LANSING, Mich. — Court proceedings and a 1977 treaty will likely keep the 4-mile portion of Enbridge Energy’s Line 5 pipeline under the Mackinac Straits open until a tunnel is built to replace the section, the Canadian counsel general of Detroit told NetZero Insider last week.

In November, Michigan Gov. Gretchen Whitmer ordered the closing of the Straits section of the pipeline by May 13, citing concerns that anchor strikes to the pipeline could result in an oil spill in the Great Lakes. In January, however, the state Department of Environment, Great Lakes and Energy approved permits for Enbridge’s proposal to replace the span with a new 4-mile pipeline encased in a concrete tunnel well below the lakebed.

Enbridge responded by filing an action to block Whitmer’s order in U.S. District Court in Grand Rapids (Enbridge Energy LP et al v. Whitmer et al, 1:2020cv01141). Judge Janet Neff ordered Enbridge and the state to go into mediation, which began April 16. There is also a state court action on the issue, and 16 other governors have supported the proposal that the dispute should be settled in state, not federal, court.

Pipeline Important to Canada and US

The pipeline transports 540,000 barrels a day of natural gas products and light crude oil, and it runs 645 miles from Superior, Wis., through Michigan’s Upper Peninsula, under the Straits, and down through the Lower Peninsula across the St. Clair River into Sarnia, Ontario.

Counsel General Joe Comartin, a lawyer, said in an interview that given how the legal process works in both nations, it is likely a federal court dispute on Line 5 would take years to resolve, especially if the case went all the way to the U.S. Supreme Court. With the tunnel expected to be completed by 2024, Comartin said, it would likely be built and open before the court dispute is resolved, rendering the litigation moot.

If the pipeline is shut down, Comartin said, there would likely be a diplomatic effort to have the U.S. government step in under the provisions of a 1977 treaty with Canada that prohibits any government within the two nations from blocking an international pipeline. Enbridge cited the treaty in a filing last week in federal court, the first time the treaty has been invoked, according to Comartin.

Closing the pipeline is also a major economic concern to many Michigan residents and companies. Line 5 is a major supplier of propane, especially to Upper Peninsula residents. On April 27, the Michigan Senate Energy and Technology Committee held a hearing on the economic effects of closing the line on Ohio and Michigan communities.

Comartin said that keeping Line 5 open was critical to his nation. Given the long energy supply relationship between Canada and the U.S., closing any section of Line 5 would be, “quite concerning that it would lead to other attempts to interrupt the flow of energy,” he said. In January, President Biden upset Canadian oil interests when he canceled a permit for the Keystone XL pipeline project on his first day in office.

Diplomatic Efforts

Canada has been running a hard campaign against closing the Line 5.  One individual with knowledge of the matter, speaking on condition of anonymity, said Prime Minister Justin Trudeau has spoken with President Biden on the issue. The president voted in favor of the 1977 treaty when he was in the U.S. Senate.

Kristin Hillman, Canadian ambassador to the U.S., has met with U.S. Energy Secretary and former Michigan Gov. Jennifer Granholm and other cabinet officials over Line 5. Hillman has also met with Whitmer, often with Comartin.

In meetings with Whitmer’s legal team, state officials made it “quite clear, to protect the Great Lakes,” that the pipeline section under the Mackinac Straits — where Lakes Huron and Michigan meet — must be closed, Comartin said.

A spokesperson for Whitmer did not respond to a request for comment.

Pollution Concerns

Since another Enbridge pipeline had a major leak into the Kalamazoo River in 2010, a possible leak from the 68-year-old Line 5 into the Great Lakes has been the state’s biggest and most immediate environmental concern, particularly among businesses dependent on tourism, one of Michigan’s largest industries, and commercial and recreational fishing. A number of Michigan’s tribal governments also support closing Line 5.

Those fears were exacerbated in 2018 when a ship dragged a 12,000-pound anchor that struck the pipeline. Ships were then banned from lowering their anchors in the Straits, and Enbridge and the administration of former Gov. Rick Snyder hurried negotiations to address the risk. They announced an agreement in December 2018 for the replacement, and legislation was speedily passed authorizing the tunnel.

Nevertheless, environmental organizations and tribal governments are trying to force the entire pipeline’s closure. Although Whitmer ordered the pipeline in the Straits closed, her administration’s approval of permits for the tunnel enraged environmental allies who backed her in the 2018 election.

PSC to Consider Emission Impacts

Michigan’s Public Service Commission added a new variable April 20 when it ruled that the state’s Environmental Protection Act gives it the authority to consider the effect of greenhouse gases emitted as a result of the tunnel (U-20763).

In issuing the PSC’s ruling, commission Chair Dan Scripps said, “Courts have made it clear that this responsibility also applies to agencies, like the commission, that are not primarily environmental regulators, and that specifically pipeline siting cases before the commission trigger this need for this [Michigan Environmental Protection Act] review.”

Scripps could not be reached for further comment for this story.

Environmental groups were delighted with the ruling, even though it fell far short of their initial pleas that the PSC find there was no further need for the entire pipeline.

Officials with the Traverse City-based group For Love of Water (FLOW) said the PSC showed its commitment to “science, sound economics and the public interest.”  Liz Kirkwood, executive director of the organization, also said the order was significant, “because it recognizes that the Michigan Environmental Protection Act applies to consideration of greenhouse gas emissions that would be spurred by Enbridge’s proposed oil pipeline tunnel. The MPSC clearly understands the need to accelerate the energy transition, adopt clean energy solutions, and avoid the environmental and economic impacts of legacy fossil fuels,” she said.

Enbridge said it was pleased that the PSC did not rule the entire pipeline could be shut down and was focusing its attention solely on the tunnel.

The tunnel “totally eliminates anchor strikes, improves safety and environmental protections, and continues to provide Michiganders and neighboring states with the energy they need,” Enbridge said in a statement. A spokesperson for Enbridge added the company’s lawyers are now reviewing the PSC order.

ClearView Energy Partners told its clients that it’s unlikely that those who want to shut down the entire pipeline will be able to prove that the tunnel is increasing emissions over current levels because the project will not increase the pipeline’s throughput.

“Therefore, as long as Line 5 continues to operate, we think the MPSC could find it appropriate to authorize the legislatively mandated tunnel relocation,” ClearView said. “A decrease in emissions does not seem to be a requirement under Michigan’s environmental laws at this time. However, should the courts find that the Notice of Termination is binding on Line 5’s current operation while the MPSC review is pending, this could change the evidence the commission considers because operations (and emissions) would stop. That course of events could establish a new emissions baseline, potentially strengthening the pipeline’s opponents’ arguments on this issue.”