by Jeffrey Insko | Jul 25, 2022 |
Today marks twelve years since Enbridge Line 6b ruptured near Marshall, Michigan and spilled a million gallons of diluted bitumen into the Kalamazoo River. As of this writing, I haven’t seen any acknowledgment of the grim anniversary from Enbridge, even though they still to this day like to talk about how they’ll never forget it. They even created some creepy iconography that they apparently give to their employees as a reminder of the incident. However, they seem to have a little trouble remembering the date of the rupture. The remembrance link above and this Enbridge’s timeline commemorate and begin, respectively, with July 26. It’s a weird and disturbing habit, this attempt to remember by trying to makes us all forget.
More importantly, this matter of the date of the spill offers a cautionary tale: if Enbridge can’t be trusted to tell the simple truth about what they claim is one of the most important events in the company’s history, how can regulatory bodies (and concerned citizens) in Michigan and Wisconsin trust there assurances with regard to their proposed re-routes of Line 5?
So for a corrective commemoration of the date of the spill, I’m re-posting a blog from way back in 2014.
—
from July 29, 2014
A History Lesson for Brad Shamla
Looks like Enbridge needs another history lesson. To mark last week’s anniversary of the Marshall spill, Enbridge VP Brad Shamla penned an editorial that was published in the Battle Creek Enquirer and the Detroit News. A version of the op-ed also appeared as a “letter” (that is, a paid advertisement) in the Detroit Free Press (and probably elsewhere, we’re not sure).
It’s a fine-sounding letter, carefully crafted, we’re sure, by a whole committee of people in the vast Enbridge public relations department. The trouble is, it’s also disingenuous, starting with its very first sentence. See if you can spot the problem:
July 26, 2010, is a day that no one at Enbridge will ever forget.
Yep, that’s right: in an article whose central point is memory and commemoration, the importance of always remembering what happened in Marshall, Shamla gets the date of the spill wrong. July 26, 2010 is NOT the day the “Line 6B pipeline failed near Marshall.” As everybody knows, the failure occurred on July 25.
So what gives? Is it possible Shamla doesn’t know this? Is it merely a typographical mistake? Or might it be, once again, a willful distortion of the facts on the part of Enbridge? You won’t be surprised to learn that we think it’s the latter. Shamla (and Enbridge) date the spill on July 26, presumably, because it allows them to forget what happened the day before, when Enbridge ignored evidence of a problem with the line, ignored its own safety protocols, turned up the pressure on the line, and gushed oil out of the ruptured seam in Line 6B for 17 hours. Here’s the National Transportation Safety Board’s account of what happened:
On Sunday, July 25, 2010, at 5:58 p.m., eastern daylight time, a segment of a 30-inch-diameter pipeline (Line 6B), owned and operated by Enbridge Incorporated (Enbridge) ruptured in a wetland in Marshall, Michigan. The rupture occurred during the last stages of a planned shutdown and was not discovered or addressed for over 17 hours. During the time lapse, Enbridge twice pumped additional oil (81 percent of the total release) into Line 6B during two startups; the total release was estimated to be 843,444 gallons of crude oil. The oil saturated the surrounding wetlands and flowed into the Talmadge Creek and the Kalamazoo River. Local residents self-evacuated from their houses, and the environment was negatively affected.
So far from remembering the Marshall spill, Shamla and Enbridge are actually re-writing history in order to conveniently erase some key facts from the historical record– facts that point directly to the real causes of the spill and its severity.
This revisionism is part and parcel with all of the new measures Shamla touts as Enbridge’s response to the lessons they learned from the spill. Mainly, those measures consist of throwing a lot of money around. Don’t get us wrong, some of the measures Shamla describes seem like good things. But not one of them gets at the core of the problem. Not one of them addresses or acknowledges the principle reason (according to the NTSB) the Marshall spill was so very bad: Enbridge’s “culture of deviance” from following its own safety protocols. Prior to the Marshall spill, Enbridge had all the tools it needed to prevent the spill: detection equipment that found anomalies, control center rules that could have shut down the pipe right away. But Enbridge disregarded or ignored those things. Spending money on new equipment, putting in place new rules and protocols isn’t going to matter one little bit if Enbridge doesn’t change its culture. The former is easy; the latter is very difficult– even more difficult if you’re unwilling even to acknowledge the problem.
“We will not forget the Marshall incident,” Shamla tells Michiganders, which may be true. Unfortunately, the incident Enbridge has “memorialized,” the incident Enbridge vows not to forget appears to be a fictionalized version of the incident, only loosely based on actual events.
by Jeffrey Insko | Jul 8, 2022 |
By now, you’ve probably heard the news: the Michigan Public Service Commission yesterday declined to rule definitively on Enbridge’s application to re-route a portion of Line 5 beneath the Straits of Mackinac inside a concrete tunnel. Instead, the Commission reopened the case and asked Enbridge to provide additional information.
I spent part of the day reading the Commission’s order and, honestly, it’s hard to know what to make of it, other than one thing: in one way or another, this was inevitable. As I (and plenty of others) have said from day one, Enbridge’s timelines for their silly tunnel project have always been completely ludicrous (more on this in a minute).
Most Line 5 opponents have taken this as good news. FLOW’s Jim Olson, for example, calls it “a step toward victory for the public and Great Lakes.” And Oil & Water Don’t Mix applauded what they called “the Commisioners’ prudent order.” I very much understand these responses. But I confess I’m also a little torn. On the one hand, the order basically castigates Enbridge, subtly, for failing to provide sufficient evidence in support of their safety assurances or of their compliance with some basic conditions in their three agreements with the State (agreements that were essentially big fat gifts from the Michigan legislature). What measures has Enbridge taken to enhance the safety of Line 5? Did Enbridge conduct the Close Internal Survey they agreed to? What were the results of their inspection of the coatings on the dual pipelines? Where is their work plan to repair bare metal on the pipelines? The record doesn’t say; Enbridge was silent on all this and more. Why? Is this just their usual sloppiness? More disregard for state authority and the seriousness of the proceedings? Or do they have something to hide?
