Ceyhun Jay Isik / Flickr / Creative Commons
The remaining six weeks of Michigan Gov. Rick Snyder’s eight-year term will be crucial for the Line 5 pipeline, and also a preview of what could be a years-long legal dispute over the project.
Advocates are anxiously waiting to see whether Snyder will secure a deal to tunnel Line 5 beneath the Straits of Mackinac before leaving office Jan. 1, but they also recognize any plans around Line 5 come with legal uncertainty.
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.
At least three key scenarios could play out in the coming months:
- The Mackinac Bridge Authority — a commission asked by Snyder to approve the tunnel deal — approves the plan during a special meeting while Snyder is still in office, triggering up to a 10-year-long process of permitting, designing and building the tunnel.
- The Bridge Authority board approves the plan at its next scheduled meeting in February, after Gov.-elect Gretchen Whitmer and Attorney General-elect Dana Nessel take office. Both have vowed to shut down Line 5 permanently.
- The Bridge Authority board rejects or doesn’t vote on the tunnel proposal at its February meeting, and state officials pursue decommissioning Line 5.
Meanwhile, the Republican-controlled Legislature likely has the votes to pass a bill introduced on Nov. 8 that grants power to the Bridge Authority to oversee the “utility corridor.” The Legislature is also considering a $4.5 million appropriation for oversight expenses related to the tunnel.
A third agreement between the state and Enbridge before Dec. 31 is also in the works, which critics fear could further tie the hands of the next administration.
Department of Natural Resources spokesperson Ed Golder confirmed the state is working on another agreement 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.”
In any scenario, Line 5’s future is fraught with legal and permitting questions to be sorted out between the state, advocacy groups and pipeline owner Enbridge.
For advocates, the current situation is both time-sensitive and yet another key point in a timeline that will likely last for years to come.
“I think there’s clearly a long-term issue,” said James Clift, policy director with the Michigan Environmental Council. “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.”
On Nov. 1, Snyder sent a letter to the Bridge Authority board asking it to approve a 14-page draft agreement committing to a tunnel. The board met on Nov. 8 in the Upper Peninsula to hear public comments and presentations in support of the plan, but did not vote on it. Board members have said they were not consulted on Snyder’s plan to have the authority oversee the utility corridor when it was announced in October.
The seven-member board is scheduled to meet next on Feb. 12, but it’s possible a special meeting could be called before then.
Valerie Brader, an attorney helping broker the deal and former executive director of the Michigan Agency for Energy, said the Bridge Authority “has independence in its work, so its ability to take action is not affected by a change in the governor or AG.”
Critics note that Snyder appointed two new members to the board last month and has a majority of support on the seven-member board. The Snyder-appointed director of the state Department of Transportation, Mark Van Port Fleet, also sits on the board.
Board Chairman Patrick “Shorty” Gleason has reportedly said that the board is not being pressured to call a special meeting and is acting on its own schedule.
Gleason could be a crucial vote on the board to approve the deal, along with Snyder’s appointees. Gleason is the former president and legislative director of the Michigan Building and Construction Trades Council. The group supports the tunnel plan — as well as the Keystone XL pipeline — for the apparent jobs it would create. The group also endorsed Whitmer for governor.
Gleason could not be reached for comment.
Liz Kirkwood, executive director of For Love of Water, said even if the Bridge Authority board doesn’t vote this year, Snyder still has a board majority in support of the tunnel. She called Snyder’s appointments to the authority board a “fait accompli.”
The Republican-led Legislature is also likely to support Sen. Tom Casperson’s bill to grant the bridge authority oversight of the tunnel. Casperson could not be reached for comment.
Brader said SB 1197 “provides a layer of protection beyond the language of any agreement itself for key items, including protection of the bridge revenue. It is also an opportunity for the Legislature to indicate its confidence in the [Mackinac Bridge Authority] as guardians of the Straits and people who know how to make sure infrastructure is done right.”
Kirkwood said, “the odds are against us in terms of opposing this terrible legislation that would expand this Bridge Authority.” She called it the “missing piece of legislation” allowing the state to enter into the public-private partnership with Enbridge.
