This post will likely be the last in our series about the MPSC phase two proceedings. If you missed our previous installments– where we discussed the shallow analysis of their public engineer, the hard work the MPSC staff attorney performed on behalf of Enbridge, the Administrative Law Judge’s background and her Enbridge-friendly rulings, the needlessly churlish and unprofessional tone of the final ruling, and (most importantly) the way the hearings allowed Enbridge to re-write Michigan law–the please check them out. Forgive us for saying so, but we think this series is some of our best work.
In this final installment of our series, we want to consider one last reason why all Michiganders should be concerned about the agency’s toothlessness and its unwillingness even to appear to take as its primary concern protecting the public interest and the citizens of the state of Michigan. What is that reason? It’s the MPSC’s power to grant corporations like Enbridge the right of condemnation or eminent domain.
This is– or ought to be– a solemn power. Private property rights in the U.S. are nearly sacrosanct and therefore the power of government, much less of private corporations, to take or acquire the property of individual citizens should be granted as sparingly as possible and under only the strictest and most limited circumstances and conditions; it is not a power that should be conferred lightly. We suspect that nearly everyone, regardless of political party affiliation or ideological persuasion would agree with that statement.
Indeed, for that very reason, Michigan Act 16— the law (as we’ve discussed before) that grants the MPSC its authority and under which Enbridge sought the right of condemnation– does set in place a set of conditions for granting the right of eminent domain. First, the Act says this:
For the purpose of acquiring necessary right-of-ways, every such corporation, association or person is hereby granted the right of condemnation by eminent domain, and the use of the highways in this state, for the purpose of transporting petroleum by pipe lines, and the location, laying, constructing, maintaining and operations thereof; and such condemnation proceedings shall be conducted in accordance with the same procedure and in the same manner as is provided by the laws of this state for the condemnation of right-of-ways by railroad companies.
But other sections of the Act very clearly limit this power. Specifically, the Act limits this power to those entities that are “common purchasers” and “common carriers.” These two terms mean, respectively, that the entity must purchase any producer’s product (ie, oil) without favoring any one producer or discriminating against any other; and that the entity must carry or transport any product (ie, oil) without discrimination toward one producer or another. So, for instance, even if they wanted to, Enbridge could not, by law, only transport, say, heavy crude from the Alberta oil sands through their pipeline.
Actually, however, that example is not exactly apt here, since what the Michigan law addresses specifically is potential discrimination against Michigan producers. Or to put this another way, it’s not about whether Enbridge is an interstate “common carrier” (which they clearly are; they’re transporting oil, for example, from the Bakken region of North Dakota across state lines into Michigan and elsewhere), but whether they are an inTRAstate common carrier– transporting Michigan products within the state of Michigan.
And this is the problem: Enbridge’s Line 6B does NOT transport any Michigan produced products from one point in this state to another. In fact, they don’t even claim to do so. It’s just a fact. So for this reason, the intervenors in phase two argued that Enbridge does not meet the definition of an intrastate common carrier as required in Act 16. Here is what they said:
There is no evidence in the record that Enbridge is currently operating Line 6B as an intrastate common carrier. When directly asked in discovery whether Enbridge “is” an intrastate common carrier, Enbridge avoided a direct answer and instead stated: “Consistent with Act 16, Enbridge is prepared to meet its legal obligations to provide intrastate common carrier pipeline service within the State of Michigan.” See Exhibit I-2. Thus, Enbridge is clearly not claiming to be operating Line 6B to provide intrastate common carriage.