Whatever the case, the Commission is certainly right to call Enbridge out on this lack of information. On the other hand, the Commission’s order essentially grants Enbridge a do-over. I find this rather baffling. After all, Enbridge had ample opportunity—two full years of hearings and filings—to present their case. But, as these question marks demonstrate, they clearly failed to make a satisfactory case regarding these important safety matters. On that basis alone, the Commission should have simply denied the application, rather than giving Enbridge a second chance. This just feels to me instead like the same situation we’ve observed repeatedly over the past decade: no matter how bad their behavior, Enbridge almost always gets a free pass.
I’m also feeling some ambivalence about the focus of the reopened proceedings. That is, it is certainly a very good thing that the Commissioners are taking seriously the potential dangers and risks of the tunnel project. They’ve asked Enbridge to provide additional information regarding its leak detection systems and the potential for fire or explosion in the tunnel. Yet the implication seems to be that the Commission’s final decision is likely to turn on the answers to these questions, as if they are the most important considerations in the matter. But from the point of view of other, far more important objections to the project—namely, climate change and indigenous sovereignty—leak detection and explosion risk are neither here nor there. Even if Enbridge could somehow prove that the tunnel is 100% safe and completely risk-free (which they can’t), it’s still a terribly bad idea. The last thing our overheated planet needs right now is a billion dollar investment in new fossil fuel infrastructure. Full stop. I’m worried the Commission doesn’t see it that way.
Then again, even that point might be moot because, as I’ve always maintained, the tunnel is a chimera; it’s never going to happen anyway. This is just another of what has been and will continue to be a very long series of delays, pushing the fantasy tunnel into an ever-receding future. And that suits Enbridge just fine, since they don’t really want the tunnel either. So I guess this is the last way in which my feelings about this non-decision are mixed: on the one hand, it’s certainly better than approval. On the other hand, it doesn’t hasten us, as it should have, toward the resolution of the matter we all want to see: a final, decisive, and permanent shut down of Line 5.
by Jeffrey Insko | Mar 11, 2022 |
Dear Commissioners-
I am writing to encourage you to deny Enbridge’s application to relocate the twin pipelines beneath the Straits of Mackinac into a tunnel. I hope you will please consider the following:
1. The limited scope of review adopted by the ALJ and supported by Enbridge and the MPSC Staff is legally mistaken and works against the public interest.
The legal basis for the limited framework adopted in these proceedings, comprised of a so-called “three-part test” and a MEPA review, is tenuous at best. Despite Staff’s claim that this framework has been “long used” and Enbridge’s claim that the MPSC has “repeatedly applied” it, this framework has only appeared in three cases before the Commission (including the extant one) and two of those three cases have involved an Enbridge application. Knowing that the narrowest possible scope of review best serves its interests, Enbridge has worked hard and successfully in these cases (beginning with U-17020) to convince the Commission to adopt this framework in an exclusionary manner. To be frank, the ALJs and the MPSC Staff in each of the latter two cases have been, for reasons that are hard to understand, willing dupes in accepting what is plainly and demonstrably Enbridge’s self-interested misreading of the law.
It is a misreading of the law because there is nothing whatsoever in the text of Act 16 (nor even in the first of these cases, the 2002 Wolverine case, U-13225) that precludes the Commission from considering matters beyond need, routing, and engineering standards. In other words, while those are all certainly things the Commission can (and should) consider, the Commission need not be bound by those factors alone. The Commission has ample authority under Act 16 to adopt whatever additional criteria the Commission deems appropriate. The fact is that a narrow review is advantageous to Enbridge and Enbridge only. A broad review is advantageous to the public, whose interests, unlike Enbridge’s, are myriad.
2. The plan to relocate a segment of Line 5 inside a tunnel beneath the Straits is itself a risk, full of dangerous uncertainties.
Enbridge and Staff repeatedly contend that relocating the dual pipelines inside a tunnel will virtually eliminate the risk of a spill into the Straits. Staff concludes, for example, that “the project’s risk-reducing benefits outweigh the impairments from construction.” Yet this conclusion (itself contestable) rests on a (shaky) assumption that has gone virtually unexamined in these proceedings: that a tunnel beneath the Straits of Mackinac can and will be constructed in a timely manner.
If the Commission approves Enbridge’s application, there are only two likely outcomes, neither of which serves the public interest and both of which represent a tremendous risk of precisely the sort Staff identifies in its definition of “risk”: the “combination of the likelihood of a negative outcome and the severity of the consequences that result from that outcome.”
The possibility that Enbridge could construct a tunnel and relocate Line 5 within it before the end of this decade strains credulity. Enbridge’s own most optimistic estimates, under ideal conditions, forecast 3-5 years (a forecast that their legal department is very quick to qualify in written statements!) after receiving all required regulatory approvals. But that timeframe is clearly more public relations than reality. Earlier speculation from Enbridge estimated that construction would take 7-10 years. And neither of those estimates takes into consideration appeals and other legal challenges that are sure to delay the beginning of construction. Nor do they take into consideration ordinary construction delays caused by accidents, mishaps, and weather and other conditions. Ironically, the severe weather events that are the result of the global warming caused by the oil Line 5 transports will inevitably produce conditions that pose a significant challenge to the construction of a tunnel which will in turn only further compound unpredictable and intensified weather events.
