by Jeffrey Insko | Jan 23, 2013 |
This week we kicked off our new series on the MPSC hearings of Phase Two of the Line 6B project. Among other things, we’re using this series as an occasion to explore the regulatory function and performance– weak and ineffectual, in our view– of the Public Service Commission. In our first installment, we introduced you to the MPSC’s public engineer Travis Warner. In this our second installment, we will introduce you to another MPSC employee. But first, a final thought about the MPSC’s public engineer:
Our intent was not to pick on young Mr. Warner. We understand that he’s simply part of a system that appears to actively discourage the slightest skepticism or tough questioning toward companies like Enbridge. For instance, we are more than a little nonplussed by just how thin Warner’s analysis of Enbridge’s application really is. After all, the MPSC relies heavily on Warner’s testimony about such matters as whether the proposed pipeline meets or exceeds current safety and engineering standards. Yet consider this exchange during his testimony (the questioner is attorney Gary Field):
Q: For a petroleum pipeline project, what standards do you review?
A: What standards do I review?
Q: Yes.
A: Well, Michigan doesn’t have standards for petroleum pipelines. It would be the Pipeline Hazardous Materials Safety Administration Standards.
Q: Do you review those standards?
A: Very generally. I’m not extremely familiar with them.
Or consider this exchange regarding the very important matter of how the project will affect landowners:
Q: Have you, as to this project, conducted a review of the effect on landowners?
A: Yes.
Q: What did that consist of?
A: That consisted of going page by page through a series of maps in order to possibly look at a potentially different route or mainly to review the proposed route for the impact on landowners.
. . .
Q: You didn’t talk to any landowners, did you?
A: I have spoken with some landowners over the phone.
Q: But in the context of determining whether a route was disruptive to landowners or not, you haven’t spoken to any landowners specifically on that topic, have you?
A: Well, as we went over before in this case, the landowners aren’t yet aware of the specific route on their tracts. I did talk with landowners in the other case but — and they had more specific route plans. So I guess no in this case.
Similarly, consider his response to a question about whether the existing Line 6B could be sufficiently repaired: “I relied on Enbridge’s opinion on that matter.” Or a question about how much additional capacity (or petroleum) is appropriate for Line 6B: “I relied on Enbridge’s opinion on that matter.”
Yes, this is your “Public Service” agency at work. In this matter, they appear only to be serving the interests of Enbridge, not the public. Which brings us to Travis Warner’s colleague, MPSC staff counsel Assistant Attorney General Michael J. Orris. To be honest, we don’t really understand what, exactly, Orris’s role entails. What we do know, however, is that virtually everything he has said or done during the course of the proceedings has been for the direct benefit of Enbridge.
For example, on the day of cross-examinations of witnesses (November 13, 2012), all four of Enbridge’s witnesses– Mark Sitek, Tom Hodge, Enbridge Environmental Analyst Rachel Shetka, and our old pal Doug Aller— appeared for questioning by Gary Field (on behalf of the intervenors) and Steven Fischer (representing himself). One would think, in such a proceeding, that the attorney hired to advocate on behalf of the public (the MPSC is, after all, a public agency) would at least have a few questions for the applicants (Enbridge). Yet Orris had not a single question for Sitek, Shetka, or Aller. He did ask Tom Hodge a brief question, the purport of which is not altogether clear, regarding route variations. But other than that, he was idle.
But not entirely idle. Orris had plenty of objections to make during Fields’s cross-examinations. In fact, on one point, Orris was quite tenacious. You see, while questioning Tom Hodge, Field dared to mention the NTSB report on the Marshall spill. When he did, Enbridge attorney Michael Ashton immediately objected and Orris was only too happy to weigh in in support of Ashton’s position.
Now, bear with us for a moment. To understand what happened at this point in the proceedings requires a bit of context–and, we’re sorry to say, some legalistic nitpicking. You might remember that way back in July, the intervenors in Phase Two requested a delay in order to review the NTSB report. Enbridge, not surprisingly, argued that the report was not relevant to these proceedings (an extraordinary argument to make, in our view). The delay was granted (in part) in order to give the intervenors time to review the report, even though Administrative Law Judge Theresa Sheets also stated that the NTSB report “is not admissible in these hearings under federal statute.”
It’s this last statement that is the sticking point. The federal statute to which Sheets refers is federal code 49 U.S. C., section 1154, which states:
No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.
Now, on the face of it, this legal provision makes good sense. After all, if a report like the NTSB’s report on Marshall could be used in a civil lawsuit, then those who work for a company likely to be sued (like Enbridge) would be reluctant to speak freely to investigators; doing so might well cost their company a lot of money. The question, however, is whether the same sort of idea applies to other sorts of proceedings, like applications before the MPSC.
