Original Published on Aug 10, 2022 at 10:07

By Lori Thompson, Local Journalism Initiative Reporter

Efforts to protect the Great Lakes from a Line 5 oil spill disaster are first and foremost about the water. Opponents of Enbridge’s pipeline shared the latest news on the battle over the future of the 69-year-old pipeline in a live webinar July 28. Despite Enbridge’s best legal, political and media efforts, people in the Great Lakes continue to unite around water, said Liz Kirkwood, executive director of FLOW (For Love of Water). “It’s in our DNA. We instinctively know that they are part of our common heritage to enjoy and protect, and to pass on to our children and grandchildren.”

Whitney Gravelle is president of the executive council of the Bay Mills Indian Community. Tribal nations have very distinct political and legal status in their relationship with the United States government, she explained. They are independent, sovereign nations and are treated as such under the United States constitution. The 1836 Treaty of Washington covers a vast area including 14 million acres of land and 13 million acres of water and provides the continued right of signatory tribes to fish, hunt and gather in the area affected by Line 5, but there is also a cultural component of treaty rights, tied to the creation story and the Straits of Mackinac, said Ms. Gravelle. 

The Straits are a sacred place, a vital place to the continued existence of North America, which points to a duty to preserve and protect the Straits of Mackinac and the Great Lakes.

Zach Welcker, legal director for Flow, finds hope in the alignment of the Michigan tribes against Line 5 and Enbridge’s proposed tunnel under the Straits but acknowledged, “It’s a tough battle to go up against a well-financed corporation like Enbridge that has pretty much unlimited resources.”

Legal battles are currently occurring on two fronts. There is litigation underway seeking to shut down the existing pipeline as well as administrative proceedings associated with the proposed tunnel project. Litigation has been ongoing since 2019, when Wisconsin’s Bad River Band filed suit in U.S. federal court to force Enbridge to remove the portion of Line 5 that crosses its reservation. Enbridge in turn claimed entitlement to occupy, based on an easement granted by the state of Michigan that expired in 2013. Enbridge’s director of operations, Midwest region was quoted as saying, “We are currently operating in trespass as they spelled out in their lawsuit.” 

A summary judgement is expected later this month, with a trial scheduled for October if needed.

That easement in the Bad River Band case is itself the subject of litigation. Michigan’s Attorney General Dana Nessel and Governor Gretchen Whitmer have both asked the court to declare the easement void and revocable, and to issue a permanent injunction for an orderly shutdown. Enbridge responded by filing cross-motions to dismiss, and to have the matter remanded to federal court. The matters remain before the courts.

Enbridge has sought authority from Michigan Public Service Commission (MPSC) under Act 16 to construct and operate its tunnel project. The threshold issue here is the lack of public trust authorization to occupy the Straits’ bottom lands, said Mr. Welcker. FLOW believes it would be premature for MPSC to make a decision without the state’s authorization to occupy the land.

Under Act 16, Enbridge must demonstrate public need for the project, that the route is reasonable, and the proposed tunnel would meet or exceed safety and engineering standards. On July 7, an MPSC order sent the matter back to the courts for further consideration of pipeline routing and safety and engineering concerns.

Mr. Weckler said it’s good that MPSC is taking a serious look at those concerns, but when looking only at the existing pipeline, there’s no focus on the tunnel’s impacts relative to climate change or new risk. “It’s not so good in that it suggests MPSC is going to look at the risk of the proposed tunnel project relative to the risk of the existing pipeline instead of relative to the risk of there not being a pipeline to begin with, which would potentially make it easier for Enbridge to diminish impacts or for MPSC to conclude the impacts aren’t quite as great as they will be,” Mr. Welcker said.

MPSC failed to comment on the issue of authorization to occupy the Strait bottom lands or concerns related to Michigan’s Environmental Protection Act (MEPA). The hearing will likely resume in April 2023.

Enbridge is spending a lot of advertising dollars to garner support for its project, said Sean McBearty, campaign coordinator for Oil and Gas Don’t Mix, and legislative and policy director at Michigan Clean Water Action. In 2021, the corporation spent $78 million on television and digital ads in Michigan alone, in an effort to stall the “inevitable fate of Line 5 to shut down,” he said. “The longer they stall the longer they can make profits pumping oil through this outdated and dangerous pipeline.”

If Line 5 is ordered to shut down, it would be the first time a pipeline is shut down for environmental reasons, which would be precedent setting and could have implications for other oil and gas pipeline infrastructure projects.

With it being an election year in the U.S., there are political implications for Line 5 as well. Republican candidates in Michigan have said they would drop any ongoing attempt to force the shutdown of Line 5 and most would use the power of government to hasten the process of building Enbridge’s tunnel.

Canada also continues its support for Enbridge, invoking the 1977 Transit Pipeline Treaty (see ‘Canada intervenes in favour of Enbridge Inc’s Line 5 pipeline’ in The Manitoulin Expositor, October 13, 2021); however, Canada has taken an overly broad understanding of the treaty, Mr. McBearty said. The treaty has never been invoked so there is no precedent on its interpretation, but the fourth article of the treaty is all about how relevant government authorities, like states and provinces, are able to regulate the transport of hydrocarbons in order to protect the environment. “The state is not saying to Canada, you can’t move hydrocarbons across the border through Michigan. Michigan is saying you can’t do it through this ancient, dangerous pipeline.”

How dangerous can it be? Ms. Gravelle used the example of a recent mechanical oil spill by Algoma Steel in Sault Ste. Marie, Ontario into the St. Mary’s River that went undetected for several hours. Bay Mills was not made aware of the spill until 1 pm or 2 pm and immediately deployed booms and began monitoring the area and weather conditions. “At that point it had actually traversed quite an expansive area before it could be fully addressed,” she said.

Due to the nature of the substance, it was allowed to naturally dissipate, Ms. Gravelle said. “They left it alone, saying it will degrade over a week or two in time.”

What was equally frustrating, she said, is that Bay Mills received notification from NOAA (National Oceanic and Atmospheric Administration) regarding potential long-term aquatic impacts from the spill. “There was a report that says there could be long-term aquatic impacts but we don’t know what those are.”

People were advised to stay out of the water for several weeks but questions remain. Should fish from that area be consumed? It’s something they’re still trying to figure out, Ms. Gravelle said.

That was just a small spill, estimated at 2,300 to 5,000 gallons of mechanical oil. “That’s nothing compared to what will happen to Line 5 whether in water or on land, especially given that the dual pipelines site at the bottom of the water in the Straits of Mackinac,” she said. “For us to even have detection on the surface level, it has to travel through all of that water before we even detect it.”

It’s extremely important that people remain engaged, said Ms. Gravelle. “I truly believe that if we stay united in our purpose of why we’re involved in this fight, which is really about protecting the Great Lakes, protecting the water, protecting lifeways, then that message will continue to ring true no matter who you speak with. When I bring anyone to the Great Lakes and we’re standing on the shore of Lake Superior or Lake Michigan and Lake Huron, to be surrounded by the beauty and the power that exists in these places is more than enough to remind people of why we also need to respect these things and protect them.”

This item reprinted with permission from The Manitoulin Expositor, Little Current, Ontario