Tag: MPSC

Michigan revoked the Line 5 easement 5 years ago. What happens next?

Published on November 19th, 2025 by - Blog Posts

Five years ago, on November 13, 2020, Michigan Governor Gretchen Whitmer and the Department of Natural Resources revoked and terminated the 1953 easement that had allowed Enbridge to locate and operate its dual Line 5 pipelines on the lakebed and in the waters of the Straits of Mackinac. As public trustee and fiducidary, the state revoked the easement for two key reasons:

  • The state has a duty under the public trust doctrine to protect the waters of the Great Lakes for the people of Michigan. This duty required the state to revoke the easement due to the “extraordinary and unacceptable risk” posed by the aging, vulnerable pipelines, which have been struck multiple times by anchors and cabling.
  • Enbridge “repeatedly and incurably” violated the express terms of this public trust easement, and had done so for decades. Enbridge persistently failed to satisfy numerous conditions related to the support, protective coatings, and curvature of the pipelines.

An analogy to landlord-tenant law is warranted since the state of Michigan is the sovereign owner and protector of the public trust waters and bottomlands in the Great Lakes. In the case of landlord-tenant relations, any landlord would be within their rights to evict a tenant who violated their lease, repeatedly left the stove on and the bathtub overflowing, and refused to leave when the lease was up. And a landlord would be correctly concerned about a tenant who had previously burned down another apartment due to negligence.

Half a decade later.

And yet, half a decade later, the Line 5 pipelines remain, haphazardly suspended across the lakebed floor, buffeted by strong currents and vulnerable to anchor strikes and other hazards in one of the busiest shipping lanes in the Great Lakes. Each day, Line 5 carries nearly 23 million gallons of fossil fuels from western Canada, through the Great Lakes — the majority of which supply Canadian refineries in Ontario and Quebec. The water security of the Great Lakes is at high risk every day.

On each of the 1,825 days and counting since the easement was revoked, Michigan has borne unacceptable risks so that a Canadian pipeline company can continue to profit, protect its market share, and deliver crude oil primarily from Canada to Canada. The Line 5 pipeline in the Straits of Mackinac could only be built in 1953 with a public trust easement from the state of Michigan; therefore, an easement authorizing Enbridge permission to occupy our public waters is necessary for its continued operation. That easement no longer exists.

The Line 5 pipeline and the proposed replacement tunnel are now being fought in multiple courts by multiple parties, including Flow Water Advocates.

Here’s where Line 5 currently stands in Michigan:

Nessel v. Enbridge

At issue:
In 2019, Michigan Attorney General Dana Nessel filed suit in Michigan’s 30th Circuit Court (Ingham County), seeking an order to decommission Line 5. She argues that its continued operation violates the public trust doctrine, is a public nuisance under common law, and violates the Michigan Environmental Protection Act.

Flow, along with the Great Lakes Business Network and the Sierra Club, briefed the court in 2019, 2021, and 2024 in support of Michigan’s sovereignty and public trust rights.

What has happened so far:
Enbridge has successfully delayed the case (and kept the oil and profits flowing) over matters of jurisdiction, and it initially succeeded in moving the case from state to federal court — long after the 30-day time limit to do so had passed.

  • In June 2024, the U.S. Sixth Circuit Court of Appeals ruled that the move to federal court was indeed untimely, and sent the case back to state court.

  • Enbridge then appealed to the U.S. Supreme Court, which in June 2025 agreed to hear the case on the procedural question of whether district courts have the authority to excuse the 30-day time limit — again prolonging the risks of Line 5’s continued operation. The SCOTUS will hear oral arguments in spring 2026.
What happens next:
In August 2025, Ingham County circuit court Judge James Jamo denied Enbridge’s request to stay (pause) the state case while awaiting a SCOTUS ruling. We are now awaiting a decision by Judge Jamo on whether Line 5 will be shut down.

Enbridge v. Whitmer

At issue:
On November 24, 2020, Enbridge filed its federal court lawsuit asserting that Governor Whitmer does not have the authority to protect its sovereign interests of public trust waters and submerged lands, and that state action against Line 5 may violate Enbridge’s alleged treaty right to pump oil through the Great Lakes uninterrupted.

What has happened so far:
Governor Whitmer moved to dismiss the action on the grounds that state officials have immunity from federal lawsuits under the U.S. Constitution’s Eleventh Amendment. Enbridge’s separate federal case against the state still remains before Judge Jonker in the U.S. District Court for the Western District of Michigan who held (we think wrongfully) that an exception applies.