Or to put this another way, the question comes down to what, precisely, the sentence in the federal law actually says–because it’s not quite as straightforward as it at first appears. Does that sentence say (a) that a report cannot be admitted into evidence (period); nor can a report be used in a civil action? Or does it say (b) that, when it comes to a civil action for damages, a report cannot be either admitted into evidence or used? See the difference? Obviously, Enbridge argues for “a”– as Gary Field nicely puts it at the hearing, “Mr. Ashton wants to put a period after the first verb”– and the intervenors argue for “b.”
For her part, Judge Sheets says that she does “acknowledge that the language of the statute can be interpreted in two ways.” Yet she also says that she interprets the language “very similarly to the manner in which Enbridge” interprets it. “I think that the language, while it may be a little unclear, I think that that’s the intent,” she says. (Upon what basis she determines this “intent,” however, she does not bother to say.)
But here’s the thing (and this will bring us back to Michael Orris): it’s obvious why Enbridge attorneys favor interpretation A just as it’s obvious why the intervenors’ attorney favors interpretation B. Both of those parties are, by definition, partial. But what about the MPSC attorney? He represents neither the party seeking approval (Enbridge) nor the party seeking to deny approval (the intervenors)? Rather, he represents only the MPSC, whose only interest, presumably, is the collective interest of the citizens of the state of Michigan. What, therefore, would one expect his position to be?
We can think of a couple of possibilities: (1) he could take no position at all, but choose to remain neutral and leave it to the Judge to decide. That would be understandable. Or (2) he could acknowledge the ambiguity in the federal statute (and it is unquestionably ambiguous) and choose simply to err on the side of caution. In this case, erring on the side of caution would almost certainly mean allowing the report into evidence. After all, how can anyone argue that considering MORE information, rather than less– especially when it is information pertaining to the very pipeline that Enbridge is seeking to replace– is bad for the public interest? If the “replacement” of Line 6B really does satisfy the three standards upon which the MPSC must make its decision, it ought to be able to satisfy those standards even in the face of MPSC scrutiny of a factual report released by a federal agency. Right?
Well, no. Following Ashton’s objection to any discussion of the NTSB report, Judge Sheets asks, “any comment by Staff (meaning Orris)?” And here is a part of Orris’s semi-coherent reply:
This report, statute controls whether this report comes in, not what it says on the cover sheet of this report. The statute is a controlling language. I do not think that this report is evidence, can be admitted as evidence in this proceeding. The orders themselves speak for themselves of what Enbridge is going to do to operate the line. This is just background information telling the National Transportation Safety Board and telling the Pipeline Hazardous Materials Safety Administration, who formed the basis for it, but the correction, the corrective action orders are themselves what Enbridge is going to do, not the content here. What Enbridge did in the control room there has nothing to do with Public Act 16 of 1929.
Apparently, even Judge Sheets found this convoluted reply a little unclear because she then asks, “So you think there’s a relevancy issue here as well?” To which Orris responds, “Yes. Yes, I do. I think the statute quite clearly states that this is not evidence, it’s not relevant to the proceeding.” Now obviously, Michael Orris is entitled to his professional legal opinion on a matter of dispute such as this one– and that opinion does not always have to be the same as ours. But to suggest that the language of the statue “quite clearly states” anything (the lack of clarity in the language is the whole reason there is a dispute in the first place!) is just plain disingenuous. At best, it’s a judgment call.
But because of Orris’s argument, siding with Enbridge (at least in part), Sheets decides to sustain the Enbridge objection, which she says, “was essentially seconded by Staff,” and she rules that the report “will not be admissible in these proceedings.”
And this is precisely the problem– with Orris, with Warner, with the MPSC itself: “Staff” invariably “essentially seconds” the view of Enbridge. Orris neither questions nor challenges anything Enbridge witnesses say, for example, but repeatedly objects to Gary Fields’ questions during cross-examination of Travis Warner. And like his view on the admissibility of the NTSB report, those objections almost always have to do with narrowing and limiting the scope of the proceedings; they involve the exclusion, rather than the inclusion of information or comment. It’s as if Orris views his job as ensuring that the MPSC permits the hearing of as little evidence as possible, ensuring that it takes the narrowest, most limited view possible of its regulatory function.
Of course, this is exactly the strategy employed by Enbridge, both inside and outside the MPSC: the less discussion, the better; the less scrutiny, the better; the less the public knows, the better. It’s easy to understand why Enbridge would take this view: they don’t always look so good in the bright light of the facts. But why those who are supposed to work on behalf of the public interest (not Enbridge’s interest), those whose salaries we pay, would take the same view as Enbridge is more than just baffling; it’s betrayal.
