Saying that Enbridge Oil Company has “routinely refused to take action” to protect the Great Lakes, Michigan Governor Gretchen Whitmer has taken action to shut down Enbridge Line 5 through the Straits of Mackinac.
Today, Governor Whitmer and Department of Natural Resources (DNR) Director Dan Eichinger notified Enbridge that the 1953 easement allowing it to operate dual pipelines in the Straits of Mackinac to transport petroleum and other products is being revoked and terminated.
The two also filed a lawsuit asking the Ingham County Circuit Court to recognize the validity of their action. The state is revoking the easement for violation of the public trust doctrine, given the unreasonable risk that continued operation of the dual pipelines poses to the Great Lakes. Moreover, the state is terminating the easement based on Enbridge’s persistent and incurable violations of the easement’s terms and conditions.
The notice requires Enbridge to cease operations of the dual pipelines in the Straits by May of 2021, allowing for an orderly transition that protects Michigan’s energy needs over the coming months.
Whitmer says, “Here in Michigan, the Great Lakes define our borders, but they also define who we are as people. Enbridge has routinely refused to take action to protect our Great Lakes and the millions of Americans who depend on them for clean drinking water and good jobs. They have repeatedly violated the terms of the 1953 easement by ignoring structural problems that put our Great Lakes and our families at risk.” She adds, “Most importantly, Enbridge has imposed on the people of Michigan an unacceptable risk of a catastrophic oil spill in the Great Lakes that could devastate our economy and way of life. That’s why we’re taking action now, and why I will continue to hold accountable anyone who threatens our Great Lakes and fresh water.”
The Great Lakes are home to 21-percent of the world’s fresh surface water. They supply drinking water for 48 million people, including 5 million in Michigan, and support 1.3 million jobs that generate $82 billion in wages annually across the US. In Michigan, the Great Lakes support over 350,000 jobs. An oil spill in the Great Lakes would put families and small businesses across the region at risk.
DNR Director Dan Eichinger says, “After spending more than 15 months reviewing Enbridge’s record over the last 67 years, it is abundantly clear that today’s action is necessary. Enbridge’s historic failures and current non-compliance present too great a risk to our Great Lakes and the people who depend upon them.” He adds, “Our number one priority is protecting the Great Lakes and we will continue to work with our partners across Michigan in pursuit of that objective.”
The state’s action today to revoke and terminate the 1953 easement for the dual pipelines through the Straits of Mackinac does not prevent Enbridge from continuing to seek the necessary legal approvals to construct a tunnel.
The state is revoking the 1953 easement for violation of the public trust doctrine. That body of law recognizes the State of Michigan as the “trustee” of the public’s rights in the Great Lakes and lays upon the state legal obligations to protect those rights from any impairment. The state found that the 1953 easement violated the public trust doctrine from its inception because the easement does not make the necessary public trust findings. Moreover, the state also found that the continued use of the dual pipelines cannot be reconciled with the public’s rights in the Great Lakes and the State’s duty to protect them. Transporting millions of gallons of petroleum products each day through two 67-year old pipelines that lie exposed along the entire span of a busy shipping channel presents an extraordinary and unacceptable risk. The dual pipelines are vulnerable to anchor strikes, similar dangerous impacts, and the inherent risks of pipeline operations.
As recent events have confirmed, this threat is very real. For example, in April of 2018, the pipelines were struck and dented in three different locations by an anchor inadvertently dropped and dragged by a commercial vessel. Then, in June of 2020, Enbridge disclosed that the pipelines had again been struck sometime in 2019 by anchors or cables deployed by nearby vessels, damaging pipeline coatings and severely damaging a pipeline support. Four of the five vessels potentially responsible for the impacts were operated by Enbridge’s own contractors.
In addition, the state is terminating the 1953 easement because Enbridge has repeatedly and incurably violated its terms. The easement requires Enbridge to exercise due care in operating the pipelines, and also requires Enbridge to satisfy numerous specific conditions, such as ensuring that the pipelines are physically supported at least every 75 feet, are covered by a multi-layer coating to prevent corrosion and other physical damage, and are within certain curvature limitations. Enbridge, however, has failed for decades to meet these obligations under the easement, and these failures persist and cannot be cured. For these and other reasons, the state is revoking and terminating the 1953 easement.
Today’s action to revoke and terminate the 1953 easement is the culmination of a careful review of Enbridge’s compliance with the easement, the threats posed by the continued operation of the dual pipelines, and the state’s energy supply. On June 7, 2019, the governor issued Executive Order 2019-14, creating the UP Energy Task Force to assess the region’s energy needs and alternative sources of supply. The Task Force issued a report on April 17, 2020. Moreover, on June 27, 2019, the governor directed the DNR to undertake a comprehensive review of Enbridge’s compliance with the 1953 easement. That review is now complete and supports this action.
