Demonstrators gather on the steps on the Michigan Hall of Justice on Jan. 14, 2025, for a press conference following a hearing challenging a permit for Enbridge’s controversial Line 5 tunnel project. | Kyle Davidson
Attorneys representing Native American tribes and environmental organizations brought their case Tuesday before a three-judge panel in the Michigan Court of Appeals to challenge a 2023 permit from the Michigan Public Service Commission — one of three needed for Enbridge to proceed with its controversial Line 5 tunnel project.
Enbridge’s Line 5 is a 645-mile pipeline stretching from Northwest Wisconsin through Michigan into Sarnia, Ontario, carrying 540,000 barrels of light crude oil, light synthetic crude and natural gas liquids daily through the Straits of Mackinac connecting Lake Michigan and Lake Huron.
Environmentalists, tribal nations and state officials have offered strong opposition to the 70-year-old pipeline, warning that if Line 5 ruptures, the impacts would be catastrophic.
These concerns have only intensified with Enbridge identifying gaps in Line 5’s protective coating in 2014 and an anchor strike in 2018 that dented the pipeline in three places.
Proposed as a solution to these concerns, Enbridge’s Line 5 tunnel project would move the dual pipelines in the Straits into a concrete-lined tunnel embedded beneath the lakebed. The project must receive permits from the Department of Environment, Great Lakes and Energy (EGLE), the Michigan Public Service Commission (MPSC) — which regulates the natural gas and electricity industries in Michigan — and the U.S. Army Corps of Engineers.
The MPSC approved its permit for the tunnel project in December 2023, with Chair Dan Scripps saying the concrete lined tunnel embedded in the bedrock below the lake represented the best option to mitigate the danger the pipelines currently present upon reviewing potential alternatives to Line 5.
The decision was appealed by the Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and Nottawaseppi Huron Band of the Potawatomi, alongside several environmental organizations.
This is the case that the appeal court heard Tuesday in Lansing.
Representing the tribal appellants, Adam Ratchenski, a senior associate attorney at the environmental group Earthjustice, detailed the threat the Line 5 tunnel project would pose to natural, cultural and economic resources within the Straits. He argued the MPSC had erred by blocking parties intervening in the case from submitting evidence tied to two key questions: the public’s need for the petroleum products transported through Line 5 and the scope of project’s environmental impacts, including the risk of pollution from oil spills.
In response, Ratchenski said his clients were requesting the court overturn the Public Service Commission’s decision, and instruct the commission to allow intervening parties to submit evidence on the public need for the pipeline’s products and the likelihood of an oil spill.
Similarly, Mark Granzotto, the attorney representing the Environmental Law and Policy Center and the Michigan Climate Action Network, argued the commission had disregarded testimony regarding the project’s impacts on climate change and greenhouse gas emissions submitted by his clients.
Carrie La Seur, legal director for the Great Lakes advocacy group For Love of Water (FLOW), also argued that the commission had not considered alternatives to the pipeline outside of the Straits of Mackinac, failing to meet the requirements of the Michigan Environmental Protection Act.
On remand, La Seur asked for the opportunity for parties to present evidence supporting additional alternatives, such as rerouting the pipeline outside the straits, or utilizing unused capacity in Enbridge’s other pipelines, or that a no-action response was unlikely to result in the pipeline’s continued operation.
However, Enbridge attorney John Bursch — a former Michigan solicitor general who has represented a number of conservative causes —and Assistant Attorney General Daniel Sonneveldt, who represented the MPSC, argued that if the MPSC denied Enbridge’s permit to proceed with the tunnel project, the pipeline would continue operating under the current status quo.
“I do believe my client does believe the only issue for the choice before the commission of this matter was to either approve the application or deny the application or deny the application. The effect of the denial of the application is that the existing seabed pipeline would continue to operate across the Straits of Mackinac. It would continue to run the product through that pipeline and the risk of the spill still remains and exists there,” Sonneveldt said.
“There was no option before the commission that would result in the ceasing of the operation of the pipeline. That’s important, I think, because I hear the arguments raised by the appellants, and I think a lot of them seem to either rely on this assumption that there’s a path forward, in this case, to shut down this pipeline, or that there was other options available to the commission,” Sonneveldt said.
Bursch also argued the pipeline’s opponents were using the company’s effort to replace four miles of the pipeline as an avenue to attack the entire pipeline, and that the evidence raised by the pipeline’s opponents was outside of the scope of what the MPSC needed to consider.
When considering public need for the project, the commission is limited to the four-mile section of the pipeline set to be replaced through the tunnel project, Bursch said, later arguing that the commission had examined evidence for alternatives to the tunnel and concluded they were worse than the status quo.
While Bursch acknowledged other efforts to shut down the pipeline, including Michigan Attorney Nessel’s case, which is set to resume in state court later this month, he argued these efforts are not what was before the court on Tuesday.
“You just have a very simple job, and that’s to ask whether the MPSC erred in saying that the replacement project had a public need and resulted in an improvement of the environment rather than an impairment of it,” Bursch said.
During a press conference following the hearing, La Seur said the attorneys on the case believe a no-action response would instead trigger a consideration of the impact of Line 5, not just in the Straits, but for the whole length of the pipeline, pointing to previous Line 5 spills outside of the straits and from other Enbridge-operated pipelines.
Ratchenski argued that Enbridge had presented a false choice to the court and the commission, pointing to Nessel’s case and Michigan Gov. Gretchen Whitmer’s decision to terminate Enbridge’s easement to operate the pipeline within the Straits.
“They’re currently trespassing on state owned bottom lands. And it’s just not reasonable to conclude that the feds or the lifespan of these pipelines or other agencies will just allow them to sit in the straits forever and ever,” Ratchenski said.
Additionally, the tunnel project would be a massive undertaking, carrying additional uncertainties and risks for pollution, Ratchenski said.
In addition to the MPSC permit, Enbridge must also secure another permit from EGLE, after agreeing not to act on a 2021 permit set to expire on Feb. 25, 2026. In its next permit application, Enbridge must incorporate the results of the results of the new wetlands surveys that were not available when EGLE considered the company’s first application.
Enbridge must also obtain a permit from the U.S. Army Corps of Engineers, which extended the timeline for its environmental review of the project in 2023, with the agency expected to issue its draft environmental impact statement this spring.
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