Enbridge’s Line 5 Pipeline

Attorney: David L. Gover, Matthew L. Campbell

NARF and Earthjustice have teamed up with the Bay Mills Indian Community to fight a proposed oil pipeline tunnel, which would impact communities, local businesses, and the environment. The proposed tunnel would encapsulate oil giant Enbridge’s Line 5 pipeline under the Straits of Mackinac, purportedly to prevent another oil spill. Enbridge was responsible for the largest inland oil spill in 2010 in Michigan’s Kalamazoo River, which resulted in nearly 1 million gallons of oil being released into Michigan’s waterways.

Case Updates:

May 10, 2021:

On Monday, May 10, Bay Mills Indian Community’s Executive Council passed a resolution that banishes Enbridge Energy, Inc.’s Line 5 dual pipelines from the BMIC reservation and the lands and waters of their ceded territory—including the Straits of Mackinac.

As part of the Treaty of 1836, BMIC reserved for all time the right to fish, hunt, and gather in the ceded land and waters of the state of Michigan—including the ceded waters of Lake Superior, Huron, and Michigan, which includes the Straits of Mackinac.

Banishment is not a practice taken lightly by tribal government. Banishment is a traditional, historical, and customary form of tribal law that has existed since time immemorial and is only exercised by the tribe when egregious acts and misconduct have harmed tribal citizens, treaty rights, territories, and resources.

“Enbridge’s continued harm to our treaty rights, our environment, our history, our citizens, and our culture, is a prime example of how banishment should be used,” said President Whitney Gravelle of the Bay Mills Executive Council. “Banishment is a permanent and final action that is used to protect all that we hold dear.

As part of the banishment resolution, BMIC’s Executive Council requests that any regulatory body with oversight authority, to enforce the banishment. This includes the Chippewa Ottawa Resource Authority, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Sault Ste. Marie Tribe of Chippewa Indians, the State of Michigan, and the United States.

“Enbridge has weaponized our traditional culture as a way to influence issues around Line 5, and while the pipeline segment beneath the Straits has thankfully not burst. In 1999, the pipeline leaked 226,000 gallons of crude and natural gas liquid, forcing 500 residents to evacuate,” added Gravelle. “Line 5 has spilled 33 times since 1968, leaking over 1.1 million gallons of oil. And those are just the documented spills.”

In November, Gov. Gretchen Whitmer ordered Enbridge to cease operations by May 12, revoking the easement it needs to operate. Enbridge maintains the State of Michigan does not have the authority to make such as request and has indicated they will not comply with the order. The dispute over the easement revocation remains in federal court, State of Michigan and Michigan Department of Natural Resource v. Enbridge Energy, where Bay Mills Indian Community also filed an amicus brief supporting remand to state court.

BMIC, in partnership with Earthjustice and the Native American Rights Fund, has also challenged a permit issued to Enbridge Energy by the Michigan Department of Environment, Great Lakes, and Energy that would allow Enbridge to build a massive tunnel beneath the Straits of Mackinac to house a new segment of its Line 5 pipeline.

February 23, 2021:

Today, an Administrative Law Judge in Michigan issued a decision determining what evidence could be presented before the Michigan Public Service Commission (MPSC) in its upcoming hearing over whether to grant Enbridge an operating permit for its Line 5 tunnel construction project in Straits of Mackinac.

Last October, the judge had issued a ruling regarding what kind of evidence the MPSC was allowed to consider, but that ruling was made prior to Michigan Governor Whitmer’s November order that revoked and terminated the 1953 easement that had allowed Enbridge to operate the pipeline in the Straits. The order stipulates that Enbridge must shutdown operation of its existing dual pipelines in the Straits by this May. The Administrative Law Judge’s new ruling was made with consideration of the Governor’s order.

In the new ruling, the judge stuck with his previous decision made last October, again excluding evidence concerning the public need for extending the life of Line 5 by constructing the pipeline tunnel, the environmental risks (i.e., oil spills) of the entire Line 5 pipeline and not just the segment beneath the straits, and the impacts on climate change that continuing to operate Line 5 would impose.

Taking a leading role among the intervening parties in the MPSC’s decision is the Bay Mills Indian Community, a tribal nation that calls the Straits of Mackinac home and has treaty rights to the waters to hunt, fish, and gather.

Bay Mills is opposing the existing Line 5 pipeline and the tunnel construction project, and is being represented by NARF and Earthjustice in the legal proceedings.

In response to the decision, the Tribe’s legal representatives made the following statements:

“The unfathomable damage that Line 5 could inflict upon our treaty-protected waters, cultural resources, and critical plant and fish populations is too great to justify the pipeline’s continued operation or potential replacement”, said Bay Mills Tribal Attorney Whitney Gravelle. “We are deeply disheartened that today’s ruling will exclude critical evidence about environmental risks and climate change from the scope of the Commission’s permitting consideration, but we remain determined to stop this project from moving forward.”

