Enbridge’s Line 5 Pipeline

Attorney: David L. Gover, Wesley James Furlong, Megan R. Condon

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 continues to operate the Line 5 pipeline in defiance of a state order to cease operations and without a valid lease to submerged lands for the project. A repeat offender of U.S. environmental regulations, the Canadian oil company has incurred over $6.5 million in fines to repair and maintain existing Line 5 infrastructure. You don’t have to look far to see the potential impact a devastating oil spill can cause, in fact, 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.

Background:

The Anishinaabe people of Bay Mills say life as we know it today, began in the Straights of Mackinac. They consider the waters where Lake Huron and Lake Eerie meet a sacred space. The area remains integral to daily practice of cultural lifeways and is full of historic and archaeological sites. From time immemorial to today, communities, local businesses, and tribal members depend on the abundant fish and wildlife in the Straits of Mackinac. Commercial and subsistence fishing and hunting continue to provide economic survival for the majority of tribal members.

In the 1950s, without tribal consultation nor seeking public input, the State of Michigan granted Enbridge a lease and permission to build the original Line 5 dual pipeline in spite of the risk of oil spills in the Great Lakes. In 2021, Enbridge seeks to build a tunnel to house a new segment of the Line 5 oil pipeline to continue transporting non-consumer oil and gas products from one part of Canada to another with little financial benefit to local residents. Meanwhile, Enbridge is ignoring that Governor Whitmer terminated the easement that permits the dual pipeline to cross the Straits of Mackinac. Enbridge is now trespassing as it continues to operate Line 5 in violation of the termination notice.

Case Updates:

Army Corps Announced Environmental Impact Study on Line 5 Pipeline Tunnel in June 2021:

On June 23, 2021, the U.S. Army Corps of Engineers announced it would conduct an environmental impact study (EIS) on the Enbridge Energy Inc. plan to build an underground oil and gas pipeline tunnel under The Great Lakes to house the Line 5 pipeline. The Bay Mills Indian Community (BMIC), represented by the Native American Rights Fund (NARF) in partnership with Earthjustice, welcomed this examination of how the company’s proposed plan would impact this sacred area located between Michigan’s upper and lower peninsulas.

“The U.S. Army Corps of Engineers recognizes the federally mandated responsibility to thoroughly investigate the impacts Enbridge would create by tunneling under the Great Lakes,” said BMIC President Whitney Gravelle. “An environmental review is vital as the Straits of Mackinac are a treaty-protected spiritual and sacred space that provides income, and food resources for Native and non-Native communities alike. Every community requires clean water, air, and soil as well as healthy fish, game, and plant populations to survive. Our ancestors understood this common human need when they negotiated the Treaty of March 28, 1836, with the United States. By treaty, we agreed to share part of our tribal lands with the United States and what became the State of Michigan but we reserved continued tribal-use of our treaty protected resources, including in the Straits of Mackinac.”

Lake Michigan and Lake Huron converge at the Straits at the narrowest point between the upper and lower part of Michigan. The Bay Mills Indian Community and other Anishinaabe peoples of the region consider the Straits a sacred place on Turtle Island.

“The Enbridge Line 5 tunnel and continued operation of the pipeline has the potential to cause profound damage to the Straits of Mackinac. The impacts need to be thoroughly studied and the necessary protections and alternatives identified,” said NARF Staff Attorney David L. Gover.

A long history of environmental damage caused by Enbridge’s continued operations throughout the area led to Bay Mills banishing Enbridge’s Line 5 from the reservation and the lands and waters of their ceded territory. Reasons for the banishment include:

  • Enbridge’s existing system that includes Line 5 has already leaked at least 33 times spilling more than 1,100,000 gallons of oil.
  • Enbridge has incurred $6.5 million in fines for failing to properly maintain and repair the existing system that includes the Line 5 dual pipeline.
  • Enbridge continues operating existing Line 5 pipeline structures under an expired easement and in spite of years of tribal and public opposition.

The State of Michigan terminated the easement that allowed Enbridge to operate the Line 5 system citing, among other reasons for the revocation: “unreasonable risks of continued operation” and potential impact on Tribal Treaty rights at the Straits. Governor Whitmer demanded that Line 5 operations cease by May 12, 2021. In defiance of the state order, Enbridge is trespassing as it continues to use the existing Line 5 pipeline structures to transport oil and gas from one part of Canada to another for processing, looping down through Michigan and through the Bay Mills treaty protected Ceded Territory.

