10/18/2021 - Regulatory Tracker

Enbridge Line 5 and the Great Lakes Tunnel Project

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Why It Matters

Enbridge’s Line 5 pipeline carries 23 million gallons of crude oil and natural gas between Superior, Wisconsin, and Sarnia, Ontario. The pipeline diverges into two lines under the Straits of Mackinac, an environmentally sensitive region connecting Lake Michigan and Lake Huron. Enbridge claims that Line 5 supplies 65% of the propane used in northern Michigan, in a state which has the highest residential propane consumption in the country.

Line 5 has been staunchly opposed by the state of Michigan, environmentalists, and Tribes, particularly the Bay Mills Indian Community. Opponents cite the threats to Tribal interests and treaty rights, the project’s detrimental climate impacts, and the substantial environmental impacts in the event of a spill. In response, Enbridge has proposed a project called the Great Lakes Tunnel, which will be built deeper under the Straits and house a replacement line for that section of Line 5.

Current Status

Michigan Governor Gretchen Whitmer has revoked a 1953 easement and ordered Enbridge to halt operation of Line 5, but Enbridge has refused to halt the project, arguing Michigan lacks the authority to revoke the easement. Litigation between the two parties is ongoing in federal and state court.

On June 24, 2021, the Army Corps of Engineers decided to prepare an Environmental Impact Statement for the Great Lakes Tunnel, which could further delay the project. On Oct. 4, 2021, the Canadian government invoked a 1977 Agreement for the first time, asking the federal court to hold its case in abeyance while Canada and the US resolve the dispute pursuant to the Agreement’s settlement procedures.

Timeline of Events

Background
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1953 Michigan awards an easement to Enbridge for the Line 5 pipeline to run through the Straits of Mackinac.

Trump Administration
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Jan. 11, 2017 The Bad River Band of the Lake Superior Chippewa refuses to renew an easement for Line 5 that expired in 2013. The easement granted a right-of-way over tribal land in northern Wisconsin.

June 29, 2017 A report commissioned by the Michigan Department of Environmental Quality (now the Michigan Department of Environment, Great Lakes, and Energy (EGLE)) finds that Line 5 has approximately a 1 in 60 chance of leaking over 35 years.

Aug. 31, 2017 Enbridge divers find gaps in the enamel coating of Line 5 during an inspection, prompting safety concerns.

Dec. 12, 2018 The Michigan legislature passes a bill creating the Mackinac Straits Corridor Authority (MSCA) and authorizing it to enter into an agreement with Enbridge to approve the Great Lakes Tunnel. The bill passes in the final month of Republican Governor Rick Snyder’s term, before Democrat Gretchen Whitmer takes office. During her election campaign, Whitmer had said shutting down Line 5 was a priority.

Dec. 19, 2018 Enbridge announces an agreement with the MSCA to build a Great Lakes Tunnel that would house a Line 5 replacement.

March 29, 2019 Michigan Attorney General Dana Nessel issues an opinion that the statute creating the MSCA and the agreement pursuant to it are unconstitutional under state law. Governor Whitmer directs state agencies to halt actions pursuant to the statute. Enbridge sues in the Michigan Court of Claims challenging the opinion.

Oct. 31, 2019 The Michigan Court of Claims finds that the statute creating the MSCA and the agreement pursuant to that authorization are valid. Enbridge Energy LP v. State, No. 19-000090-MZ (Mich. Ct. Cl.).

Jan. 16, 2020 Attorney General Nessel appeals the Michigan Court of Claims decision. Enbridge Energy LP v. State, No. 351366 (Mich. Ct. App.).

Apr. 9, 2020 Enbridge applies for permits from both the EGLE and the U.S. Army Corps of Engineers (USACE) for the Great Lakes Tunnel project.

June 11, 2020 The Michigan Court of Appeals affirms the Court of Claims’ decision after finding that the statute creating the MSCA is constitutional. Enbridge Energy LP v. State, No. 19-000090-MZ (Mich. Ct. App.).

June 19, 2020 Enbridge suspends operations of Line 5 due to “significant damage” to an anchor from an unknown cause.

June 22, 2020 Attorney General Nessel asks the state court to temporarily enjoin operation of Line 5 while the damage is assessed. Michigan v. Enbridge Energy LP, 19-474-CE (Mich. 30th Cir.).

June 25, 2020 A state court judge orders Enbridge to temporarily suspend operations of Line 5 after Enbridge failed to provide the state with sufficient information about damage to the pipeline and its supporting infrastructure. Michigan v. Enbridge Energy LP, 19-474-CE (Mich. 30th Cir.).

July 20, 2020 The Michigan Department of Natural Resources seeks a written pledge from Enbridge to carry $900 million of liability insurance and set aside $1.88 billion in additional assets for use in the event of a catastrophic spill. Enbridge responded that it is already obligated to do so under a 2018 agreement between a subsidiary, Enbridge Energy, and then-Governor Snyder. The Department argues, however, that Enbridge Energy lacks the resources to cover the costs of a major spill, and Enbridge is not legally bound by pledges made by a subsidiary.

Nov. 13, 2020 Governor Whitmer revokes and terminates a 1953 easement allowing Enbridge to operate under the Straits of Mackinac, citing the public trust doctrine. The notice requires Enbridge to stop using the dual pipelines in the Straits by May, 2021. The state files a complaint in state court, seeking declaratory and injunctive relief. Michigan v. Enbridge Energy, LP, No. 20-646-CE (Mich. 30th Cir. Ct.).

Nov. 24, 2020 Enbridge removes the case to federal court. Michigan v. Enbridge Energy, LP, 1:20-cv-01142 (W.D. Mich.).

Jan. 12, 2021 Enbridge refuses to comply with Governor Whitmer’s order to halt Line 5 operations, arguing the Governor lacks the authority to revoke the easement.

Biden Administration
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May 10, 2021 The Bay Mills Indian Community Executive Council passes a resolution to banish Enbridge Energy’s Line 5 dual pipelines from all Tribal lands, including the Straits. According to the Native American Rights Fund, “Tribes exercise banishment only to address especially egregious acts of harm to the community.”

June 24, 2021 The USACE announces that it will prepare an environmental impact statement (EIS) evaluating the Great Lakes Tunnel project. Enbridge anticipates that this decision could delay the project.

July 29, 2021 Attorney General Nessel declines to file an appeal of the Court of Appeals’ June 11, 2020 decision upholding the constitutionality of Enbridge’s agreement with the state of Michigan.

Oct. 4, 2021 The Canadian Minister for Foreign Affairs issues a statement invoking a 1977 Agreement between Canada and the US, stating the agreement “prohibits measures intended to impede, divert, redirect or interfere with crude oils moving through transit pipelines.” Concurrently, counsel for the Canadian government requests that the Western District of Michigan hold the case in abeyance pending resolution via the Treaty’s dispute settlement process.