Aug. 13—STRAITS OF MACKINAC — A signature piece of infrastructure turns 70 this year, a milestone that appears to be passing without celebration.
Instead, Line 5, a 645-mile oil and gas pipeline built in 1953, has energy experts, environmental advocates, tribal members, state taxpayers and attorneys in a kind of judicial watch party, as lawsuits and countersuits move sluggishly through state and federal courts.
"No one case is more important than any other," said environmental attorney Liz Kirkwood, who leads FLOW, a Traverse City-based nonprofit focused on the Great Lakes. "We're watching it all."
One "watch party" case is a 2019 lawsuit and countersuit between the Bad River Band of Lake Superior Tribe of Chippewa Indians and Enbridge, the pipeline's owner.
In June, a federal judge in the Western District of Wisconsin presiding over the case did something no other judge in any Enbridge-related case has done before. He gave the company a date — June 16, 2026 — when they can no longer operate a portion of Line 5.
"We had an incredibly intensive, grueling pre-trial process," Riyaz Kanji, an attorney for the Band, said during a recent public webinar hosted by FLOW.
"I think Enbridge thought: small tribe, small law firm representing it, and didn't know the full strength of the tribe and the whole team," he said.
Attorneys for Enbridge, a Canadian energy conglomerate with thousands of miles of pipelines in the U.S. and Canada, had argued that an agreement related to other portions of reservation land compelled the Band to assist in re-negotiating the expired easements.
"Enbridge's position has long been that, in a 1992 contract between Enbridge and the Band, the Band consented to operations of Line 5 on the Reservation through 2043," said Ryan Duffy, an Enbridge spokesperson.
"In 2020, Enbridge filed federal and state permit applications for the relocation of Line 5 around the Bad River Reservation, which is the long-term solution to this dispute," Duffy said.
The Bad River Band argued Enbridge was trespassing after easements on some portions of property within the Band's reservation expired, and that geographical shifts in the area's clay soil are inching the pipeline ever closer to the namesake river.
Judge William Conley, on June 29, largely agreed.
The judge also ordered Enbridge to pay the Band $5,151,668 for trespassing and make quarterly profit-sharing payments to the Band until they've vacated.
Enbridge appealed and Duffy said the company may request a stay.
This is just one of the ongoing lawsuits related to Line 5, which is part of the larger Lakehead Pipeline system and daily transports 23 million gallons of crude oil and natural gas liquids used to make propane, from resource-rich tar sands in western Canada to refineries in the southeastern part of that country.
Line 5 originates in Superior Wisconsin, passes through the Bad River Reservation, crosses into Michigan's Upper Peninsula where it runs along US-2. The Straits of Mackinac section is divided into two pipes stretched across the lake bottom. A single pipeline then continues south toward Bay City, angling a bit toward the Thumb and finally crossing back into Canada at Sarnia.
Engineering marvel vs. outmoded technology
When constructed, the pipeline was touted as an engineering marvel.
"Our hope is that the boys from Texas will not take offense at the comparisons we have drawn between the pipelines in their home state and the one that many Texans are now employed in constructing through the Upper Peninsula," teased Escanaba Daily Press columnist Clint Dunathan, in July 1953.
But some say Line 5 has outlived its usefulness.
"I like history," Kirkwood said, "and coming out of World War II, and the engineering prowess of that time? I admire engineers. But I don't think, today, that we should be embracing our energy past.
"It's a past that has led to the current climate crisis."
Since 2019, thousands of pages of court filings, expert reports, amicus briefs and judicial orders logged in a variety of court actions focused on the most controversial sections of the pipeline, point to two opposing legal — and societal — arguments.
On one side is Enbridge and a number of oil and gas companies, energy trade associations and labor unions, who argue Line 5 was built to last, is safe and legal and is a piece of hardware necessary to maintain a steady and affordable supply of energy — at least until an alternative can be approved and built — for consumers in Canada, Michigan and at least one other state.
"Idling Line 5, even temporarily, would have immediate and severe consequences on the economies of Michigan and Ohio," the company states on its website.
On the other side are Michigan officials, Wisconsin and Michigan tribal officials, tourism-related businesses and environmental advocates, who say Line 5 was intended to last 50 years — not 70 — that energy supplies can come from other sources without permanent disruption and that Enbridge's safety record points to an imminent risk of a rupture in the Straits and near the Bad River.
Safety concerns
U.S. Environmental Protection Agency and state regulatory records each show some safety concerns may be warranted.
Enbridge previously settled a multimillion-dollar consent decree with the EPA, after another Enbridge pipeline, Line 6B in southern Michigan, made an "unlawful discharge" of "harmful quantities" of oil into the Kalamazoo River and a nearby creek, in 2010.
The EPA, U.S. Coast Guard and Michigan's Department of Environmental Quality (now called the Department of Environment, Great Lakes and Energy) all had a hand in monitoring the cleanup of what became one of, if not the largest, inland oil spills in U.S. history.
Securities and Exchange Commission filings show the clean-up cost four years later exceeded $1.21 billion. In 2016, Enbridge settled with the federal government for $117 million for Clean Water Act violations related to the Kalamazoo River spill and a spill in Illinois.
The Kalamazoo River spill is repeatedly referenced as the impetus for taking a closer look at Line 5.