All of which is to say that one extremely likely “negative” outcome of the approval of Enbridge’s application is that Enbridge commences construction on a tunnel beneath the Straits of Mackinac that never gets completed, because of catastrophe or because the bottom falls out of the market. After all, given the recommendations by the IPCC on the urgent need to reduce fossil fuel production and combustion and initiative commenced by states, like Michigan, to transition as quickly as possible to renewable energy sources, the construction of new fossil fuel infrastructure in 2030 or 2035 is going to appear even more foolish and reckless than it does now. Michigan might well wind up with a half-built tunnel beneath the Straits, a great deal of disturbance (including disturbance to important indigenous archaeological sites), all for nothing.
The second—and, in my view, less likely—outcome is that Enbridge, some time well into the next decade or beyond, does complete its tunnel and relocate the dual pipelines. That outcome might be even worse for the public interest (and the planet), since it will only prolong and compound the climate crisis by encouraging the continued production and consumption of oil. After all, corporations do not make billion dollar investments without the expectation of long term returns; nor are corporations likely to strand lucrative assets. Staff contends that “it is incorrect to assume that halting a primary petroleum transportation route or method to the region will reduce demand for Line 5 products.” But this is a lazy and simplistic economic assumption. The history of energy infrastructure development, including the construction of Line 5, make clear that production produces and drives demand (it’s why companies, including energy companies, spend so much money on advertising!).
Put differently, a tunnel might seem like a solution to the real danger of a spill in the Straits. But it is a chimerical solution. And even its dubious success presents, without question, its own set of long-term dangers and risks.
3. The realities of climate change can neither be ignored nor partitioned.
Since the Commission ruled that GHG emissions would be considered in these proceedings, Enbridge and Staff have labored to restrict how those emissions should be measured. It is nonsensical and ethically short-sighted to think that the only emissions that should be considered are those directly associated with the project. As modes of conveyance, pipelines do not exist independent of sites of production and use; decontextualizing them from their function is an irresponsible exercise in willful blindness, especially given the realities and exigencies of climate change. For that reason, some researchers have begun to develop more holistic—and hence more accurate– ways of measuring emissions, such as the “bottleneck method,” which calculates emissions across all phases, from production to refining. Using these methods, researchers found that oil and gas pipelines are by far the largest contributors to GHGs. (See https://www.mdpi.com/1996-1073/13/15/3932). To only consider emissions specifically associated with “the project” is to make the Commission’s recognition of the importance of considering climate effects look like a fake gesture, a way to pretend to take GHG emissions seriously without actually doing so.
4. The Commission has an opportunity to stand for indigenous sovereignty—and should take it.
Finally, I urge the Commission to give far more consideration to the tribal intervenors than has been given by Enbridge or Staff. When Line 5 was built in 1953, tribes along the entire route of that pipeline were given no opportunity whatsoever to make independent decisions regarding how it might affect their lifeways, their sacred sites, or their treaty rights. Since that time, governments and regulatory bodies have taken steps to ensure tribal “consultation.” But the historical record shows clearly that too often consultation is a show rather than a reciprocal process resulting from genuine respect for sovereign rights or legal agreements such as the 1836 Treaty of Washington. Once again, Enbridge and Staff have worked to restrict, limit, or curtail the extent to which tribal groups could intervene or have a hearing in these proceedings. In doing so, they have—albeit under the guise of consultation—once again duplicated the injustices that have historically dispossessed indigenous peoples. The Commission here has a chance to refuse to reproduce those injustices.
The fact is, this application represents a kind of watershed moment—for the protection of the Great Lakes, for finally addressing the climate crisis, and for redressing some of the historical wrongs inflicted upon indigenous peoples. Admittedly, that is a lot for a single state commission to shoulder. Yet here we are. It will take courage and foresight for the Commission to deny this application, but doing so is within the law and the authority of the Commission. And more importantly, doing so is what’s right for our shared future, if not for one corporation’s short-term profits.
Thank you for your consideration,
Jeffrey Insko
Groveland Township, Michigan
by Jeffrey Insko | Sep 28, 2021 |
It is entirely possible that the world doesn’t need one more example illustrating the headline of this post. They are legion. This blog is full of them— almost a full decade’s worth of them. And the troubling thing about this surfeit of examples, this disturbing excess, is that it doesn’t seem to matter. It appears to make almost no impression whatsoever on most of the people who are in a position to actually do something about it, the people who actually could hold Enbridge accountable for their appalling record of looking the public in the face and, without so much as a twitch, uttering rank falsehoods.
But like you, dear reader, I care about the truth. So I keep documenting these things anyway. And today I have another one that’s sort of been stuck in my craw this past week. You see, over the weekend, I was lucky enough to take part in a session at the annual Michigan History Conference organized by the Historical Society of Michigan. Beth Wallace from the National Wildlife Federation and I presented on Line 5. My talk, based upon research that I’ve been conducting (with the help of my amazing research assistant, the brilliant and tenacious Alma Dukovic) for the book I’m currently writing.
As I was putting together my presentation, I was reminded of a claim that Enbridge has often made over the course of the past few years, a claim designed to make them look like responsible stewards of the environment, like they are a corporation that cares about the Great Lakes and acts accordingly. And in this case, it’s a specifically historical claim. Here it is on the Enbridge website:
Enbridge’s Line 5 underground pipeline was built in 1953 to remove oil-carrying tanker traffic from the Great Lakes. It also eases roadway and air emissions by avoiding oil transportation by truck and rail.
And here it is in the mouth of none other than Enbridge CEO Al Monaco in the Washington Post:
Line 5 was originally built to take oil tankers off the Great Lakes to provide a safer, more efficient way to get energy to millions of people who depend on it every day.
Line 5 was constructed with the Great Lakes and safety in mind.
And here it is– there’s even video!– coming from ubiquitous Enbridge spokesman Ryan Duffy:
Back in the 50s, there was a push to change up how oil was being moved on the Great Lakes so that it wouldn’t be in those huge oil tankers out on the water. The push was to find a way to do it safer.
