State issues initial Line 5 tunnel project permit amid Nessel review

The state of Michigan has issued its first permit to Enbridge Energy for a controversial Line 5 tunnel construction project, even as the governor and attorney general have questioned the legality of the construction agreement.

Weeks prior to the passage of legislation enabling the project, Enbridge submitted permit applications to the Michigan Department of Environmental Quality and the Army Corps of Engineers to begin taking rock and soil samples from the area, said Enbridge spokesman Ryan Duffy.

The DEQ on Tuesday issued the permit.

A public hearing on the permit application was held Nov. 27, more than two weeks before Republican former Gov. Rick Snyder signed a law creating the tunnel's oversight body, the Mackinac Straits Corridor Authority.

Democratic Attorney General Dana Nessel started a review of the legislation and other agreements Jan. 2 at the request of Gov. Gretchen Whitmer to resolve "any legal uncertainty." Nessel is expected to issue an opinion by "early March at the latest," spokeswoman Kelly Rossman-McKinney said. 

Nessel has said there were “serious and significant concerns” about the law and warned interested parties that "in no way should any entity rely on this act to move forward unless and until these matters have been resolved."

The DEQ will continue "to handle permit applications as per state regulations,” said DEQ spokesman Scott Dean. 

The Army Corps of Engineers received a permit application from Enbridge, but is awaiting additional information from the Canadian company and input from the U.S. Fish & Wildlife Service, which is delayed by the partial government shutdown, said Army Corps spokeswoman Lynn Rose.

The permitted borings are part of the geotechnical phase of the project and “will aid in the design and construction of the tunnel,” Duffy said. Per Enbridge's agreement with the state, that project's geotechnical work must be completed by the end of 2019.

The four-mile dual pipeline span beneath the Straits of Mackinac has long been a source of concern to environmentalists, who worry about the catastrophic effects of a Great Lakes oil spill.

Under the agreement with the state, Enbridge would pay the estimated $500 million cost of building a tunnel beneath the straits to house the pipeline, transfer ownership of the tunnel to the Mackinac Straits Corridor Authority and then enter a 99-year lease for the space. 

The legislation that created the authority to oversee the tunnel construction preceded three December agreements that cemented the plan in Snyder’s final days in office.

Environmentalists have continued to oppose the plan since it leaves the current pipeline in place through what’s expected to be a five-year to 10-year construction period. Activists worry about a damaging leak from the 65-year-old twin pipelines.

But opposition and support for the project has not been strictly along party lines.

Former Mackinac Bridge Authority Chairman William Gnodtke, an appointee of GOP former Gov. John Engler, opposed the plan and the authority’s involvement in it.

Rep. Sara Cambensy, the sole Democratic representative in the Upper Peninsula, voted in favor of the legislation allowing for the construction after researching the issue and coming to realize the area’s reliance on the crude oil transported by Line 5.

Nonetheless, Whitmer and Nessel’s review of the issue is “responsible” given the speed at which the agreements were finalized, said Cambensy of Marquette.  

“I feel like they are doing their jobs in order to protect the institution and the process by which legislation is written and passed, even though I feel differently about the tunnel than they do," she said. 

The review of the Enbridge permit by the DEQ and Army Corps comes amid mounting concerns about the impact of the partial federal government shutdown on spill response efforts.

The state continues to work with “internal and external partners to ensure monitoring and response capabilities in the Straits,” Whitmer’s spokeswoman Tiffany Brown said.

The supercomputer used by the National Oceanic and Atmospheric Association to monitor Line 5 has been shut down since Dec. 22, stopping NOAA’s efforts to monitor and predict currents and direct spill response based on that data.

The U.S. Coast Guard relies on NOAA current models to direct its equipment and manpower in the event of a spill, said Lt. Paul Rhynard, a spokesman for the agency' Great Lakes region. 

“In the case that NOAA was not able to provide that service, we would go to third party,” Rhynard said. “We have other contingencies in place. …We’re confident we’re ready to respond no different than we always have.”

Duffy echoed the same confidence in Enbridge’s ability to respond to a spill, noting that the NOAA modeling data could be obtained from other sources.

“We are confident in our ability to respond effectively in the unlikely event of an incident in the Straits,” Duffy said in an email.

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