Tag: Enbridge Line 5

Enbridge appeals Line 5 decision to U.S. Supreme Court: Our statement

Published on July 1st, 2025 by - Blog Posts

July 1, 2025
Kacey Cook, Flow Staff Attorney

In June 2024, the federal Sixth Circuit Court of Appeals issued a decision to send Attorney General Dana Nessel’s 2019 suit Nessel v. Enbridge back to state court where it started. The Sixth Circuit held that Enbridge’s removal of AG Nessel’s lawsuit to federal court, more than two years after it was filed, was untimely and unjustified. Enbridge’s attempt to take the lawsuit to federal court came well after the deadline for removal, and the Sixth Circuit ruled that the delay could not be justified on any of the grounds cited by Enbridge or the lower court.

Enbridge appealed that decision to the US Supreme Court, which has now agreed to hear the case. The appeal serves to prolong the operation of the company’s pipeline through the heart of the Great Lakes–allowing Enbridge to continue to profit, while our shared freshwater resources remain at risk.

Under Michigan public trust law, the State has the paramount responsibility, and power, to protect the Great Lakes and their bottomlands from occupation by private projects that present unacceptable risks to these shared public resources.

It is difficult to imagine a project that presents greater risks than Enbridge’s Line 5 pipeline–pumping approximately 23-million gallons of oil through the Straits of Mackinac every day with the ever-present potential for a catastrophic oil spill.

In 2020, Governor Whitmer issued a Notice of Revocation and Termination of the project’s easement across the Straits, citing both violations of the public trust doctrine and Enbridge’s “longstanding, persistent, and incurable violations of the Easement’s conditions and standard of due care.”

Today’s news is the most recent development in Enbridge’s years-long campaign of defiance against the State’s enforcement of Michigan law. Flow Water Advocates will continue to monitor all developments in the federal courts, and we stand with the State of Michigan in its efforts to ensure that this important case enforcing Michigan’s public trust doctrine is properly heard in State court.

Flow is also closely following Michigan agencies’ careful review of Enbridge’s state permit applications for the proposed tunnel project and applaud the State’s continued insistence that Enbridge provide all of the information required for a proper review of the risks associated with the unprecedented megaproject.

Flow submits written comments on Line 5 tunnel project Draft Environmental Impact Statement

Published on June 30th, 2025 by - Blog Posts

June 30, 2025

Traverse City, Mich. – Today, Flow Water Advocates, a Great Lakes water protection organization, with sign-on from the Sierra Club Environmental Law Program and Surfrider Foundation, submitted written comments on the U.S. Army Corps of Engineers’ Draft Environmental Impact Statement (DEIS) for Enbridge’s proposed Line 5 tunnel project.

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What every Michigander needs to know about the Line 5 tunnel

The Canadian pipeline company Enbridge proposes building a tunnel under the Straits of Mackinac to house a replacement segment of the Line 5 pipeline, with the stated intention of continuing to transport fossil fuels under the Great Lakes bottomlands for another 99 years.

Enbridge’s application for federal Clean Water Act and Rivers and Harbors Act permits for the project is currently under review by the Army Corps. Project proposals that involve a major federal action that could significantly affect the quality of the human environment must be reviewed by the permitting agency and the public through a process outlined under the National Environmental Protection Act (NEPA). This review includes the preparation of both a Draft and Final Environmental Impact Statement, which must assess the purpose and need for the proposed project, alternatives to the proposal, and an assessment of the environmental consequences of the project.

Flow’s comments highlight a number of serious gaps in the scope and substance of the Corps’ review, including failure to consider alternatives that do not involve pumping oil through the Straits of Mackinac, and a failure to require a more in-depth study of the geology, despite several red flags raised in earlier investigations.

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Underground tunnel projects present unique and significant engineering challenges. Risks associated with underwater tunnel construction – such as blowouts and sinkholes – are compounded by the fact that the proposed tunnel would be constructed through fractured rock formations that have been described by studies as “very poor,” with voids that must be filled, anticipated water infiltration in the tunnel, and high methane levels – a potential source of explosions. The tunnel would be constructed as the 72-year-old dual pipelines continue to move 540,000 barrels of oil per day across the lake bottom above. This oil pipeline will run through the heart of the Great Lakes system that supplies over 40 million people with drinking water and contains approximately 84% of North America’s surface freshwater. It is imperative that permitting agencies rigorously review the hydrogeology and engineering plan.

