by Jeffrey Insko | Feb 3, 2013 |
Last week’s MPSC ruling– which we’ve already discussed at length— has received plenty of press, though not much of it is particularly detailed. We already linked to Eric Lawrence’s article in the Detroit Free Press (Lawrence understand the importance of the NTSB report!). Over at MiLive, they’ve run two articles about the ruling. The first contains a couple of gems from our old friend Jason Manshum. There’s the familiar condescending Enbridge chestnut about how people use petroleum products in their everyday lives:
“This is all about meeting demand in the region, specifically Michigan,” he said. “We (consumers) are using more fuel and products that come from petroleum.”
And then there’s the fuzzy, evasive claim about all the jobs this product is going to create:
The project should provide about 1,000 temporary and permanent jobs, Manshum said.
We’ve already discussed how this claim is at best disingenuous. Notice the equivocation of Manshum’s “should” there. And notice how Manshum does NOT say that these will be Michigan jobs. And notice that he says nothing about how many of those will be temporary and how many permanent.
The other MiLive article gives us a statement from an MPSC spokesperson:
“The commission took a very long and hard look at the entire record of the case, and they did determine … that the pipeline will serve a public need, that it is designed and routed in a reasonable manner, and that it meets or exceeds current safety and engineering standards,” said MPSC spokeswoman Judy Palnau.
Please take note and remember this three-part standard here. As we’ll discuss at length in the next installment of our newest series, this is very important. And the fact that the Judy Palnau has gone out of her way to emphasize it– effectively making it a talking point–only goes to show how central this framework has become for this case. Here’s the teaser: Enbridge created this framework.
In The Macomb Daily, Frank DeFrank cites the same three criteria at the end of his article. He also spoke with Armada Township supervisor John Patarek, who says that he:
has met with Enbridge officials and Paterek said company officials have communicated well with residents and township officials “so far.”
We hops that “so far” is an expression of caution, or better, of skepticism. We also hope that he’s spoken with his peer Kathy Thurman.
Beyond Michigan, the San Francisco Chronicle has a nice piece on the news. They had the good sense to call our friend Beth Wallace, who is clear, smart and on-point as always:
The National Wildlife Federation, one of the environmental groups that criticized Enbridge for the spill, said it was disappointed that the Michigan commission approved the permit. While replacing the pipeline is a good idea, the company shouldn’t have been allowed to divide the project into segments, which enabled it to avoid a more stringent federal review, said Beth Wallace, the federation’s Great Lakes community outreach adviser.
“There would have been more public input as well as a long-term environmental impact assessment” if the federal government were involved, Wallace said.
Finally, not directly related to the MPSC decision, check out one of our favorite Enbridge-made activists the irrepressible Michelle Barlond-Smith, who was up in Canada last week telling it like it is, as she always does. Go Michelle!
by Jeffrey Insko | Feb 1, 2013 |
This morning, over our coffee and toast, we gave yesterday’s MPSC order approving Enbridge’s phase two application a thorough reading. Ordinarily, these things are, you won’t be surprised to learn, rather dry documents. But we have to say, this one is slightly less dry– mostly that’s because it adopts such a nasty and frankly unprofessional tone. To our ear, it’s as if somebody over there at the MPSC has taken offense that anyone would dare to try and raise any pesky questions that go beyond the extraordinarily narrow framework created by Enbridge and all-too-willingly adopted by ALJ Theresa Sheets (this particular point is the topic of the upcoming next installment of our latest series). The order doesn’t just disagree with the intervenors in the case; it practically scolds them for taking up the commission’s time.
After a lengthy presentation of the sequence of events in the hearing and the positions of the parties (Enbridge and the intervenors), the commissioners’ ruling begins with this cheap shot:
Many cases litigated before this Commission involve matters that are arguably close calls. This case is not one of them. Whereas the evidentiary presentations by Enbridge and the Staff were thorough and complete as discussed above, the evidentiary presentations of the pipeline’s opponents were virtually nonexistent. This introductory observation is critical because the Commission is required to base its findings on record evidence.
Now, we weren’t aware that there was a margin of victory in these things (perhaps the commission should have provided the final score!) and the purpose of this opening statement is far from clear. Its claim to the contrary, this “observation” is hardly “critical.” At best it’s gratuitous, it nearly gloats, and appears designed to do little more than rub the intervenors’ noses in the ruling.