Got it? Enbridge would have us all believe that the primary reason they built the Line 5 pipeline was because they just wanted to protect the Great Lakes from potential tanker spills. They would have us believe that “Line 5 was constructed with the Great Lakes and safety in mind.” They would have us believe that in 1953 “there was a push” to transport oil more safely.
Reader, this is complete bullshit. It’s greenwashing history.
I have read a lot about the history of Line 5. I’ve read countless newspaper reports about it from the 50s. I’ve read the corporate history that was written about it by an Enbridge insider. I’ve read the annual reports of the company from the era. And in all of that research, I have not seen one single word about Great Lakes safety. I haven not encountered, in any source, anyone saying that Line 5 was meant to provide a safer alternative to tanker traffic. It just didn’t happen. It’s simply not true.
The truth, instead, is pretty much what you would expect: the construction of Line 5 wasn’t a safety decision; it was a financial decision. And the reason is simple: in 1953, the real Great Lakes shipping problem was the weather. In Winter, icy conditions made the shipping channels on the lakes completely impassable. So oil couldn’t be shipped by tanker all year round. Shipping was a seasonal operation. And that meant that Enbridge’s affiliates in the oil fields of Western Canada were producing oil faster than Enbridge could get it to the refineries in Sarnia. Year-round transport via pipeline solved that problem.
But you don’t have to take my word for it. You can just listen to the Al Monaco of 1953, T.S. Johnston the President of Interprovincial Pipe Line (the precursor to Enbridge). According to the New York Times on April 2, 1953:
The completion of this extension will make it possible, Mr. Johnston said, to deliver crude oil the year ’round to Ontario. Thus the bottleneck caused by cessation of tanker operations on the Great Lakes during the Winter will be eliminated.
This was always the rationale for the construction of Line 5, repeated frequently in news and other accounts. There’s not a word about safety. Not in news accounts or anywhere else that I have seen. As usual, Enbridge is literally just making things up. So I say it once again: you cannot believe a single word Enbridge says.
In a rational world, this sort of thing would matter. It would be admissible and carry great weight in regulatory and legal proceedings, where skepticism about Enbridge’s claims and assurances should reign, but– alas– does not.
by Jeffrey Insko | Jun 15, 2021 |
For the Canadian site
Energy Humanities, I wrote about what makes the movement to shut down Line 5 unique and important.
You can read it here.
by Jeffrey Insko | May 11, 2021 |
As you’ve probably heard, as of this Wednesday,
Enbridge will be in open defiance of Michigan law. Six months ago, Governor Whitmer gave notice to Enbridge that the state was revoking its easement to operate Line 5 beneath the Straits of Mackinac. The Goverrnor’s order was based upon a long, indisputable history of violation of the terms of the easement as well as the pipeline’s violation of the Public Trust Doctrine. But Enbridge, which has always operated with shocking impunity in this state, is refusing to comply. Or more precisely, Enbridge is brazenly deciding to break the law.
Now, a casual observer might well think that these are unusual circumstances, that Enbridge is resorting to extreme measures because there is so much at stake, that they are faced with a remarkable situation which leaves them no choice but to act in ways that are extraordinary.
But the fact is that there is nothing unusual whatsoever about Enbridge thumbing its nose at local, state, and federal authority. The company has a long history in Michigan of flouting the law, breaking their word, breaching agreements, disregarding ordinances, and violating regulations and the conditions of permits. In short, the record shows that Enbridge does want it wants, with no accountability and no real consequences (paltry fines hardly count). This is why they spend millions of dollars on public relations, print and radio ads, and professional spinmeisters: they work hard to try and burnish their reputation because the truth is so ugly.
So in honor of what later this week will go down as Enbridge’s most shamelessly flagrant disregard for the law yet, here is a Greatest Hits list of just 10 of their many violations of contracts, regulations, and laws ranging from private agreements with individuals to federal statutes:
1. The time Enbridge broke promises to landowners. Instances of this are, in truth, far too numerous to mention. But during the the Line 6B “replacement” project, Enbridge routinely broke verbal promises they made to landowners and violated their “Line List” agreements (the closest thing we could get to legally binding contracts regarding construction behavior). Here’s a representative example that was covered by Michigan Radio back in 2014, near the end of construction. Lots of other examples are available here at the blog as well. I myself have plenty of first-hand experience with this kind of violation.
2. The time Enbridge ignored the Brandon Township Woodlands Ordinance. All during the “replacement” project, Enbridge attempted to barrel their way across the state, ignoring and evading local ordinances. But at least one township had the courage to stand up to them. Here’s that story.
3. The time Enbridge ignored Michigan state law. That disregard for municipal authority was actually also a violation of state law, specifically the Michigan law that requires pipeline companies to seek “local consent” for their construction projects. Enbridge fought tooth and nail against this provision of state law.
4. The time Enbridge violated 11 provisions of a state water permit. About that same time, Enbridge was caught violating the terms of a permit issued by the Michigan DEQ. And chances are they’d have gotten away with it were it not for the vigilance of a local activist.
5. The time Enbridge started remediation work on the Kalamazoo River without local approval– and then lied to the US EPA about it. This is an especially tawdry story from Comstock Township, which involves both disregard for local ordinances and straight-up mendacity.
6. The time PHMSA hit Enbridge with 24 different violations of the federal code. Following an investigation into the causes of the 2010 Kalamazoo River spill, the Pipeline and Hazardous Materials Safety Administration found that Enbridge had violated two dozen provisions of federal pipeline safety regulations.
7. The time Enbridge violated the federal Clean Water Act. In addition to the above citation from PHMSA, Enbridge eventually reached a settlement with the Department of Justice for violations of the Clean Water Act. The settlement included $177 million in fines.
