Nessel pushes to extend shutdown of Line 5 in court

Melissa Nann Burke
The Detroit News

An Ingham County judge heard arguments Tuesday over whether Enbridge should be permitted to restart operations of Line 5's petroleum pipelines in the Straits of Mackinac after damage to an anchor support.

A lawyer representing Michigan Attorney General Dana Nessel's office argued during the hearing that Enbridge hasn't disclosed enough data or information about the damage or its cause, asking Judge James Jamo to extend his court-ordered shutdown of the west leg of the lake bed pipeline until state regulators can review the requested information.

"There is a serious risk of harm, not only to natural resources but to many communities. It potentially endangers the livelihood of many people and businesses, as well as the natural resources," said attorney Robert Reichel of the AG's Office. 

"We’re simply trying to exercise the state’s contractual right to this information."

Jamo last week ruled that Enbridge had to temporarily cease Line 5's operation and scheduled Tuesday's hearing on the state's motion for a preliminary injunction. Jamo plans to issue a written order on the motion in the coming days.

Reichel said pipeline flows should remain suspended until Enbridge demonstrates that it would be “reasonably prudent” to resume operations.

But Enbridge lawyers argued that the state cannot serve as the regulator of an interstate pipeline under federal law, noting that the company is complying with an investigation by the federal Pipeline and Hazardous Materials Safety Administration into the damage.

"The citizens of Michigan can rest assured that PHMSA is doing its job," Enbridge attorney David Coburn said. 

Line 5 typically transports up to 540,000 barrels a day of light crude oil, light synthetic crude and natural gas liquids. Enbridge said it had shut down the dual pipelines after discovering the damage but restarted the west leg after inspections found the problem was isolated to the east leg.

A diver inspects the Line 5 oil pipelines at the bottom of the Straits of Mackinac in 2013.

The company in court filings argued that Nessel's request is "legally unsupportable" and "unnecessary." 

"There is no reason that the west line should not restart now," Enbridge lawyer William Hassler said. "There is no reason that the line should be shut while documents are collected."

Enbridge has agreed to provide the state with all documents that it provides to the federal regulators at PHMSA, Hassler said, and that the state already has some of the data it accused Enbridge of not providing. 

"A request for documents within 24 hours of their being created is not going to work," Hassler said. "When you're dealing with a potential emergency, you need time to deal with the emergency and then produce documents." 

The lawyer showed the judge a letter indicating that the Pipeline and Hazardous Materials Safety Administration had reviewed video footage of the west leg of the pipeline earlier this month and that the agency had no safety concerns about the company restarting the west leg. 

Jamo questioned whether PHMSA actually did an analysis to make an independent determination on the go-ahead to restart the west line on June 20. 

“What happened on the west line very clearly did not hurt the integrity of the line,” Coburn said. “It was a scrape of biota off of the line.”

Based on drag marks on the lake bottom, Enbridge believes the damage to the west leg was probably done by a vessel dragging an object moving east to west across the straits, Hassler said. 

Company engineers believe what was dragged over the west leg was not an anchor but a thin, light object such as a cable, concluding there was no damage to the pipeline coating and the integrity of the structure was not affected, Hassler said. 

"Where the object probably went over the pipeline, it barely had any impact," he said. 

Damage on the east line anchor support, causing it to be bent out of position, was likely caused by a vessel moving parallel (north-south) to the pipeline based on drag marks, Hassler said. 

"Whatever blow struck the screw anchor was a tiny fraction of what (force) would be needed to do damage to the line itself," Hassler said, adding the company is still investigating what size vessel or what kind of object caused the damage.

"We don't know if it was an anchor or something else," he said. 

In May 2019, Whitmer required large vessels to verify that no anchors are dragging before passing through the Straits of Mackinac to prevent damage to Line 5. 

Enbridge has also put in place measures to protect against anchor strikes, including the radio hailing of vessels and stationing a vessel over the pipeline 24-7 to identify any risks transiting the area, Coburn said.

The impact of pipeline shutdown is "great," he said, cutting off interstate commerce and threatening jobs in the refinery industry.

"It's direct and immediate," Coburn said. "Oil is not flowing to refineries that expect to receive the oil. It's not flowing into Canada. It's not flowing to Ohio. It's not flowing to Pennsylvania. The interstate commerce impacts are happening now as we speak."

Hassler suggested the state wouldn't actually be satisfied with the analysis it is seeking from Enbridge, and the shutdown would go on "forever." 

State attorney Reichel acknowledged the concern by Enbridge and others that extending the pipeline's shutdown would cause “significant" economic harm to refinery operators and other customers that rely on Enbridge's products.

But he said the limited shutdown of the west leg is “both appropriate and warranted," stressing that Michigan is not seeking to keep the west line shut down indefinitely.

"It would be a matter of days. Certainly not several weeks," Reichel said.

The American Petroleum Institute, which which represents oil and natural gas companies, including Enbridge, said it looked forward to the decision on the operation of Line 5.

"It is important to note that inspection by the Pipelines and Hazardous Materials Safety Administration has shown operation of the west segment to be completely safe, and we hope the court relies on this independent assessment in its decision," said chief legal officer and senior vice president Paul G. Afonso.

"Line 5 provides essential fuel for Michigan businesses, homeowners and first responders, and the Line 5 tunnel project will provide hundreds of jobs needed to help Michigan with its economic recovery. It’s important for this project to move forward as soon as possible.” 

The anchor support damage is the latest development in a years-long dispute over the 66-year-old Line 5, which environmental groups fear could rupture.

The Michigan Court of Appeals in June unanimously upheld the constitutionality of a 2018 law that allows Enbridge to build an underground tunnel to house the pipelines and protect them from potential damage.

Rather than fast-track approval, the Michigan Public Service Commission ruled Tuesday that Enbridge must go through an administrative hearing process for state regulators to evaluate and the public to comment on the company's plan to relocate Line 5 inside a tunnel beneath the lake bed. A public hearing is planned for Aug. 24.

Staff Writer Beth LeBlanc contributed.