Michigan Governor orders state’s departments, agencies to halt action on tunnel for Enbridge Line 5 after AG declares Mackinac Straits Corridor Authority law unconstitutional 

The executive branch of Michigan’s government and Enbridge’s plan to put Line 5 into a tunnel under the Straits of Mackinac have hit a suprise snag.

After reviewing the opinion issued by Attorney General Nessel late last week, Michigan’s new Democrat Governor Whitmer signed an executive directive instructing state departments and agencies to halt any actions in furtherance of the Mackinac Straits Corridor Authority law, Public Act 359 of 2018.

“I agree with the conclusion reached by Attorney General Nessel,” Whitmer said. “The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law.”

Executive Directive 2019-13 directs state departments and autonomous agencies not to take any further action regarding Act 359 and to report to the governor’s legal counsel regarding actions taken since the bill was passed.

This Executive Directive will be effective immediately upon filling, the Governor’s office said.

To view the full executive directive and Attorney General opinion, see links:

AG Opinion.PDF

ED 2019-13 Public Act 359 of 2018.pdf

Enbridge responded with its own statement.

The company said that after reviewing the statement issued by Michigan Attorney General Nessel and Governor Whitmer’s executive directive, Enbridge Inc. (stock ticker: ENB) it was surprised and disappointed that “they have taken this position with respect to the legislation, when the Straits tunnel project will further enhance the safety and reliability of a critical piece of infrastructure that supports the State, its communities and the environment.”

Enbridge said it would seek clarification from the administration on a path forward. “Line 5 will continue to safely operate, as it has for more than 60 years. Numerous independent reviews have concluded that the line is safe.”

According to a statement from Enbridge, the benefits of a tunnel under the Straits of Mackinac include:

  • Reducing the chance of a release of product to virtually zero, by placing the pipeline in a tunnel with one-foot-thick concrete walls.
  • Preventing an anchor strike from a ship in the Straits of Mackinac by placing the tunneled pipeline 100 feet underground.
  • Ensuring Michigan will continue to receive the economic benefits from Line 5.

Energy consumer group responds that the Michigan Governor’s actions thwart development of needed energy infrastructure, will hurt consumers, jobs

The Consumer Energy Alliance (CEA) announced its strong disapproval of the actions taken by Michigan’s Governor and AG to “thwart energy infrastructure development and hamper environmental progress by ordering state agencies to halt work on developing technical and environmental improvements to Line 5 while the state legislature was conveniently recessed for their district work period.”

CEA’s Midwest Executive Director Chris Ventura said “it is quite alarming, to hear that a governor has stopped work on a legal, authorized project that has already been passed by the prior legislature and former governor. This arbitrary decision by the governor was not because of a judicial court order. It was to placate extremists whose beliefs are not rooted in fact or science.

“The Line 5 tunnel construction and engineering are designed to be one of the safest and most environmentally sound water-crossings in the country while employing thousands of Michigan laborers.

“It is unclear to CEA why two state leaders would obstruct a project — deliberately increasing costs for families and businesses — especially Governor Whitmer, who has long been an advocate for working families in Michigan.

“Michigan already has more than 14 percent of its population living in poverty and the state’s median income is already below the national average. Why would any state leader make it harder for low-income families, seniors and people living paycheck-to-paycheck to get by — and, at the same time, set back a plan designed to improve our environment?”

Consumer Energy Alliance is a consumer advocate group with more than 550,000 members nationwide that seeks stable prices and energy security for households and businesses.

Michigan Governor Halts Great Lakes Pipeline Tunnel Project

From the Washington Post

A law that Michigan’s Republican-led Legislature hurriedly passed during a lame-duck session in December authorizing construction of an oil pipeline tunnel beneath the channel linking lakes Huron and Michigan is unconstitutional, the state’s Democratic attorney general said Thursday.

Shortly after Dana Nessel issued her first legal opinion since taking office in January, Democratic Gov. Gretchen Whitmer ordered state agencies to stop any work on the tunnel project.

Nessel said the bill violated the state constitution because it went beyond what the bill’s title reflected.

The measure authorized a deal between then-GOP Gov. Rick Snyder and Canadian pipeline company Enbridge to drill the tunnel through bedrock under the Straits of Mackinac. It would house a replacement for a more than 4-mile-long (6.4-kilometer-long) segment of Enbridge’s Line 5, which carries crude oil and natural gas liquids between Superior, Wisconsin, and Sarnia, Ontario.

Nessel and Whitmer were elected in November after criticizing the pipeline tunnel plan during their campaigns. After both were inaugurated, Whitmer asked Nessel to assess the constitutionality of the bill.