The project is unprecedented and ill-advised. It is hard to imagine a project that would present greater risks of adverse environmental impacts than the proposed tunnel, and the two other alternatives considered in the Corps’ review both involve continued operation of the pipelines. Yet, not only has the Corps failed to properly assess and consider the risks associated with the reviewed alternatives, the Agency has unlawfully excluded from its consideration alternatives that do not involve a pipeline through the Straits. As a result, any final decision short of a permit denial will be unlawful.

The Corps has stated that it anticipates finalizing the EIS for the project in the fall of this year When the Final EIS is published, the public will have the opportunity to provide further comment before the Agency issues its Record of Decision on the project. Flow will continue to participate in the permit review process and express its opposition to this dangerous project, which presents unacceptable and unnecessary risks to our shared public trust resources.

Enbridge Line 5 webinar: What every Michigander needs to know

Published on June 25th, 2025 by - Blog Posts

Watch the webinar recording!

Facing competition, declining fossil fuel demand, and challenges building new pipelines in Canada, Enbridge is working overtime to convince Michiganders that we’re dependent on Line 5, but that’s not true.

On July 22, join Flow Water Advocates and Oil & Water Don’t Mix for a special live webinar, as our panel of experts and advocates discuss recent developments in the Line 5 litigation, why the tunnel isn’t good for Michigan, and how you can get involved.

Did you know that…

  • Enbridge was responsible for the devastating 1.2 million gallon oil spill in Marshall, Michigan — one of the worst in U.S. history.
  • 80-90% of the crude oil carried by Line 5 goes from Canada, to Canada.
  • The State of Michigan is the legal trustee of the Straits, and has the power and duty to protect them for the benefit of Michiganders.
  • Enbridge still needs permits from the U.S. Army Corps of Engineers and the Michigan Dept. of Environment, Great Lakes, and Energy (EGLE) to build the tunnel.

Our expert panel includes:

  • Riyaz Kanji, founding member and Directing Attorney of Kanji & Katzen – representing the Bad River Band of Lake Superior Chippewa
  • Carrie La Seur, Legal Director, Flow Water Advocates 
  • Skip Pruss, Senior Legal Advisor, Flow Water Advocates
  • Beth Wallace, Climate and Energy Director, National Wildlife Federation and Co-Director of the Great Lakes Business Network

Hosted and moderated by Flow staff attorney Kacey Cook.

This online webinar is free, and supported in part by the Mackinac Island Community Foundation’s Natural Resources and Preservation Fund and the Straits Area Community Foundation. 

About the panelists

Riyaz Kanji, Founding Member and Directing Attorney, Kanji & Katzen​

Riyaz Kanji is a founding member of Kanji & Katzen, PLLC, a firm whose mission is to advance Tribal sovereignty. A graduate of Harvard College and the Yale Law School, Riyaz served as a law clerk to the late Honorable Betty Fletcher of the United States Court of Appeals for the Ninth Circuit and Justice David Souter of the United States Supreme Court. He is an advisor to and vocal cheerleader for the Tribal Supreme Court Project. Riyaz represents Tribes at all levels of the federal court system, and was part of the team that argued and won the decision in McGirt v. Oklahoma vindicating the continued existence of the Muscogee Creek Reservation.

As Flow’s Legal Director, Carrie develops and implements legal and policy strategies to maximize protection of public trust resources and uses. A graduate of Yale Law School, Carrie recently relocated to northern Michigan from Montana, where she practiced civil litigation, specializing in environmental and climate issues. From 2006-2012 served as Executive Director of Plains Justice, a legal nonprofit she co-founded, litigating against new fossil fuel infrastructure.

Skip Pruss is an energy expert with decades of experience in both the public and private sector. He is a former cabinet member and director of the Michigan Department of Energy, Labor, and Economic Growth, as well as the former chief energy officer for the State of Michigan, under former Gov. Jennifer Granholm, where he was responsible for designing and implementing Michigan’s clean energy economy diversification efforts.

Earlier in his career, Skip served as Deputy Director of the Michigan Department of Environmental Quality. Skip also is a co-founder of 5 Lakes Energy LLC, a clean energy technology consultancy.

Bio coming soon!

Watch the webinar recording!

Enbridge Line 5 tunnel: What every Michigander needs to know

Published on June 3rd, 2025 by - Blog Posts

Canadian pipeline company Enbridge wants to bore a massive fossil fuels tunnel through the publicly held bottomlands of the Mackinac Straits. The State of Michigan is the legal trustee of the Straits, and has the power and duty to protect them for the benefit of Michiganders and future generations. Let’s take a look at why the tunnel is a dead end.

