TRAVERSE CITY — News that Gov. Gretchen Whitmer gave notice to revoke and terminate the 1953 Easement that allows Enbridge to operate pipelines carrying petroleum through the Straits of Mackinac has been met with cheers, elation and a collective sigh of relief.
“We have dreamed of this moment for over seven years,” said Liz Kirkwood, executive director of FLOW (For Love of Water). “It’s an incredible victory for the state of Michigan ... It’s an extraordinary day.”
Kate Madigan, executive director of the Michigan Climate Action Network, said thousands of Michiganders have worked for years to raise awareness of the aging dual pipelines and shut them down.
“I am so incredibly excited that the governor has made this announcement and is taking this action,” Madigan said. “This is just a huge moment for everyone who has worked for this.”
Bryan Newland, chairperson for the Bay Mills Indian Community, said he was at a loss for words, but “grateful” is the one that keeps floating to the top.
“We know that it took guts and it was the right thing to do,” Newland said.
But while many are ecstatic over Whitmer’s actions, they know her Friday declaration and court filing is only one step.
“Enbridge is going to fight this tooth and claw,” Kirkwood said.
Whitmer and Dan Eichinger, director of the Michigan Department of Natural Resources, notified Enbridge of the move to terminate Friday, which would force the company to shut down the pipelines by May 12. The 180-day period will allow for a transition that protects the state’s energy needs in the coming months.
The state also filed a lawsuit Friday asking the Ingham County Circuit Court to enter a judgement that the state is right to revoke the 1953 Easement because it violates the Public Trust Doctrine because of the risk that operation of the 67-year-old pipelines pose to the Great Lakes.
Also cited were Enbridge’s “persistent and incurable violations” of the easement’s terms and conditions.
“Here in Michigan, the Great Lakes define our borders, but they also define who we are as people,” Whitmer said in a press release. “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.
“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 contain 21 percent of the world’s fresh surface water and supply drinking water for 48 million people. The pipelines have been struck and dented by anchors from commercial vessels several times in the past two years.
Eichinger said 67 years of Enbridge records have been reviewed during the past 15 months, bringing the company’s failures and non-compliance to light. Those failures are too great a risk to the Great Lakes and the people who depend on them, he said in a press release.
“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,” Eichinger said.
State Rep. Sara Cambensy (D-Marquette) is an advocate for the jobs and affordable energy the pipelines bring. She criticized the move as careless and showing a lack of leadership from the governor’s office, calling it a political stunt.
“Since when does Michigan turn its back on an industry that provides regional and bi-national energy security without having a solid plan to replace Line 5?” Cambensy said. “The announcement rolled out from the governor today lacks long-term planning, financial backing and legislative approval to even begin to make such a monumental shift away from this pipeline.”
Enbridge responded to Whitmer’s action with a written statement saying the pipelines are being operated safely and there is no basis for terminating the 1953 Easement.
“This notice and the report from Michigan Department of Natural Resources are a distraction from the fundamental facts,” stated Vern Yu, Executive Vice President and President, Liquids Pipelines. “Line 5 remains safe, as envisioned by the 1953 Easement, and as recently validated by our federal safety regulator.”
According to the Enbridge statement, the DNR’s review of easement compliance was done in a non-public manner and the DNR rejected the company’s offer to let its technical experts answer questions or make clarifications related to the review.
The company also said the state is not meeting its commitments under the 2018 Second Agreement between the State of Michigan and Enbridge, which calls for periodic meetings on pipeline issues.
Before being elected to his post as chairperson Newland, an attorney, represented tribes on land issues all over the country. He praised Whitmer’s declaration.
“When you work for Indian tribes you’re going to lose more than you win,” Newland said. “When you work on environmental and land issues you’re going to lose more than you win. So on this rare occasion when people in power listen to you it’s hard to put into words how good it feels. It’s validating.”
Newland knows that Enbridge is not going to take this lying down.
“We have a fight ahead of us,” he said.
The Public Trust Doctrine is a body of law that recognizes the State of Michigan as the “trustee” of the public’s rights in the Great Lakes. It also gives the state the legal obligation to protect those rights.
The state asserts that continued use of the pipelines cannot be reconciled with the public’s rights and the state’s duty to protect those rights, that transporting millions of gallons of petroleum products each day through the aging pipelines that lie along a busy shipping channel presents an extraordinary and unacceptable risk.
In 2018 the pipelines were struck and dented in three places by an anchor inadvertently dropped and dragged by a commercial vessel. In June 2020, Enbridge disclosed that the pipelines had again been struck sometime in 2019 by anchors or cables deployed by nearby vessels, which damaged their coatings and a pipeline support.
The state also claims that Enbridge violated the terms of the easement by failing to place pipeline supports at least every 75 feet, by not ensuring the lines are properly coated or that they are within certain curvature limitations. Enbridge has failed to meet its obligations for decades, the state asserts.
Kirkwood, an attorney, said Enbridge may seek to have the case moved to federal court, claiming the state pre-empted the federal agencies regulating pipelines that carry dangerous substances, such as the Pipeline Hazardous Safety Materials Administration and the Federal Energy Regulatory Commission.
Madigan said she realizes Enbridge will fight the termination and the company will continue to seek approval for its plan to construct a tunnel for its pipelines through the Straits.
For now, she wants to focus on Whitmer’s actions.
“This shows so much courage and leadership to stand up to Enbridge, one of the most powerful oil companies in the world,” Madigan said. “Taking this action fulfills her duty to protect the public trust.”
Two years ago Michigan lawmakers approved an agreement with Enbridge that would allow the company to build a tunnel through the Straits to enclose a new pipeline. The agreement was made in a lame duck session a month before Whitmer took office.
Attorney General Dana Nessel later issued an opinion that the authorizing bill was unconstitutional because its provisions exceeded what its title specified. The Michigan Court of Appeals didn’t agree and issued a ruling in June that gave Enbridge the go-ahead for its plans.
The company has said it will finish the tunnel by 2024.
David Holtz is a spokesperson for Oil & Water Don’t Mix, a coalition of more than 20 organizations, including FLOW and the Climate Action Network.
He said no one knew the pipelines were under the Great Lakes or how old they were until 2012.
Oil & Water formed a year later and has been working since then to shut them down through legal advocacy and by building a citizens movement.
Madigan said the aged pipelines are a statewide issue, but it’s the passion of people in northern Michigan that got the movement off the ground.
“Folks in our region particularly should be proud of all the work they’ve done to this point,” Madigan said.
An assessment of the region’s energy needs and the DNR’s review of Enbridge’s compliance with the easement were completed in the last several months.
Both were used as the basis for Whitmer’s notice to revoke and terminate the easement.
Newland said there is no shortage of large law firms who are ready to take Enbridge’s fight to the governor.
“We’re going to be standing at the governor’s side to defend this.”