DETROIT – There is probably no more controversial environmental issue in Michigan than the twin oil-carrying pipelines at the bottom of the Straits of Mackinac.
Environmentalists have campaigned for years to shut it down, noting that a break in the 66-year-old pipeline could do irreparable damage to both Lakes Michigan and Lake Huron, two of the most important sources of fresh water in the world.
The pipeline is owned by Enbridge Inc., a Canadian-based multinational firm with a spotty safety record. In his very last days in office, outgoing Gov. Rick Snyder rushed through legislation to allow Enbridge to put Line 5, which is actually two separate pipelines, in a concrete tunnel. The governor and the outgoing legislature set up a Mackinac Straits Corridor Authority to oversee it.
Now, however, a new attorney general has declared that the legislation establishing the tunnel authority is unconstitutional. The new governor promptly ordered any work to stop.
But that left big, unanswered questions, beginning with — what happens next? The attorney general’s March 29 ruling puts any plan for a tunnel on hold, and effectively has the force of law unless overturned by a court. But will it be challenged?
The attorney general’s opinion did not actually abolish the corridor authority, though it left it in limbo.
And it did nothing to shut down or shut off Line 5 itself. Oil, gas and propane are still flowing through the ancient pipelines, up to 540,000 barrels of it a day.
Both newly elected Gov. Gretchen Whitmer and Attorney General Dana Nessel pledged during their campaigns to shut it down.
But will they move to do so? Can they succeed?
Nobody yet knows.
First, a little background: The pipeline was finished almost a lifetime ago, in the fall of 1953. For years, few were aware of it, or paid much attention if they were.
Then, in July 2010, another Enbridge pipeline, Line 6, ruptured near the Kalamazoo River. When alarm bells went off, incompetent Enbridge workers at first concluded the line was only clogged, and attempted to force more oil through it.
The result was a disaster that cost more than $1 billion to clean up. Suddenly, people became aware of Line 5. Enbridge’s image wasn’t helped when it turned out that despite company claims, much of a protective coating on the pipes had worn away.
Last year, jitters increased after a boat’s anchor dented, but fortunately did not rupture, one of the lines.
Despite cries to shut Line 5 down, Gov. Rick Snyder, a business-friendly Republican, then helped jam a bill authorizing the tunnel through a lame-duck session of the legislature.
The process was hasty and sloppy. Originally, the governor wanted to turn supervision of the tunnel over to the Mackinac Bridge Authority; when those commissioners protested, he decided to create a new Mackinac Straits Corridor Authority.
The idea of putting the pipeline in a tunnel set off angry protest s from environmentalists, even though Enbridge would have to foot what was estimated to be a $350 million bill. Opponents said it would still not keep the lakes safe, and that it would take close to 10 years to encase all 4.5 miles of underwater pipeline.
The legislation also was rushed through in such indecent haste that it contained embarrassing errors. For example, it called for members to serve six year terms, when the Michigan Constitution limits such terms to four years. The governor then appointed three members, two of whom resigned within days.
Then, on March 28, Ms. Nessel ruled the bill unconstitutional on the grounds that its title didn’t accurately say what it did.
Governor Whitmer, herself a lawyer, immediately agreed. Republicans, who still control both houses of the legislature, didn’t.
Senate Majority Leader Mike Shirkey, who is not a lawyer, blasted Ms. Nessel’s opinion, claiming that Michigan’s attorney general “doesn’t have the power of scrutiny over constitutional issues.”
However, he is dead wrong, according to the man who served as Michigan’s attorney general longer than anyone in history.
“It has the force of law unless it is overruled by a court,” said Frank Kelley, who held the job from 1961 till 1999.
That may mean the whole tunnel idea is dead, since it isn’t clear whether Enbridge or anyone else will challenge Ms. Nessel’s opinion, or even who has legal standing to do so.
Technically, the legislature could clean up the language and pass a new bill authorizing a tunnel – but it isn’t clear if it would pass now, and it seems virtually certain that Governor Whitmer would veto it.
But if the tunnel is dead, that doesn’t mean the environmental problem is solved. Actually it could get even worse.
Enbridge could choose to go on pumping oil as it always has. But the attorney general has vowed to shut it down.
Doing that would most likely mean the attorney general and the governor would first move to revoke the 1953 easement that gives the Canadian firm the right to use the straits.
That almost certainly would be followed by lawsuits filed by Enbridge and perhaps other actors, suits that could go on for years.
What seems clear, if anything does, is that the battle of the pipeline is unlikely to end anytime soon.
But how necessary is Line 5? As far as Michigan is concerned, not very much. Most of what the pipeline carries is oil from one part of Canada to another, via Michigan.
It does, however, drop off some propane, which is used widely for heat in Michigan’s sparsely populated Upper Peninsula. Enbridge claims Line 5 supplies 65 percent of the UP’s propane.
Other studies, however, indicate the figure may be a lot less. And the National Wildlife Foundation commissioned a study last year that concluded that if the pipeline were shut down, the propane needed could be trucked in at a cost of no more than five cents a gallon.
