MANITOULIN—For a local member of For Love of Water (FLOW), an announcement last week by Michigan Attorney General Dana Nessel provided some good news in regards to restoring the rule of law on the Enbridge Line 5 pipelines that flow under the Straits of Mackinac.
“It is good news,” stated Mike Wilton last week. “It is a bright spot in a bunch of dark spots recently on this issue. It is good to see representatives in key positions making sure things are being done in a responsible manner.”
“I’m keeping my fingers crossed,” said Mr. Wilton. “It appears that this is potentially a step forward,” he said, noting FLOW is applauding the Michigan Attorney General’s stance on the issue.
A FLOW release from March 28 indicates, “In a major step toward restoring the rule of law, Michigan Attorney General Dana Nessel issued an opinion today declaring unconstitutional a highly crafted law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, while allowing the aged, dangerous existing Line 5 oil pipelines in the (Mackinac) Straits to continue operation for another decade as the tunnel is considered and possibly built.”
“The move comes in response to a formal request by Governor Gretchen Whitmer and is critical to unpacking the layers of problems with the law creating the Mackinac Straits Corridor Authority that the lame-duck legislature rushed through in late 2018.”
“We applaud Attorney General Nessel for clearly recognizing the legislative over reach, restoring the rule of law and stopping the attack on the Great Lakes and the state constitution, which demands that the state’s air, water and natural resources are treated and protected as paramount,” said Liz Kirkwood, an environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy centre based in Traverse City, Michigan.
“The attorney general’s opinion on Public Act 359 is binding on state agencies and voids the tunnel agreed called for by the law, and also nullifies the legal effect of the side agreements reached between the state of Michigan under then-Gov. Rick Snyder and Line 5-owner Enbridge. Those agreements allowed continued oil pumping through the Straits, where Lake Michigan meets Lake Huron, and an easement and 99 year lease of Great Lakes public bottomlands to Canadian-based Enbridge for private control of the tunnel for its own gain,” the release continued.
“Public Act 359 and the related agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act (GLSLA) that requires transfers and agreements for occupancy of the soils under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.
“Public Act 359 and the side agreements are peppered with other serious problems, most of which are covered by the questions the governor asked the attorney general to answer, which include: adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge; establishing a term for members of the board of the corridor authority that exceeds the four-year limit under Article III of the Michigan Constitution: Violating provisions of the state constitution that prohibit fostering private or special purposes, the commingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.
“We hope this critical first step by the attorney general will be followed b an immediate and full review of the Snyder administration’s and agencies’ deliberate evasion of the rule of law and mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Straits of Mackinac, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the soils and waters of the Great Lakes,” said Jim Olson.
FLOW is recommending that Gov. Whitmer takes immediate action to end the massive threat posed by the existing Line 5 in the Straits of Mackinac in a swift and orderly fashion based on rule of law under State constitution, and the public trust doctrine in the Great Lakes, including by: sending a letter to Enbridge indicating that the company should decide for itself, if it wants to build a new oil tunnel, and apply, if it chooses under the Great Lakes to construct a tunnel under the rule of law; starting the process to decommission the 66-year-old Line 5 pipelines in the Straits of Mackinac, which are operating without lawful authority in violation of the public trust and GLSLA, and in violation of their 1953 easement granted by the state. If Enbridge chooses to continue operating the existing Line 5 in the future, it can apply under the GLSLA for new authority to continue using Line 5 if it can demonstrate little risk and no feasible and prudent alternative to the unacceptable existing Line 5, but the state is not obligated to agree.”
“I would hate to think what would happen if they go ahead with the pipeline and a leak or a problem occurred,” added Mr. Wilton.