Group sues state for access to Enbridge tunnel construction docs, state says docs ready

The National Wildlife Federation is suing the state of Michigan for allowing Enbridge to shield the details of its bidding process for the construction of a tunnel to house Line 5 beneath the Straits of Mackinac. 

The group's Wednesday lawsuit in the state Court of Claims came after the Michigan Department of Transportation denied the federation's public records request that sought access to a draft request for proposals that Enbridge Energy had developed and provided to the state. 

The federation was told in October that the agency did not yet have the documents, but MDOT has since obtained Enbridge's request for proposals and is working to make them accessible to the public, MDOT spokesman Jeff Cranson said Wednesday.

The department is focused on providing access to the documents and the entire oversight process in a transparent way, Cranson said.

The Mackinac Straits Corridor Authority is tasked with approving Enbridge's request for proposals — which includes details and timelines associated with tunnel construction — but can only access the document on a private server owned by Enbridge. 

Since the document is housed on a private server, the state said it could not comply with the federation's request because it wasn't yet in their possession.

Beth Wallace, Great Lakes partnerships manager for the federation, said the lawsuit will remain active while the group waits for the document to be posted publicly and completely. 

"Sometimes these actions are required to ensure that agencies and the party in this case, Enbridge, are behaving in an appropriate manner," Wallace said. "We’re glad that it happened but we caution the corridor authority in allowing the future use of these servers, which are meant to avoid FOIA."

Mackinac Straits Corridor Authority members, who fall under the Michigan Department of Transportation, in September told Enbridge they would like to see details of the request for proposals — which will launch the bidding process for tunnel construction — as soon as possible. 

At that point, the plan was only accessible on a private server to certain MDOT staff. Access to the private server was later expanded to authority members. 

MDOT spokesman Jeff Cranson told The News in September: "Once it has been submitted for approval, it will be in MSCA possession and made public, likely as part of meeting materials for the next scheduled public meeting." 

Environmental groups were pushing for a speedy disclosure of the request, which most see as a pivotal part of the estimated four-year, $500 million tunnel project. 

In its Wednesday lawsuit, the federation said it requested Enbridge's request for proposals on Aug. 31 and was denied Sept. 23 because the state did not "have the ability to copy, access or reproduce the draft RFP document."

The federation argued that the Department of Transportation could not evade public record laws by "doing nothing to obtain the document and make it available for a records request."

"Thankfully, pursuant to our law, a public record includes an otherwise private document that an agency has 'used' 'in the performance of an official function,'" the lawsuit said. 

Because the authority is responsible for reviewing and approving the document, "the draft RFP is a public record that must be disclosed, or at least made available for disclosure, in response to a records request," the lawsuit said. 

Enbridge completed the engineering and design phase of the 4-mile tunnel beneath the Straits of Mackinac in March at which time the company also ended its contract with the Great Lakes Tunnel Constructors — a partnership made up of Japanese tunneling firm Obayashi and Livonia-based Jay Dee Contractors. Enbridge will next turn its efforts to hiring a contractor to build the tunnel. 

A request for bids is a critical part of that hiring process. 

About a year ago, Enbridge Energy told the state of Michigan that preliminary designs for construction revealed "significant cost creep" and were nearly double the initial $500 million price tag. At that point, the Canadian oil giant said it would take the project's construction phase back to the market at a later date.

Under a 2018 agreement with the state, Enbridge agreed to pay the full cost of the tunnel construction and the placement of a new segment of Line 5 within the tunnel. The state agreement did not list a potential cost for the project, but Enbridge has estimated from the tunnel's inception that it would cost about $500 million.

eleblanc@detroitnews.com