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 | Dec 11, 2012 |
Remember those crazy Detroit Free Press ads Enbridge ran back in late October? We miss them. We had quite a bit of fun slicing and dicing them. It was pretty easy pickin’s, too. First, they tried to seduce us by featuring an Enbridge employee who only served to remind us of the Marshall debacle. Then they tried to convince us that Enbridge land agents are a kind, friendly, neighborly lot who just want what is best for us. Then they gave us an almost poetic image of a pipeline running through the wilderness that can only be described as “pipeline pastoral.”
Then we got sidetracked. Other matters intervened and we never quite got around to the last of these ads. That’s a shame, because the last one is a real piece of work. We’re pleased to return to it now, at long last. First, take a look. Apparently, this camouflage-clad hunter-guy thinks Enbridge is “Respectful, Responsive, and Fair”:
But that’s not the best part. It turns out that this is no ordinary landowner. No, this is “Dr. Michael Milan, a 24-year Michigan resident” who “has worked extensively with Enbridge over the past three years.” Yes, that’s right, he is a doctor! Evidently, we’re supposed to find this pretty impressive, as if we all recognize that a doctor’s view of Enbridge’s behavior is going to be a lot more credible than all of those unreasonable average-joes. And of course, as an added bonus, Michael Milan is no ordinary doctor; he also exudes a certain authentic Michigan rugged outdoorsiness. Just look at him: he’s wearing a camouflage jacket and a hunting cap and everything!
We don’t know about you, but we find this more than a little insulting. Don’t get us wrong, we’re glad that things have gone smoothly for Michael Milan out there on his “scenic 20 acres,” where he has “received information on pipeline safety and visits from [his] Enbridge land agent” over the course of “five maintenance digs.” We’re also glad to hear that his “land agent stops by regularly just to make sure things are okay.” In fact, we’d like nothing more than for everyone to have such a pleasant experience. And we’ve certainly never denied that plenty of landowners have had perfectly pleasant experiences with Enbridge. But if trotting out this guy, dressing him up like Ted Nugent, and making sure we all know he’s a doctor is somehow supposed to mitigate all the stories of Enbridge’s disrespectfulness, lack of responsiveness, and unfair treatment of landowners– well, that’s just plain offensive.
In fact, for every “Dr. Michael Milan” Enbridge can produce who says Enbridge is “respectful, responsive, and fair,” we could probably produce a landowner whose experience demonstrates precisely the opposite. In fact, we can even produce one who is actually Michael Milan’s neighbor– and we don’t mean a metaphorical Enbridge neighbor either; we mean one who lives in very close proximity to Milan– not to mention one whose Michigan bona fides are at least as impressive as the good doctor’s. Let us introduce you to:
William Aldrich, an electrical engineer for one of the Big 3 automakers and a lifelong Michigan resident:
Since 1981, I have worked to ensure that native trees were allowed to thrive on my property by performing selective pruning and tree removal. I have planted additional native trees not represented and removed many invasive species. Over 30 species of Michigan native trees and shrubs are represented in area designated by Enbridge as Temporary Workspace. I have made it a point of pride to be able to name and protect and enhance the diverse species of plants that reside on my property. I have expended significant time, effort and money to achieve these ends. For months, I attempted to work with Enbridge to minimize the amount of unnecessary damage and return the property to its current mix of diverse native species of plants.
In order to minimize the damage to this native flora, I attempted to work with my land agent to provide a Temporary Work Space that would preserve as many trees as possible while giving Enbridge an additional 200 square feet of workspace. I also reached an agreement with my land agent specifying that the stumps of trees that must be removed in the TWS be left in the ground to allow them to resprout. Yet Enbridge ignored my win-win proposal for modifying the TWS, disregarded the agreement not to remove stumps (tearing them out of the ground anyway), and clear cut numerous trees clearly desgnated by my ROW agent as “do not cut,” some mere inches from the Temporary Work Space boundary line.
In short, my dealings with the designated Enbridge right-of-way representative have been incomplete, contentious, sporadic, unanswered and in many cases violated. Enbridge’s own actions consistently contradict the Enbridge right-of-way representative’s assertions and agreements.
by Jeffrey Insko | Dec 11, 2012 |
No sooner had we finished up our latest post about Enbridge’s apparently congenital inability to deal with stakeholders straightforwardly than we were provided with yet another illustration of the phenomenon in the form of the latest news from Brandon Township. Sadly, it doesn’t surprise us.
The Brandon Trustees held another meeting last night, where they were expected to sign and finalize their agreement with Enbridge. We took the night off and did not attend the meeting, though we’ve received a report of it. And just as we predicted, things did not go smoothly. Therefore, no agreement has been signed.