As for the notion that “the evidentiary presentations of Enbridge and the Staff were thorough and complete,” this is absurd on its face. Sure, Enbridge presented a lot of evidence. But the Staff? As we demonstrated last week, their witness Travis Warner hardly did anything at all. Making a phone call to the Marathon refinery, looking over Enbridge-supplied maps, admitting to only having reviewed PHMSA standards “very generally” (“I’m not extremely familiar with them,” Warner stated in the record), and “rel[ying] on Enbridge’s opinion” for his own assessments hardly constitutes a “thorough and complete” presentation of evidence. Despite this, astonishingly, the rulings states (presumably with a straight face) that “The Commission finds that, in light of the Staff’s expertise, the Staff’s testimony is entitled to significant weight…” Honestly, just read Warner’s testimony and read our discussion of it. Does anybody seriously believe he brought to bear some kind of weighty expertise on this matter?!
Finally, it’s cruelly ironic to assert that the “evidentiary presentation of the pipeline’s opponents were virtually non-existent” when so much of the evidence those “opponents” tried to introduce was ruled inadmissible by Judge Sheets: the NTSB report, the matter of the state Constitution, the testimony and exhibits by Deborah Hense, to offer just a few examples.
But that’s not the worst of it. The order is especially (and needlessly) snide towards Steven Fischer. We suspect this is because he is not an attorney by profession and the MPSC’s general attitude with regard to ordinary landowners is to treat them as mere annoyances (about which, more below). This is what the order has to say about Fischer:
In reaching its determination on the public need issue, the Commission finds that it is appropriate to discount the positions taken by Mr. Fischer and the Landowner Intervenors regarding the proofs. Mr. Fischer’s arguments are mostly generalizations based not on record evidence, but on his own suppositions. As pointed out by Enbridge, such arguments are wholly inappropriate because both the Commission’s Rules of Practice and Procedure16 and the Michigan Administrative Procedures Act17 require the Commission’s decisions to be based on record evidence. Mr. Fischer offers none to support his positions.
Obviously, it is the Commission’s prerogative to disagree with Steven Fischer, but as a PUBLIC commission, it seems to us their statement of that disagreement could at least show him the respect due to someone who has worked exceedingly hard on behalf of the public. The Commission could find his arguments ultimately unpersuasive (even we didn’t always find them entirely persuasive), but still recognize that they were an important– even vital– part of process. Instead, what we have here is more nose-rubbing.
One final example of the needlessly unprofessional tone of the order, this one tucked into a footnote addressing the matter of the NTSB report:
It is abundantly clear that while the Landowner Intervenors made lofty claims of the need to review the NTSB Report so as to “present those expert witnesses on behalf of the landowners that would be very highly qualified to speak on the subject and would give your Honor, you know, both sides of the story so you can make as informed decision as possible,” [2 Tr 116] and that they demanded and received additional time to do so, in the end the Landowner Intervenors failed to submit admissible testimony from a single witness, expert or otherwise. Accordingly, the Commission finds that the NTSB Report constitutes nothing more than a red herring in this proceeding.
First, it is once again gratuitous to take such a mocking attitude (ie, “Landowner Intervenors made lofty claims”), which does little more than show a type of contempt toward landowners. Secondly, what sort of admissible testimony could the intervenors possibly have been able to produce when the subject upon which they would have been called to testify (the NTSB report) was ruled inadmissible in the proceedings? And thirdly, the statement that “the NTSB Report constitutes nothing more than a red herring in this proceeding” can only be taken as a deliberate insult, since it accuses the intervenors of some kind of cynical ploy to lead the proceedings astray (either that, or the Commission doesn’t understand what the red herring metaphor means). When the plain fact of the matter is that without Marshall– and that’s what the NTSB report is about–there would be no application U-17020 upon which the Michigan Public Service Commission could issue such a snotty, supercilious ruling in the first place.