8. The time Enbridge violated the terms of its settlement with the Department of Justice. You would think that reaching an agreement with the DoJ would be a pretty big deal, a big enough deal that it would cause a company to remain on the straight and narrow. But that’s not how Enbridge rolls. They wasted little time violating the terms of the consent decree– resulting in still more fines.
9. The other time Enbridge violated the terms of its settlement with the Department of Justice. You might also think that having violated the terms of the settlement with the DoJ, Enbridge would strive to do better and not violate the settlement again. But remember, we’re talking about a company that, according to available evidence, is literally incapable of following the rules. More violations. More fines.
10. The time Enbridge spent more than a half century violating the terms of its easement with the state of Michigan. All of which brings us to Line 5. As the Governor’s order makes devastatingly, disturbingly clear, Enbridge has shown a shocking disregard for the due care clauses of its Line 5 easement for more than 50 years. For a succinct, compelling summary of those violations, check out this video. Finally, at long last, someone has the temerity to hold Enbridge accountable. In response, Enbridge has taken to whining and fear mongering and enlisting all of their powerful friends in the petrochemical industry and the Canadian government. But as this list makes clear, an action like this is long overdue. If you or me or anyone else engaged in this kind of pattern of lawbreaking, we’d almost certainly be locked up in jail.
So there it is, 10 of Enbridge’s Greatest Hits of lawlessness. On Wednesday, May 12, with all the arrogance that comes from immense power and resources, they’ll turn it up to 11.
Governor Whitmer announced today that she won’t have it. And even more good news is that a whole bunch of really amazing people, people I admire immensely, will be gathering around the state this week to join the Governor in saying “no more!” Here’s more information regarding the where and the what.
by Jeffrey Insko | May 3, 2021 |
Tomorrow, I’m pleased to join a panel discussion on Line 5 as part of the Michigan League of Conservation Voters’ People, Planet, Public Health Webinar series. Here are details including a link to register.
In 2010, nearly a million gallons of oil was spilled into the Kalamazoo River, costing more than a billion dollars and taking years to clean up. Who caused that spill? Enbridge Energy.
This Canadian company continues to threaten Michigan waterways with their outdated, 68-year-old Line 5 pipeline in the Straits of Mackinac. Thanks to Governor Whitmer, this pipeline is set to be shut down on May 12. But we know Enbridge won’t go down without a fight. Join us, Michigan LCV, and a panel of experts to discuss what it will take to shut down this ticking time bomb for good.
Register for the “Line 5: Shutting Down the Ticking Time Bomb” webinar here.
Who: Michigan LCV, Jeff Insko, Professor of English at Oakland University, Whitney Gravelle, President, Bay Mills Indian Community, Riyaz Kanji, Tribal Litigator at Kanji & Katzen and Michigan LCV Board Member
When: Tuesday, May 4, 5 p.m.
Where: via Zoom and Facebook Live. Register here.
Sign up for Michigan LCV’s People, Planet, Public Health webinar: “Line 5: Shutting Down the Ticking Time Bomb”
Thank you for your support!
by Jeffrey Insko | Apr 22, 2021 |
By now, you’ve probably heard the news: the Michigan Public Service Commission has granted the appeal of intervenors asking that greenhouse gas emissions (GHGs) be considered in Enbridge’s application to relocate a portion of Line 5 in a tunnel beneath the Straits.* You can read news reports here and here and here.
This is excellent news indeed and cause for real Earth Day celebration. Not only does it mean a more thorough review of the Line 5 tunnel matter, it also sets an extraordinarily important precedent. The Commissioners are to be commended for this brave and responsible decision, which even entailed overruling the determination of the Administrative Law Judge in the case. This is no small matter and in my view constitutes an all-too-rare display of foresight and thoughtful leadership by state regulators. Three cheers for Commissioners Dan Scripps, Katherine Peretick, and Tremaine Phillips.
The Commission’s ruling was not, however, a total victory. The Commissioners denied the intervenors’ appeal to reconsider the public need of the entirety of Line 5 as well as their request to make the condition and longevity of the entire line matters of consideration. In other words, the Commission agrees with the ALJ that the proceedings must focus only upon the 4 mile segment of Line 5 to be replaced.
I spent some time yesterday and today reading the full ruling, which you can also read here, and have a few thoughts and worries. But I’ll start with the positive.
Perhaps the most important statement the Commission makes in its ruling is that “the need for a robust record in this case is crucial.” This is exactly what Enbridge (as well as, bafflingly, the MPSC staff) argued against. They argued for an extremely narrow scope of review. But the Commissioners aren’t having it. This is most evident in their ruling, stated with admirable clarity, that greenhouse gas emissions clearly fall within the purview of the Michigan Environmental Protection Act (MEPA). “While some would narrowly constrain the review of pollution to the construction of the tunnel and pipeline,” they note, “such an interpretation is untenable.” Thus, the MPSC has ample authority to regulate the products shipped by the pipeline. And since, MEPA requires the evaluation of potential forms of “pollution,” it quite plainly applies to greenhouse gas emissions. As the ruling nicely puts it,
Nothing in MEPA limits the types of “pollution” that can be asserted by an intervenor as resulting from the “conduct,” and, as the history of both environmental degradation and regulation show, new pollutants continue to be identified.
Unfortunately, this is also where things might get a little bit sticky, since this appropriately expansive understanding of MEPA is apt to conflict with the Commission’s narrow ruling on the scope of the proceedings. Let me explain:
It’s not really surprising that the Commission would find that the question of need for Line 5 as a whole was determined in 1953. Once again, they state the matter succinctly: “The public need for the existing portions of Line 5 has been determined. The public need for the Replacement Project has yet to be determined.” That’s a fair reading, I suppose, even though the basis upon which it is made in the ruling is mistaken. It is simply not true, as I have pointed out before, to say that “the Commission has never examined any portion of existing pipeline that is interconnected with the segment that is proposed in the applicant’s project but not within the proposed route.”