There are a couple of sticking points: understandably (in our opinion), the Trustees are concerned about the limited scope of the oversight granted to the township’s inspector (we thought the same thing when we read the proposed agreement). And secondly, apparently Enbridge did not want to put anything in the agreement about their environmental stewardship program. In our view, this is especially disturbing since these are the two elements of the agreement that will be most important to other townships. Given that fact, however, it’s not so surprising that Enbridge would hedge about them. And to make it all worse, Enbridge has apparently re-started construction in Brandon–without a signed agreement. This is, in our view and the Board’s (as we understand it), not only presumptuous, but a slap in the face.
For now, we’ll just say this: it gives us no great joy to say “I told you so.” But all of this is exactly what we told the new Brandon board two weeks ago. As we reported then, we told them:
Based on [our] 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.
And this is exactly what has happened. Jeff Axt saw it coming, too. It’s why both of us pleaded with the board at the last meeting to proceed cautiously, despite Enbridge’s pressure to hurry them up. But then, everybody has to learn their own Enbridge lessons. We trust that the new Board– now that they’ve seen Enbridge thumb its nose at them, just as they did the old board– has learned theirs.
by Jeffrey Insko | Dec 11, 2012 |
We begin this installment with a correction. You see, unlike Enbridge we do not like saying things that are not strictly true. And it appears we’ve been slightly wrong about one thing:
On numerous occasions during the month of November, we mentioned that Enbridge had still not answered any of the questions they promised to answer at the Brandon “workshop” back in September. However, we learned last week that Enbridge did, in fact, provide some answers to the Board at the very end of October or early November. So while we said that it had been more than two months without any answers, it appears that Enbridge provided answers after about six weeks. We regret that we said otherwise.
Of course, we’ve since seen those answers and we can tell you that they’re not terribly thorough. Nor did they answer all of the outstanding questions from the workshop. And the “answers” did come, curiously, right before Brandon filed their intervention in federal court. And also, Brandon did have to ask Enbridge for them more than once. So the general point we’ve been making about this matter for a long time– that it simply illustrates the lack of respect and candor Enbridge has displayed in its dealings with Brandon (and other stakeholders)– still stands. But we were evidently wrong on some of the details.
Which brings us to the subject of this post. This little matter– these minor things gnaw at us because we think the truth is vitally important– got us thinking: why didn’t someone from Enbridge point out our error? After all, we know they read the blog (at least occasionally); they’ve told us they do. So here was a chance for them to prove us wrong; they could have made the case that we’ve been criticizing them unfairly. And we would have had no choice but to concede the point (on this little matter). Or at the very least, they just could have let us know what the truth is, thereby demonstrating that it means as much to them as it does to us. We’d have given them credit for correcting us. But they didn’t.
You may be wondering what this has to do with the Brandon-Enbridge agreement. Well, as we noted in our previous installments, we had a little encounter with the three Enbridge representative at the meeting on Monday. It took place during the Brandon Trustees’ arduously long closed session. There wasn’t much to do while we waited– and there were only about six of us there. Mostly, we just sat around gabbing. But not with the Enbridge contingent. Mark Curwin, Thomas Hodge, and Michael Ashton spent that long break outside.
It may be that they just wanted to enjoy the cool air; it was an awfully nice December evening. Or maybe they thought it would be a little awkward to stay in the same room with myself, Jeff Axt, and reporter Susan Bromley. Whatever the case, we figured that the separation– “us” in there and “them” out there– was equally awkward, or at least weirdly conspicuous. It seemed to us an opportunity to have an actual conversation (Hodge and Curwin had no trouble talking with Tony Amico at the meeting). And anyway, we’re all just human beings; surely we can have a civil chat. So we went outside to try.
Now it may have just been our own impression, but we thought the reception we got from the Enbridge reps seemed a little chilly. At any rate, we mentioned the blog and they said that they knew who we were and knew about the blog. We also mentioned to Hodge our interest in (what we’ve been calling) his recent Road Show and how lots of us landowners have been wondering why Hodge and Wuori were talking to the press, rather than to us. Then we asked Hodge if he’d be interested in doing a Q&A for this blog. And this is where things got a little weird.
First, Mark Curwin stepped in immediately and said (a little paternalistically) that he didn’t think that would be appropriate. But when we asked why he didn’t think it was appropriate for Hodge to talk to landowners, he said he didn’t think it was the right time or place. Evidently, he thought we were asking Hodge to do a Q&A right then and there– which we certainly, obviously, were not.
