Lansing — A group of Michigan tribes and environmental organizations argued Tuesday the Michigan Court of Appeals should overturn a state commission's approval of the controversial Line 5 tunnel project below the Straits of Mackinac.
The Michigan Public Service Commission in 2023 granted Line 5 owner Enbridge approval to relocate a pair of aging pipelines that carry light crude oil and natural gas across the bottom of the straits to a tunnel that would be drilled below the lakebed.
The Little Traverse Bay Bands of Odawa Indians, Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians and Nottawaseppi Huron Band of the Potawatomi have appealed the commission's approval, as did some environmental organizations.
Their attorneys said the commission unfairly denied them from submitting certain evidence, failed to consider the effects fossil fuels moving through the pipeline have on the climate and inadequately considered alternatives to the pipeline and tunnel project. They asked the state appeals court to send the project back to the commission and allow the groups to submit more evidence.
The case should be returned to the public service commission for "a true consideration of (the impact) for Michiganders and whether or not this project will increase impairment of Michigan's natural resources by locking in Line 5's operation," Adam Ratchenski, an attorney with the California-headquartered nonprofit Earthjustice, said during a press conference after the hearing.
In a statement, Enbridge spokesman Ryan Duffy said the public service commission approved Enbridge's tunnel plan after "a tremendous investment of time and deliberation" and ultimately agreed the tunnel is in the best interest of Michigan residents and the Great Lakes.
"The Great Lakes Tunnel for Line 5 at the Straits makes what has always been a safe pipeline even safer, ensuring energy access and reliability, and supporting jobs and the economy throughout the region," Duffy said.
The Straits of Mackinac between Lakes Michigan and Huron are part of the territory ceded by tribes in 1836. Tribal members retained the right to hunt, fish and gather natural resources on that territory. The tribes appealing the tunnel approval contend the project puts those natural resources in jeopardy.
Tribal governments were not permitted to rebut some of Enbridge's claims during the public service commission's deliberation on the tunnel project, which violated their rights, said Ratchenski, who represented the Bay Mills Indian Community on Tuesday. He said they should have been allowed to present evidence about oil spills and the public need for the pipeline.
"Due to its own error, the commission was left with an incomplete record, a record that contained factual evidence supporting the finding for the public need for products shipped … but not evidence to the contrary," he said.
Tunnel alternatives debated in court
Carrie La Seur, legal director for the Traverse City environmental group For Love of Water, one of the groups involved in the case, asked the court to require the commission to do a "better analysis" of the risks that follow investment in a Line 5 tunnel. Those include the risks of furthering climate change and potential spills along the pipeline route, she said.
La Seur said the commission should have considered other alternatives, such as moving more petroleum products through Enbridge pipelines in southern Michigan or reducing demand for natural gas and crude oil.
"The (public service commission) chose an inaccurate framing of alternatives constituting reversible error," she told the court Tuesday.
Assistant Attorney General Daniel Sonneveldt, arguing on behalf of MPSC, said the commission was left with two choices regarding Enbridge's application for the tunnel project: approving it, which moves the aging pipelines below the lakebed, or denying it and effectively allow the pipelines to stay.
"Denial simply maintains the status quo of the pipeline continuing to operate on the seabed," Sonneveldt said. "However, if approved, the effect of the approval of the application would move that pipeline to a tunnel, thereby reducing the risk of a pipeline spill to the straits."
Enbridge's attorney, John Bursch, offered a similar argument, saying the company would continue operating its twin pipelines on the lakebed if MPSC denied its tunnel permit request. He said the tunnel is safer than the existing pipelines.
Bursch accused tunnel opponents of attempting to "hijack" the MPSC proceeding and use it to shut down the entire Line 5 pipeline, which runs from Superior, Wisc., to Sarnia, Ontario, with 645 miles in Michigan's Upper and Lower peninsulas.
"If Enbridge knew that this proceeding was somehow going to turn into a referendum on the entire line, it never would have filed it," Bursch said. "It would have just allowed the dual pipelines to continue operating on the lakebeds even though everyone agrees that putting them in the tunnel will be safer."
Ratchenski after the hearing described Enbridge's argument as a "false choice."
"It's just not reasonable to conclude that the feds or the lifespan of these pipelines or other agencies will just allow them to sit in the straits forever and ever," he said.
He pointed to Attorney General Dana Nessel's lawsuit against Enbridge that recently was returned from federal to state court, where judges are expected to be more favorable to her arguments.
Nessel is attempting to void Line 5's easement through the straits, alleging it is a nuisance and in violation of environmental laws and the public trust. Enbridge has fought to keep the case in federal court and is pursuing other lawsuits to maintain operation of the Line 5.
That case is scheduled for oral arguments before Ingham County Circuit Court Judge James Jamo on Jan. 27.
During the hearing, Bursch said Enbridge's easement with the state is indefinite. He contended the dual pipelines are "as intact and operative as it was the day that it was installed."
Other hurdles remain in front of Enbridge's tunnel project.
The company must apply for another permit from Michigan Department of Environment, Great Lakes, and Energy to disturb .13 acres of wetland during project construction. Enbridge previously acquired that permit in 2021, but did not act on it. Last year, the company agreed not to act on it as part of stipulating to dismiss a lawsuit from Bay Mills.
The tunnel project also is awaiting an environmental impact statement from the U.S. Army Corps of Engineers. A draft of that statement is expected to be released this summer.
"As we proceed with this modernization project, we remain committed to operating Line 5 responsibly with enhanced safety measures in the Straits that protect Michigan’s natural resources and infrastructure in the Straits," Enbridge's Duffy said.
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This article first appeared at The Detroit News.
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