{"id":5139,"date":"2023-12-04T18:41:33","date_gmt":"2023-12-04T23:41:33","guid":{"rendered":"http:\/\/grangehallpress.com\/Enbridgeblog\/?p=5139"},"modified":"2023-12-04T18:41:33","modified_gmt":"2023-12-04T23:41:33","slug":"enbridge-mpsc-post-mortem-series-2023-edition","status":"publish","type":"post","link":"http:\/\/grangehallpress.com\/Enbridgeblog\/2023\/12\/04\/enbridge-mpsc-post-mortem-series-2023-edition\/","title":{"rendered":"Enbridge-MPSC Post-Mortem Series (2023 edition)"},"content":{"rendered":"

Ten years ago in 2013\u2014I really can\u2019t believe it\u2019s been a full decade\u2014I wrote a series of posts in response to a Michigan Public Service Commission case involving Enbridge<\/a>. At issue then was the \u201creplacement\u201d of Line 6B across the state and at the time, I\u2019m sure I never imagined I\u2019d be writing a similar series again. But here I am.<\/p>\n

Welcome to the Enbridge-MPSC Post-Mortem Series, 2023 edition.<\/p>\n

By now, I\u2019m sure you\u2019ve heard: on Friday, the Michigan Public Service Commission approved Enbridge\u2019s application<\/a> to re-route a portion of Line 5 beneath the Straits of Mackinac inside a concrete tunnel. I know this sounds preposterous, what with a planet on fire and the urgent need to decarbonize as rapidly as possible. But it\u2019s true.<\/p>\n

A decade ago, in response to the similarly disappointing outcome, I called the MPSC \u201ca terribly weak-kneed, embarrassingly toothless regulatory body,\u201d \u201can agency with very little power (and perhaps even less will).\u201d Sadly, not much has changed over the past decade.<\/p>\n

But let\u2019s start with the brutal reality: the MPSC was never going to deny Enbridge\u2019s Line 5 application.<\/p>\n

I don\u2019t mean to suggest that the Commissioners are somehow corrupt or that they are bought and paid for by Enbridge. This is a completely different trio of Commissioner\u2019s than last time. And anyway, it\u2019s not as simple as corruption. In fact, it would have taken genuine courage to deny Enbridge\u2019s application. And despite what I said about the Commission\u2019s lack of will a decade ago, I honestly hoped these Commissioners might possess some courage. They don\u2019t. But that\u2019s also not really the reason why approval was basically inevitable either. It\u2019s more complicated than that, too.<\/p>\n

The problem is the system.<\/p>\n

For one thing, the system is fundamentally unjust, structured in such a way as to advantage large corporations like Enbridge, which possess unlimited resources to spend on armies of attorneys to represent them in the proceedings. Meanwhile, others who wish to formally intervene\u2014ordinary individuals, cash-strapped non-profit organizations, or Native American tribes\u2014either have to search desperately for legal funds (and therefore constantly worried those sources will dry up), convince civic-minded attorneys to take on their cause pro bono, <\/em>or simply remain on the periphery of the process. This \u201cpay to play\u201d system, as the scholar Kathleen Bosemer has called it<\/a>, is an example of \u201cprocedural energy injustice.\u201d And while the MPSC pays lip service to those features of the system that do not require legal fees, like public comments and so-called \u201ctribal consultation,\u201d such opportunities \u201cdo not form part of the [formal] record of proceedings.\u201d What\u2019s more, since \u201cthey are filtered through staff reports and are not subject to cross examination\u2026 their influence on decision making is limited.\u201d[i]<\/a><\/p>\n

Nor is access the only basic problem with the system. Just as the form<\/em> of the proceedings is exclusionary; so too is the content<\/em> of the proceedings extremely limited.<\/p>\n