  • In an October 2024 amicus brief, Flow and the Great Lakes Business Network argue that Enbridge’s lawsuit impairs state sovereign and public trust duties; and that 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.

On November 12, 2025, Judge Jonker heard oral arguments in the case. Michigan Assistant AG Keith Underkoffler argued that the state’s preexisting authority could not be undermined by the federal Pipeline Safety Act, which wasn’t enacted until 1968. Further, he argued that the state would not have granted the easement in 1953 if it had known that 15 years later, the state’s rights in relation to the easement would be preempted by the federal government.

What happens next:
Judge Jonker is now considering the arguments, and we are awaiting a decision.

Michigan Supreme Court: Line 5 tunnel permit

At issue:
In late 2023, the Michigan Public Service Commission approved a permit for Enbridge’s proposed Line 5 pipeline tunnel under the Straits of Mackinac. In doing so, Flow argues that the MPSC failed in its duties under the public trust doctrine, Michigan Environmental Protection Act (MEPA), and Great Lakes Submerged Lands Act to protect the waters of the Great Lakes and their bottomlands for the people of Michigan; and that the MPSC failed to consider feasible and prudent alternatives to the tunnel.

What has happened so far:
Flow, along with other environmental groups, tribes, and an individual, appealed the MPSC’s permit decision in the Michigan Court of Appeals. In February 2025, the Court of Appeals affirmed the MPSC’s tunnel permit.

Flow and others then appealed that decision to the Michigan Supreme Court, which in September 2025 announced it would hear the appeals, paving the way for a review of the permit. The Supreme Court specifically directed the parties to address whether the MPSC is required to comply with the common law public trust doctrine and MEPA in its permitting decisions.

What happens next:
Flow and the other appellants submitted opening briefs to the court on November 14, 2025. Additional briefing will take place in December and January, with oral arguments expected to be scheduled in 2026.

Meanwhile, the proposed tunnel has yet to receive the required permits from the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and the U.S. Army Corps of Engineers (USACE).

Read: Flow’s comments to EGLE; Flow’s comments to USACE.

The USACE is now also conducting a supplemental Environmental Impact Statement (EIS) that will evaluate horizontal directional drilling. Public comments are due December 5, 2025.

The next five years.

It is unlikely — though not impossible — that we will go another half-decade before the Line 5 threat is resolved. Flow is fighting every day for a resolution that respects Michigan’s sovereignty, the public trust doctrine, and the rights of all Michiganders present and future to enjoy, navigate, use, and be sustained by the irreplaceable waters of our Great Lakes. As part of our work, we also are committed to ensuring water security and energy security solutions for the Great Lakes region. It is our fervent hope that Line 5 is shut down lawfully by our civil courts, and not because of an oil spill disaster.

Flow Water Advocates files Line 5 brief with the Michigan Supreme Court.

Published on November 17th, 2025 by - Blog Posts, News, Reports & Media Releases

November 17, 2025

[ DOWNLOAD: Flow Water Advocates Brief on Appeal (PDF) ]

 

Traverse City, Mich. — Flow Water Advocates (“Flow”) has filed a brief in its appeal of the Michigan Public Service Commission’s decision to approve a permit for Enbridge’s proposed Line 5 pipeline tunnel under the Straits of Mackinac. Flow’s appeal will be heard in the Michigan Supreme Court.

In September, the Court granted a landmark application for leave to appeal, paving the way for a review of the permit. Flow initiated the legal challenge, arguing that the MPSC failed to uphold its public trust obligations to protect Michigan’s waters and submerged lands. The Supreme Court’s order specifically directs the parties to address whether the MPSC is required to comply with the common law public trust doctrine in its permitting decisions.

Support Flow’s work to defend the Great Lakes.

In its brief filed on November 14, Flow addresses three central questions regarding the common-law public trust doctrine and the Michigan Environmental Protection Act (“MEPA”) and their application by the MPSC.

First, Flow argues that the plain meaning of the statutory text and the legislative history of MEPA binds all agencies to protect the air, water, and other natural resources and the public trust in these resources.

Second, Flow maintains that all agencies, including the MPSC, as arms of the state have an independent duty to comply with the State’s public trust obligations. As the sovereign title holder, the State may not violate the public trust by granting rights to use the Great Lakes bottomlands without regard to the trust’s restrictions. Thus, the effect of the common-law public trust doctrine is to safeguard the public’s interests in the waters and submerged lands of the Great Lakes. When the MPSC granted the tunnel permit without conducting a public trust analysis, it failed to fulfill its duty to assess potential impacts to the public’s paramount rights in the resources at stake.