We always knew the Commission would approve Enbridge’s application; we just didn’t know they would be so churlish about it.
by Jeffrey Insko | Feb 1, 2013 |
Yesterday, the MPSC granted Enbridge approval for Phase Two of the project. We have the order and will report more– as we’ve already been discussing the MPSC recently— once we’ve read through it. In the meantime, here’s the Detroit Free Press story on the news. Needless to say, we are in perfect agreement with the “Enbridge critic” that Eric Lawrence quotes:
“We knew months ago that approval was inevitable. In my view, it’s unfortunate that the MPSC process so poorly serves the public, for example, by not allowing the NTSB report into the record and by making it so difficult for landowners to make themselves heard,” Insko wrote in an e-mail.
by Jeffrey Insko | Jan 21, 2013 |
Today we launch our newest series. As we mentioned a week or so ago, there’s been quite a bit of activity over the last month or so at the Michigan Public Service Commission (MPSC) regarding Enbridge’s application for Phase Two of the Line 6B “replacement” project (running from Lake County, Indiana to Marysville, Michigan).
It’s no secret that we (and plenty of others) think the MPSC process is deeply flawed. It’s a terribly weak-kneed, embarrassingly toothless regulatory body comprised of just three political appointees. It’s an agency with very little power (and perhaps even less will), circumscribed by a very narrow legislative charge. For instance, when it comes to approval of projects like Line 6B, the MPSC is guided by Act 16 of Michigan law from 1929. The MPSC only has to determine whether
. . . the applicant has demonstrated a public need for the proposed pipeline and that the proposed pipeline is designed and routed in a reasonable manner, which meets or exceeds current safety and engineering standards.
This very narrow function is important because in the proceedings for both phase one and phase two Enbridge attorneys have reminded the commission over and over that anything not directly related to public need, routing, or safety standards is irrelevant. And typically– unfortunately–this argument works.
At any rate, last month, the MPSC staff filed its initial brief on Phase Two, recommending approval of the Enbridge application. The brief states that
Enbridge has met the requirements of 1929 PA 16 by accepting the act and filing a plat of the proposed pipeline and its facilities, and by demonstrating the public need for the proposed pipeline, that the proposed design and route is reasonable, and that the proposed pipeline meets or exceeds current safety and engineering standards . Staff requests that the Commission approve Enbridge’s application.
In subsequent installments of this series, we will discuss at length some of the interventions and arguments, for and against, before the commission. For now, we’d just like to comment on how MPSC staff arrived at this determination. According to the brief”s argument, MPSC staff relied primarily on the testimony of Enbridge witnesses Mark Sitek (our readers will certainly remember him) and Tom Hodge (you’ll remember him as well). In addition, the MPSC placed great weight on the testimony of their own witness: Travis Warner, a “public utilities engineer.”
Now, we have no reason to believe that Travis Warner is not a perfectly competent professional. And, in theory at least, it does seem like a good idea that the MPSC would have its own (presumably) independent expert to testify with regard to the claims made by Enbridge witnesses. However, learning a bit about Travis Warner and a careful reading of his testimony gives us a little pause.
For one thing, it looks to us like Travis Warner is a teenager. Okay, maybe not a teenager, but he just received his BA in mechanical engineering in 2008; he’s very young and for that reason obviously does not possess a great deal of experience with regard to pipeline construction and safety. To be clear (and fair), we’ve got nothing against youth per se and his age obviously ought not disqualify him from providing helpful testimony. Nor are we suggesting that young Travis Warner does not have a bright and shining career ahead of him (we have no idea). But we’re pretty confident in saying that he probably doesn’t know half as much about pipeline construction, regulation, and safety as, say, our friend Robert Whitesides.
Our supposition is supported by his testimony in the MPSC hearings (the same testimony, essentially, he gave during Phase One). For instance, on the question of public need, “Warner testified that replacement of Line 6B would permit it to increase its capacity, and that the refineries would have the capacity to handle this increase.” As far as we know, nobody has ever disputed that replacing Line 6B would permit it to increase its capacity; in fact, it doesn’t really take an engineer to verify that simple fact. Why the MPSC needed to trot out an expert to state the obvious is a little strange. Equally strange is Warner’s testimony that
he had confirmed that the Marathon refinery in Detroit had recently expanded, increasing its capacity from 106,000 barrels a day to 120,000 barrels a day. 6 TR 467. Mr. Warner also testified with respect to integrity issues on Line 6B, stating that data from the Pipeline and Hazardous Materials Safety Administration (PHMSA) from 1991 to 2010 show that corrosion is the leading cause for pipeline failures. 6 TR 470.