There is no evidence in the record that Enbridge Line 6B currently can accept purchased Michigan oil from producers in the vicinity of the line. In fact, when asked in discovery to identify locations in Michigan “along Line 6B where Enbridge can accept Michigan-produced crude oil and petroleum,” Enbridge did not identify one location, but simply stated that it is prepared to work with any shipper of Michigan-produced crude oil and petroleum at any safe and appropriate location along Line 6B. See Exhibit I-8. There is no evidence in the record that the new Line 6B is being designed in a manner that would enable Enbridge to transport or purchase Michigan oil. Further, Staff’s witness admitted that he had no knowledge that Enbridge had any plans to transport Michigan oil through Line 6B. (Tr 491)
In the same brief, the intervenors’ attorney (Gary Field) then goes on to explain– clearly and persuasively, in our opinion– that Act 16 was designed specifically to regulate pipeline companies within the state which function as public utilities (purchasing and carrying oil from various producers so that every company does not have to install its own pipelines and thereby minimizing the number of operating pipelines in the state, reducing dangers and disruptions). Field puts it this way:
Because oil pipelines were required by law to serve others and because they were restricted from charging rates for such service as high as they otherwise could have demanded from captive customers, such pipeline companies are public utilities. In turn, because such companies functioned as public utilities and served the public good, the Legislature deemed it appropriate to facilitate such companies’ ability to perform their public duties by permitting the Commission to grant such companies the privilege of condemnation by eminent domain.
However, Enbridge’s interpretation of Act 16 would have the Commission believe that the Act’s only purpose was to grant oil pipeline companies the privilege of condemnation. However, because Enbridge has not demonstrated that it has any plans to ever perform public utility functions under Act 16, Enbridge is not entitled to be granted, pursuant to Section 2, the right of condemnation by eminent domain. . . for Enbridge to be entitled to a grant of the right of condemnation by eminent domain, it should be required to show, at minimum, that compliance with all provisions of Act 16. . . is likely to occur in the near future.
What was Enbridge’s response to this argument? Well, they cited a 1954 case and then said, simply, “By explicitly accepting the requirements of Act 16, Enbridge has agreed to comply with all the requirements of Act 16 and this is sufficient to show compliance with the requirements of the Act.” In other words, Enbridge say that while they may not be acting as a common carrier at the moment, they promise they will if anybody asks them to in the future.”
And that response was plenty good for the MPSC. In fact, the Commission gave the intervenors’ common carrier argument very little consideration. Mainly, we think, this is because it did not fit very easily into their– er, that is, Enbridge’s– narrow three-part framework. As a result, in the Commission’s order approving the application, they bury their discussion of the common carrier argument in a footnote, which says,
Although the record is clear that Enbridge is not now an intrastate common purchaser or an intrastate common carrier, the Commission finds that there is ample evidence that Enbridge would perform such activities if called upon to do so. Indeed, Enbridge has agreed to be bound by all of the legal requirements of Act 16. See, 6 Tr 311 and 479 and Exhibit I-2.
So what’s the lesson here? Well, for one thing we thought this was one of Gary Field’s most interesting, and perhaps even compelling, arguments. That’s because it sought to give Act 16 some real bite; it presented the Commission with the opportunity to construe Michigan state law as granting them some real authority, especially in the face of Enbridge’s repeated reminders that liquids pipelines are regulated at the federal level, etc., etc. And perhaps even more interesting, the common carrier argument also sketched out, theoretically at least, a different pathway for approval, a path that did not adhere to the overly-simplistic “for or against” way of thinking about this project that has been driving us bonkers for months and one that lets Enbridge have their new pipeline without giving away the store. Just imagine for a moment this possibility:
The MPSC grants Enbridge approval for the project but does NOT grant them the power of eminent domain on the basis of the fact that they are not a common carrier. What would happen then? How would that affect the way that Enbridge deals with local municipalities? with individual landowners? What would Enbridge have had to do to acquire new easement rights or access to temporary workspace if their ROW agents could not come to your door armed with the power of condemnation? How differently would you have been treated? How much more seriously do you imagine your concerns would have been taken? How much more value would they have had to place upon your trees, your time, the disturbance to your home and your family? It’s an intriguing, dream, no?
Phase Two Proceedings, Part 3.1
In part 3 of our current series on the MPSC, we told you a little about the career background of Theresa Sheets, the Administrative Law Judge appointed to oversee Enbridge’s phase two application. While we think that background is notable– after all, it’s not unlikely that one’s professional experiences might, inevitably, condition the way one thinks about certain matters– we never really set out to dwell on that point. We did, however, set out to dwell on the way (in our view) that Judge Sheets has done Enbridge’s bidding. In fact, we left off that post with this statement:
Enbridge attorneys have labored to limit the scope of the MPSC’s authority so severely as to cripple it– and Judge Sheets has helped them succeed.