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References:

1. National Transportation Safety Board, Enbridge Incorporated Pipeline Rupture and Release, Marshall, Michigan https://www.ntsb.gov/investigations/AccidentReports/Reports/PAR1201.pdf (July 2012)

2. National Wildlife Federation, The Urgent Need to Shut Down Line 5 https://www.nwf.org/Great-Lakes/Our-Work/Line-5 (accessed June 2025)

3. Wisconsin Public Radio, Leaking valve on oil pipeline spills nearly 70K gallons of oil in Jefferson County
https://www.wpr.org/environment/enbridge-oil-spill-jefferson-county-wisconsin-pipeline (December 15 2024)

4. Detroit News, Modified consent decree against Enbridge for 2010 spill targets cracks in Lakehead System https://www.detroitnews.com/story/news/local/michigan/2024/07/08/enbridge-line-6b-proposed-eighth-modification-circumferential-cracks/74327136007/ (July 8 2024)

5. U.S. Dept. of Justice, Federal Register Vol. 89 No. 131 https://www.justice.gov/enrd/media/1359506/dl (July 9 2024)

6. MI Attorney General, Judge Orders Line 5 to Cease Operations
 https://www.michigan.gov/ag/news/press-releases/2020/06/25/judge-orders-line-5-to-cease-operations (June 25 2020)

7., 10. Canada House of Commons, Special Committee on the Economic Relationship Between Canada and the United States https://www.ourcommons.ca/DocumentViewer/en/43-2/CAAM/meeting-4/evidence (March 16 2021)

8. Government of Canada,
Supply and demand of primary and secondary energy in natural units https://www150.statcan.gc.ca/t1/tbl1/en/cv.action?pid=2510003001 (November 2024)

9., 33., 34., 35., 37., 38. PLG Consulting, Likely Market Responses to a Line 5 Shutdown https://plgconsulting.com/white-paper-likely-market-responses-to-a-line-5-shutdown/ (October 2023)

11., 12. McMillen Jacobs & Associates for MDOT, Technical memorandum: Collapse Potential for the Line 5 Replacement Tunnel https://www.michigan.gov/-/media/Project/Websites/egle/Documents/Multi-Division/Line-5/MDOT_Question_on_Collapses_in_Terms_of_Loss_of_Face_Control_Jan_2021.pdf (January 13, 2021)

13. Michigan Advance, Geologists condemn Line 5 tunnel plan: ‘Permitting the project at this time would be a mistake’ https://michiganadvance.com/2020/09/28/geologists-condemn-line-5-tunnel-plan-permitting-the-project-at-this-time-would-be-a-mistake/ (September 28 2020)

14., 15. McMillen Jacobs & Associates for MDOT, Technical memorandum: FINAL Risk Mitigation for the LIne 5 Replacement Tunnel https://www.michigan.gov/-/media/Project/Websites/egle/Documents/Multi-Division/Line-5/MDOT_Question_on_Risk_mitigation_Jan_2021.pdf (January 13 2021)

16., 17., 19., 20. McMillen Jacobs & Associates for MDOT, Technical memorandum: DRAFT Geotechnical Exploration Level of Effort for the Line 5 Replacement Tunnel https://www.michigan.gov/-/media/Project/Websites/egle/Documents/Multi-Division/Line-5/MDOT_Question_on_Geotechnical_Investigation_Jan_2021.pdf (January 13 2021)

18. EarthJustice, Tribes, Greens Take Line 5 Tunnel to Michigan’s Supreme Court https://earthjustice.org/press/2025/tribes-greens-take-line-5-tunnel-to-michigans-supreme-court (April 3 2025)

21. Michigan Advance, Geologists condemn Line 5 tunnel plan: ‘Permitting the project at this time would be a mistake’ https://michiganadvance.com/2020/09/28/geologists-condemn-line-5-tunnel-plan-permitting-the-project-at-this-time-would-be-a-mistake/ (September 28 2020)

22. Richard Kuprewicz, comments to the Michigan Public Service Commission, https://narf.org/nill/documents/20211214-line5-mpsc-kuprewicz-testimony.pdf (December 14 2021)

23. Brian O’Mara, testimony to the MIchigan Public Service Commission, https://turtletalk.blog/wp-content/uploads/2023/02/bay-mills-experts.pdf (February 3, 2023)

24., 27. Goldman Sachs, Peak oil demand is still a decade away https://www.goldmansachs.com/insights/articles/peak-oil-demand-is-still-a-decade-away (June 17 2024)

25. Institute for Energy Economics and Financial Analysis, Enbridge should consider closing its old, troubled Line 5 pipeline https://ieefa.org/resources/enbridge-should-consider-closing-its-old-troubled-line-5-pipeline (January 7 2025)