Third, Flow argues that the MPSC cannot permit Enbridge’s tunnel project unless and until the Department of Environment, Great Lakes and Energy (“EGLE”) makes the requisite public-trust determinations under the common-law public trust doctrine and the Great Lakes Submerged Lands Act. In its brief, Flow articulates what a proper public trust analysis must look like to ensure that the proposed action — in this case, the siting and construction of an underground tunnel and pipeline through the bottomlands of the Straits — does not violate the State’s obligation to protect these public trust resources. EGLE cannot approve any proposed use of Great Lakes bottomlands, unless it has determined both that the adverse effects to the environment and the public trust will be minimal, and that there is no feasible and prudent alternative to the applicant’s proposed activity — such as the shutdown of Line 5. These mandatory determinations have not been made; therefore, the MPSC is required to deny Enbridge’s permit application under Michigan law.

Flow is represented in this case by its legal team and co-counsel, Kanji & Katzen, P.L.L.C. and Olson & Howard, P.C. The case will be heard alongside a related appeal from a coalition of the Little Traverse Bay Band of Odawa Indians, Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, and Nottawaseppi Huron Band of the Potawatomi, with the Environmental Law and Policy Center and the Michigan Climate Action Network.

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Flow Water Advocates is an independent 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, strategic communicators, and community builders, Flow is a trusted resource for Great Lakes advocates. We help communities, businesses, agencies, and governments make informed policy decisions and protect public trust rights to water. Learn more at www.FlowWaterAdvocates.org.

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.

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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.

Michigan Court of Appeals Affirms Line 5 Tunnel Permit

Published on February 20th, 2025 by - Blog Posts, Reports & Media Releases

Michigan Court of Appeals Affirms Line 5 Tunnel Permit; FLOW Asserts Michigan’s Public Trust Responsibilities

 

Traverse City, Mich.— For Love of Water (FLOW) participated in consolidated appeals challenging a Michigan Public Service Commission (MPSC) order conditionally approving Enbridge Energy’s application to replace the segment of its Line 5 pipeline under the Straits of Mackinac, constructing a new pipeline within a proposed tunnel. On February 19, the Michigan Court of Appeals affirmed the MPSC’s order.

Background: Following a series of agreements between Enbridge and the State of Michigan, and the creation of the Mackinac Straits Corridor Authority (MSCA) by the state legislature to oversee tunnel construction, Enbridge sought MPSC authorization for the “Replacement Project”. In 2024, MPSC issued a permit.

Appellants’ Arguments: The appellants (environmental groups, tribes, and an individual) argued that the MPSC erred by:

  • Limiting its review to the public need for the replacement segment rather than the entire Line 5 pipeline.
  • Using improper comparisons in its Michigan Environmental Protection Act (MEPA) analysis.
  • Inadequately analyzing greenhouse gas (GHG) emissions.

In addition, FLOW argued that Michigan has sovereign public trust responsibilities that cannot be waived legislatively through the delegation of a public policy decision to an agency.

The Court’s decision held that:

  1. The MPSC properly limited its review to the Replacement Project, as the application concerned only that specific segment. The need for the entire Line 5 had been previously established.
  2. The MPSC’s MEPA analysis was sufficient. While the court noted some inconsistencies in comparisons (e.g., comparing rail alternatives for the entire line but not the existing pipeline), it concluded that the MPSC ultimately considered all presented alternatives and that its decision was supported by the record.
  3. Because the MPSC has only the authority created in it by the Legislature, it has no duty to consider the public trust in its decisions.

FLOW Legal Director Carrie La Seur said, “We stand by our argument that the MPSC failed to make the determinations required under MEPA and improperly excluded critical evidence offered by the intervenors. Michigan’s public trust guardianship is codified in MEPA and the Michigan Constitution, which apply to all agency actions. Just like a tenant has no right to give away a rented house, the Legislature has no right to hand over its public trust responsibilities. The state holds Michigan waters in trust for all Michiganders, in perpetuity. They are not for sale.”

FLOW is likely to appeal this decision.

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.”

MPSC: Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac Must Undergo Full and Vigorous Public Review

Published on June 4th, 2024 by - Blog Posts, News, Reports & Media Releases

MPSC Chairman Sally A. Talberg

Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.

FLOW E.D. Liz Kirkwood

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.

“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”

See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:

FLOW Appeals MPSC Decision Approving the Line 5 Tunnel

Published on April 15th, 2024 by - Blog Posts, Reports & Media Releases

Download FLOW Appellate Brief  (PDF)

Traverse City, Mich.— On April 11, 2024, FLOW filed a brief before the Michigan Court of Appeals aimed at reversing the Michigan Public Services Commission’s (MPSC) approval of the proposed Line 5 tunnel project.