Once we got past that odd moment, however, Hodge did not accept our offer. Instead, he and Curwin talked about how they’re trying to find the “right person” to talk with us. Their explanation for this was that rather than having us go from one person to another, receiving various answers to various questions, they thought it might be best to have just one person who could answer all of our questions. But they also said they hadn’t quite figured out who that person is yet. Now, in fairness, Tom Hodge did give us his card and he and Curwin said we should feel free to send along some questions and they would get them to this yet-to-be-discovered person who could get us some answers. So we guess that’s at least something. But it’s not much.
But let’s consider some of the myriad problems with this response to our simple request for a Q&A with Tom Hodge:
As we said in an earlier installment, if we have questions that we’d like to ask Tom Hodge, then the “right person” for us to talk with is quite plainly Tom Hodge. In the same way, when we have questions for, say, Doug Aller, then we think the right person for us to talk with is Doug Aller. Or, when we want clarification from, say, Jennifer Smith about something that Jennifer Smith said, then it seems to us that the right person for us to contact for such clarification is Jennifer Smith herself. This seems like a rather simple and uncomplicated principle of ordinary communication to us.
But Enbridge appears not to operate according to ordinary principles of communication. Rather, what Curwin and Hodge were really saying to us, we think, is that we somehow need to be managed, handled carefully, dealt with through some kind of controlled message-coordinating apparatus.
Of course, as we’ve been saying for months, this is the whole problem with the way that Enbridge communicates with stakeholders. They seem to think that everything has to be managed and controlled, PR-style. They simply CAN’T– evidently as a matter of either company policy or longstanding practice–just communicate openly, honestly, and straightforwardly. That’s all I was trying to do: I walked outside, looked Tom Hodge in the eye, offered my hand, and asked him a simple, straightforward question. I gave him an opportunity to be open and honest with me. What I got in return was a needlessly complicated, un-straightforward, committee-generated reply. As a result, instead of typing up how much I appreciate Tom Hodge’s candor and his willingness to walk the walk and have a frank, respectful, productive exchange with a landowner– a critical landowner, no less– I’m typing this.
What’s so strange about this is that Enbridge’s approach in this regard isn’t even good PR. After all, if they want people like me to go away or shut up or stop criticizing them, then this is a very poor way to accomplish any of those things. In fact, it only makes matters worse. If they want people like me to tell others that Enbridge really does mean it when they say they are committed to open and honest dialogue, or that they really do take seriously stakeholder feedback, then not engaging in open and honest dialogue and not taking stakeholder feedback seriously is a very poor way to accomplish that as well. It seems absurd to have to say this, but if what you want is for people to trust you and to believe that you are honest, transparent, and straightforward, then the best thing you can do is be honest and transparent and straightforward. Otherwise, people might not trust you.
In other words, for some reason we still cannot fathom, Enbridge simply can’t see that the best kind of PR would be sitting down with homeowners, hearing them out, agreeing to fix problems and make things right, then fixing them and making them right. This would effectively solve most of their PR troubles.
Or to put this yet another way: Enbridge still hasn’t figured out that they are largely in control of what we write here at the Line 6B Citizens’ Blog. We would have no choice but to shut up if they didn’t continue to provide us with so much material.
by Jeffrey Insko | Dec 7, 2012 |
Over at the Brandon Citizen, Susan Bromley, who has covered this story like no one else, has an account of Monday’s Brandon meeting and a bit more detail on the agreement. Much of it covers the items we mentioned in the second installment of this series. But we did learn from Bromley that Enbridge is footing the bill for the legal costs Brandon incurred during this process– and that’s excellent news.
The article also includes plenty of hollow statements from Enbridge spokesperson Jason Manshum, the same sort of boilerplate remarks we’ve heard from him for months. (We’ll grant him this much: the guy stays on message.) Honestly, after all that has happened these past few months, after all we’ve learned, all we’ve documented here on this blog, and all we have experienced, we fail to see how once again saying, “”We value our relationships with all those who live and work along our pipeline right-of-way and will be working hard to minimize the impacts on the community and the affected landowners,” is even remotely helpful to anyone. As we’ve said before, just repeating something over and over and over doesn’t make it true.
Anyway, Bromley’s article also captures nicely some of the drama of the meeting, drama which took place mainly at the very end. We’ll quote a bit of that in just a moment, but we’d also like to provide just a tiny bit of setup:
It became clear by the end of Monday’s meeting that Enbridge wasn’t going to leave without an agreement. Why? Well, our theory is this: t once federal district court Judge Cleland sent the case back to state court, Enbridge felt a renewed sense of urgency. Originally, they thought dragging the POLAR lawsuit into federal court would sink it. When that didn’t happen, they needed to scramble to ensure that Brandon did not intervene again– because a state court would be far more likely to take interest in the statutory and constitutional argument put forth by both Brandon and POLAR (and the MTA). In order to prevent further delays (not to mention to risk losing!), Enbridge needed to reach an agreement with Brandon– which explains why they were so much more agreeable last Monday than they were back in, say, August.
