Enbridge’s controversial plan to replace the aging Line 5 pipeline with a US$500-million tunnel beneath the Straits of Mackinac between Michigan and Ontario is running into severe deadline pressure that could set it up for years of legal and regulatory delays, as Governor Rick Snyder prepares to step aside for a new administration.
Democratic Governor-elect Gretchen Whitmer and Attorney General-elect Dana Nessel have both promised to shut the pipeline down for good. And the legal debate was unfolding last week just as a Michigan State University researcher calculated that a worst-case spill in the Straits would cost US$45 billion to attempt to clean up.
“Advocates are anxiously waiting to see whether Snyder will secure a deal” before he leaves office January 1, “but they also recognize any plans around Line 5 come with legal uncertainty,” Energy News Network reports. “The Republican administration and lawmakers want a long-term tunnel plan approved in this year’s lame-duck session before Democrats take control of the executive and attorney general offices and also make up a larger portion of the Legislature. However, the governing body that would oversee the project may vote on the deal after Snyder has left office.”
ENN sees three possible scenarios for the next one to three months. If the independent Mackinac Bridge Authority approves the tunnel while Snyder is still in office, as he has asked it to, it would trigger “up to a 10-year-long process of permitting, designing, and building the tunnel.” If it waits until February, it will run headlong into Whitmer’s and Nessel’s promised opposition to the project. If it rejects the tunnel proposal or declines to vote on it, the state will begin the process of decommissioning the pipeline.
The state natural resources department is also working on a deal with Enbridge “to establish agreed-upon conditions for the continued operation of Line 5 in the Straits while a tunnel is built, and the deactivation of the current Line 5 segment in the Straits once the tunnel is complete,” said spokesperson Ed Golder. Critics are concerned that agreement could tie the hands of a future state government, ENN notes.
“I think there’s clearly a long-term issue,” said Michigan Environmental Council Policy Director James Clift. “The next administration should be involved in the decision-making process, especially since depending on which route is taken, you could expect there would be a protracted legal battle.”
A couple of days after reporting on the state of play with Line 5, Energy News Network published a Q&A with lawyer and author Mary Christina Wood, faculty director at the University of Oregon’s Environmental and Natural Resources Law Center, who specializes in the Public Trust Doctrine under U.S. law and has crafted past legal arguments to compel government action on climate change.
“The traditional, unassailable public trust asset is a stream bed or a lake bed,” Wood said. “When you mention the public trust in connection with the Great Lakes, that is in fact the genesis of public trust in the United States. It is indisputable: Those lake beds are held for the public, and the governor of every state is a trustee.”
A 1892 case dealing with the Lake Michigan shoreline determined that “a state is not permitted to give away this lakefront or lake bed to a private corporation unless it determines that the project substantially benefits the public and doesn’t cause substantial impairment of the resource,” she said. Property rights of Indigenous communities come into play, as well, because “the property rights of tribes are the oldest in the nation”.
Wood added that “several court cases now say that it violates the trust for a governmental seat to make a decision for the primary benefit of a private party. The reason for that is because the trust property—the lake bed—is held by the citizens of the state, not the company. It’s as if you had a bank account or retirement account and they’re the trustee. They can’t use it for their benefit or their friends. It’s literally the property of the people.
While the Snyder administration claims a tunnel will eliminate the risk of spills, “they’re jumping way ahead of themselves,” Wood said. “They don’t have the mindset of trustees, obviously. It sounds like they’re trying to do whatever they can to make it work for this private company. That’s the exact opposite mindset they should have as trustees. The whole idea of giving away public property for a private company just stops right there.”
[The interview runs considerably longer. Click through to read the rest.—Ed.]