A couple of points here: first, anyone, engineer or not, could determine whether the Marathon refinery in Detroit has recently expanded. All you need is access to the internet. The same goes for the data on pipeline failures. That information is also readily available to anyone. Which is to say that Travis Warner’s testimony ought not to carry any particular weight; he simply stated what anybody with some basic research and reading comprehension skills could have stated. Treating Warner’s testimony as if he imparted some important specialized information that could only come from a “public engineer” is sort of like treating Michael Milan’s positive view of Enbridge as definitive simply because he happens to be a doctor and likes wearing camo gear.
Warner also testified on the question of routing, stating that “he had reviewed the maps and aerial photographs of the proposed route.” Based on that review, he “testified that it is Staff’s position that the proposed route is the most direct and reasonable and will have the least impact on the environment.” What’s disturbing here is that Warner (and MPSC staff) evidently believed that looking over some maps and aerial photos “provided sufficient detail for Staff to review the route.” But perhaps they’d have changed their minds if, say, they’d taken a visit to Beth Duman’s house or heard about the experience of Bill Aldrich. What’s more, we don’t at all understand what qualifies a mechanical engineer to make authoritative pronouncements about environmental impacts.
Lastly, Warner testified in the one area where one would think his expertise as an engineer would prove to be of some kind of value. Yet here, Warner has almost nothing to say, other than to note that PHMSA is the federal agency responsible for pipeline regulations and to point out the relevant federal statute. Again, anybody with even a passing familiarity could have testified to that fact.
So what is the value, really, of the one single witness the MPSC hires to help them decide a matter of great importance to the citizens of the state of Michigan? Virtually nothing. In fact, Warner all but acknowledges as much himself. Here, for instance, is how he describes his role at the MPSC when asked about what is involved in his review of pipeline projects:
I analyze the public need of the project and physical impacts that a proposed pipeline will have on the state of Michigan. This analysis includes an evaluation of the proposed route to minimize the amount of new right-of-way utilized, the amount of environmentally-sensitive areas crossed by the pipeline and the effect on land-owners. . . Pipeline projects are handled on a case-by-case basis in which the depth of analysis varies based on the size and nature of the project.
What’s striking here is Warner’s remark about the “depth of analysis.” In this case, it would appear his analysis wasn’t even as deep as the pipe Enbridge will bury in my backyard. He read some information at the Marathon and PHMSA websites and read Enbridge’s claims in their application. We don’t see any evidence that he subjected any of it to any real scrutiny (which, we thought, was fundamental to any careful analysis): he appears not to have considered that “increased capacity” might not automatically equate to “public need”; he appears not to have consulted landowners about “landowner impacts” or environmental advocates about “environmental impacts”; he appears never to have considered that his job as a public employee might be to express even the tiniest bit of skepticism toward the assertions advanced by private corporations seeking the power to impose their will upon his fellow citizens.
And that, in no small part, is why the foreign corporation responsible for the most expensive inland spill in U.S. history– fouling Michigan’s natural resources and disrupting the lives of of hundreds of good people– STILL gets to do whatever it wants.
by Jeffrey Insko | Oct 26, 2012 |
As we’ve mentioned, on Wednesday we had an extended telephone conversation with Enbridge Vice President for Major Projects Execution Mark Sitek; he’s the VP who signed the “letter” that appeared in lots of newspapers a couple of weeks back. Mark struck us as a good man, easy to talk to, and a good listener. We’re grateful he took the time to speak with us–especially since so many other folks at Enbridge– like spokesperson Jennifer Smith and Lands and Right-of-Way Project Manager Doug Aller— are clearly ducking us.
As you can imagine, there is an awful lot to report from the conversation. We think we learned some important things from the experience and we confirmed for ourselves some other impressions we’ve had about Enbridge for a while. So instead of just providing a summary of our conversation, we thought we’d focus on what was instructive about the exchange and attempt to extrapolate from it some general lessons– touching upon details of the conversation as we go. (more…)
by Jeffrey Insko | Oct 15, 2012 |
We haven’t finished with our review and commentary of the Michigan Townships Association amicus filing in the federal lawsuit initiated by POLAR. We’ll return to that soon. But we’re taking time away from that to remark upon the extraordinary ad, in the form of a letter to “neighbors,” published by Enbridge in yesterday’s Free Press. In our first post, we noted how it’s more than a little strange that Enbridge has chose to open up lines of communication more than a year after they first filed for MPSC approval of the project.