26. Institute for Energy Economics and Financial Analysis, Another Bad Year — and Decade — for Fossil Fuel Stocks https://ieefa.org/sites/default/files/2025-01/REVIEWED-15818-Briefing%20Note_2024%20Recap%20oil%20stocks%20%281%29.pdf (January 2025)

28. Bridge Michigan, Trump administration to fast-track Line 5 tunnel, calling project ’emergency’ https://www.bridgemi.com/michigan-environment-watch/trump-administration-fast-track-line-5-tunnel-calling-project-emergency (April 16 2025)

29. U.S. Energy Information Administration, How much gasoline does the United States consume? https://www.eia.gov/tools/faqs/faq.php?id=23&t=10 (March 29 2024)

30., 31. State of Michigan, DRAFT: Form of Tunnel Lease https://www.michigan.gov/psab/-/media/Project/Websites/psab/archive/media/ProposedTunnelLease_12-13-18.pdf (December 2018)

32. FLOW, What Enbridge Really Knows About the Risk of a Line 5 Rupture in the Straits of Mackinac https://flowwateradvocates.org/risk-of-line-5-rupture-mackinac-straits/ (May 17 2024)

36. Neil K. Earnest, Muse, Stancil & Co, federal court filing, https://environmentaldefence.ca/wp-content/uploads/2022/06/Report-expert-Enbridge-expert-Neil-Earnest-Muse-Stancil.pdf (January 31 2022)

39. Canadian Broadcasting Corporation, Canada should discuss west-east oil pipeline now that American relationship has changed: minister https://www.cbc.ca/news/politics/west-east-pipeline-jonathan-wilkinson-1.7452406 (February 6 2025)

40. Financial Post, West-East pipeline sentiment shifts as Trump says desire to absorb Canada is ‘real’ https://financialpost.com/commodities/energy/sentiment-pipelines-trump-canada (February 11 2025)

FLOW Appeals Line 5 Tunnel Permit Decision to Michigan Supreme Court

Published on April 2nd, 2025 by - Blog Posts, Reports & Media Releases

For Love of Water (FLOW), a leading Great Lakes water protection organization, along with four Michigan Tribes and other environmental advocates, have filed an Application for Leave to Appeal with the Michigan Supreme Court, challenging a decision by the Michigan Public Service Commission (MPSC) and a subsequent ruling by the Court of Appeals regarding Enbridge Energy’s Line 5 pipeline tunnel project.

We’re fighting to protect the Great Lakes from an oil spill. Donate today to support this important legal work:


The case, In re APPLICATION OF ENBRIDGE ENERGY TO REPLACE & RELOCATE LINE 5 (pdf), concerns the MPSC’s decision to permit Enbridge to construct and operate a proposed 4.1-mile tunnel housing a petroleum pipeline under and through the Great Lakes bottomlands in the Straits of Mackinac (MPSC Case No. U-20763).

The Significance of the Straits:

FLOW’s appeal emphasizes the profound significance of the Straits of Mackinac, a site of deep and enduring importance to the region. The Straits hold historical significance for Native American tribes who have inhabited the area for thousands of years, and are a vital economic, cultural, recreational, and ecological resource for Michiganders. The MPSC’s permitting decision, affirmed by the Court of Appeals, directly impacts each of these interests.

The Central Legal Question:

FLOW’s appeal centers on a critical legal question: Does the Michigan Public Service Commission (MPSC) have a duty to apply the public trust doctrine when making decisions about the Line 5 pipeline and its potential impact on the Great Lakes, even if the Michigan Legislature has not expressly empowered it to do so?

The public trust doctrine is a fundamental principle of environmental law, recognized by the Michigan Supreme Court for over a century. It establishes the state’s inalienable obligation to protect and preserve public rights of fishing, hunting, swimming, and navigation upon public trust lands and within public trust waters, including the Great Lakes and their bottomlands.

FLOW’s Argument:

FLOW argues that the Court of Appeals erred in concluding that the MPSC is a legislatively created entity without common law powers, and thus has no obligation or authority to apply the public trust doctrine. FLOW contends that this conclusion fundamentally misapprehends the nature of the public trust doctrine, which is rooted in state sovereignty and the long history of the common law, and ignores long-standing precedent. This decision stands in stark conflict with the Michigan Supreme Court’s Glass v. Goeckel decision affirming that “[t]he public trust doctrine is alive and well in Michigan.”

The decision undermines the state’s public trust duty and obligation to protect the people of Michigan and their invaluable public trust resources. The MPSC’s decision and the Court of Appeals ruling weaken Michigan’s ability to safeguard the Great Lakes.