Specifically, the MPSC doesn\u2019t exist to decide what is good or right or just. It\u2019s not designed to take up messy ethical or historical questions. For that reason, it\u2019s not really equipped to scrutinize, to question, to be skeptical. Instead, its purview is commerce and its job is to enable, to facilitate, to permit<\/em>\u2014but to do so within certain limits. But importantly, those limits are also not ethical or historical, not matters of what is good or right or just. Those limits, instead, are almost entirely processual<\/em>. What matters to institutions like the MPSC, in other words, is process<\/em>, ensuring that i\u2019s are dotted, that t\u2019s are crossed. Such dottings and crossing will then, in turn, somehow yield the appropriate outcome. This is why, for example, in her remarks at the MPSC meeting on Friday, Commissioner Katherine Peretick invited the outspoken opponents of Enbridge\u2019s application to take (cold?) comfort in the process, despite its outcome. \u201cI know that many of you will be disappointed by the decision,\u201d Peretick said<\/a>. \u201cBut I can genuinely say that your comments, whether in writing, verbal, here in person or over the phone or (webinars), did make this process better.\u201d Process absolves.<\/p>\n

Let me put this another way. The MPSC exists to follow and enforce rules, not to make judgments. This is why the rules matter so much. Enbridge\u2019s army of lawyers certainly understands this, which is why they worked so hard in these proceedings, just as they did a decade ago, to make sure the scope of what could be considered in the hearings was as narrow as possible. Tunnel construction? Out of bounds! Climate change? Out of bounds! The entirety of Line 5? Out of bounds! The past? Out of bounds! The future? Out of bounds! And so on and so on.<\/p>\n

Now, in some instances, the MPSC did allow very limited consideration of some of these matters\u2014to the extent that they could yoke them specifically to a rule, like the Michigan Environmental Protection Act. But those allowances themselves were severely restricted, requiring the acceptance of a conceptual partitioning or discreteness<\/a>\u2014a way of thinking that willfully forgets that the knee bone is connected to the thigh bone\u2014that is almost comical. (I\u2019ll have much more to say about this in another post in this series.)<\/p>\n

But beyond these minor allowances, Enbridge once again had its way in defining the field of play, in establishing the rules of the game, in reducing the question before the Commission to an extremely narrow \u201cthree-part test.\u201d Honestly, I\u2019ve been hollering about that so-called test since 2013<\/a>, so I\u2019m not going to rehearse it again. But I will just say once more that I predicted this a decade ago,<\/a> long before anyone ever dreamed up a ridiculous tunnel.<\/p>\n

The more important point, however, is that Enbridge\u2019s success in narrowing the scope of the proceedings isn\u2019t because they are somehow smarter or better or more persuasive than the lawyers for FLOW or the National Wildlife Federation or the Environmental Law & Policy Center or the Bay Mills Indian Community or any of the other intervenors. Rather, their success is explained by the fact that they speak the same narrow procedural language as the Commission itself. By the fact that the MPSC also prefers a narrow scope of review. The rule-and-process- minded MPSC staff, for example, is entirely amenable to rulemaking of the kind that makes what otherwise might be difficult questions\u2014by which I mean complex, messy, multifaceted, ethically-involved\u2014simple and straightforward, their answers determined not by the hard, careful thought of individuals, but by the disembodied rules themselves. The MPSC all but admitted as much in one of its filings in the case: \u201cwithout reasonable and legally sound limitations,\u201d they wrote in March 2021<\/a>, \u201cthe Joint Appellants\u2019 anything-goes-approach would expand and weigh down the evidentiary record until it buckles.\u201d<\/p>\n

In other words, for the MPSC some contexts count and other contexts don’t. And this fact– this erasure– makes all the difference.<\/p>\n

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[i]<\/a> This is a textbook example of the difference between equality and equity. While theoretically anyone can intervene in the proceedings (equality), the vast difference in financial resources available to potential intervenors advantages some and disadvantages others (equity).<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Ten years ago in 2013\u2014I really can\u2019t believe it\u2019s been a full decade\u2014I wrote a series of posts in response to a Michigan Public Service Commission case involving Enbridge. At issue then was the \u201creplacement\u201d of Line 6B across the state and at the time, I\u2019m sure I never imagined I\u2019d be writing a similar […]<\/p>\n","protected":false},"author":2,"featured_media":5141,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","footnotes":""},"categories":[30],"tags":[],"class_list":["post-5139","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"_links":{"self":[{"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/posts\/5139","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/comments?post=5139"}],"version-history":[{"count":3,"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/posts\/5139\/revisions"}],"predecessor-version":[{"id":5143,"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/posts\/5139\/revisions\/5143"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/media\/5141"}],"wp:attachment":[{"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/media?parent=5139"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/categories?post=5139"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/grangehallpress.com\/Enbridgeblog\/wp-json\/wp\/v2\/tags?post=5139"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}