Michigan Supreme Court vacates key Line 5 permit, it goes back to MPSC

The Michigan Supreme Court on Friday ruled that the Michigan Public Service Commission erred when it granted a key permit for the Line 5 petroleum pipeline tunnel under the Straits of Mackinac.

Among other findings in its 58-page ruling, the majority found the commission’s permit review was overly narrow, failed to consider whether the tunnel project would harm public rights to the Great Lakes, and failed to study whether Line 5 would shut down if the tunnel isn’t built.

“To accurately assess the environmental consequences of the Replacement Project, the PSC should have determined whether the project would be the proximate cause of Line 5’s continued operation and its alleged attendant harms,” stated a majority opinion written by Justice Elizabeth Welch.

The 6-1 decision sends the matter back to the commission with an order to “fully assess the Replacement Project’s potential harms.”

Justice Brian Zahra agreed that commissioners failed to consider impacts on public use rights in the Great Lakes, but disagreed with the rest of the majority opinion.

Friday’s ruling represents a victory for Line 5 foes who have argued the tunnel would harm the environment by locking in decades of continued fossil fuel transports along a 73-year-old pipeline that would otherwise soon shut down.

And it further clouds the fate of the proposed tunnel project, which has been in limbo since it was first proposed eight years ago in response to growing concern that Line 5 could cause a catastrophic oil spill in the Great Lakes.

"Today is a reminder that when people stand together with courage and conviction, change is possible," Bay Mills Indian Community President Whitney Gravelle said in a written statement.

Gravelle’s tribe challenged the permit along with the Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, and Nottawaseppi Huron Band of the Potawatomi.

“For years, Tribal Nations, communities, and thousands of people across the country have raised their voices to protect the Great Lakes,” Gravelle said. “This decision gives us another opportunity to honor our treaty rights, protect our waters, and consider the generations who will inherit this place.”

Enbridge spokesperson Ryan Duffy expressed disappointment with the decision and said the company is assessing its legal options.

“One thing remains unchanged, we are fully committed to the safe and responsible operation of Line 5, incorporating enhanced safety measures in the Straits and continuing to safeguard Michigan’s natural resources now and for future generations,” Duffy said in a statement to Bridge Michigan.

The ruling stems from the Public Service Commission’s December 2023 approval of a key permit for the proposed tunnel, which would reroute a 4-mile segment of the 645-mile pipeline that currently sits exposed on the lakebottom as it transports petroleum products from Superior, Wisconsin to Sarnia, Ontario.

A coalition of four Michigan tribal nations, the Environmental Law & Policy Center, Michigan Climate Action Network and Traverse City-based environmental group FLOW (For Love of Water) challenged the approval, arguing the commission’s analysis was flawed and the pipeline should be shut down rather than merely rerouted.

The issue reached the state Supreme Court after the Michigan Court of Appeals sided with the state.

In March arguments before the high court, an attorney for environmental groups challenging the permit argued the decision had been based on “a lopsided analysis that needs to be corrected.”

Enbridge lawyers argued the commission had correctly determined that building the tunnel is the best way to avoid a spill — a conclusion that rested in part on the belief that Enbridge had the legal right to keep operating Line 5.

In their ruling Friday, the court’s majority rejected that logic.

“Line 5’s continued operation, with and without the Replacement project, was a factual question, not just a legal one,” they wrote.

The justices also found that, when analyzing possible alternatives to the tunnel project — a required step in the permitting process — commissioners applied their analysis inconsistently.

For example, they took a narrow view of the oil spill risks caused by transporting Line 5’s products, considering the possibility of spills only in the Straits rather than along the length of the pipeline (which has repeatedly caused inland spills). They then took a broad view of spill risks from tunnel alternatives such as rail transport, assessing risks along the entire length of the hypothetical rail route.

Such inconsistencies amounted to “errors that did not allow for a reasoned choice among the alternatives,” Welch wrote.

Finally, the majority concluded, the commission failed to consider “whether the Replacement Project would pollute, impair, or destroy public trust resources.”

Michigan’s public trust doctrine says the state holds resources like the Great Lakes and bottomlands in trust for the people.

David Scott, an attorney who represented the Environment Law & Policy Center in the case, said the ruling brings “important precedent and clarity” about how state agencies must uphold Michigan’s environmental laws.

“I think this is the most important opinion from the Michigan Supreme Court under (the Michigan Environmental Protection Act) in probably decades,” Scott said.

Friday’s state Supreme Court decision further clouds the fate of a tunnel originally pitched in 2018 as a four-year, $500 million project that would come online by 2024.

The Michigan Department of Environment, Great Lakes and Energy recently granted one of the final permits Enbridge needs for the project, but the Bay Mills Indian Community has vowed to appeal the decision.

Enbridge is also awaiting a federal permit that the US Army Corps of Engineers appears poised to grant.

Meanwhile, the existing pipeline continues to transport oil across Michigan and into Canada through the open water of the Straits in defiance of a 2020 shutdown order from Gov. Gretchen Whitmer.

Dueling lawsuits in state and federal court will settle the question of whether Enbridge can legally keep pumping oil through the Straits. One case is on appeal after a federal District Court judge ruled in December that federal pipeline safety law leaves Michigan no authority to order a shutdown. The other is on hold in state court pending the outcome of the first case.

A 2017 state-commissioned report found Line 5 has a 1-in-60 chance of breaking by 2053, while reports have offered varying estimates of how far oil might spread, from about 20 miles to several hundreds of miles.

Moving the pipeline into an underground tunnel would reduce the spill threat to “virtually zero,” according to a 2018 Enbridge report. But state environmental reviews have concluded the tunnel project would cause other harms, such as disturbing Native American burial sites, harming wetlands and rare species, and enabling continued reliance on fossil fuels that are dangerously warming the climate.

This article first appeared on Bridge Michigan and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.