Whitmer moves to shut down Enbridge's Line 5

Beth LeBlanc
The Detroit News

Lansing — Gov. Gretchen Whitmer is moving to shut down Line 5 by revoking and ending a 1953 easement that allows Enbridge Energy to run the dual pipeline through the Straits of Mackinac.

The announcement was welcomed Friday by environmental groups as protecting the Great Lakes and attacked by neighboring Ohio's governor and energy groups as costing jobs and raising fuel and heating prices for consumers. 

The Democratic governor said Friday she has filed a lawsuit seeking validation of the action in Ingham County Circuit Court. Enbridge must shut down the pipeline by May under the notice. 

The pipeline presents an "unreasonable risk" to the Great Lakes in violation of the public trust doctrine, Whitmer said in a statement with the Michigan Department of Natural Resources.  

This June 2020 file photo, shot from a television screen provided by the Michigan Department of Environment, Great Lakes, and Energy shows damage to anchor support EP-17-1 on the east leg of the Enbridge Line 5 pipeline within the Straits of Mackinac in Michigan.

"Moreover, the state is terminating the easement based on Enbridge’s persistent and incurable violations of the easement’s terms and conditions," the press release said. 

Enbridge is reviewing the notice it received Friday afternoon and said there is no "credible basis" for revoking the easement.

In reviewing the easement, the DNR operated in a "non-public manner" and rejected Enbridge's offer to discuss questions with the company's technical experts, the company said. The conduct goes against the 2018 agreement between the state and oil company, Enbridge said, citing the pact with the administration of Republican former Gov. Rick Snyder.  

“This notice and the report from Michigan Department of Natural Resources are a distraction from the fundamental facts,” said Vern Yu, executive vice president and president of liquid pipelines for Enbridge. “Line 5 remains safe, as envisioned by the 1953 Easement, and as recently validated by our federal safety regulator." 

Ohio Gov. Mike DeWine's office said the Republican governor's position on the closure of Line 5 remains unchanged from what was expressed in a July 2019 letter to Whitmer, in which he said the closure would cost more than 1,000 union jobs, create potential fuel cost spikes and lead to airline schedule disruption.

Ohio's two refineries near the Michigan border supply fuel to Ohio and southeast Michigan, including the Detroit Metro Airport, DeWine said in the letter. 

"We ask that you please consider options to improve the safety of Line 5 that does not result in taking the pipeline offline," he wrote.

The notice comes after years of environmental concerns about the 67-year-old dual pipeline and the risk the lines present should they rupture beneath the Straits of Mackinac. 

Enbridge agreed in 2018 to build a $500 million utility tunnel beneath the straits to protect the pipeline, but the plan was immediately challenged by Whitmer's administration and Attorney General Dana Nessel when they took office in January 2019. 

Michigan consumers could experience price hikes for fuel, natural gas and propane if Line 5 is shut down while increasing the risk of a spill on land, industry experts told The Detroit News last year.

Fuel industry officials and independent experts estimate closing the dual pipelines beneath the Straits of Mackinac would cut off not only thousands of gallons of propane a day in the Upper Peninsula but also light crude shipments to Detroit, Toledo and Sarnia, Ontario, refineries that convert the oil into gas, diesel and jet fuel.

Last year, the Toledo Refining Co. told the Toledo Blade that a permanent closure of the pipeline would shutter the refinery and its 550 jobs. 

But environmental groups have questioned the dire industry predictions, arguing Line 5 is not critical energy infrastructure and could be replaced easily by a handful of extra trucks or rail cars. The shutdown would have a minimal effect on cost, they contend.

Why Whitmer took action

So far, court challenges to the agreement have been largely unsuccessful, and Enbridge continues to operate in the Straits. But the majority on the Michigan Supreme Court — should such a challenge reach the state's highest court — is due to flip in January with a 4-3 majority of Democratic-nominated justices.

"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,” Whitmer said in a  statement. 

“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 governor's action does not prevent Enbridge from continuing its permitting process and construction of the tunnel, the state said. 

