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Tribes, Enviro Groups Say Mich. Ignored Climate In Tunnel OK

by Carolyn Muyskens --

Native American tribes and environmental groups urged a quiet Michigan appeals panel Tuesday to undo state approval of Enbridge Energy's plan to dig an underground tunnel to house an underwater segment of an oil and natural gas pipeline.

State regulators ignored or blocked evidence about the environmental impacts of the pipeline, including the long-term climate impacts of the petroleum products it transports, and failed to consider alternatives before approving Enbridge's plan, the groups said during oral arguments in Lansing.

Enbridge, meanwhile, told the judges the tribes and environmental activists had inappropriately turned the tunnel project, intended to make the pipeline safer, into a referendum on the pipeline itself, which is known as Line 5. Line 5 transports crude oil and liquefied natural gas products between the U.S. and Canada, from northwestern Wisconsin to Sarnia, Ontario.

"Everyone agrees that the Great Lakes will be safer if the dual pipelines that are currently on the lakebed are moved to a single pipeline in the tunnel, there's no disagreement about that. But instead of supporting that safety upgrade, the intervenors seek to use that four-mile safety improvement to attack the entire 644-mile pipeline," said John J. Bursch of Bursch Law PLLC, representing Enbridge.

The petitioners appealed a Michigan Public Service Commission order approving Enbridge's plan to build a concrete, underground tunnel for the segment that currently sits on the lakebed of the Straits of Mackinac, a body of water that connects two of the Great Lakes, Lake Michigan and Lake Huron.

Elsewhere, Enbridge has been fighting efforts from the state of Michigan to shut down the Line 5 pipeline over the state's safety concerns with its continued operation in the Great Lakes.

Attorney General Dana Nessel is set to argue in state court later this month that Enbridge's easement to site the pipeline on the lakebed of the Straits of Mackinac is invalid, while the state of Michigan is also defending itself from a countersuit brought by Enbridge.

In Wisconsin, Enbridge is working to reroute a segment of Line 5 that crossed a Bad River Band of Lake Superior Chippewa reservation. A Wisconsin federal judge determined Enbridge's pipeline was trespassing on the reservation and ordered it to pay $5.2 million, a ruling Enbridge has appealed to the U.S. Court of Appeals for the Seventh Circuit.

Several Native American tribes and environmental groups challenged the Michigan Public Service Commission's approval of the Line 5 tunnel project in Michigan, filing a total of eight cases that were consolidated for review by the appellate court.

The tribes, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little Traverse Bay Band of Odawa Indians and the Nottawaseppi Band of the Potawatomi, argued the commission erred by blocking them from presenting evidence on the public need for the petroleum products that are shipped via Line 5 and the environmental risks posed by the threat of a catastrophic oil spill. 

The Environmental Law & Policy Center and the Michigan Climate Action Network, represented in oral arguments by Mark Granzotto of Mark Granzotto PC, said the commission disregarded expert testimony about the long-term impact on the climate of the greenhouse gas emissions of the products Line 5 transports, despite issuing a ruling early in the case that they could consider that evidence as part of the environmental review.

"The commission asked for expert testimony, and they got it, and after getting it, they ignored it," Granzotto said.

For Love of Water, another environmental group, contended that the commission should have considered alternative plans that don't involve routing the pipeline through the Straits of Mackinac.  

A lawyer for the state, however, said the commission had two options in front of it: approve the tunnel plan or reject it. Rejecting the tunnel proposal would leave the pipeline on the lakebed, exposed to potential anchor strikes from passing ships, said Daniel E. Sonneveldt of the Michigan Department of Attorney General.

"Denial allows the pipeline to continue operation. Approval would move that pipeline to a tunnel, thereby reducing the risk of the spill. There was no option before the commission that would result in the ceasing of the operation of the pipeline," Sonneveldt said. 

Enbridge told the panel it was irrelevant for the commission to consider the climate impact of the entirety of Line 5 and the products it transports.

The commission was only required to determine if there was a public need for the tunnel, which it did in determining encasing the pipeline in a tunnel would better protect Michigan's natural resources, Enbridge's Bursch said.

The panel of judges asked no questions during the argument session, which Judge Michael J. Kelly acknowledged and commented that the judges' silence was "a tribute to how excellent the briefs were."   

Enbridge also requires approval from the U.S. Army Corps of Engineers before it can begin construction of the tunnel.

Judges Michael J. Kelly, Anica Letica and Randy J. Wallace sat on the panel for the Court of Appeals.

The petitioners are represented by Adam J. Ratchenski, David L. Gover and Thomas Cmar of Earthjustice, Mark Granzotto of Mark Granzotto PC, Nicholas N. Wallace of the Environmental Law & Policy Center, Christopher M. Bzdok, James M. Olson, Ross A. Hammersley, Abigail Hawley and William Rastetter of Olson Bzdok & Howard PC, Amy L. Wesaw and John Swimmer of the Nottawaseppi Huron Band of the Potawatomi, James A. Bransky of James A. Bransky Attorney At Law and Carrie La Seur of For Love of Water.

The Michigan Public Service Commission is represented by Daniel E. Sonneveldt and Amit T. Singh of the Michigan Department of Attorney General.

Enbridge is represented by John J. Bursch of Bursch Law PLLC, Sean P. Gallagher, Michael S. Ashton of Fraser Trebilcock Dunlap Davis & Cavanaugh PC and Mark C. Savignac of Steptoe LLC. 

The cases are In Re Application of Enbridge Energy To Replace & Relocate Line 5, case numbers 369231, 369156, 369157, 369159, 369161, 369162, 369163 and 369165, in the Michigan Court of Appeals.

--Additional reporting by Tom Lotshaw. Editing by Kelly Duncan.

 

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This article first appeared at Law360


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