Whitmer said in a statement that she agrees with Nessel’s opinion, which carries the force of law unless overruled by a court.

“The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of the law,” Whitmer said.

She also ordered them to inform her legal counsel of any steps they have taken that were authorized by the law.

Republican state Rep. Triston Cole of Mancelona dismissed Nessel’s opinion as “flimsy” and said the tunnel project would provide good-paying construction jobs for northern Michigan workers.

“To suggest that lawmakers weren’t clear on the details of the plan they voted for last December is outrageous,” Cole said. “This plan was put forward after months of debate, public testimony and rigorous investigation. … I will not allow the well-being of hardworking Michiganders to be put in jeopardy while the attorney general splits legal hairs for political brownie points.”

Among other provisions, the law established a panel — the Mackinac Straits Corridor Authority — to oversee construction and eventual operation of the tunnel, which Enbridge estimates would cost $500 million and take up to 10 years to build. Enbridge would pay for it, but Michigan would own it and lease it to the company for 99 years.

Snyder, GOP lawmakers and Enbridge described the complex agreement as a win-win that would keep oil flowing along Line 5 but lead to the decommissioning of the straits-area segment — twin pipes that have traversed the bottomlands since 1953. The company says they’re in good condition, while environmentalists, native tribes and other crticics argue they’re vulnerable to a spill that could do catastrophic damage to the lakes.

The corridor authority met a week after the bill was enacted and unanimously approved the tunnel deal, which members said they were bound to do under the new law. But Nessel said in her opinion that if courts were to find the law unconstitutional, they likely would void any of the panel’s actions.

Nessel focused on a section of the constitution requiring that each law have a single “object,” or general purpose, which is described in its title, and that no bill could be amended in a way that would change the original purpose.

The tunnel measure underwent significant revisions that the title didn’t adequately reflect, she said. Among them: transfer of jurisdiction over the proposed tunnel from the Mackinac Bridge Authority to the corridor authority; a requirement that the corridor authority enter agreements to implement the deal by a certain date; and a requirement that if the attorney general’s office refuses to represent the corridor authority, it must pay for outside counsel.

A judge with the Michigan Court of Claims ruled earlier this month that another section of the law also ran afoul of the constitution by giving members of the corridor authority six-year terms instead of the allowable four years. But the judge, Stephen Borrello, said that wasn’t enough to invalidate the entire statute.

Enbridge had no immediate comment on Nessel’s opinion.

Environmentalists praised it and called for the quick shutdown of the Line 5 pipes.

“It is not surprising that this brazen attempt to satisfy interests, subvert the democratic process, and tie the hands of Gov. Whitmer does not meet the requirements of the Michigan Constitution,” said Oday Salim, attorney for the National Wildlife Federation’s Great Lakes office. “This opinion paves the way for Gov. Whitmer to move forward as a champion for the Great Lakes and Michiganders by removing the risks Line 5 poses to the Great Lakes, our economy, drinking water and our way of life.”

Enbridge Says ‘Feasible’ to Replace Line 5 in Tunnel Under Straits

From the Detroit News June 15, 2018


Michigan Governor, AG Ignite a Pipeline Storm - Oil & Gas 360

(Photo: Enbridge Inc.)


Lansing — Enbridge Inc. said Friday it would be feasible but costly to replace its controversial Line 5 pipeline with a tunneled version and “virtually” eliminate any risk of an oil spill in the Straits of Mackinac.

A 30-inch pipeline could be housed in a roughly four-mile tunnel lined with concrete and buried 100 feet below the lake bed, the Canadian energy company told the state of Michigan in a required report. The projected cost would be $350 million to $500 million over six years of planning and construction.

Enbridge Inc. animation of a potential alternative to Line 5: A tunnel beneath the Straits of Mackinac.Enbridge

Enbridge could also “significantly” reduce the probability of a Great Lakes oil spill by replacing Line 5 with a trenched and rock-covered version inside a second containment pipeline that could cost up to $300 million, according to the 100-page report.

The company agreed to assess multiple Line 5 alternatives under a November 2017deal with Gov. Rick Snyder, who wants Enbridge and other companies to move underwater infrastructure into a shared utility tunnel beneath the Straits, a concept environmental groups have already criticized.

This Enbridge Inc. animation shows a Line 5 alternative to build a trench and rock-covered pipe-in-pipe system in the Straits of Mackinac. Enbridge

Enbridge isn’t committed to building a tunnel or trenched pipeline, but the report is “a starting point” that will help the state and company “determine a possible path forward for Line 5,” said spokesman Ryan Duffy.

“Both of these alternatives would enhance safety and ensure the continued protection of the Great Lakes.”

Snyder said the report will help the state “define a comprehensive solution for all utility crossings.”