The Whitmer administration asserted that Enbridge’s easement from its inception violated the public trust doctrine — which makes the state the “trustee” of the Great Lakes — because the state never made a finding that it would improve navigation or respect the public’s rights to the Great Lakes.

The state also contended that the Canadian company has failed to show "due care" while operating the pipeline, alleging the company failed to ensure the pipeline is supported every 75 feet, make sure the pipelines are covered by corrosion prevention coating and comply with curvature benchmarks. 

Whitmer also pointed to the April 2018 anchor strike of the line and the June 2020 discovery of pipeline scrapes that Enbridge believed had happened sometime in June 2019. The latter incident was believed to have been the fault of one of five vessels in the area at the time, four of which were contracted by Enbridge.

"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,” Department of Natural Resources Director Dan Eichinger said. 

Michigan Gov. Gretchen Whitmer wants to revoke Enbridge's easement for Line 5 and shut down the dual pipeline by May 2021.

Whitmer's decision was praised by environmental groups, including the National Wildlife Federation, which called it an "historic win for the Great Lakes, wildlife and climate action."

“This historic decision sends a clear message that we are absolutely not willing to risk the Great Lakes and the critical role they play in America’s economy and way of life," said Collin O'Mara, president and CEO for the National Wildlife Federation.

David Schwab, a retired hydrodynamicist with the University of Michigan, helped lead 2014 and 2016 studies that found an oil spill from Line 5 could affect more than 700 miles of shoreline in lakes Huron and Michigan. 

"This action is based on sound scientific evidence that the continued operation of the pipelines poses an unacceptable level of risk to the health and safety of residents of Michigan," Schwab said. 

Opponents strike back

A cutoff of Line 5 would likely have an unknown impact on regular unleaded gas prices in Michigan depending on market conditions, according to industry experts. But it would be more likely to spike the price of propane, which many residents in the Upper Peninsula and northern Michigan rely on for heat during the six-month-long cold season.

Whitmer timed her shutoff notice to coincide with the onset of spring in northern Michigan and the Upper Peninsula.  

The governor's decision came "without incident, provocation or notice" and will "create chaos" among Midwest economies and consumers who depend on the line for heating needs, said Consumer Energy Alliance, a Houston-based group focusing on "sensible energy and environmental policies." 

"This legally specious action, taken just nine days after a closely contested election, should be rejected out of hand by the courts," said Chris Ventura, Midwest director for the alliance.

“The governor’s reckless lawsuit revokes an easement for a pipeline that has never leaked, and is jeopardizing the fuel supply needed for interstate commerce."

Fresh nuts, bolts and fittings are ready to be added to the east leg of the Line 5 pipeline near St. Ignace on June 8, 2017.

The alliance's membership includes various energy companies — such as Enbridge, Marathon Petroleum, Chevron, Shell Oil and ExxonMobil — and some labor groups, including Laborers’ International Union of North America – Midwest Region.

The decision was criticized by the business groups, manufacturing associations and labor leaders who are part of the Great Lakes Michigan Jobs Coalition, a group that urged state regulators to accelerate permitting for tunnel construction. 

"Labor and business, Republicans and Democrats, we all support the Great Lakes Tunnel because it creates and protects jobs and affordable energy," said Geno Alessandrini, business manager for the Michigan Laborers Union.

"Today’s move would kill jobs and increase fuel costs. That’s the last thing Michigan needs as we work to overcome the coronavirus pandemic.”

Earlier this fall, the Laborers’ International Union of North America displayed a digital billboard along westbound Interstate 69 between Flint and Lansing thanking several Democratic and Republican lawmakers for their approval of a resolution supporting the Line 5 tunnel. 

Among those featured on the billboard were Democratic state Reps. Cynthia Neeley of Flint, Brian Elder of Bay City, John Cherry of Flint, Tim Sneller of Burton and Sheryl Kennedy of Davison. It also featured Republican state Reps. Gary Howell of Deerfield Township, Gary Eisen of St. Clair Township and Phil Green of Millington. 

“If we thought they might come past 69 there, we put them on there,” said Jonathan Byrd, director of external affairs for the Michigan Laborers District Council, in September. “I think some representatives are certainly passionate about the tunnel and making sure we build that with union labor.”