That’s mainly speculation on our part, though we suspect it’s reasonably accurate. Whatever the case, it was obvious that Enbridge thought matters were pretty urgent at the Brandon meeting on Monday. And that induced in us a bit of déjà vu. After all, this is pretty much how our private negotiations with Enbridge went. For months, Enbridge dragged their feet. Weeks would pass by without any word from our ROW agent. But then all of a sudden, six months in, Enbridge decided that matters were urgent. They were suddenly in a big hurry and needed to reach an agreement immediately. So they snapped into action, pressured and threatened. They were determined to get their agreement. And they did.
And this is what it was like at the Brandon meeting. Here’s Bromley’s account, which picks up after the board returned from their closed session and discussed amendments to the agreement:
When Trustee Ron Lapp said he wanted to see the finished document before he approved it, Rumball, Trustee Dana DePalma and Clerk Candee Allen all agreed. But near the end of the meeting, after Cooney spoke in support of the agreement, the board had an apparent change of heart.
“I have complete confidence in Stuart (Cooney),” said Lapp, who then addressed Curwin, Enbridge Project Manager Tom Hodge, and the Enbridge attorney, asking: “Is it going to give you heartburn to wait seven more days?”
In unison, the Enbridge representatives answered “yes,” and Axt expressed disbelief that the board was expediting the process on behalf of Enbridge rather than the township residents.
The board then unanimously approved settlement, clearing the way for phase one of the project in the township to proceed.
This was a pretty dramatic moment, to which we’ll add just one little detail. When it appeared that the board members were going to ask to see a final document before approving it, Enbridge attorney Mike Ashton jumped up, approached Stuart Cooney (who was sitting right next to us), and asked if they could finalize the language of the agreement “right now.” He and Cooney then walked out. It was after this little tête-à-tête that Cooney spoke to the board.
Now, we should be clear: we’re not suggesting something nefarious went on here, just that Enbridge put on the full court press– and it worked. Yet just like in our own negotiations, the delays that caused Enbridge to become so impatient and so desperate to reach an agreement with Brandon were always of their very own making.
There’s just one last story to tell in this series until we see the final agreement: our conversation that same night with Hodge, Curwin, and Ashton. That’s coming soon…
by Jeffrey Insko | Dec 6, 2012 |
We’re still awaiting details on the final agreement between Brandon Township and Enbridge; it’s probably going to be several days at least before its language is finalized and the document made available to the public. Yesterday, in our first installment of this new series, we provided as much detail as we could– and we hope other townships were paying attention. In fact, we encourage you to contact your township supervisor and insist that they also get an independent construction supervisor and that they know about Enbridge’s environmental stewardship program. After all, Enbridge insists that they treat stakeholders “fairly and consistently.” Let’s make sure they do.
While we’re waiting for the finalized agreement, we thought we’d bring you some other stories from Monday night’s meeting, where the agreement was reached. It was, to to say the least, quite interesting. Of particular interest were the stories that a couple of landowners shared with the trustees. We’ll tell the story of landowner Bill Aldrich in a different post some time in the coming days. This morning, we want to tell you about Tony Amico.
Prior to Monday night’s meeting, we’d never met Tony. He is a landowner in Brandon Township near the Line 6B route. Enbridge has no easement on his property, although they did need to use a portion of his land for temporary work space. Like most of us, Tony was perfectly willing to work with Enbridge; he had no plans (or desire) to obstruct the project. Tony was simply concerned with minimizing the number of trees– very old, very large trees– that Enbridge removed from his land. So he struck an agreement with a ROW agent (whom Tony trusted): prior to any construction activity on his land, a construction manager would meet with Tony to discuss, among other things, which trees would or could be saved. Now just imagine Tony’s surprise when he arrived on his property one day to find that Enbridge had already, without any such meeting, cleared a swath of his land, taking down some 75 mature and valuable Black Walnut trees (among others). When Tony contacted his ROW agent about this violation of what he thought was a good-faith agreement, he more or less just got a shrug of the shoulders in reply. And that was it.
Like so many landowners, Tony was unhappy, frustrated, and angry– and had no idea where to turn. Tony’s experience shows clearly that despite what Thomas Hodge has told the MPSC, landowners absolutely do not “know they have an avenue to escalate the issue if they are not getting satisfaction from the land agent that they are dealing with.” In fact, landowners generally have no idea where to turn once trust with their land agent has been broken. And often (as in our personal case), even when they try to move “up the chain” (as Hodge puts it), they are ignored or dismissed.