Let us explain. If you’ve been paying attention to last week’s news about the MPSC’s approval of phase two, you may have noticed the following statement, found in the MPSC press release announcing the decision:
In approving the company’s application, the MPSC said the pipeline will serve a public need, is designed and routed in a reasonable manner, and meets or exceeds current safety and engineering standards.
Now these three simple criteria– presumably the basis upon which the MPSC made its decision– might at first glance appear to be benign and even reasonable. But the scary fact is that they are anything but benign. This framework has been, in the hands of Enbridge attorneys, a cudgel– a cudgel with which Enbridge has beaten the MPSC, Judge Sheets, and Michigan law into submission.
You see, the MPSC’s regulatory authority derives from a 1929 Michigan law known as Act 16 (we discussed this briefly in part one of this series, but regret that we were a little imprecise on this point at the time). This act describes the powers granted to the MPSC:
There is hereby granted to and vested in the Michigan public utilities commission, hereinafter styled the “commission,” the power to control, investigate and regulate every corporation, association or person, now or hereafter exercising or claiming the right to carry or transport crude oil or petroleum, or any of the products thereof, by or through pipe line or lines, for hire, compensation or otherwise, or now or hereafter exercising or claiming the right to engage in the business of piping, transporting or storing crude oil or petroleum, or any of the products thereof, or now or hereafter engaging in the business of buying, selling or dealing in crude oil or petroleum within the limits of this state…
It also grants the MPSC the power to define its own rules:
The commission is hereby authorized and empowered to make all rules, regulations, and orders, necessary to give effect to and enforce the provisions of this act.
Now, you will notice two things about these two sections of the act (for the record, they are sections 483.3 and 483.8): first, the MPSC is given pretty broad authority; they have the power to “control, investigate, and regulate” and can “make all rules, regulations, and orders” necessary to enforce the law. Secondly, you will notice that the three criteria stated in the MPSC press release are nowhere stated in Act 16 itself. Certainly, Act 16 does NOT limit the MPSC’s power to just those three items.
Why does this matter? Well, if you read through the MPSC filings, you will nevertheless see this three-part framework– public need, reasonable routing, and meeting current safety standards– again and again and again. In fact, Enbridge attorneys used this framework, successfully, to prevent all kinds of evidence and arguments from entering into the proceedings. They argued that these three things– and nothing else– are what the MPSC is charged with determining. Everything else, Enbridge argued, is “outside the scope of these proceedings.”
So where did they get this framework? It actually comes from a 2002 MPSC ruling in another pipeline application, the infamous Wolverine Pipe Line case (U-13225), which we’ve discussed before in a different context. This is what the Commission said in their order approving the Wolverine application:
Pursuant to 1929 PA 16, MCL 483.1 et seq., (Act 16) the Commission is granted the authority to control and regulate oil and petroleum pipelines. Act 16 provides the Commission with broad jurisdiction to approve the construction, maintenance, operation, and routing of pipelines delivering liquid petroleum products for public use. Generally, the Commission will grant an application pursuant to Act 16 when it finds that 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.
What happened is that Enbridge’s clever attorneys seized upon the last part of this statement (everything following “Generally”) and treated it as if it were clear, prescriptive, restrictive, binding law. They first floated this strategy– we haven’t been able to find such a claim in ANY case before the Commission prior to this– in an initial brief in December of 2011, during the phase one proceedings. There, Enbridge stated that:
In considering an Act 16 application, the Commission examines whether there is a need for the project and if the proposed pipeline is designed and routed in a reasonable manner, which meets or exceeds current safety and engineering standards.
And then, in a clever sleight of hand, they went on to cite the Wolverine language. They did NOT cite, it is crucial to note, anything from Act 16 itself. Rather, they simply presented the statement by the Commission in 2002 as if it were a statement defining and delimiting the Commission’s powers per se (as opposed to a statement that just sketches a rough set of guidelines).