“The Great Lakes are a public resource of incalculable value,” said FLOW Legal Director Carrie La Seur. “The MPSC has a fundamental responsibility to protect these waters, and its decision-making must be guided by the public trust doctrine. The Court of Appeals’ ruling dangerously undermines that responsibility.”

Significance of the Appeal:

This appeal to the Michigan Supreme Court is of paramount importance because it directly addresses the scope of the MPSC’s responsibility to protect the Great Lakes. The Supreme Court’s decision will determine whether the MPSC can make decisions that potentially endanger these waters without fully considering the state’s fundamental obligations under the public trust doctrine. A ruling in favor of FLOW would reaffirm existing precedent, ensuring that state agencies across Michigan prioritize the protection of the Great Lakes in all their decisions and empowering the public to hold these agencies accountable for safeguarding these vital resources.

“This case strikes at the core of our mission at For Love of Water. As sovereign, the state of Michigan (including all three branches of government) has a perpetual obligation to protect and preserve the waters of the Great Lakes and the lands beneath them for the public, and the Straits of Mackinac connecting Lakes Michigan and Huron are at the very heart of this precious natural gift,” said FLOW Executive Director, Liz Kirkwood.

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For Love of Water (FLOW) is a nonpartisan 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all. With a staff of legal and policy experts, writers, and community builders, FLOW is a trusted resource for Great Lakes advocates. We help communities, businesses, agencies, and legislators make informed policy decisions and protect public trust rights to water. Learn more at www.flowwateradvocates.org.

Tribes, Environmental Groups Urge Michigan Appeals Court to Reverse Enbridge Line 5 Tunnel Permit Approval

Published on January 14th, 2025 by - Blog Posts, News, Reports & Media Releases

January 14, 2025

Lansing, Mich. – Today, attorneys representing several tribal nations and environmental groups asked the Michigan Court of Appeals to reverse the Michigan Public Service Commission’s flawed December 2023 order approving a permit for Enbridge to build a tunnel for its Line 5 oil pipeline beneath the lakebed of the Straits of Mackinac. Separate legal challenges were brought before the Commission by the tribes and environmental groups, who appealed the Commission’s decision to greenlight the permit. Those appeals were consolidated and argued today before the Court of Appeals.

The Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Band of Odawa Indians, and Nottawaseppi Huron Band of the Potawatomi have lived on the lands of present-day Michigan since time immemorial and hold deep spiritual, cultural, and economic connections to the Straits of Mackinac. They argue that the Commissioners unlawfully barred key evidence about the public need for Line 5 and about the risk of future oil spills along the pipeline’s length.

“Michiganders do not need this pipeline to keep pumping oil through the heart of the Great Lakes,” said Attorney Adam Ratchenski for Earthjustice, which is representing the Tribes alongside the Native American Rights Fund (NARF). “The Commission was so eager to rubber-stamp this massive project for Enbridge that they refused to consider the atrocious record of oil spills along this failing pipeline while making a decision that would secure its operation – and all the pollution that comes with it – for up to 99 years.”

The Environmental Law & Policy Center (ELPC) and Michigan Climate Action Network (MiCAN) asserted in court that the Commission failed to consider that Enbridge’s proposed project poses a dangerous threat for a catastrophic oil spill in the Great Lakes, increases climate change impacts, and undermines Michigan’s clean energy transition goals. They urged the Court of Appeals to set aside the Commission’s permit decision and require further review and analysis of environmental impacts and alternatives consistent with the requirements of the Michigan Environmental Protection Act (MEPA).

“The reality is that we are moving away from fossil fuels. We have to, if we are to have any chance of avoiding a climate disaster,” said Denise Keele, MiCAN’s executive director. “The last thing we need in Michigan is construction of a new fossil fuel infrastructure like a new pipeline under the Straits, which would lock in more reliance on oil. The Commission’s initial approval of the Enbridge tunnel project must be reversed if we want a realistic shot at shifting to clean energy in Michigan and ending our reliance on dirty fossil fuels.”

FLOW Legal Director Carrie La Seur gives oral arguments in the Michigan Court of Appeals (January 14, 2025)

“Today we argued that the Commission must require Enbridge to properly quantify and evaluate greenhouse gas pollution and climate change impacts in line with the Michigan Environmental Protection Act,” said David Scott, Senior attorney at ELPC. “The Commission must also fully and fairly assess the public need and feasible alternatives to the proposed tunnel that would avoid climate risks and conserve Michigan’s natural resources. The Commission failed to do that before approving the permit.”

