State, Enbridge join forces to defend Line 5 permits for screw anchors
Lansing — A day after Enbridge Energy apologized to the state of Michigan for drilling debris left near Line 5 in the Straits of Mackinac, the state and Canadian pipeline giant joined forces to defend permits for the oil pipeline.
In a nearly two-and-half-hour hearing, attorneys for the state and Enbridge argued that current permitting laws only require the Department of Environment, Great Lakes and Energy to assess the damage anchor supports could cause to the actual dirt of the lake bottom and not the overall risk such a construction poses to the Great Lakes.
“EGLE is preempted from denying a permit because it might harm the design of an interstate pipeline, that is absolutely correct,” said Assistant Attorney General Daniel Bock, arguing instead that federal agencies had purview over the pipeline’s design.
Administrative Law Judge Daniel Pulter said the department appeared to be “putting its head in the sand” and “being over-simplistic” regarding its responsibilities over the dual pipeline.
"This is Flint water happening all over again,” Pulter told Bock. “This is a case where the department should be out in front looking at it.”
Enbridge and Michigan’s unlikely alliance in the hearing, where Enbridge functioned as an intervenor, comes as Attorney General Dana Nessel is working in Ingham County Circuit Court to shut down Line 5 on the grounds that it is a public nuisance and environmental hazard.
Nessel's office supported the defense of the permits in a statement Wednesday, arguing that the pipeline should be anchored as long as it is in the water.
"There is no conflict or inconsistency in arguing that Line 5 should be removed as soon as possible –which the AG is trying to do through her lawsuit against Enbridge – and wanting the Line to be as secure as possible while it remains in the water," said Kelly Rossman-McKinney, a spokeswoman for Nessel.
The continued operation of Enbridge’s Line 5 has been a source of concern among environmental groups, who fear a leak from the 67-year-old pipeline could have disastrous effects on the Great Lakes. On Monday, demonstrators handed 14,039 petition signatures seeking the shutdown of Line 5.
Concerns have amplified in recent years as environmental groups have highlighted a lack of communication between the state and Enbridge that has, in some instances, led to a lack of information or misinformation on the pipeline's condition.
Most recently, Enbridge notified the state Tuesday in a letter that a piece of drilling debris that broke off into the lake bed during soil sampling was 270 feet, not the 40 feet the state initially cited in a Dec. 3 letter to Enbridge.
Enbridge had been boring holes in the lake bed throughout the summer as part of a geotechnical analysis for the $500 million construction of a tunnel that would house the company’s Line 5 oil pipeline through the Straits when the drill piece broke off.
In a Monday letter to the state, Enrbidge officials said the company had never intended to report the segment in the lake bed as 40 feet and that the reporting of it “appears to have been a miscommunication.”
“We are sorry for any role we may have had in any confusion related to this issue and recognize that we should have corrected the misinformation in your December 3 letter sooner,” the company said.
The concerns of the groups challenging Enbridge’s screw anchors largely are separate from those surrounding the drilling debris.
Enbridge is required under its 1953 easement to install anchor supports, or screw anchors, to secure the pipeline to the lake bed in any sections where more than 75 feet of pipeline has lifted from the lake bed due to erosion and currents.
But environmental groups have argued the state’s easement with Enbridge never envisioned the amount of pipeline that would eventually need support anchors. They estimate roughly three miles of pipeline have lifted off the lake bed and are now supported by screw anchors.
The screw anchors not only lift the pipeline off the lake bed — heightening its exposure to currents, anchor strikes or debris — but also pose a risk during installation, when securing mechanisms could damage the pipeline.
Based on the arguments, the Straits of Mackinac Alliance, Grand Traverse Band of Ottawa and Chippewa Indians and the city of Mackinac Island asked the state to revoke 73 screw anchor permits awarded to Enbridge since 2018, 53 of which have already been installed.
Enbridge has installed 181 supports along Line 5 since 2002 and plans to install another 20 this summer, spokesman Ryan Duffy said. Not only are the supports required under the 1953 easement, Duffy said; they also were part of a consent agreement between Enbridge and the U.S. Environment Protection Agency after the 2010 oil spill from a separate pipeline into the Kalamazoo River.
Each party made their case to Pulter on Tuesday on why he should dismiss claims for or against the permits' revocation. Pulter is expected to make a decision in the coming weeks.
The alliance, Native American group and Mackinac Island argued the tribunal and state needed to assess the permit applications with a lens broader than just an analysis of the depth of the screw bolts and the extent they disrupted the lake bed. The state must also take into account its public trust responsibilities.
“It’s more than just the dirt on the bottom of the lake,” said Scott Howard, an attorney representing Mackinac Island. “It’s the fish habitat. It’s the water. It’s the water quality. It’s the recreational uses of those water bodies. It's fishing, bathing and boating.”
Bock argued those concerns already are being litigated in a separate case in Ingham County Circuit Court. Nessel is arguing that Line 5 poses an immediate risk to the environment and public safety that violates its easement.
Violations of the 1953 easement are best pursued by Nessel or the Department of Natural Resources, whose predecessor, the Michigan Conservation Commission, granted the easement to Enbridge, Bock said.
The scope of EGLE’s permitting involvement with the support anchors is much narrower and governed by rules only having to do with the installation of screws on the lake bottom, Bock argued.
Enbridge lawyers agreed EGLE’s permit review was limited to the potential immediate impacts of screw anchor installation to the bottom lands and not broader safety concerns surrounding the pipeline. Attorney Phillip DeRosier argued the groups opposing the screw anchors were doing so as part of a “broader strategy.”
“They’re using this proceeding as what they call the first step in an effort to shut down Line 5,” DeRosier said. “That’s exactly the problem we have is that this case is supposed to be narrowly focused on: Have we provided the evidence necessary for EGLE to determine that the anchor installation is safer?”
The state at some point has to consider the totality of the structure and the risks that have developed as 181 support structures were added to the pipeline over nearly two decades, said Ross Hammersley, an attorney for the group pursuing the permits' revocation.
"You're no longer just haphazardly addressing erosion; now you're creating what is effectively a suspension bridge underwater," Hammersley said. "Those initial engineering reports were based solely on the currents and the strength of the pipeline to withstand those currents when they were flush with the ground."