“Throughout its length, the pass-through Line 5 pipeline system puts people and ecosystems at risk of more oil leaks and spills. At the Line 5 portion where Enbridge proposes an underwater pipeline tunnel, the Anishinaabe people and many local residents currently depend upon the health of the Straits of Mackinac to support commercial and subsistence fishing and hunting,” said Gover. “For millennia human beings have lived, fished, and hunted at this sacred waterbody with a feeling of respect to be alive and present in such a unique place. Oil leaks and spills into the Great Lakes would be tragic.”

Relevant Articles:

May 10, 2021:

On May 10, Bay Mills Indian Community Executive Council passed a resolution to banish Enbridge Energy, Inc.’s Line 5 dual pipelines from  all Tribal lands—including the Straits of Mackinac. Reasons for the banishment include:

  • Enbridge’s existing system that includes Line 5 has already leaked at least 33 times spilling more than 1,100,000 gallons of oil.
  • Enbridge has incurred $6.5 million in fines for failing to properly maintain and repair the existing system that includes the Line 5 dual pipeline.
  • Enbridge continues operating existing Line 5 pipeline structures under an expired easement and in spite of years of tribal and public opposition.

Tribal governments do not enact banishment lightly. This historical and customary form of tribal law has existed since time immemorial. Tribes exercise banishment only to address especially egregious acts of harm to the community.

“Banishment is a permanent and final action that is used to protect all that we hold dear. 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.

The banishment resolution requests that any regulatory body with oversight authority 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.

“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 2020, Gov. Gretchen Whitmer ordered Enbridge to cease operations by May 12, revoking the easement it needs to operate. To date, Enbridge has refused to comply with the order.

The dispute over the easement revocation remains in federal court. Bay Mills Indian Community filed an amicus brief in State of Michigan and Michigan Department of Natural Resource v. Enbridge Energy supporting remand to state court.

On behalf of BMIC, Earthjustice with NARF’s assistance challenged a permit issued by the Michigan Department of Environment, Great Lakes, and Energy to Enbridge allowing the company to build a massive tunnel beneath the Straits of Mackinac to house a new segment of its Line 5 pipeline.

February 23, 2021:

On February 23, 2021, a Michigan administrative law judge issued a new ruling over the scope of evidence the Michigan Public Service Commission (MPSC) would consider in the hearing over Enbridge’s request for an operating permit for the Line 5 tunnel construction project in the Straits of Mackinac. The opinion revised the October 2020 determination in light of the November 2020 order from Michigan Governor Whitmer to revoke and terminate the 1953 easement that allowed Enbridge to operate the pipeline. The new ruling again excluded evidence concerning the public need or lack of a need to extend the life of Line 5 by constructing a new pipeline tunnel, the environmental risks (i.e., oil spills) of the entire potentially no longer needed Line 5 pipeline, and the climate change impacts that continuing to operate Line 5 would impose.

Intervening parties in the MPSC decision included the Bay Mills Indian Community that calls the Straits of Mackinac home and has Tribal treaty rights to the waters to hunt, fish, and gather. “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 President 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.”

Native American Rights Fund and Earthjustice, representing BMIC in this proceeding released the following statements:

“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  on December 9, 2020, announcing that the revocation of the 1953 easement for a problem-plagued pipeline through the Straits of Mackinac was 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. 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,” said Bay Mills Indian Community Chairman Bryan Newland

Attorneys on the case released the following statements:

  • “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:

On November 13, 2020, Governor Gretchen Whitmer and Michigan Department of Natural Resources (DNR) Director Dan Eichinger notified Enbridge that  the state 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.”

The Governor’s Office explained the decision came after reviewing the corporation’s compliance with easement terms. From the official statement: “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:

On August 12, 2020, a Michigan administrative law judge granted Bay Mills Indian Community the right to intervene in the ongoing pipeline fight that united tribes, environmental groups and community members against oil giant Enbridge. The decision allowed 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 Michigan 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 came just a week after Governor 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 refused to provide Bay Mills Indian Community (BMIC) and other tribes with information on what went wrong and how the corporation placed 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 was 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.”

Read More: Protect Tribal Natural Resources

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