Enbridge’s proposed tunnel received a green light from the MPSC on December 1, 2023. FLOW is challenging the approval arguing that the MPSC’s action violated the Michigan Environmental Protection Act by failing to determine whether feasible and prudent alternatives were available that would render the estimated $2 billion project unnecessary. FLOW also contends that the MPSC failed to undertake any analysis of whether there was a “public need” for the project, given growing concerns over greenhouse gas emissions and projected reductions in the use of transportation fuels.

“Enbridge has admitted that growing U.S. and Canadian concerns over climate change will significantly reduce the serviceable lifetime of Line 5 and the tunnel,” stated FLOW’s Executive Director Liz Kirkwood. “The project is demonstrably an environmental and economic albatross.”

FLOW has joined numerous Native American tribes and other advocacy organizations in formally opposing the tunnel project.

FLOW Appeals MPSC Permit to Site Replacement Line 5 Pipeline in Proposed Great Lakes Tunnel

Published on January 4th, 2024 by - Blog Posts, News, Reports & Media Releases

Media Release: January 3, 2024

Download printer-friendly PDF

Traverse City, Mich.— For Love of Water (FLOW), a Great Lakes water law and policy center, filed an appeal on December 22, 2023 with the Michigan Court of Appeals to overturn the Michigan Public Service Commission’s December 1 decision to approve the application from Canadian oil company Enbridge to relocate its twin Line 5 crude oil and natural gas liquids (NGLs) pipelines to a proposed new underground tunnel. Line 5 currently spans 4.5 miles on the lakebed floor of the Straits of Mackinac.

In its approval, the MPSC dismissed alternatives to routing Line 5 through the Straits. However, recent industry reports show that there are a range of commercially feasible and operationally viable alternatives to transport crude and NGLs in the event of a Line 5 shutdown. These alternatives include leveraging excess capacity in existing pipelines that do not run through the waters of the Great Lakes.

FLOW contends that the Commission’s decision to permit relocating Line 5 to a yet-to-be-approved tunnel violates the Michigan Environmental Protection Act (MEPA). MEPA requires all agencies to determine if a proposed project is likely to impact the air, water, and natural resources, or public trust in those resources, and to deny approval when, as here, there are feasible and prudent alternatives.

Multiple studies demonstrate that the North American energy market is flexible, adaptable, and resilient, and that Line 5 could be decommissioned without causing supply shortages or price spikes. It is clear that the region has the capacity for a planned and orderly transition to shut down Line 5 and to protect the Great Lakes – which comprise 95% of North America’s fresh surface water – from a catastrophic oil spill. Since 2017, large energy firms and refineries have developed contingency plans for a Line 5 shut down.

Enbridge has yet to obtain the required federal authorization from the US Army Corps of Engineers to construct this mega-infrastructure tunnel project. A final environmental impact statement is expected from the Army Corps in spring of 2026, following public meetings and comment period in 2025.

“Because the Snyder administration cut a deal in 2018 to let Enbridge continue to use the vulnerable dual pipelines in the Straits until a tunnel is built, the State unlawfully and prematurely gave the green-light to Enbridge to operate Line 5 for another 99 years,” James Olson, Sr. Legal Advisor and attorney for FLOW said. “This has poisoned decisions by state agencies, most recently the MPSC, to assume that they don’t have to consider the risks, effects, and alternatives to the continued operation of Line 5.”

FLOW, and other organizations and tribes who have appealed the Commission’s December 1 order will ask the Court of Appeals to overturn the decision and require the Commission to apply the rule of law under MEPA and consider feasible and prudent alternatives to the tunnel and reevaluate its improper, short-sighted commitment to this major piece of new fossil fuels infrastructure in the face of undeniable climate change impacts and risks.

# # #

Contact: Liz Kirkwood, Executive Director
Phone: (231) 944-1568
liz@flowforwater.org

Related:

December 1, 2023: Disgraceful: MPSC Approves Permit for Enbridge Tunnel in the Straits of Mackinac; Breaches Legal Duty to Protect Michigan’s Natural Resources

November 17, 2023: What happens when Line 5 is shut down? A report on energy market impacts

March 16, 2022: FLOW to Michigan Public Service Commission: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Disgraceful: MPSC Approves Permit for Enbridge Tunnel in the Straits of Mackinac; Breaches Legal Duty to Protect Michigan’s Natural Resources

Published on December 1st, 2023 by - Blog Posts, Reports & Media Releases

Traverse City, Mich. — FLOW is shocked that the collective efforts of thousands of Michiganders and treaty-protected tribes to protect our waters from the catastrophic risks of Line 5 have been ignored in today’s decision by the Michigan Public Service Commission (MPSC) to grant authorization for a Line 5 tunnel. The Straits are no safer while an unprecedented tunnel perpetuates the threat of an explosion spilling oil and gas into these ecologically fragile and economically vital waters.