But it is plainly not the case that this statement defines and delimits the Commission’s power or authority. For one thing, the Commission’s 2002 statement says that those three things are “generally” what they will consider. It does not say “exclusively” or “solely” or “only.” For another thing, Enbridge glosses over the earlier part of the statement, which mentions the Commission’s “broad jurisdiction.” And finally (to repeat) Act 16 itself absolutely does NOT limit the Commission to these three areas; there is no legal reason why the 2013 Commission in a completely different case should be bound or constrained by the rough– the GENERAL guidelines– set forth by the commissioners in an order in 2002.
Of course, none of this is particularly surprising or bothersome; it’s just crafty lawyers doing what crafty lawyers do. What’s bothersome is that ALJ Theresa Sheets, in an extraordinary display of credulity, swallowed this argument whole. In a Notice of Proposal for Decision filed in March of 2012 (in phase one), Judge Sheets reiterated Enbridge’s argument, citing the same statement from the Wolverine case. In fact, Sheets did Enbridge one better: first, she stated that in the 2002 case the MPSC “articulated the standard for approval of Act 16 applications.” Secondly, as if that way of putting it still weren’t restrictive enough, she then quotes the same language from the ruling– but leaves out the crucial word “generally.” Frankly, in such a carefully written document, this omission, in our view, can only be deliberate– designed further to give the 2002 MPSC statement binding authority. And indeed, Judge Sheets then goes on to use those three criteria as the test– the ONLY test– for approval of Enbridge’s application.
So, having convinced Judge Sheets of this narrow “standard” in phase one , Enbridge had no trouble returning to it repeatedly– and successfully– in phase two to prevent the intervenors from making their case. The question of local consent? Doesn’t fall under one of those three standards, so it’s outside the scope of the proceedings. The NTSB report? Doesn’t fall under one of those three standards, so it’s outside the scope of the proceedings. And so on. Of course, this narrow three-part standard is betrayed by all sorts of other things that were discussed in the proceedings, such as the matter of environmental impacts. Enbridge even had an expert witness who testified about environmental matters– a fact that just goes to show that the Commission DOES and SHOULD consider things other than standards articulated in the Wolverine case. The standard is really just in place when it serves Enbridge’s interest to invoke it.
More importantly, the insistence on a strict adherence to this standard– an adherence enforced by Judge Sheets– hamstrung everybody and prevented a complete and thorough hearing of the case– precisely what Enbridge wanted. And the worst part is that now that the standard has been invoked and endorsed (by Judge Sheets) and repeated and reiterated (in the MPSC press release, in news articles), it will surely take on even greater weight and authority; it will surely be cited in future cases before the MPSC and treated as settled law (even though it is not).
And in this way, Enbridge– a foreign corporation, mind you– has not only gotten its way in this particular case; it has also effectively rewritten Michigan law.
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.
In our latest series, we’re reporting on some of the arguments and testimony presented before the MPSC on Enbridge’s phase two application. And as we do, we’ve been thinking about and discussing how well the MPSC fulfills (what we view as) its obligations, as a state regulatory body, to the citizens of the state of Michigan. In our first installment, we introduced you to the MPSC’s public engineer Travis Warner, who (to be blunt) appears not to be working all that hard when it comes to analyzing Enbridge’s application. In our second installment, we introduced you to MPSC staff attorney Michael Orris, who does seem to be working hard– that is, working hard on behalf of Enbridge, rather than on behalf of the public that pays his salary.
So far, we’ve mostly left the Administrative Law Judge in this matter, Theresa Sheets, off the hook. But make no mistake, we’re as baffled by her willingness to accept Enbridge’s arguments (at nearly every turn) as we are by Michael Orris’s. In this our third installment, we take a closer look at Judge Sheets and one of the more troubling ways she has allowed Enbridge to frame and determine the direction of the Enbridge proceedings.