Meanwhile, a third agreement between Enbridge and the state could “make it very difficult for the next governor-elect and attorney general-elect” to decommission Line 5, Kirkwood said.
Kirkwood called the proposed $4.5 million appropriation for oversight of the deal another “stunning development.”
“It’s essentially taxpayer assistance for a private oil tunnel,” Kirkwood said.
Attorney General-elect Dana Nessel is opposed to “any action taken” on Line 5 before she is sworn into office.
“Ms. Nessel is deeply concerned and troubled by the hasty legislative rush-to-judgement efforts to push through a proposal that has not been properly vetted, that handcuffs Governor-elect Whitmer and Attorney General-elect Nessel before they even take office, and will have negative repercussions on the state of Michigan and its residents for generations,” Nessel spokesperson Kelly Rossman-McKinney said in a statement.
Alternatives and the public trust
Whether the tunnel is a “reasonable and prudent alternative” to the pipeline as it exists today along the lakebed will be an ongoing “complex” legal question, Clift said.
“We believe existing infrastructure would support the need,” he said.
A Line 5 alternatives analysis released a year ago did not consider using existing pipeline capacity to replace Line 5 because it is “highly probable that either a new build pipeline or alternative transportation such as rail would be required to manage capacity,” the report says.
The report also considers rail transport instead of a tunnel or trench: “In addition to the $2 billion in capital expenditure, this alternative would have an increased safety risk, monetized environmental risk and total economic risk when compared to the existing Straits Crossing.”
Kirkwood said the administration has “narrowed the alternatives to the tunnel position without first examining if there are better, safer, less costly options. The agreement just really favors the economic desires of Enbridge.”
Clift said that while the tunnel plan is being debated publicly, “until you see the engineering plan, you won’t know what kind of risks this might pose.”
At a Bridge Authority meeting on Nov. 8, Mike Mooney — director of the Colorado School of Mines Center for Underground Construction and Tunneling who was hired by the state — told board members the tunnel option is technically feasible.
Another legal question is whether the tunnel plan violates public trust laws. Critics maintain that the Snyder administration’s actions are ultimately a violation of these laws — that the state is allowing the use of public property for the primary benefit of a private company, and that it poses a substantial risk to the Great Lakes.
Under an 1892 U.S. Supreme Court ruling involving the Illinois Central Railroad, states must be able to show that private projects on public land don’t pose a risk and also provide a public benefit.
In his Nov. 1 letter to the Mackinac Bridge Authority board, Snyder said the tunnel “would better connect the two peninsulas, provide energy reliability and virtually eliminate the risk of an oil spill from Enbridge’s Line 5.”
Brader said the tunnel plan “provides certainty that we are getting the dual lines off the bottom of the Straits. The only other possible path to that goal involves years of litigation with an uncertain outcome.”
Enbridge spokesperson Ryan Duffy said a tunnel would “reduce the likelihood of a release into the Straits and protect the pipeline from an anchor strike” and that the company would be responsible for project costs. Enbridge also cites numerous economic benefits of Line 5.
“New infrastructure that connects the peninsulas will continue to put Michigan at the forefront of stewardship of the Great Lakes and enhance the region’s economic prosperity through energy security,” Duffy said.
Kirkwood counters that FLOW has “demonstrably shown that Line 5 is not the kind of economic boon that Enbridge has pretended and played up,” and that the state has not “focused on the critical issue of ensuring energy reliability for citizens in the Upper Peninsula,” particularly in the near-term if Line 5 went down.
Ultimately, environmental groups oppose the tunnel because it continues a dependence on fossil fuels for up to 99 years under the proposed agreement. They say this is due diligence that has been overlooked.
“The public really needs to understand what is going on here,” Kirkwood said. “This agreement does not eliminate the risk of Line 5. It does the contrary, and guarantees Enbridge license to operate unimpeded for the next decade and then the next century without contemplating the future of fossil fuels and stranded assets.”