"Groups started looking, after the Kalamazoo oil spill, into Enbridge's other pipeline infrastructure," Sean McBrearty, of advocacy coalition Oil and Water Don't Mix, told a FLOW audience last month.
"What we found is that Line 6B can really be seen as a warning sign for what could happen with a Line 5 spill," McBrearty said.
Duffy said Line 5 was actually "over-engineered" when it was built, the standards governing its construction still meet or exceed those for new pipelines and the company added a number of safety measures like "audio listening" and digital leak detection monitoring and conducts quarterly and annual inspections.
Duffy also referenced Enbridge's screw-anchor system which, in 2002, replaced the sandbags Line 5 previously rested on under the Straits and is used in the deepest sections where the pipeline is submerged. In some places, it's in 250 feet of water.
Previous investigations and media reports, however, indicate the screw-anchor system hasn't been fool-proof.
In 2017, for example, officials with then-Gov. Rick Snyder's administration ordered an "aggressive review" of Enbridge's operations in the Straits, after the company disclosed protective coating on the outside of the submerged pipeline had worn off in some places, revealing dinner-plate-sized areas of bare metal.
This likely occurred in 2014 when Enbridge was beefing up the screw-anchor system, according to information provided by the company to the EPA.
Michigan-based lawsuits
Snyder left office in 2018; Gov. Gretchen Whitmer and Attorney General Dana Nessel campaigned on, among other issues, shutting down Line 5 and, in 2019, Nessel sued Enbridge in Ingham County's 30th Circuit Court.
Like the Bad River Band, Nessel has asked a judge to shut down the pipeline.
That case has been steered between state and federal courts and Nessel continues to argue the Straits portion of Line 5 poses an "extraordinary, unreasonable threat" to the Great Lakes.
"The Bad River Band's lawsuit does not have any formal effect on the Michigan case since the Attorney General's lawsuit arises under Michigan law and focuses on the pipelines in the Straits of Mackinac," the AG's press office said Thursday. "However, the two lawsuits are related.
"They both raise a shared concern about the potential release of oil from Line 5 into the Great Lakes. The State has filed an amicus brief in support of the Bad River Band, expressing these concerns."
A federal district court judge agreed with Enbridge that the case belongs in federal court.
Nessel appealed and, in another so-called "watch-party" case, the federal Court of Appeals for the Sixth Circuit will begin accepting briefs on the issue next month.
"Wisconsin is significant because we now have a federal opinion that found a trespass on Indigenous land," Kirkwood said. "What's frustrating in Michigan is we have not even had a venue decision yet on where we're going to lay out the facts."
Duffy said Enbridge is confident the Sixth Circuit will agree to keep the case in federal court.
"The Attorney General seeks to undermine these considerations and promote gamesmanship and forum shopping, while ignoring the substantial federal issues that are properly decided in federal court and not state court," Duffy said.
In a related case, Whitmer, in 2019, sought to revoke the easement allowing Enbridge to operate in the state.
A proposed tunnel under the Straits
While attorneys file briefs and argue in court, Enbridge engineers have turned to their drafting software.
The company is seeking to address the risk of a pipeline leak or rupture by building a tunnel under the Straits. It would contain a new section of pipeline replacing the dual pipes on the lake bottom.
The price tag for the project was estimated, in 2018, at $500 million; in 2021, a former Dow Chemical engineer said his calculations show the cost could top $1.5 billion.
"The projected cost for a 21-foot inside diameter Straits Tunnel with a 2024 completion would be $1.54 billion," said Gary Street, in what he acknowledged in a 2021 document was a "crude" calculation method.
"In my 45 years of experience, such projects nearly always increase in cost, rarely decrease," Street said.
A tunnel agreement between Enbridge and the Mackinac Straits Corridor Authority calls for Enbridge to pay for design, construction, maintenance and operation of the tunnel, but could transfer ownership to the Authority after completion, and lease it back.
State and federal regulatory agencies, and not the courts, at least for now, hold sway over tunnel permitting.
To proceed, Enbridge will need approval from the Michigan Public Service Commission, the Michigan Department of Environmental Quality and the U.S. Army Corp of Engineers.
Approval of the tunnel by MPSC has been contested by environmental groups and others, who've argued, in a proceeding much like a trial, that the tunnel is an untested design and counter to climate change goals.
Arguments closed in May and, in another closely-watched development, Michigan Public Service commissioners have yet to issue a decision.
The Army Corps of Engineers is in the midst of compiling an EIS, or environmental impact statement, related to Line 5's proposed 4-mile tunnel crossing.
Of interest to consumers is, of course, the price and availability of fuel, and facts on this point are hard to come by.
Enbridge has consistently said, if Line 5 were shut down, fuel costs would rise dramatically and be passed on to consumers.
The Bad River Band, in its lawsuit, sought an energy expert to investigate this, and she found Canada, not the U.S., would bear the brunt.
Line 5's "throughput" — an energy industry term for volume of product — is equivalent to 3 percent of North America's crude oil output, Sara Emerson said in her Jan. 1, 2022, report filed in federal court.
Shutting it down would rise prices either negligibly or as much as 0.29 cents a gallon, perhaps more, depending on where replacement product was sourced, she said in her report.
"What is immediately apparent from this analysis of the flows through the Lakehead Pipeline system is that the U.S. refiners are far less dependent on the Line 5 pipeline than the Canadian refiners," Emerson said.