Which is why, after weeks (maybe months) of anger and frustration, Tony came to the Brandon board meeting to tell his story. And what was so interesting about this is that during the break in the meeting (a coffee and cookie reception for the newly sworn-in board), Tom Hodge and Mark Curwin were all over Tony. They wanted to hear his story. They gave him their cards. They made an appointment to meet him at his property the very next morning. They seemed to want to make things right.
Now, in fairness, we think that is a very good thing. And we’re not going to doubt the sincerity of Hodge and Curwin when they say they want to make things right with Tony Amico. We don’t believe– nor have we ever said– that people like Hodge and Curwin (ROW agents may be a different story, however) don’t care about landowners or aren’t willing to be responsive. In fact, if anything, what we’ve said–not about Hodge and Curwin specifically, but about Enbridge executives generally– is that they don’t care; we believe they just don’t know about all the Tony Amicos out there. And we’ve further said that they also seem to us rather unwilling to acknowledge just how many Tonys actually are out there. And the sad fact is that if Tony didn’t just happen to be at that meeting where Hodge and Curwin had no choice but to hear his story (in public!), Tony would STILL be angry and unhappy.
It shouldn’t have to be this way.
So once the meeting resumed, we wrote down the remarks we planned to make during public comments. We wound up saying other things– for reasons we’ll describe in a different installment of this series (stay tuned!)– but here’s what we wrote:
For every Tony Amico or Bill Aldrich who is here tonight where Enbridge can make a public show of their responsiveness, I can tell you first-hand– because I’ve heard their stories– that there are dozens more landowners along the Line 6B route who feel abused and mistreated, who feel like they have no recourse or voice, nowhere to turn, who feel helpless and alone and who have NOT been made whole, as Enbridge promised they would be. So my question for Enbridge is simply this: how many stories like Tony’s does Enbridge need to hear before they are willing to squarely and honestly face the fact that there is a serious problem with the way they have dealt with landowners on this project?
by Jeffrey Insko | Dec 5, 2012 |
As we reported yesterday, the Brandon Township Board of Trustees voted to approve an agreement with Enbridge at the end of a very long meeting Wednesday night. The agreement, the precise language of which has yet to be finalized, puts an end to any litigation against Enbridge on the part of Brandon. We attended the meeting– all five exhausting hours of it. And while we have not seen the agreement document, we can provide some details based on the information presented and discussed at the meeting. But since there’s so much to report, we’re launching it as a new series. This is our first installment.
The Enbridge representatives who attended the meeting were Project Manager Thomas Hodge, attorney Mike Ashton, and General Counsel Mark Curwin. We were struck by the absence of any of Enbridge’s public relations representatives (what ever happened to Joe Martucci, anyway?), which was a pretty clear indication that at this meeting, Enbridge meant business– and also perhaps an indication that in previous meetings with Brandon, Enbridge did not really mean business. After a brief presentation to the Board by Tom Hodge restating the basics of the project, the new Board was sworn in. They then conducted their regular business and then convened a closed session– which lasted nearly two hours!
(Teaser: It was during this break that we introduced ourselves to Curwin, Hodge, and Ashton; we’ll make that encounter the subject of another installment of this series.)
We assume that during the closed session, the township attorney walked the board through the terms of the drafted agreement. It is our understanding (based on discussions that proceeded when the Board returned) that the agreement is based on a “Sample Enbridge agreement” that has been circulated to townships by the Michigan Townships Association. We happen to have a copy of that document. It’s not clear whether the MTA created it or initiated its creation–it reads to us as if it were written by Enbridge– or why the MTA would want to create such a thing, especially given that a month ago they filed an amicus brief in federal court in support of POLAR’s attempt to enforce the Michigan Constitution’s “consent” requirement. Whatever the case, the sample agreement says this:
WHEREAS, the Township of ____________, (hereinafter referred to as the“Township”), a Michigan municipal corporation whose address is _______________ asserts that pursuant to Article 7, Section 29, of the 1963 Michigan constitution and MCL 247.183 consent to cross certain roads and/or public rights-of-way within the Township for purposes of installing underground pipelines is required to be obtained from the Township (hereinafter referred to as the “Consent”), which Consent is not to be unreasonably withheld by the Township…
But then a little farther down, it says this:
WHEREAS, Enbridge asserts that the provisions of Article 7, Section 29, of the 1963 Michigan Constitution and MCL 247.183 do not apply to Enbridge’s Line 6B pipeline system, nor the Project; that to the extent Township consent is required that consent was given to Enbridge upon initial construction of the pipeline in 1969; and that the Township has waived any right to assert these requirements at this time.