Still, on this point I will at least grant the Commission that it makes sense conceptually to consider the Straits segment of the line independently from the rest of Line 5. The Commission notes, for example, that it is theoretically possible for Enbridge to continue to operate the non-straits segments of Line 5 without the Straits segment by way of some “alternative pipeline and non-pipeline shipping arrangements.”
But at other times, that same act of separation– of segment from entire line– seems nonsensical. This is where I think the MEPA portion of the ruling conflicts with the scope portion of the ruling. For example, the Commission’s ruling states that “the parties are free to introduce evidence addressing the issue of GHG emissions and any pollution, impairment, or destruction arising from the activity proposed in the application” but then also says that “While the project under consideration is limited to the 4-mile section of the pipeline described in the application, this pipeline section would involve hydrocarbons that may result in GHG pollution that must be subject to MEPA review.”
How does one begin to calculate potential greenhouse gas emissions based upon a restriction of the review to a specific segment of the pipeline? Does one have to somehow determine which quantities of oil will, or have, actually make their way through the Straits segment? Do potential emissions or pollution effects have to somehow account for the fact that those quantities of oil will spend part of their transportation time in the other 641 miles of Line 5? that some of the oil Line 5 transports won’t ever actually flow through the Straits segment? Or what about oil that was intended to make it to the Straits segment but doesn’t (because, say, of a leak elsewhere on the pipeline)?
You can bet this is exactly the kind of hairsplitting Enbridge is going to engage in as a way of trying to make all sorts of GHG projections inadmissible. It’s apt to become a quagmire. But regardless, the fact is that, despite the delusional legalistic idea that a segment of Line 5 can somehow be strictly distinguished from the rest of the line, there are inevitably going to be instances where such a distinction simply can’t be made. It’s foolish to pretend otherwise. As soon as Enbridge says a single word about propane needs in the UP or even in the lower peninsula, for example, they’ll be asking the Commission to take into consideration portions of the line that are not part of the Replacement Project. Will the ALJ therefore rule such statements and claims outside the scope of consideration?
Lastly, let me just say one more time that it is very disappointing to see the Commission once again further solidifying the “three-part test” I’ve been complaining about for years and years. It’s especially irksome– and, I would argue, factually inaccurate– to say the Commission has “repeatedly” applied that test, since it has applied it exactly TWO times. Frankly, I think twice is closer to coincidence than it is repetition. Still, the Commission’s statement of that framework here, as a third instance, essentially sets in stone forever. But let’s not forget that in doing so, they are assisting Enbridge in re-writing Michigan law to the advantage of Enbridge.
Despite this worry, I don’t want to end on a sour note. I’d rather be hopeful and there is no question that the climate ruling in this case– which Enbridge, of course, has chose to ignore in its public statements, like a toddler who sticks his fingers in his ear so he can’t hear “no!”– is wonderful news indeed. The Commission’s application of MEPA is a step that is likely to reverberate well beyond these proceedings and might even re-shape, in very positive ways, the state’s environmental laws. That, my friends, is an excellent legacy for these Commissioners to leave and also a very welcome Earth Day gift.
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* Special shout-out to all the groups who intervened and helped make this happen:
by Jeffrey Insko | Apr 14, 2021 |
it’s been almost a full decade now that I’ve been documenting, right here on this blog, Enbridge’s many misdeeds, mistakes, mistreatments, missteps, falsehoods, fabrications, dissemblings, distortions, and dishonest dealings with people in Michigan and beyond. It’s an appalling record, so appalling in fact that it’s frankly astonishing that anyone, much less anyone in a position of any authority, could possibly trust them or believe a word they say. And yet, a stunning number of willing dupes, including the Republican-led legislature just a few years ago, continue to do this company’s bidding (while the planet burns).
But the past week brought an example of what might very well be the worst thing Enbridge has done yet.
And believe me, I know that’s saying something. This is the same company, to cite just three of the very worst examples, that struggles even to tell the truth about when the Kalamazoo River spill happened, that straight-up lied to the U.S. Environmental Protection Agency, that just brazenly (I thought they’d never stoop lower than this) made up an unflattering story about a single ordinary citizen and spread it around publicly.
The latest, however, is simply unconscionable. It involves turning tribal relations into a crass public relations stunt. Out of respect, I will let tribal leaders and others speak for themselves about this serious and sensitive matter (see the links below). I will just observe that this episode shows that if Enbridge is not actively and deliberately engaged in fomenting division among tribal groups and members, they are at the very least self-servingly exploiting whatever divisions may exist. Either way, it’s utterly shameful. If Enbridge were truly and genuinely serious about “peacemaking” or listening or cultivating relationships with indigenous peoples based on trust and reciprocity, they would just shut up and work on it, rather than trying to make a public show of it.
Here’s the story in a few different places:
Tribal Leaders Denounce Enbridge for Manipulative Video About Indigenous Peacemaking
Tribal members criticize Enbridge claims of ‘peacemaking’ attempts
by Jeffrey Insko | Mar 25, 2021 |
This week saw a flurry of activity on the MPSC’s Line 5 docket. As part of my ongoing effort to read things so you don’t have to, I spent some time this week looking over the new filings. Specifically, Enbridge and the MPSC Staff filed responses to the current appeals to the Administrative Law Judge’s last ruling. Those appeals from the Michigan Environmental Council, the Environmental Law & Policy Center, the Bay Mills Indian Community, and FLOW—all of which, in my view, make some of the strongest arguments they’ve made yet– seek to overturn the ALJ’s exclusion from consideration questions related to public need, the entirety of Line 5, and climate change, among other things.