“Line 5 cannot remain in the Straits indefinitely,” the governor said in a statement. “We need a concrete strategy and time line to expedite its replacement.”

The aging dual pipelines, built in 1953, transport up to 540,000 barrels a day of light crude oil and natural gas liquids through the Straits, a turbulent waterway that connects Lake Michigan and Lake Huron.

Enbridge determined a third potential alternative — using horizontal directional drilling to construct a new pipeline beneath the lakebed — is “not technically feasible” because of rock characteristics and the length of the crossing. It would be more than twice the lengthy of any comparable and completed project, the company said.

Environmental activists have long called for a Line 5 shutdown, warning an accident like Enbridge’s massive 2010 inland Kalamazoo River oil spill could devastate the Great Lakes. But state and industry officials have warned that a complete shutdown would cut off a supply of propane that many Upper Peninsula residents rely on for heat.

Line 5 scrutiny intensified in early April after an anchor strike ruptured underwater transmission cables and dented Enbridge’s 65-year-old dual pipeline. Environmental groups have criticized Snyder’s call for a tunnel replacement.

“A tunnel will only continue to keep our Great Lakes at risk of a disastrous oil spill,” said Lisa Wozniak, executive director of the Michigan League of Conservation Voters. Enbridge “has a vested interest in continuing to pump oil through the Straits, which explains why the company failed to adequately consider alternatives that keep oil pipelines out of our waters.”

Liz Kirkwood, an environmental attorney and FLOW executive director, said in a Friday statement that “in a time of water shortages and changing climate in this century, it doesn’t make sense to even contemplate constructing Canadian oil pipelines in a tunnel under the world’s largest supply of fresh surface water.”

But the probability of an in-tunnel spill contaminating the Great Lakes is negligible, according to Enbridge. A reliability assessment conducted for the company “demonstrated there is no credible scenario that would result in a release of product from the tunnel into the Straits.”

Enbridge said it hired three engineering consultant companies to assess the alternatives, then used three separate teams of engineers and construction reviewers to verify conclusions. Two environmental firms assessed and verified potential impacts and evaluated needed permits.

A tunnel would act as a secondary containment system, according to the Enbridge report. The 10-foot diameter interior would be lined with a “precast reinforced concrete lining” with high-strength gaskets, and the space outside the lining would be filled with cement grout.

Securing at least 15 required state and federal permits, gathering materials and constructing the tunnel could take about five to six years, according to company estimates.

The tunnel would be “well within the size and length range” of others constructed around the world, Enbridge said. “Many tunnels have been completed under lakes, rivers and seas; numerous energy pipeline tunnels have been constructed to date, particularly in the last five to 10 years.”

Replacing Line 5 with a pipe-in-pipe system trenched underground up to a half-mile from shore and then placed on the lake bed would cost $260 million to $300 million, according to Enbridge estimates. Securing permits and building the system could take about four years.

A 30-inch pipeline carrying crude oil and natural gas liquids would be placed inside a 36-inch outer pipe that would include a real-time leak detection system and provide a form of “secondary containment.”

To protect the pipeline from an anchor strike or dropped objects, Enbridge said it would be covered with a six- to eight-foot thick protective layer of gravel and “cobble” rocks ranging in size from one to 12 inches.

The alternative would “significantly” reduce the probability of an oil spill or release into the Straits of Mackinac, Enbridge said.

As The Detroit News first reported, the Snyder administration is in talks with Enbridge and other companies about building a shared utility corridor that could also house cables and other natural gas pipelines currently sitting on the bottom of the Straits.

Snyder said almost two months ago he wants Enbridge to decommission Line 5 and construct a tunneled replacement if studies show the tunnel could be built and wouldn’t cause “significant environmental damage.”

Enbridge said tunnel construction would have “no impact” on shorelines or the lake bed. Onshore areas “disturbed” during construction would be “reclaimed” when the project was complete, the company said. Long term, a tunnel would require fenced enclosures of up to one acre at the entry and exit points.

The Enbridge report analyzed the potential for a pipeline tunnel, but it could be “scale-able” to include other infrastructure, Duffy said. “But that wasn’t within the scope of this study.”

Enbridge is expected to file additional reports with the state by the end of June evaluating measures to mitigate anchor strikes, and on underwater technologies to enhance leak detection and assess pipeline coating.

As part of the 2017 agreement between Snyder and Enbridge Vice President of U.S. Operations Bradley Shamla, the state and company said they hope to finalize further negotiations by the fall.

“Now we’re going to be sitting down with the state, using all the information from this report to kind of figure out what the negotiations look like going forward and to figure out the best option,” Duffy said.


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