This, our second installment on the letter signed by Vice President for Major Projects Execution Mark Sitek, will focus on just one sentence. It’s our favorite one in the whole letter. Sitek says:
(more…)
by Jeffrey Insko | Oct 13, 2012 |
As we reported late yesterday, the Michigan Townships Association has filed an amicus curiae brief in the POLAR lawsuit now being heard in federal court. Regardless of whether it alters the outcome of the case, we think this is very good news indeed. And now that we’ve spent the morning reading over the brief, we’re in a position to explain why and to discuss some of the implications of this action. First, the brief: (more…)
by Jeffrey Insko | Oct 5, 2012 |
On Wednesday, we linked to an article in the Tri-City Times in which Enbridge spokesman Jason Manshum explains the activity in Capac as preparation for integrity digs on Line 5– not, as we wondered after an earlier article in the same paper, preparation for work on phase two of the Line 6B project, for which Enbridge does not yet have MPSC approval. It would surely be presumptuous of Enbridge to be staging construction of a project that has not been approved.
However, there may be reason to be somewhat skeptical about what Manshum has told reporter Maria Brown. Some of our friends, who know far more about pipeline engineering and construction than we do, have pointed out to us that it’s very unlikely the amount of pipe currently sitting in the Capac staging area (see the photo that accompanies the story) is for integrity digs. Those digs rarely require more than a few feet of pipe and typically involve clamping and welding steel sleeves around weak sections of pipe.
There is also reason to wonder about Manshum’s statement that “the company is not required to seek permits for this kind of work.” Construction or maintenance work that could affect wetlands and water resources does require permits from the Michigan Department of Environmental Quality and perhaps other agencies. We don’t know whether this would apply to the area around Line 5– but still we wonder. Manshum does say that “Enbridge did submit a plan to the state for one particular dig”: perhaps locating this plan would be a way to verify Manshum’s statements. We’re looking into it.
In the absence of any clear evidence on the matter, we have little choice but to take Manshum at his word. But we do so with caution. In the meantime, it might be worth paying careful attention to what happens to that big stack of pipe in Capac. We trust that reporter Maria Brown will be paying attention.
by Jeffrey Insko | Sep 27, 2012 |
Those keeping up with news and events here and elsewhere know that Enbridge has been spending a lot of time lately suing Michigan landowners in court. We’ve been reporting on these condemnation hearings as best we can, especially on a few cases in Oakland County. But the past few days, all the action has been over in Livingston County. And unfortunately, Livingston makes it much more difficult to get a hold of court records than does Oakland. What’s more, the judge in the recent hearings, Judge Hatty, appears to prefer ruling from the bench, rather than in writing.
We can, however, say this much: the news out of Livingston is mixed. In the cases that have come before him, Judge Hatty has ruled that Enbridge’s easement language (the part we’ve discussed before, which says that they can send any old thing they want through their pipe, exceeds what the MPSC approval allows. That’s good news. However, unlike the TWO judges in Oakland County, Judge Hatty did not, therefore, dismiss Enbridge’s suits altogether. Instead, Hatty’s position seems to be “no harm, no foul”; let the suits commence. Also, in at least one case, Hatty ruled in favor of Enbridge on the question of “necessity”– which means, essentially, that Enbridge gets to “take” (ie, use) the land it wants. On the other hand, compensation still needs to be determined and we remain hopeful that the courts will help ensure that whatever agreement is reached is fair to the landowners, both in terms of monetary compensation and the language of the agreements, which should grant as many protections and assurances as possible to the property owners.
by Jeffrey Insko | Sep 27, 2012 |
We thought we were done with our series on Enbridge spokesman Larry Springer’s outrageous statement a couple of weeks back. You remember: Springer insisted that Enbridge’s actions show that they deal openly and honestly with stakeholders, despite what those pesky “special interest groups” and their compatriots in the media who just want to stir up controversy would have you believe.
We took exception with that statement (again and again). We think we made our point quite clearly (and factually). We were prepared to give it a rest for a while.
But then examples of not-so-open and not-so-honest dealings by Enbridge just keep coming. Here’s a recent one: (more…)