I’m especially struck by the arguments presented by MPSC Staff in response to those appeals, not only because I suspect they carry particular weight with the Commissioners as I think they have with the ALJ (though I hope I’m wrong about that!) but also because the arguments are, well, just so very bad.
And it’s not just the arguments. I frankly don’t really understand the general mindset the MPSC staff has brought to these proceedings from the beginning, a mindset that, like Enbridge’s, seems to want to limit the scope of review as much as possible. It’s easy to understand why Enbridge would want a severely narrow review, of course. But it’s less easy to understand why those who literally work for and on behalf of the public would want anything less than the most careful, comprehensive review possible. Nevertheless, in their latest, the MPSC staff is oddly melodramatic about the matter, insisting that “without reasonable and legally sound limitations, the Joint Appellants’ anything-goes-approach would expand and weigh down the evidentiary record until it buckles” (p. 7). The metaphor here seems rather overwrought, as if due diligence is just somehow too much to ask of a public agency. Honestly, it just winds up sounding like Staff doesn’t want to have to do any extra work, like a teenager complaining about household chores.
The substance of the Staff’s argument is no better. As has been the case all along, the long and the short of it is that the MPSC Staff, like Enbridge, wants to severely limit the scope of the proceedings. But the argument they present for doing so is, in my opinion, extraordinarily weak. I find it baffling and a little disheartening that it has carried the day with the ALJ so far.
In the latest filing, the MPSC Staff argument begins with a tenuous claim, one that I’ve written about before—going all the way back to 2013. Here’s the latest iteration of the argument in Staff’s filing:
The Commission has historically considered three criteria in deciding whether to approve or deny an Act 16 application: whether (1) the applicant has demonstrated a public need for the proposed pipeline; (2) the proposed pipeline is designed and routed in a reasonable manner; and (3) the construction of the pipeline will meet or exceed current safety and engineering standards. (p. 8)
The claim here is misleading, to say the least. For one thing, “historically” is an exaggeration. The three-part framework cited here appeared for the first time in an MPSC proceeding less than 20 years ago, in the Wolverine pipeline case in 2002. Secondly, as I have explained in detail numerous times, even then these three criteria were never meant to be exclusive. Left out of this citation are the parts of the 2002 ruling that mention the Commission’s “broad authority” as well as the term “generally” (not “only” or “solely” or “exclusively”) that precedes even the enumeration of these three criteria. More troubling still is the fact that the sleight of hand that seems to have transformed these rough, general (but non-exclusive!) guidelines into hard-and-fast, apparently binding criteria was first performed by Enbridge. Eight years ago, they set the stage for what we’re witnessing now—as I predicted at the time. I don’t have space here to rehearse that full story yet again, but you can read it here and here.
Nor is this the only time that Staff looks to that 2002 Wolverine case for a precedent to limit the scope of the proceedings. With regard to that case, Staff argues that “at no point did the Commission examine: (1) any portion of Wolverine’s existing pipeline system not clearly related to the proposed extension; and (2) whether the pipeline could or should extend the operational life of the existing pipeline system” (10). Now, this assertion is technically true, but it is also once again misleading. The reason the Commission did not consider either of those two things in the Wolvernine case is NOT because they were ruled irrelevant or beyond the scope of review. Rather, it’s because those question were never raised by any intervenors. In other words, no one asked the Commission to consider Wolverine’s existing pipeline system or its operational life. The important point, therefore, is that nothing in the Wolverine case explicitly excludes those considerations any more than it permits them. The Wolverine ruling has nothing at all to say on the matter either way.
Staff’s second example of a precedent for limiting the scope of the proceedings is weaker still. Staff claims that in case U-17020, the Phase 2 replacement of Line 6B back in 2012-13, the Commission “did not revisit or reanalyze the public need for those existing systems. Rather, the Commission evaluated the public need for the pipeline segments as an important update to the existing pipeline” (11).
This is a baffling claim. The facts plainly contradict it. Both Enbridge’s application and the ruling clearly make the case for need based on the operation of the entirety of Line 6B, not just the “replacement” of some noncontiguous segments. For example, a key reason Enbridge claimed the replacement project is in the public interest was that it “restores the ultimate pipeline capacity of Line 6B” (p. 8). Similarly, in its approval of Enbridge’s application the Commission cited as the basis for its public need determination the fact that “Line 6B is the only pipeline ‘that can transport the large volumes or types of crude oil and petroleum produced in western Canada or the Williston Basin to refineries served in the region of the Project,’ noting, in particular, the expansion of the Marathon refinery in Detroit (p. 22).
Thus, both Enbridge in its application and the Commission in its ruling quite clearly and quite explicitly considered the public need for Line 6B as a whole as well as existing regional pipeline systems. In arguing otherwise, Staff cites the testimony of an Enbridge witness who referred at one point to the public need for “the project.” But elsewhere—in the Commission’s own ruling, as a matter of fact!—the Commissioners cite the very same Enbridge witness arguing for need based upon restoring “the ultimate capacity of Line 6B” and avoiding what is called “apportionments” on the entire line (the situation where shipper demands exceed pipeline capacity) (p. 7). None of this should this be remotely surprising, of course. It makes no sense in the first place to pretend like it’s even possible to talk about the “need” for a pipeline without talking about the entire pipeline.
In fact, in that same case, Enbridge never asked the Commission, as they are doing now, to exclude consideration of the pipeline as a whole or even to exclude discussion of regional pipeline systems. Quite the contrary: situating the project within that broader context was obviously advantageous to Enbridge’s case. But now that it’s not, they’re trying to change their tune and trying to rewrite MPSC history—aided and abetted by the MPSC staff.