“Enbridge’s Line 5 tunnel proposal is a desperate effort to suck the last few pennies of corporate profit from an aged-out pipeline, while socializing the cost of vast new fossil fuel infrastructure,” said For Love of Water (FLOW) Legal Director Carrie La Seur. “If Enbridge really cared about oil spills, it would respect Governor Whitmer’s statesmanlike decision to protect the Great Lakes by withdrawing the easement. FLOW argued today that the MPSC’s analysis of tunnel alternatives is fatally flawed, because it ignores the likelihood that market realities will shut down the pipeline long before consumers have paid for a multi-billion dollar tunnel through price hikes.”

Risky, costly, and ill-advised: New report and webinar analyzes the Enbridge Line 5 tunnel project

Published on January 7th, 2025 by - Blog Posts

WATCH THE WEBINAR RECORDING

 

Enbridge’s plan to bore a tunnel between Lake Michigan and Lake Huron to replace an underwater segment of Line 5 is costly and ill-advised, according to a new report from the Institute for Energy Economics and Financial Analysis (IEEFA). The report shows that the aging pipeline is servicing a shrinking market and is facing additional challenges that will make it costly to maintain operations. The report also shows that the pipeline tunnel will likely be more costly than project proponents have disclosed publicly to date. IEEFA’s analysis concludes that Enbridge should question whether it makes sense to keep sinking money into an old pipeline when markets for its products are on a declining trajectory. Download the report.

Live Webinar: January 15 at 12:00pm EST

FLOW will host a free, live webinar with IEEFA report co-authors Suzanne Mattei, Energy Policy Analyst; and David Schlissel, Director of Resource Planning Analysis. We’ll talk about the report’s findings and answer your questions. The webinar will be moderated by FLOW Legal Director Carrie La Seur.

About IEEFA

The Institute for Energy Economics and Financial Analysis (IEEFA) examines issues related to energy markets, trends, and policies. The Institute’s mission is to accelerate the transition to a diverse, sustainable and profitable energy economy. IEEFA’s nonpartisan and evidence-based approach provides solid ground on which to base sound investment and policy decisions and to challenge misinformation.

Webinar Guest Speakers

Suzanne Mattei is an attorney with over 30 years of experience in public interest law and policy. She has analyzed the Federal Energy Regulatory Commission’s policies related to interstate pipeline approval. She has also conducted research on blue hydrogen, petrochemical projects, gas flaring and fossil fuel extraction on public lands.

Suzanne is a former regional director for the New York State Department of Environmental Conservation, where she supervised permitting and enforcement in New York City, with an area population of about 8 million.

Previously, in City government oversight positions, her analysis helped spur the City to abandon a risky plan to sell its drinking water supply system to a state-run authority and to reject a costly, ill-advised plan to build garbage incinerators. Her investigation on behalf of Sierra Club exposed the federal government’s failure to curb exposure to pollution from the 9/11 World Trade Center disaster. Her testimony to Congress helped lead to a law that aids 9/11 responders and survivors.

Suzanne helped to establish free legal assistance and secure federal aid for bereaved families after the 9/11 disaster, and for Ground Zero workers suffering from negative health impacts.

She has a juris doctor degree from Yale University and B.A. from Washington State University. She is admitted to practice law in New York.

David Schlissel is an IEEFA analyst with 50 years of experience as an economic and technical consultant on energy and environmental issues.

He has testified as an expert witness before regulatory commissions in more than 35 states and before the U.S. Federal Energy Regulatory Commission and the Nuclear Regulatory Commission.

Schlissel’s work has included researching, writing and testifying about the U.S. nuclear industry and the cost overruns, construction delays and other challenges associated with many nuclear projects. He has engineering degrees from MIT and Stanford University as well as a Juris Doctor from Stanford Law School. He also has studied nuclear engineering at MIT in a non-degree program.

FLOW, GLBN, and Sierra Club file joint amici brief in Nessel v. Enbridge lawsuit

Published on December 5th, 2024 by - Blog Posts, News, Reports & Media Releases

FLOW, Great Lakes Business Network, and Sierra Club File Joint Amici Brief in Nessel v. Enbridge Lawsuit, Dismantling Enbridge’s Allegations and Defending State Sovereignty

 

Contact:
Carrie La Seur, FLOW Legal Director
carrie@flowforwater.org
(231) 944-1568

Traverse City, Mich. – On December 2, 2024, For Love of Water (FLOW), Great Lakes Business Network (GLBN), and Sierra Club filed an amici curiae brief opposing Enbridge’s motion for summary disposition in the Line 5 lawsuit Nessel v. Enbridge. The three groups, representing tens of thousands of Michigan residents and hundreds of Michigan businesses, weighed in as “friends of the court”, arguing that Michigan has both the power and the duty to protect publicly held bottomlands in the Straits of Mackinac from the urgent threat of a pipeline breach.

