The Canadian petroleum pipeline company Enbridge was granted a permit by the Michigan Public Service Commission in 2023 to burrow a tunnel under the Straits of Mackinac. The nearly 72-year-old Line 5 dual pipeline sits on the lake bed of the Straits. That section of that pipeline would be replaced by a new line in the tunnel.
In an appeals court hearing Tuesday, tribal nations, environmental groups and some businesses challenged the permit, saying the commission did not allow all the evidence to be heard.
The Michigan Public Service Commission is a state agency, so the Attorney General’s office represents it. Daniel Sonneveldt’s job was to defend the commission’s decision.
“There was no option before the commission that would result in the ceasing of the operation of the pipeline,” he told the Michigan Court of Appeals.
Sonneveldt said the commission was limited in what it could consider: should a permit be issued to build a four-mile tunnel? Those challenging the permit say the real question is: How risky is Line 5 to the environment and the Great Lakes?
He told the judges that the commission was limited to approving or denying a permit for the tunnel.
“The effect of the denial of the application is that the existing seabed pipeline would continue to operate across the Straits of Mackinac. It would continue to run the product through that pipeline and the risk of a spill still remains and exists there," said Sonneveldt.
An attorney representing Enbridge said what the opponents of Line 5 want would be impossible for the commission to do. John Bursch added if the court were to decide for the challengers against the Michigan Public Service Commission's decision, it wouldn’t make much difference.
“First, if they prevail on appeal or back in the MPSC, then that's not going to stop the pipeline. It's going to continue operating, but it's going to do so on the lakebed when everybody wants it in the tunnel,” Bursch said.
Line 5 opponents say you cannot just look at the four-mile section of Line 5 in a tunnel. They argue the entire pipeline — which has a record of oil spills over the decades — must be considered. Otherwise, the commission would be further enabling by allowing it to continue operating at the risk of the environment.
They also feel the public service commission should consider the product being transported by the crude oil and natural gas liquids pipeline. Their impact on climate change should be an issue to consider.
And then there are cultural issues.
Adam Ratchenski represented four tribal nations who oppose Line 5.
“The tunnel project is a massive and disruptive undertaking through the heart of the Great Lakes and the center of the Anishinaabe creation story. And whether there's a public need to greenlight such a thing must be the subject of a full and fair hearing. That didn't occur in this case, and the court should fix that by sending it back to the commission to allow parties to put on their case about it,” he said.
At a news conference outside after the hearing, opponents of Line 5 gathered, many of them shouting, “Shut down Line 5!”
Carrie La Seur is one of the lawyers who argued in court against the Michigan Public Service Commission’s permit. She’s the legal director for the group For Love of Water, which is based in Traverse City on Grand Traverse Bay of Lake Michigan.
“One of the communities that will be the frontlines, the first and the most damaged if and when the line five pipeline bursts in the Straits of Mackinac," she told reporters. "The consequences would be catastrophic."
The executive director of the Michigan Climate Action Network, Denise Keel, said the commission violated the state’s Environmental Protection Act and the Administrative Procedures Act. Keele said that's because the commission did not allow her group and others to present evidence of all of the impacts of Line 5 and the impacts of the crude oil and natural gas liquids it carries.
She said those are issues the laws require to be investigated, as the lawyers outlined for the three-judge panel.
“These attorneys have made it clear, I hope to the court and to all of you that the Michigan Public Service Commission failed to consider Enbridge's proposed tunnel project threatens the Great Lakes and all its peoples, violates the Michigan Environmental Protection Act, exacerbates the climate crisis and undermines Michigan's clean energy goals.”
In a written statement, Enbridge said, as it often has repeated, that the tunnel would make an already safe pipeline even safer. It added that the commission’s staff had concluded that putting the Line 5 pipeline in a tunnel “is in the public interest and better protects the Great Lakes,” and that the commissioners were right to agree.
Later this month, Attorney General Dana Nessel will be in court arguing that the best protection for the Great Lakes would be to shut down line 5.
Editor's note: Enbridge is among Michigan Public's corporate sponsors.
