The Michigan Supreme Court announced Friday that it will hear two challenges to the Michigan Public Service Commission’s permit for Enbridge Inc.’s proposed tunnel in the Straits of Mackinac for its Line 5 oil and natural gas pipeline.
One challenge comes from a coalition of four tribes in Michigan: the Little Traverse Bay Band of Odawa Indians, Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, and Nottawaseppi Huron Band of the Potawatomi, alongside the Environmental Law and Policy Center and the Michigan Climate Action Network.
The other challenge comes from a Traverse-City based group called For the Love of Water (FLOW).
Both appeals question whether the Michigan Public Service Commission followed Michigan law in granting Enbridge a permit to build the Line 5 tunnel.
The appeal from the tribes asks the court to look more closely at whether the tunnel violates the Michigan Environmental Protection Act and questions the decision to exclude evidence of the history and risk of oil spills along the entire length of Line 5.
In a written statement from Earthjustice, a group representing the tribes, attorney David L. Gover said “the Commission omitted testimony from the Bay Mills Indian Community about the project’s impacts to their Treaty protected rights in the Straits of Mackinac, a sacred place for Bay Mills and other Tribal Nations."
Gover is an attorney with the Native American Rights Fund. His remarks were part of the Earthjustice statement.
“Only after excluding all of this evidence did the Commission evaluate if Enbridge should have a permit for the proposed Line 5 tunnel project," Gover went on to say in the statement. "The Michigan Supreme Court will hear our demand that the Commission conduct a thorough analysis and fulfill its duty to protect Michiganders, including Tribal Nations, from Line 5.”
The appeal from FLOW claims the Michigan Public Service Commission didn’t think broadly enough about protecting the lake as a public resource.
Carrie La Seur, FLOW’s legal director, said the group plans to argue that, under the “public trust doctrine” in the state of Michigan, the Public Service Commission has a mandate to “account for the value to the public as a whole of having these resources intact and protected.”
She noted that the Michigan Supreme Court invited the State Bar of Michigan Environmental Law Section and Real Property Law Section to file amicus briefs.
“I think it suggests how unusual this case is,” she said. “They're trying to get a really broad set of input. These are unusual questions.”
In a statement, Enbridge said it is confident in the Michigan Public Service Commission’s permitting process.
“The Michigan Court of Appeals concluded that the MPSC appropriately examined the location of the Line 5 replacement segment within the Great Lakes Tunnel, consistent with Michigan law,” the statement said.
“As we proceed with this modernization project, we remain committed to operating Line 5 responsibly with enhanced safety measures in the Straits that protect Michigan’s natural resources.”
A separate challenge to the Line 5 tunnel is working its way through federal court. Last week, the US Department of Justice filed a statement of interest in the US District Court for the Western District of Michigan, which is considering a 2020 notice from the state terminating Enbridge’s easement for the Line 5 pipeline.
“The federal government already comprehensively regulates pipeline safety, but Michigan is trying to usurp the Department of Transportation’s statutory authority,” said Acting Assistant Attorney General Adam Gustafson in a statement. “President Trump has made clear that the United States will not tolerate state overreach that interferes with American energy dominance.”