The amici brief makes the case that the 1977 Transit Pipelines Treaty between the US and Canada explicitly reserves for the states the authority to regulate cross-border pipelines in the area of environmental protection. AG Nessel’s complaint targets the failing underwater section of Line 5, wholly within Michigan’s sovereign territory. Pointing out how Enbridge has misread the treaty, lawyers for FLOW, GLBN, and Sierra Club outlined how the U.S. Supreme Court has long held that the Constitution protects traditional states’ rights and responsibilities – including the responsibility to protect public trust resources like the Great Lakes.

The Line 5 controversy indeed exposes a threat to the prudent conduct of our nation’s foreign policy – and that threat is Enbridge. Hiding behind the cloak of the foreign affairs doctrine, Enbridge seeks a judicial stamp of approval for a new U.S. foreign policy – one that would privilege a foreign oil company’s uninterruptible flow of hydrocarbons over the sovereign rights and responsibilities of the states.

FLOW Legal Director Carrie La Seur said, “With this week’s filing, our coalition again stands with AG Nessel to defend Michigan’s priceless natural heritage from an urgent threat.”

Andy Buchsbaum, the Great Lakes Business Network’s attorney stated, “Enbridge continues to try to stop Michigan’s top law enforcement officer from preventing a massive oil spill in the Great Lakes that would devastate millions of people and thousands of businesses. That’s shocking, and we can’t let it happen. Great Lakes businesses are standing up for the Great Lakes in court, before Congress and wherever else we need to be.”

FLOW, GLBN, and Sierra Club separately briefed the court in 2019 and 2021, arguing for Michigan’s sovereignty and public trust rights, and detailing irreparable harm that would befall the region’s economic security and quality of life if the judicial relief sought by AG Nessel – the revocation of the Line 5 easement and the shut down of Line 5 – is not granted before Line 5 ruptures.

“We appreciate Attorney General Nessel continuing to fight for protecting our Great Lakes and the people of Michigan from a pending oil spill disaster,” said Elayne Coleman, Sierra Club – Michigan Chapter Director. “Enbridge has thrown millions of dollars into their efforts to undermine Michigan’s right to oversee our public trust. We’re not going to bend to a Canadian oil giant, and we’re glad Attorney General Nessel isn’t backing down, either.”

[ Download Amici Brief (PDF) ]

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For Love of Water (FLOW) is a nonpartisan 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all. With a staff of legal and policy experts, writers, and community builders, FLOW is a trusted resource for Great Lakes advocates. We help communities, businesses, agencies, and legislators make informed policy decisions and protect public trust rights to water. Learn more at www.flowwateradvocates.org

The Great Lakes Business Network is a coalition of businesses dedicated to preserving the integrity and vitality of the Great Lakes, fostering sustainable business practices, and advocating for policies that protect the environment and the economy of the Great Lakes region. It is co-managed by National Wildlife Federation and Groundwork for Resilient Communities. Learn more at glbusinessnetwork.com

Sierra Club is America’s largest and most influential grassroots environmental organization, with more than 3.5 million members and supporters. In addition to protecting every person’s right to get outdoors and access the healing power of nature, the Sierra Club works to promote clean energy, safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying, and legal action. For more information, visit www.sierraclub.org.

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FLOW & GLBN Brief: Michigan has Sovereign Right and Duty to Protect Great Lakes Waters and Bottomlands

Published on October 24th, 2024 by - Blog Posts, Reports & Media Releases

Download the amici brief [filed October 22, 2024]

Traverse City, Mich.—On October 22, FLOW (For Love of Water) and Great Lakes Business Network (GLBN) filed a brief calling on the U.S. Court of Appeals to stop a pipeline company from stripping away Michigan’s power to protect the Great Lakes.

Enbridge Energy, which owns the dual Line 5 pipelines, launched the 2020 federal lawsuit Enbridge v. Gov. Gretchen Whitmer in defiance of Governor Whitmer’s 2020 order revoking an easement for the Line 5 across the Straits of Mackinac bottomlands. FLOW and GLBN’s brief supports the appeal by the State of Michigan to reverse the July 5, 2024 order by Judge Robert J. Jonker of the U.S. District Court for the Western District of Michigan denying Gov. Whitmer’s motion to dismiss on sovereign immunity grounds. The denial, if upheld on appeal, would allow Enbridge to continue its litigation that absurdly asserts that federal law precludes the State of Michigan from enforcing its public trust rights and responsibilities regarding Enbridge’s dangerous operation of Line 5 on State-owned submerged lands at the Straits of Mackinac.