To begin, it’s worth taking note of Judge Sheets’s background. She is still listed (on their website) as an employee of the Lansing firm Loomis, Ewert, Parsley, Davis & Gotting. According to her profile there she
is experienced in oil and gas law, including issues of land use, negotiation of oil and gas leases, representation of clients in matters before the Michigan Department of Environmental Quality under oil and gas laws, negotiation of wind leases, and various aspects of wind farm development.
Presumably, it is this experience that got her appointed to be ALJ at the MPSC. Yet we also presume that her “oil and gas law” experience does not entail advocating on behalf of those who might somehow find themselves at odds with large oil and gas interests. Why do we so presume? Well, for one thing, because her (former?) firm:
represents a number of oil and gas producers operating within the State of Michigan. The firm is widely recognized for its expertise in oil and gas law, and has rendered legal services for the oil and gas industry for more than 30 years. Our presence in Lansing, Michigan, results in convenient access to all state regulatory agencies having jurisdiction over oil and gas operations.
And for another thing, Sheets’s Loomis profile also notes that she is (or was) a member of the Michigan Oil and Gas Association. Who are they? Well, according to their website, the MOGA:
represents the exploration, drilling, production, transportation, processing and storage of crude oil and natural gas in the State of Michigan. MOGA has nearly 1,000 members of which includes independent oil companies, major oil companies, and the exploration arms of various utility companies. . . The organization has been described as the collective voice of the petroleum industry in Michigan, speaking to the problems and issues facing the various companies involved in the states crude oil and natural gas business.
And for one more thing, her profile touts the fact that she “has lectured on leasing; title and trust ownership at conferences of the Michigan Association of Professional Landmen.” Who are they? Well, they’re a group made up of “individuals responsible for the acquisition, administration and disposition of mineral and/or surface rights for petroleum exploration and production companies…” That’s right, it’s an organization for people who work as ROW agents (you know, just like the ones so many of us have gotten to know over the past year or so). Judge Sheets is (or was) a member of that organization as well.
Now, what does all this mean? It’s certainly not terribly surprising that someone with the sort of experience Theresa Sheets has had would wind up working for a state agency ostensibly responsible for regulating the same industry clients for whom she worked. This kind of thing is totally routine– as we learned, for example, about PHMSA at the PS Trust conference last November. And, theoretically at least, we’ll even concede that it’s possible that one could spend a significant portion of one’s career advocating for a particular industry and still be impartial as a regulator of that industry.
Nevertheless, this work history gives us some pause. Does it rise to the level of a conflict of interest? We don’t know. But if nothing else, it’s safe to say that Judge Sheets has been trained to approach and think about “oil and gas law” from the industry’s point of view, not from the point of view of those who might be critical or skeptical of the claims made by that same industry, like ordinary landowners. We wonder: is it really too much to ask that those tasked with scrutinizing the claims of an oil company have some genuine experience advocating for someone other than those oil companies? Like, for example, those whom that same oil company might potentially harm or abuse?
Which brings us back to the phase two proceedings. Inexplicably, Judge Sheets has had no trouble accepting nearly every argument made by Enbridge throughout these proceedings. In fact, there are only two instances we have come across (perhaps there are others we have missed) where she has in any way contravened the claims or wishes of Enbridge: there was the moment when, at an August hearing, she stated that she believed that the state constitution required Enbridge to seek local consent before beginning construction; and there was her ruling granting intervenors additional time in order to review the just-released NTSB report.
Of course, neither the statement nor the granting of additional time has made any substantive difference since, in both cases, Judge Sheets also ruled that neither the “local consent” provision in the state constitution nor the NTSB report were relevant to the MPSC matter at hand; in fact, she has specifically excluded both from the proceedings. And this is the crucial point here: Enbridge attorneys have labored to so limit the scope of the MPSC’s authority so severely as to cripple it– and Judge Sheets has helped them succeed.
We’ll explain precisely how she has facilitated Enbridge’s strategy in a separate post (installment 3.1!), as this one has already gotten much longer than we’d planned. Stay tuned.
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?
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?
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.
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.