In the same week that Governor Whitmer signed into law a nationally significant climate bill to decarbonize 100% of Michigan’s electricity production by 2040, today’s ruling is a black mark on the administration’s climate record and a disgrace to all of Michigan. A Line 5 tunnel with a 99-year lease will be an embarrassing albatross, hobbling future efforts to transition the region off fossil fuels and imprudently burdening taxpayers.

The Commission’s approval of a tunnel and 99-year new crude oil and natural gas liquids pipeline betrays its perpetual and solemn public trust responsibility as the sworn guardians of the public rights of citizens in the Great Lakes. This is not a “just transition” but a craven capitulation to fossil fuel profits.

Three years ago, FLOW intervened as a party before the MPSC in Enbridge’s proceeding seeking approval of a pipeline tunnel under the Straits. FLOW legal advisors Jim Olson and Skip Pruss have represented the public’s interest in the Great Lakes and Michigan’s priceless ecosystem. Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960).

The authorization breaches the MPSC’s legal duty to prevent likely degradation of Michigan’s air, water, natural resources, and public health—including drinking water, fishing, sanitation, boating and recreation—under Michigan’s environmental protection laws and the mandates under article 4, section 52 of Michigan’s Constitution.

Michigan environmental law prohibits the Commission from authorizing a pipeline when, according to the recent PLG Consulting report, reasonable, practical, feasible, and prudent, and affordable alternatives exist, and environmental damage is likely. The Michigan Environmental Protection Act expressly states that under these circumstances, a permit or approval “shall not be authorized.”

FLOW Founder and veteran Michigan environmental lawyer Jim Olson said: “There is no justification, morally or legally, for a new crude oil pipeline and tunnel that will last into the days of our great-great-grandchildren. When they look back at us, what kind of ancestors will they see?”

This fight is not over, and FLOW will be there.

FLOW to Michigan Public Service Commission: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Published on March 16th, 2022 by - Blog Posts, Reports & Media Releases

Editor’s Note: FLOW submitted the following comments today to the Michigan Public Service Commission in advance of the MPSC’s March 17, 2022, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac. See the MPSC’s March 17 meeting agenda, and learn about the opportunity to comment in person or online. Members of the media, please contact FLOW Legal Director Zach Welcker at (231) 620-7911 or Zach@FLOWforWater.org with any questions.

Dear Honorable Members of the Michigan Public Service Commission (“MPSC”):

Thank you for the opportunity to comment.

FLOW urges the MPSC to suspend further consideration of this ill-conceived oil tunnel project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies. 

We have previously provided the MPSC with detailed analyses of this issue. Suffice it to say, Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960). Thus, it would be a waste of time and resources for the MPSC to continue considering Enbridge’s proposal at this time.

If the MPSC decides, to the peril of Michiganders, to disregard Enbridge’s lack of authorization for this project, it must contend with the fact that Enbridge’s proposal to build a new oil pipeline inside a new tunnel underneath the Straits of Mackinac has ballooned into a supersized infrastructure project. In comparison to the original project, the diameter of the tunnel will now require a tunnel boring machine four times the size initially proposed. Correspondingly, the amount of excavated material that must be transported and disposed of has quadrupled.

Testimony from Enbridge’s geotechnical expert, Michael Mooney, before the MPSC indicates that the tunnel must also be bored deeper than the original design, stating: “The depth to rock was determined to be deeper than assumed during the Alternative study and the resulting vertical profile takes the tunnel deeper in order to remain fully within rock. The geotechnical investigation also revealed highly fractured rock in places that would yield high groundwater pressures during construction.” On file with the MPSC, pp. 19-20.

Yet Enbridge’s initial $500 million estimate of the cost of the tunnel has not been revised. Experts have raised a host of related geotechnical and safety concerns. Significantly, Enbridge has also recently informed the Federal Energy Regulatory Commission that climate concerns may limit the expected service life of the proposed tunnel to twenty years. The MPSC must accordingly reevaluate the prudence of moving forward with this project in light of these significant developments.