Legal Battles Continue Over Short Oil Pipeline Under Great Lakes Straits

Damage to anchor support EP-17-1 on the east leg of the Enbridge Line 5 pipeline within the Straits of Mackinac in Michigan is seen in this June 2020 photo. The Canadian Press/HO-AP, Michigan Department of Environment, Great Lakes, and Energy

The seven-year fight to keep oil and natural gas flowing under a major Michigan waterway may be headed to the state Supreme Court.

Enbridge, a large Canadian energy pipeline company won a major legal victory last week when the Michigan Court of Appeals refused to block a permit to construct a 30-inch diameter oil pipeline beneath the lakebed in the Straits of Mackinac.

The straits are the narrow point in northern Michigan where Lake Huron and Lake Michigan come together.

Plans call for the building of a new concrete-lined tunnel that will encase a four-mile stretch of Line 5—a 645-mile-long metal pipeline carrying light crude oil and natural gas liquids from Wisconsin, through Michigan’s Upper Peninsula, and across the Lower Peninsula—to refineries and distribution centers in Sarnia, Ontario.

Currently, that segment of the pipeline comprises two 20-inch metal pipes that move natural gas liquids and 540,000 barrels of light crude oil daily across the straits.

Completed in 1953, the four-mile segment of Line 5 at the straits has not experienced a spill in 65 years, according to the Enbridge website.

Opponents of Enbridge point to the large crude oil spill that contaminated the Kalamazoo River in southern Michigan in 2010 as evidence of the danger posed by pipelines.

The litigation that resulted in the recent appeal began in 2023 when the Michigan Public Service Commission (PSC) conditionally approved Enbridge’s permit application to relocate its existing lake-bottom pipeline to an underground tunnel bored beneath the lakebed.

The two conditions were that Enbridge procure all necessary state and federal permits and prepare a detailed risk management plan.

Enbridge first applied for the PSC permit in April 2020.

The appeal was filed by the Little Traverse Bay Bands of Odawa Indians and a coalition of environmental groups.

The appellants contend that the PSC should not have approved Enbridge’s permit because they state the entire Line 5 pipeline is an environmental hazard that must be shut down.

Michigan Attorney General Dana Nessel is the plaintiff in a separate pending lawsuit against Enbridge to do just that.

In late 2020, Governor Gretchen Whitmer gave Enbridge six months to stop the flow of oil and natural gas through Line 5. Her order was overturned in the courts.

Environmental Threat Mitigation

According to legal filings referenced in the appeals court’s decision, Enbridge said the greatest threat to the present underwater portion of the pipeline is from tugboats, freighters, and other large vessels that may drag an anchor into it or drop an anchor on it.

Going subterranean with a tunnel lined with concrete eliminates that possibility and will be an effective barrier against oil spills, the company stated.

Michigan Attorney General Dana Nessel. Office of the Attorney General of Michigan

In October 2018, the U.S. Coast Guard banned large ships from dropping anchor in the straits citing continued damage to utility cables and the potential of rupturing the pipeline, which was struck several times but not breached.

Successfully obtaining the PSC permit was the first major step in a project that has been mired in the bureaucracy and the courts since 2018.

More Permits Required

The project must still be permitted by the Michigan Department of Environment, Great Lakes, and Energy, as well as the United States Army Corps of Engineers before any construction can begin.

President Donald Trump’s executive orders and policies regarding energy development put Line 5 on the shortlist to be fast-tracked for federal approval.

Critics have alleged that Line 5 only benefits Canada and does nothing for the people of Michigan but expose its waters and land to the risk of a spill.

According to the appeals court ruling, Enbridge officials replied that Line 5 benefits Michigan by sending natural gas liquids to a propane production facility in Rapid River and delivering light crude oil to facilities that interconnect with other pipelines in Lewiston and Marysville, Michigan, that supply many of the state’s industries.

Sixty-five percent of the residents of the Upper Peninsula rely on propane to heat their homes, according to Enbridge.

In 2018, the Michigan Legislature declared that the purposes of Line 5 were “for the benefit of the people of this state,” according to the appeals court decision.

Opponents Made Their Case

According to the ruling, the tribes and the environmental groups complained the PSC had not considered that, given the rise of renewable energy, Line 5 may not be needed.

The appellants also contended that the comparison provisions of the Michigan Environmental Protection Act regarding alternatives to the project had not been properly followed.

Some of the rejected alternatives to the pipeline transport of oil were rail cars, or tanker ships and barges.

The appellants also expressed concern about the impact of greenhouse gas emissions “as they relate to supply of and demand for petroleum products.”

Relocating the oil pipeline into what may also be eventually used as a utility tunnel for powerlines and communication cables was supported by a couple of energy companies, a labor union, and several statewide business groups, who extolled the economic benefits of the project.

Working Together

According to the legal filings, Enbridge noted that the Michigan Legislature enacted a law in 2018 that created an entity within the Michigan Department of Transportation called the Mackinac Straits Corridor Authority (MSCA) to enter into agreements involving the construction, operation, and maintenance of the tunnel.

Later in 2018, Enbridge agreed to construct the tunnel and build and maintain the 30-inch pipeline within the tunnel at its own expense, but under the auspices of the authority.

In 2018, the MSCA also secured an easement from the Michigan Department of Natural Resources for the tunnel—a move hotly contested by environmentalists.

Upon completion, Enbridge will sign a 99-year lease with the authority to operate and maintain the new 30-inch pipeline.

The MSCA was a co-defendant in the appeal.

The two underwater pipes of the old Line 5 that sit on top of the lakebed will be permanently shut down when the new pipeline is completed.