“Today’s ruling is deeply concerning, because evidence related to the public need for this pipeline and the environmental risks of its operation are both essential parts of the decision about whether to approve the tunnel project”, said NARF Staff Attorney David Gover. “We will continue to support Bay Mills and shine a light on the very real threats this project poses to the Tribe’s treaty rights, livelihoods, and cultural resources.”

“We are disappointed by today’s ruling, which adopts an overly narrow interpretation of the scope of this contested case and the Michigan Public Service Commission’s authority”, said Earthjustice attorney Mary Rock. “Given the fact that the existing pipeline in the Straits of Mackinac must shut down because of the Governor’s revocation and termination of the 1953 easement, it only makes sense to assess whether building a massive tunnel so that the pipeline can transport oil beneath sensitive and critical waters for decades to come is really necessary and environmentally sound. We will continue our advocacy on behalf of Bay Mills and its opposition to the tunnel project.”

December 9, 2020:

The Michigan Public Service Commission released a decision today, announcing that the revocation of the 1953 easement for a problem-plagued pipeline through the Straits of Mackinac is a “fundamental change” to the agency’s proceeding to determine whether Enbridge, a Canadian oil company, should be permitted to replace part of the pipeline with an invasive tunnel. The Commission asked an Administrative Law Judge to consider how the easement revocation affects the scope of this proceeding, including risks of and need for the continued operation of a pipeline through the Great Lakes.

“The Commission’s decision is another important step in an ongoing battle to protect our water,” said Bay Mills Indian Community Chairman Bryan Newland.

“The waters of the Great Lakes are part of our tribe’s identity. These waters are protected by treaty and we depend on healthy water for fishing and sustenance,” Newland said.

Native American Rights Fund, in partnership with Earthjustice, represents the Bay Mills Indian Community in the Tribal Nation’s fight to protect the Straits and the Tribe’s treaty rights throughout waters in Michigan.

“We applaud the Commission’s decision. More time is needed to consider the impact that the Line 5 Project will have on Bay Mills’ Treaty-protected rights across the length of the pipeline, and in the Great Lakes and Straits of Mackinac,” said NARF Staff Attorney David Gover.

“We appreciate that the Commission recognizes the revocation of the easement for Enbridge’s existing pipelines is a game changer,” said Earthjustice Attorney Mary Rock. “We look forward to presenting evidence of the risks that the pipeline continues to pose to invaluable waters, fisheries, and cultural sites.”

November 13, 2020:

Photo of the Straits of Mackinac, beach and bridge

The Straits of Mackinac

Today Governor Gretchen Whitmer and the Department of Natural Resources (DNR) Director Dan Eichinger notified Enbridge that it will revoke and terminate the 1953 easement allowing the oil giant to operate dual pipelines in the Straits of Mackinac to transport petroleum and other products. This decision comes after years of advocacy and litigation from local tribes and communities that have depended on the Straits for their livelihood.

“We are thrilled and thankful for Governor Whitmer’s decision to revoke the easement for Enbridge’s pipeline to run beneath the Straits”, said President Bryan Newland of the Bay Mills Indian Community. “Enbridge has consistently shown that it only cares about its profits and not about the communities of the Great Lakes. This is a monumental first step in rectifying the harm that the company has already inflicted upon Bay Mills and other tribal nations for decades.”

Background from the Governor’s Office: Today’s action to revoke and terminate the 1953 easement is the culmination of a careful review of Enbridge’s compliance with the easement, the threats posed by the continued operation of the dual pipelines, and the state’s energy supply. On June 7, 2019, the governor issued Executive Order 2019-14, creating the UP Energy Task Force to assess the region’s energy needs and alternative sources of supply. The Task Force issued a report on April 17, 2020. Moreover, on June 27, 2019, the governor directed the DNR to undertake a comprehensive review of Enbridge’s compliance with the 1953 easement. That review is now complete and supports this action.

August 12, 2020:

Today an administrative law judge granted Bay Mills Indian Community the right to intervene in the ongoing pipeline fight uniting tribes, environmental groups and community members against oil giant Enbridge. The decision allows Bay Mills to be a party in the contested case process evaluating Enbridge’s Michigan Public Service Commission’s permit application. “Enbridge’s Line 5 pipeline puts our treaty rights and our way of life at risk every single day,” said Bay Mills Indian Community Chairman Bryan Newland, “We are going to continue to fight to protect our rights, our waters, and our way of life.”