So what we have here is a document that evidently has townships giving consent even though the document does not insist that Enbridge is actually required to seek that consent. Of course, one could argue that this is a nice compromise measure; we would imagine that this is what Enbride would say. However, the obvious problem with that is that most of us don’t get to craft compromises when it comes to complying with the laws of the state; we just have to comply.
Aside from making it clear that Enbridge is NOT agreeing that they are legally required to seek consent, the agreement doesn’t really do very much. It says Enbridge will pay the township a thousand bucks, will have insurance, and will behave during construction. And that’s pretty much it.
We don’t know how closely the Brandon agreement adheres to the MTA’s sample document. We don’t know, for instance, whether the Enbridge-asserts-it-does-not-need-consent clause is included in the Brandon agreement. What we do know is that Brandon insisted upon some modifications and amendments, which Enbridge agreed to. These are as follows (again, as best as we can piece together from discussion without having seen the final document itself):
- As a settlement with regard to the Brandon Woodlands Ordinance, Enbridge will pay the township $10,000 in addition to supplying replacement trees (80 trees per acre) for the estimated 6 acres of clearing on the township. We’ve got some things to say about this tree replacement program also, but we’ll save that for another post.
- Enbridge will post a bond in the amount of $5ok for road restoration; this seems like a very good thing, especially since the laughable bond required by the Oakland County Road Commission is for a mere $5000.
- Enbridge agreed to the use of a construction supervisor or inspector, hired by Brandon but paid for by Enbridge, whose job it will be to oversee compliance with construction agreements with landowners. This is, we think, a stroke of brilliance– something that’s been needed in Livingston and Ingham counties (and elsewhere) for a long time. Every single township should insist on the same. Brandon deserves ENORMOUS kudos for coming up with this measure as a way of helping to protect its citizens.
- Lastly, Enbridge said they were rolling out an “environmental stewardship” program that would make funds available to every township along the line. The amount has yet to be determined and it will evidently vary depending upon township population and other factors. But the money can be used for a variety of measures and perhaps even for local groups as long as it meets certain criteria for environmental stewardship. This, too, we are happy to say, sounds like a great idea. Yet– and this seems to be Enbridge’s specialty–the program is soured somewhat by the fact that Enbridge didn’t just do it in the first place, months ago. It would appear that Enbridge only acts like a good neighbor after they’ve been challenged, sued, had their construction activities halted, and received a fair amount of bad press.
Without knowing all of the final details, we would say that this is not a bad agreement for the citizens of Brandon and, perhaps, for landowners all along the route, assuming that other townships step forward and insist that they be treated similarly. Whether one is disappointed that Brandon won’t push the legal questions any further, we think that everyone owes Supervisor Thurman and the trustees genuine thanks.
We’ll fill in details as they become available to us. We hope that we haven’t got anything wrong here; we’ve had to piece these things together based on what we witnessed at the meeting. Stay tuned for more in this series– including further descriptions of our brief chat with the Enbridge reps and more details of some of the drama (and there was drama!) that unfolded during the meeting– as soon as we can get to it.
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 1, 2012 |
Given enough time, we could probably hold forth at at much more length about the remarks of Stephen Wuori and Thomas Hodge during their editorial board stops last week. Wuori’s attempt to waive away concerns about the transportation of dilbit, for instance, is ripe for some serious scrutiny, though we’ll just refer you to this recent piece by our friend Anthony Swift, which speaks almost directly to Wuori’s remark about tar sands and corrosiveness.
We’ll let the rest pass for now. But not without a brief final thought or two:
Firstly, we’ll echo a point our friend Beth Wallace made this week: if Wuori and Hodge were serious about addressing concerns citizens have had about this project and serious about having real conversations about Enbridge’s practices, they could have taken their road show down to the Pipeline Safety Trust conference in New Orleans last month and faced landowners, pipeline safety advocates, regulators, and some of their (more responsive) industry peers. But they did not. Instead, unlike almost every other company at the conference, Enbridge sent only a pack of PR sloganeers– a revealing fact, we think.
Secondly, while here in Michigan last week, they also could have taken the time to meet with some real landowners, rather than talking about the easily-dismissed imaginary ones they’ve conjured in their heads. We would have been more than happy to round up a whole bunch of decent people affected by this project for a sit-down conversation. But then Wuori and Hodge would not have been able to control the message the way could in their little newspaper meetings. They would have had to face some of the realities of how their company and its representatives have conducted themselves in Michigan since 2010. And that, we have said time and again, appears to be something Enbridge is completely– stubbornly, intractably, steadfastly– unwilling to do.
