This story was originally published by Michigan Advance.

Kyle Davidson
Michigan Advance

A key permit from state energy regulators approving Enbridge’s Line 5 tunnel project sat before the Michigan Supreme Court on Wednesday as the justices heard two cases arguing the permit should be sent back to the Michigan Public Service Commission for further review.

The Michigan Public Service Commission in December 2023 approved the application, determining that the tunnel project would be the best available solution to mitigate concerns of an oil spill from the 4.5 mile-segment of dual pipelines running through the Straits of Mackinac, where Lake Michigan and Lake Huron meet.

However, members of the The Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and Nottawaseppi Huron Band of the Potawatomi and several environmental advocacy groups challenged the decision, arguing the commission failed to consider several alternatives to the Line 5 tunnel project, and that the commission had improperly limited the scope of its review by blocking parties from submitting evidence on the scope of the project’s environmental impacts and detailing whether there is a public need for the petroleum products Line 5 transports.

While the state Court of Appeals upheld the permit, the four tribes appealed the matter to the Michigan Supreme Court alongside the Environmental Law and Policy Center and the Michigan Climate Action Network. Flow Water Advocates, filed its own, separate appeal.

David Scott, senior attorney for the Environmental Law and Policy Center, argued the lower court erred in approving a “lopsided” review under the Michigan Environmental Protection Act and by deferring fact-finding on the tunnel project’s environmental impacts to the commission’s employees, asking the court to reverse the case back to the commission.

“Reviewing courts must make independent judgements, not defer to the agencies,” Scott argued.

Responding to a question from Justice Elizabeth Welch, Scott affirmed that their remedy would see the commission conducting a further review including the evidence that was kept out of the case, to make a new determination under the Michigan Environmental Protection Act.

He further argued that the commission’s review of alternatives to the Line 5 tunnel project were lopsided, as they only examined the environmental impacts of the tunnel project to the environmental harms on other potential routes.

Adam Ratchenski, a senior associate attorney for EarthJustice noted that the tunnel project threatens natural, cultural and economic resources that are vital to the Tribal nations in the region.

However, Ratchenski later noted that they are not asking the state’s high court to determine that those impacts are likely, rather that they are asking the court to make a decision on a rule that would require the Michigan Public Service Commission to determine whether those effects are likely.

In his arguments, John Bursch, a former Michigan solicitor general and the attorney for Enbridge, maintained that the tunnel project was the safest alternative to prevent an oil spill in the straits, presenting the matter as a binary decision: should the dual pipeline continue operating exposed within the straits, or should Enbridge move forward with the project?

He cited the commission’s review, arguing that the environmental impacts of building the tunnel outweighed the potential harms if Line 5 ruptures.

Bursch also pointed to a recent ruling from U.S. District Court Judge Robert Jonker barring the state from enforcing an order terminating Enbridge’s easement to operate the pipeline on the bottomlands of the Great Lakes.

On rebuttal, Welch asked Ratchenski about the argument that there’s nothing the state can do to shut down the pipeline.

“I think that’s a fatalist view and is not aligned with either the state of the law both in Michigan or the federal courts,” Ratchenski said, noting that case has been appealed.

The argument also discounts what the state can do in terms of alternatives, Ratchenski said. That matters in this case, he argued, pointing to one of the alternatives ruled out by the public service commission, an alternative pipeline route that would go around the southern tip of Lake Michigan, rather than through the Great Lakes.

While the commission examined how close the proposed alternate route would be to community drinking water sources, the number of river crossings, the number of miles of wetlands it would cross and determined that it was not feasible, the commission did not look at the same impacts for the pipeline’s current route from Superior, Wisc. to Sarnia Ontario, Ratchenski said.

In the second appeal, filed by Flow Water Advocates, attorney Riyaz Kanji challenged Bursch’s argument that oil and natural gas liquids can either continue to flow through the dual pipelines or replacement segment housed in the tunnel.

“No one is compelling Enbridge to continue the operation of the dual pipelines,” Kanji said.

He also said that under the argument that the federal government is the sole regulator for pipeline safety, the provisions that the public service commission set for the project could be struck down.

Kanji further argued that under the state’s Public Trust Doctrine – which charges the state with managing its natural resources for the benefit of the public – there cannot be a dedication of public resources without a determination that the public trust will not be impaired.

In his argument on behalf of the Public Service Commission, Assistant Attorney General Daniel Sonneveldt argued that entity met its requirements under the Public Trust Doctrine. As a result, no further analysis should be required outside of the requirements of the Michigan Environmental Protection Act.

The court will rule on both cases at a later date

Following the arguments, Enbridge spokesperson Ryan Duffy said in a statement the company has full confidence in the Public Service Commission’s review of the tunnel project.

“Last year, the Michigan Court of Appeals unanimously affirmed both the thoroughness of the MPSC’s process and its decision to approve the Great Lakes Tunnel Project,” Duffy said. “The Court also confirmed that the Commission properly assessed the proposed location of the replacement segment within the tunnel, consistent with Michigan law. Given this strong legal and factual foundation, we believe the Michigan Supreme Court should uphold that ruling.”

Whitney Gravelle, president of the Bay Mills Indian Community stressed the importance of protecting the resources in the straits, both for tribal citizens and all other Michiganders, at a press conference held after the hearing.

“There are cultural resources in the Straits of Mackinac that are at risk,” Gravelle said. “There are ancestors that are buried along the shoreline that we are attempting to protect. There are natural resources, including those of lake whitefish and lake trout that are at risk, that are diminishing the tribal treaty right that exists in these waters.”

Those treaty rights are a sister to the Public Trust Doctrine, Gravelle said.

“Bay Mills Indian community cannot be Anishinaabe, cannot be Ojibwe any other place than here in the state of Michigan,” She said. “And so our relationship with the land, with the water, with those natural resources that are protected under the Public Trust Doctrine are very important to the continuation of our culture, of our language and of our people who have resided in the state of Michigan long before there was ever a written history or before there was any time recorded.”

The post Michigan Supreme Court hears Line 5 review case as opponents challenge tunnel project approval appeared first on ICT.

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