Guest post authored by Oakland University professor and writer Jeffrey Insko.
Ten years ago in 2013—I really can’t believe it’s been a full decade—I wrote a series of posts in response to a Michigan Public Service Commission case involving Enbridge. At issue then was the “replacement” of Line 6B across the state and at the time, I’m sure I never imagined I’d be writing a similar series again. But here I am.
Welcome to the Enbridge-MPSC Post-Mortem Series, 2023 edition.
By now, I’m sure you’ve heard: on Friday, the Michigan Public Service Commission approved Enbridge’s application to re-route a portion of Line 5 beneath the Straits of Mackinac inside a concrete tunnel. I know this sounds preposterous, what with a planet on fire and the urgent need to decarbonize as rapidly as possible. But it’s true.
A decade ago, in response to the similarly disappointing outcome, I called the MPSC “a terribly weak-kneed, embarrassingly toothless regulatory body,” “an agency with very little power (and perhaps even less will).” Sadly, not much has changed over the past decade.
But let’s start with the brutal reality: the MPSC was never going to deny Enbridge’s Line 5 application.
I don’t mean to suggest that the Commissioners are somehow corrupt or that they are bought and paid for by Enbridge. This is a completely different trio of Commissioner’s than last time. And anyway, it’s not as simple as corruption. In fact, it would have taken genuine courage to deny Enbridge’s application. And despite what I said about the Commission’s lack of will a decade ago, I honestly hoped these Commissioners might possess some courage. They don’t. But that’s also not really the reason why approval was basically inevitable either. It’s more complicated than that, too.
The problem is the system.
For one thing, the system is fundamentally unjust, structured in such a way as to advantage large corporations like Enbridge, which possess unlimited resources to spend on armies of attorneys to represent them in the proceedings. Meanwhile, others who wish to formally intervene—ordinary individuals, cash-strapped non-profit organizations, or Native American tribes—either have to search desperately for legal funds (and therefore constantly worried those sources will dry up), convince civic-minded attorneys to take on their cause pro bono, or simply remain on the periphery of the process. This “pay to play” system, as the scholar Kathleen Bosemer has called it, is an example of “procedural energy injustice.” And while the MPSC pays lip service to those features of the system that do not require legal fees, like public comments and so-called “tribal consultation,” such opportunities “do not form part of the [formal] record of proceedings.” What’s more, since “they are filtered through staff reports and are not subject to cross examination… their influence on decision making is limited.”[i]
Nor is access the only basic problem with the system. Just as the form of the proceedings is exclusionary; so too is the content of the proceedings extremely limited.
Specifically, the MPSC doesn’t exist to decide what is good or right or just. It’s not designed to take up messy ethical or historical questions. For that reason, it’s not really equipped to scrutinize, to question, to be skeptical. Instead, its purview is commerce and its job is to enable, to facilitate, to permit—but to do so within certain limits. But importantly, those limits are also not ethical or historical, not matters of what is good or right or just. Those limits, instead, are almost entirely processual. What matters to institutions like the MPSC, in other words, is process, ensuring that i’s are dotted, that t’s are crossed. Such dottings and crossing will then, in turn, somehow yield the appropriate outcome. This is why, for example, in her remarks at the MPSC meeting on Friday, Commissioner Katherine Peretick invited the outspoken opponents of Enbridge’s application to take (cold?) comfort in the process, despite its outcome. “I know that many of you will be disappointed by the decision,” Peretick said. “But I can genuinely say that your comments, whether in writing, verbal, here in person or over the phone or (webinars), did make this process better.” Process absolves.
Let me put this another way. The MPSC exists to follow and enforce rules, not to make judgments. This is why the rules matter so much. Enbridge’s army of lawyers certainly understands this, which is why they worked so hard in these proceedings, just as they did a decade ago, to make sure the scope of what could be considered in the hearings was as narrow as possible. Tunnel construction? Out of bounds! Climate change? Out of bounds! The entirety of Line 5? Out of bounds! The past? Out of bounds! The future? Out of bounds! And so on and so on.
Now, in some instances, the MPSC did allow very limited consideration of some of these matters—to the extent that they could yoke them specifically to a rule, like the Michigan Environmental Protection Act. But those allowances themselves were severely restricted, requiring the acceptance of a conceptual partitioning or discreteness—a way of thinking that willfully forgets that the knee bone is connected to the thigh bone—that is almost comical. (I’ll have much more to say about this in another post in this series.)
But beyond these minor allowances, Enbridge once again had its way in defining the field of play, in establishing the rules of the game, in reducing the question before the Commission to an extremely narrow “three-part test.” Honestly, I’ve been hollering about that so-called test since 2013, so I’m not going to rehearse it again. But I will just say once more that I predicted this a decade ago, long before anyone ever dreamed up a ridiculous tunnel.
The more important point, however, is that Enbridge’s success in narrowing the scope of the proceedings isn’t because they are somehow smarter or better or more persuasive than the lawyers for FLOW or the National Wildlife Federation or the Environmental Law & Policy Center or the Bay Mills Indian Community or any of the other intervenors. Rather, their success is explained by the fact that they speak the same narrow procedural language as the Commission itself. By the fact that the MPSC also prefers a narrow scope of review. The rule-and-process- minded MPSC staff, for example, is entirely amenable to rulemaking of the kind that makes what otherwise might be difficult questions—by which I mean complex, messy, multifaceted, ethically-involved—simple and straightforward, their answers determined not by the hard, careful thought of individuals, but by the disembodied rules themselves. The MPSC all but admitted as much in one of its filings in the case: “without reasonable and legally sound limitations,” they wrote in March 2021, “the Joint Appellants’ anything-goes-approach would expand and weigh down the evidentiary record until it buckles.”
In other words, for the MPSC some contexts count and other contexts don’t. And this fact– this erasure– makes all the difference.
[i] This is a textbook example of the difference between equality and equity. While theoretically anyone can intervene in the proceedings (equality), the vast difference in financial resources available to potential intervenors advantages some and disadvantages others (equity).
Read more of Jeff's work in the series.