Enbridge says it won't comply with easement revocation, plans to continue operating Line 5

Beth LeBlanc
The Detroit News

Enbridge Energy does not plan to stop operations on its Line 5 oil and natural gas liquid pipelines despite Gov. Gretchen Whitmer's November revocation of the pipeline's 67-year-old easement and her May deadline for the line's closure.

In a Tuesday letter to the governor, Enbridge said it had reviewed the Nov. 13 revocation notice from the state and concluded Michigan's government "lacks the authority" to revoke the easement through the Straits of Mackinac absent "an existing violation of the easement terms that would justify termination." 

"The governor has overstepped her authority and Enbridge will vigorously defend our ability to operate Line 5 and we have no intention of shutting down the pipelines based on these unspecified allegations," said Mike Koby, Enbridge vice president for U.S. operations. 

The state neglected a 90-day notice and response clause in the easement when revoking it, Koby said, and appears to have no plan prepared for a potential energy shortage should the pipeline shut down.

This June 2020 photo, shot from video 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.

"Gov. Whitmer's poorly thought out, politically driven decision would actually cause more harm to the environment through the alternative transportation modes such as trucks and rail that would attempt to make up the supply shortage," he said.

"The justification is to protect the Great Lakes from a pipeline that has not spilled a single drop of oil into the Great Lakes," Koby said.

Line 5 has had inland spills in Wisconsin and Michigan over the years, some close enough to the lakes to affect the Great Lakes watershed.

The state Department of Natural Resources said Tuesday that it stood behind its easement revocation and said Enbridge could not "unilaterally decide which laws and binding agreements apply and when they do not."

Director Dan Eichinger promised to make the state's case in court, "not via letters and press releases."

"This letter is Enbridge’s attempt to power wash the company’s long history of violating the terms of the 1953 easement and their current non-compliance," Eichinger said in a statement. "The continued presence of the dual pipelines in the Straits of Mackinac violates the public trust and poses a grave threat to Michigan’s environment and economy." 

The Michigan League of Conservation Voters joined Eichinger in condemning the letter, calling it a "slap in the face" to Michigan residents concerned about the Great Lakes. 

“Enbridge’s latest comments show this habitual corporate bad actor believes they can operate outside of the rules, above the law and only care about their massive profits – not our Great Lakes and the families who rely on clean drinking water to live," said Lisa Wozniak, executive director for the league.

The debate over the continued operation of Line 5's dual span through the Straits of Mackinac has been raging for the decade since Enbridge's Line 6B ruptured into the Kalamazoo River in southern Michigan in 2010, causing one of the worst inland oil spills in U.S. history.

Opponents of the Straits pipelines have argued that a similar spill between Lakes Michigan and Huron — where the dual span transports up to 540,000 barrels of light crude oil a day — would devastate the Great Lakes.

Concerns have spiked over the years as Enbridge worked to correct coating issues on the line, assessed an accidental strike of the line in 2018 by a 12,000-pound anchor, dropped boring equipment near the line in 2019, failed to provide adequate supports to sections of the span and narrowed the cause of 2020 damage to the line to a pool of five boats, four of which were contracted by Enbridge.

Republican former Gov. Rick Snyder in 2018 reached an agreement with the company that required Enbridge to build a $500 million utility tunnel beneath the Straits' lake bed to house a new version of Line 5 and other utility connections. 

But Whitmer and Democratic Attorney General Dana Nessel — both of whom campaigned on promises to close Line 5 — challenged Snyder's agreement with the company. The courts have upheld the agreement. Nessel sued to shut down the pipeline in 2019 as an environmental risk while Whitmer told the company Nov. 13 that its 1953 easement would be revoked and the pipeline closed by May. 

Both parties filed suit in November over the revocation — the state seeking judicial support of the action and the Canadian pipeline giant seeking a court's rejection of the revocation on the grounds that federal pipeline law trumps state action on the easement. 

Absent a final court order demanding the pipeline's closure, Line 5 will not be closed, the company said in its Tuesday letter, arguing that the federal Pipeline and Hazardous Materials Safety Administration has given the line a clean bill of health. 

"...the notice repeatedly fails to acknowledge that our dual lines in the Straits are safe and in full compliance with the federal pipeline safety standards that govern them, have been found fit to operate by PHMSA, and that no basis for termination or revocation of the easement exists," Enbridge said in an seven-page letter from Vern Yu, Enbridge's executive vice president and president for liquids pipelines. 

The letter alleges the Department of Natural Resources relied on old reports concerning the safety of the line "while ignoring the extensive measures that Enbridge implemented over the last two and a half years to avoid even accidental anchor strikes."

"...the notice seeks to close Line 5 without any plan for replacement and without acknowledging that the State’s own experts determined that there were no feasible and readily available alternatives," the letter said. 

Specifically, the letter focuses on issues outlined in the notice that Enbridge argues have long ago been addressed, such as sections of the span that lacked support structures, gaps in the pipeline's coating and unfounded concerns about the pipeline's curvature. 

The company touted measures it took in 2020 to prevent another anchor strike on the line including 24/7 monitoring of the pipeline, a patrol boat in the Straits, monitoring of passing vessels' anchors and electronic messaging to the vessels to notify them of the no-anchor zoned.

The company stands ready to work with the governor, but said the state "has not shown a willingness to confer with us on these matters since January 2019." In its letter, Enbridge proposed the state meet with the company and federal regulators to better define the issues on which the state is focused and develop potential solutions. 

"We trust you will respond positively to our offer to participate in good-faith discussions to resolve any differences," the letter said. "In the meantime, the dual pipelines will continue to operate safely until they are replaced on completion of the Tunnel Project."

Enbridge's refusal to close Line 5 comes as a new Democratic presidential administration is set to take office, a development that could change the way the pipeline is regulated.

President-elect Joe Biden has named former South Bend Mayor Pete Buttigieg as director for the U.S. Department of Transportation, under which the federal Pipeline and Hazardous Materials Safety Administration falls. PHMSA is the federal regulator that oversees Line 5.

While campaigning for the Democratic presidential ticket in early 2020, Buttigieg called for Line 5's closure arguing that, “with such a high risk of an oil spill under the Great Lakes, Michigan can’t afford to keep the Line 5 pipeline in operation."

But Koby seemed unconcerned with the change in administration, leaning on PHMSA's technical focus.

"PHMSA is a technical organization that makes decisions based on technical facts and data," Koby said. "They're not a political organization. We don't believe they'll change their view of the safety of Line 5 simply due to an administrative change."