June 25, 2020:

On June 25, 2020, a judge granted Attorney General Nessel’s request for a temporary restraining order, requiring Enbridge to immediately  cease operation of the approximately 4-mile long segment of the Line 5 oil pipeline that crosses the bottom of  the Straits of Mackinac. This decision comes just a week after Gov. Whitmer learned about significant damage to the Line 5 pipeline infrastructure. The State called on Enbridge to disclose all information about the issue. After no response to the state, Nessel then filed a request for a temporary restraining order to cease operations until the state can conduct a full review and examine all documentation. Enbridge later refused to provide Bay Mills Indian Community (BMIC) and other tribes with information on what went wrong, placing the treaty-protected waters at risk.

In its order, the judge wrote, “the severe risk of harm that may result from Defendants’ operation of the West Line  . . . is so substantial and irreparable, and endangers so many communities and livelihoods and the natural resources of Michigan, the danger far exceeds the risk of financial loss to Defendants.”

BMIC has been on the frontlines of this fight for years and recently teamed up with Earthjustice and the Native American Rights Fund (NARF) in order to defend its treaty-fishing rights, and culture and traditions.

“The court’s decision today was a great step forward in protecting our Great Lakes from this uniquely dangerous pipeline. Bay Mills will not stop until this threat to our waters and treaty rights is removed.  In addition, this situation shows once again that Enbridge cannot be trusted to safely operate any pipeline,” said Bryan Newland, Bay Mills Indian Community tribal chairman. “Enbridge continues to withhold information from us, from regulators, and from the public. We want to know what they’re hiding and why they’re hiding it.”

According to NARF Staff Attorney David Gover, “The court’s decision to put a hold on the damaged Enbridge pipeline is absolutely right. Both the state and the Bay Mills Indian Community are still waiting for information from Enbridge as to what exactly happened last week. The pipeline poses a real threat to the tribe’s water and lifeways. The people deserve to know the risks that Enbridge is taking with their homelands.” 

May 11, 2020:

Photo of the Straits of Mackinac, beach and bridge

Straits of Mackinac. Photo credit: H.G. Judd / CC BY-SA (http://creativecommons.org/licenses/by-sa/3.0/)

On May 11, NARF and Earthjustice teamed up with the Bay Mills Indian Community to fight a proposed oil pipeline tunnel, which would impact communities, local businesses, and the environment. The proposed tunnel would encapsulate oil giant Enbridge’s Line 5 pipeline under the Straits of Mackinac, purportedly to prevent another oil spill. Enbridge was responsible for the largest inland oil spill in 2010 in Michigan’s Kalamazoo River, which resulted in nearly 1 million gallons of oil being released into Michigan’s waterways.

On behalf of Bay Mills Indian Community, NARF and Earthjustice attorneys filed a Petition to Intervene to participate as a party in the Enbridge Line 5 Tunnel Project proceedings before the Michigan Public Service Commission. They also will submit comments, on behalf of Bay Mills, opposing Enbridge’s request  to issue a declaratory ruling. The oil giant is claiming that, due to the original 1953 Easement under the Great Lakes, the project can now skirt any additional review by the Commission—including any review of environmental impacts. The public is able to submit comments on the request for declaratory ruling till May 13, 2020.

“It is extremely important for Bay Mills Indian Community to take up this battle against Enbridge” explained Whitney Gravelle, In-House Counsel for Bay Mills Indian Community. “Since time immemorial, the Great Lakes have been an integral part of Bay Mills’ way of life, and they will continue to be an integral part of tribal culture, tradition, and economy for many generations to come. By failing to consider the dangers Line 5 poses to treaty-fishing rights, cultures, and traditions of the Anishinaabe, we risk killing the heart of Turtle Island, the heart of North America.”

“With their application to move a section of the Line 5 pipeline to a tunnel dug under the Straits of Mackinac, Enbridge proposes a significant project that could have extreme impacts on the area’s waterways and wildlife,” NARF Staff Attorney David Gover explained. “The Bay Mills Indian Community relies heavily on fishing in the area, and the tribe has a treaty-protected right and a responsibility to keep the region’s fisheries healthy and available to tribal citizens. Over the years, the tribe has consistently fought to protect their fishing and hunting rights. Today’s filing continues that fight. The Native American Rights Fund is proud to stand with the Nation to ensure that the Bay Mills Community’s fishing lifeways and tribal homelands are adequately protected for generations to come.”

“Bay Mills consistently has voiced its concerns about the continued operation of Line 5 through the Straits of Mackinac and across other ceded territory in Michigan where it holds treaty- protected rights” said Gussie Lord, Director of Tribal Partnerships at Earthjustice. “We are pleased to expand our presence in the Midwest and stand with Bay Mills in defense of the Great Lakes—the largest freshwater system in the world—and the incredible and complex ecosystems that have sustained the Anishinaabe people for generations.”

 

 

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