Likewise striking is the fact that in the U-17020 case, Enbridge did not claim, as they’re claiming in the current Line 5 case, that they already have a determination of need for Line 6B. This is a curious fact, given that Line 6B was granted approval in 1969 and Enbridge could have tried then, as they’re doing now, to argue that the pipeline was already determined to be in the public interest. But they did no such thing. One can speculate as to why (for example, the fact that the project faced far less scrutiny and opposition than the Line 5 case), but whatever the case what this means is that Staff is just plain wrong to assert that there is no precedent for a re-determination of need. Here is Staff’s claim on this point
the Joint Appellants do not, and cannot, cite any substantive law that a pipeline that has been determined to be in the public interest must once again prove those benefits in an Act 16 proceeding to continue to operate into the future. (p. 21-22)
But as we’ve just seen, U-17020 is exactly a case where a pipeline that has been determined to be in the public interested once again had to prove those benefits in an Act 16 proceeding to continue to operate into the future. Enbridge didn’t even dispute that point.
Staff has an odd concern with the future in its most recent filing, a concern that leads them to some strange places. Here, for instance, is the next turn their argument takes:
Not only do the Joint Appellants distort “public need” by broadening the “pipeline” under review; they include a new requirement that the applicant demonstrate need for a previously authorized pipeline to continue to operate into the future (p. 12)
Now, this is a very strange framing, as I’ll explain below. But it’s worth noting that there is nothing “new” about such a requirement. Once again, consider U-17020. The demonstration of need produced by Enbridge (and affirmed by the Commission) in that case hinged almost entirely on operating the pipeline into the future. In its application, for example, Enbridge said that it “believes that the upgrades to Line 6B will allow it to meet its shippers’ forecasteddemands for additional pipeline capacity in the future” [emphasis mine]. In sworn testimony, the same Enbridge witness Staff quotes in its most recent filing explained that the project would add additional pipeline capacity “to meet shippers’ current and future transportation requirements” [emphasis mine].
But the real point about Staff’s odd fixation on the future is simply this: how could it be otherwise? Demonstrating need for a pipeline, or even for a segment of a pipeline, by definition implies its operation into the future. At what other time would you seek to operate a pipeline? You don’t apply for approval to construct a pipeline yesterday or last year; you don’t plan to construct a pipeline in order to operate it in the past. Every application before the MPSC is necessarilyfuture-oriented.
Which is why it is completely incoherent for Staff to argue that the Joint Appellants “conflate the public need for the project with the public need for ‘extending’ or ‘continuing’ the life of Line 5” and that the Joint Appellants also “conflate investment in a pipeline with extending the life of a pipeline.” There’s no conflation happening here; these things are simply inseparable. Why would someone assert the public need for something in the past or the immediate present? Why would anyone ever invest in a pipeline if not to extend its life? An investment is literally– by definition— a bet on the future.
In torturing this point, Staff then makes what seems to me a stunningly disingenuous argument, stating that “the life and use of Line 5 is not necessarily dependent on the age of the existing pipeline, but rather economics”:
Although Enbridge may occupy the utility tunnel for 99 years, that does not mean that it necessarily will. That figure is a maximum amount of time, not a statement on how long Line 5 will operate. It is entirely possible that Line 5 could cease to operate regardless of the Commission’s decision in this case. For example, Enbridge might experience a loss of supply, loss of demand, or experience other economic drivers not relevant to this case.
Setting aside Staff’s poor grasp of “economics” (that is, pipeline operators or capitalists of any kind don’t make billion dollar investments in assets that they don’t intend to use for as long as they possibly can), it’s not really clear what Staff is arguing here. That the Commission should take seriously an application to build a pipeline in a tunnel in the bedrock of the Straits of Mackinac that might only be used for a very short period of time? That is absurd on its face.
Enbridge, it’s worth nothing, attempts to make a similar argument that is even more laughable. Enbridge claims that the “sole reason” they seek to relocate the pipeline beneath the Straits within a tunnel is to “fulfill the state policy of better protecting the Great Lakes.” That is, Enbridge seriously tries to argue that the reason for relocating the pipeline is because they entered into an agreement to do so with the state, not because they want to extend the life of the pipeline. But this makes no sense whatsoever since it is obviously the case that the only reason they would ever enter into such an agreement with the state in the first place is so that they could continue to operate the pipeline into the future. Or put differently, the whole point of the tunnel agreement is to better protect the Great Lakes while at the same time extending the life of Line 5. The extension of the operating life of the pipeline is the pre-condition of the tunnel agreement. Without it, there would obviously be no tunnel agreement. It is ludicrous, and frankly insulting to anyone’s intelligence, to pretend otherwise.
This leaves, finally, the question of the permissibility of climate change and greenhouse gas emissions in these proceedings. I’ve already gone on far too long here, so I may need to save that discussion for a separate post. For now, I will just say that Staff’s argument for excluding these things from consideration rests primarily on the claim that doing so “would fundamentally transform the Commission’s review of Act 16 pipeline applications in Michigan, with no basis in precedent or statute.” Now, that claim is probably true. And it’s not really surprising that lawyers and judges would consider themselves as bound by precedent; typically cautious, that’s just how lawyers and judges roll. But the Commissioners need not be bound by precedent and need not be cautious. After all, just as there may be no precedent or statute for considering climate change in Act 16 reviews there is also no precedent or statute expressly prohibiting it.
And here we move from legalities to ethics. At this stage of the climate crisis, it is, frankly, ethically irresponsible not to take into account greenhouse gas emissions. And given the makeup of the current Michigan legislature, dominated by reckless industry-loving Republicans, it’s unlikely that any statutory mandate that regulatory agencies do so is forthcoming. But if we’re serious about addressing this crisis, at some point, someone in a position of authority is going to have to take a stand, even if that means fundamentally transforming the Commission’s review of Act 16 pipeline applications. The MPSC Staff, like Enbridge, might be scared of that transformation, but it’s a transformation we desperately need. And the Commission has the authority to make it.
They just need the courage.
