A decision from the Michigan Supreme Court last week about a Line 5 permit may have lasting impacts on the state’s environmental protection laws, well beyond the pipeline.
This story is made possible through a partnership between Interlochen Public Radio and Grist, a nonprofit environmental media organization.
When justices vacated a permit issued by the Michigan Public Service Commission (MPSC) for Enbridge Energy’s Line 5 tunnel project, they also likely expanded what state agencies must consider when evaluating projects for environmental harms.
“Any unfinished decision currently being considered, and any decision down the line that implicates the Great Lakes and the land submerged by those Great Lakes, is absolutely going to have to follow this opinion,” said Oday Salim, director of the environmental law and sustainability clinic at the University of Michigan.
Legal experts said the ruling strengthens Michigan’s public trust doctrine — a common law that says the state has to protect the public’s ownership of the bottomlands and waters of the Great Lakes for certain uses, like for fishing or navigating. The public trust doctrine is rooted in the ancient Roman idea that some resources are so important they can’t be privately owned, and should be protected for the benefit of the people.
The MPSC declined to consider the doctrine when it initially took up the permit review for Enbridge’s tunnel project, a move that the Michigan Court of Appeals agreed with because the commission only has powers granted to it by statute.
The supreme court justices not only said this was an error that the MPSC must correct on a new review of the permit, but clarified that state agencies are required to consider public trust impacts under the Michigan Environmental Protection Act (MEPA).
“We cannot fault (the MPSC) for this failure, because there was little authority on this issue prior to our decision today. Even so, it was error,” the opinion stated.
“It is literally breathing life into the law,” said Liz Kirkwood, executive director of Flow Water Advocates, which argued for public trust considerations in the Line 5 case. “It becomes part of an agency's action, and it's telling them that this has to be part of their muscle memory.”
While the public trust doctrine was already written into MEPA for agencies to consider, Salim said each agency has done it differently and there was a patchwork of cases on the topic.
“Sometimes it’s also about who is challenging, who’s pushing back on those agencies and telling them they’re not going far enough or that they’re doing something incorrectly,” he said.
Some also saw the court ruling as a win for tribal treaty rights. The public trust doctrine is a sister law to treaty rights, said Whitney Gravelle, president of the Bay Mills Indian Community, which was a plaintiff in the Line 5 case.
“We are constantly trying to protect the resources that the treaty right relies upon, so that we can enjoy their use for generations to come. And so, I see a lot of parallels,” Gravelle said.
She said the court ruling paves the way for a more proactive and holistic approach to agency environmental reviews.
“You can’t have a treaty right to fish if you don’t have healthy waterways for fish to spawn. You can’t have a treaty right to hunt if you’re cutting down forests and filling wetlands. You can’t have a treaty right to gather if you’re polluting waterways and watersheds that are impacting plant species that you rely on for ceremonial or medicinal purposes,” Gravelle said.
The court ruling also expanded the scope of environmental harms that state agencies must consider in MEPA reviews, said Salim with the University of Michigan.
“Maybe that's going to be limited to the geographic footprint of the conduct, and maybe not. Maybe we have to go upstream and downstream and think about the harms that occur there,” he said.
Hear Vivian explain the Line 5 permit case on the Up North Lowdown.
In the case of Line 5, the court found that the MPSC incorrectly limited its analysis to just the tunnel project itself — Enbridge wants to replace an aging 4-mile segment of the dual pipelines in the Straits of Mackinac with one encased in a tunnel buried in the lakebed.
On a new review of the permit, the MPSC should determine whether the project would have future impacts on natural resources and the public trust if the tunnel extends the pipeline’s lifespan.
Adam Ratchenski with the environmental legal nonprofit Earthjustice said this broader scope has huge implications for future environmental review decisions in Michigan.
“Any sort of project that threatens pollution and destruction of natural resources, which often is intertwined with public health detriments and folks suffering the effects of that, it's a big deal,” he said.
Those projects could range from an asphalt plant emitting harmful air pollution to a nearby neighborhood, or a mine that threatens pollution beyond the actual site, Ratchenski said.
Future lawsuits will likely test the limits of this new ruling.
But taken together, by broadening MEPA and clarifying state agencies’ roles in the public trust doctrine, Salim said, there are more tools now to protect natural resources in Michigan.
“We're going in a better direction, not a worse direction,” he said. “And I think that's all really good news for natural resources and for the human communities who rely on them.”
