this week (and testifying before a congressional committee) on pointing out some serious deficiencies in a piece of legislation known as the “Natural Gas Pipeline Permitting Reform Act.” This is an industry-friendly, landowner-unfriendly bill designed to “streamline” the approval process for interstate pipelines. As you can imagine, the Trust– and we agree vehemently– thinks this is a bad idea. If you’ve read anything here about the pitiful state of federal pipeline regulations or the Michigan state regulatory process, you already know that the last thing these processes need is “streamlining” (which is really just another term for deregulation!). In our view, they are already WAY too streamlined. To take just one little example that we’re sure you’ll find alarming, the bill would simplify the process for eminent domain authorization, making it that much easier for private companies to take indiviuals’ property, severely limiting landowners’ ability to protect their rights. Members of the committee currently considering the bill can be found here. Please write to your representative and urge them to work on behalf of landowners and ordinary citizens, not large corporations!