Built in 1953, Line 5 is a 71-year-old dual oil and gas pipeline exposed to fierce currents where Lake Michigan and Lake Huron meet. Ships’ anchors have repeatedly struck the pipelines and cables dragged by passing vessels have damaged the pipelines and their supports. A rupture could irreversibly harm the priceless national treasure of the Great Lakes, and cause billions of dollars of damage to the regional economy.

Not long after Enbridge filed its federal court lawsuit opposing the state’s authority to protect public trust waters, Governor Whitmer moved to dismiss the action, on the grounds that Michigan officials have immunity under the U.S. Constitution’s Eleventh Amendment from federal lawsuits that would encumber the State of Michigan’s ownership of, and jurisdiction over, submerged Great Lakes bottomlands, and interfere with Michigan’s ability to manage those lands in accordance with its public trust responsibilities. Judge Jonker held, we think wrongfully, that an exception applies allowing private parties to sue individual state officials in federal court if they are allegedly violating federal law.

In its amicus brief, FLOW and GLBN argue that Enbridge’s lawsuit against the state impairs state sovereign and public trust powers that are critical to the protection of the Great Lakes. The public trust doctrine, which was encoded in Michigan law over 100 years ago, holds that the waters and bottomlands of the Great Lakes within Michigan’s borders are held in trust by the State for the benefit of the people of Michigan, not for private interests. Long-standing legal principles that balance federal and state sovereign interests weigh in favor of states’ rights and jurisdiction over the public navigable waters and bottomlands of the Great Lakes to protect these precious resources.

As an advocacy organization committed to protecting precious state sovereign water resources, FLOW was granted permission to file a “friend of the court” or “amicus” brief, to provide the Sixth Circuit Court of Appeals with our unique perspective, knowledge, and experience regarding Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine.

The Great Lakes Business Network joins FLOW in this amici brief in support of the State of Michigan, asking the Sixth Circuit Court of Appeals to reverse the District Court and order dismissal of Enbridge’s unsupportable lawsuit.

14 years ago: Enbridge oil spill disaster in Marshall, MI

Published on July 25th, 2024 by - Blog Posts

July 25, 2024 marks the 14th anniversary of one of the largest inland oil spills in U.S. history, which happened just three months after the BP Horizon Gulf Spill. On July 25, 2010, a pipeline operated by Enbridge – the same corporation operating the risky Line 5 in the Straits of Mackinac – burst and released dirty tar sands oil into Talmadge Creek, a tributary of the Kalamazoo River. Nearly forty miles of the Kalamazoo River were closed for cleanup until June 2012. Enbridge paid more than $177 million in penalties and was required to improve safety measures. The estimated cost of the cleanup was more than $1 billion.

Corrosion fatigue – poor maintenance by Enbridge – was cited as the underlying cause of the catastrophic breach by the U.S. National Transportation Safety Board. NTSB Chair Deborah Hersman compared Enbridge’s inept handling of the spill to the Keystone Kops.

“Why didn’t they recognize what was happening, and what took so long?” she asked.

Enbridge recently came under further scrutiny, as in July 2024 the US Department of Justice proposed modifications to its consent decree with Enbridge. The consent decree is a legally-binding settlement agreement that requires Enbridge to improve pipeline repair and maintenance issues. The consent decree resolved the lawsuit United States v. Enbridge Energy, which arose from failures of Enbridge pipelines in Marshall, Michigan and Romeoville, Illinois. The proposed modifications would require Enbridge to reassess previously identified cracks in the Lakehead pipeline system – of which Line 5 is a part.

Fourteen years after Marshall, Enbridge still hasn’t learned its lesson. We shouldn’t need the federal government to compel Enbridge to use the most up-to-date tools and rigorous methods to inspect and maintain its pipelines.

Meanwhile, the people who lived through the oil spill disaster in Marshall continue to live with its ramifications. Enbridge purchased 150 residences near the spill site, uprooting hundreds of people from their homes. Childhoods were disrupted. Generations-old homesteads were sacrificed on the altar of Enbridge’s recklessness. The plans, dreams, and security of a community were ruptured like a weak, faulty pipe. We’ll never know all of their stories. With the purchase of their properties, Enbridge bought their silence — by requiring Non-Disclosure Agreements as part of the terms.

Register for our upcoming webinar on August 20:
Enbridge Line 5: Trouble Under the Surface