Michigan regulator: Enbridge needs permission to move Line 5 into tunnel

The Michigan Public Service Commission will not give Enbridge Energy carte blanche to relocate the Line 5 pipeline inside a tunnel beneath the Straits of Mackinac, it ruled Tuesday.

The decision triggers a lengthy administrative process to evaluate Enbridge’s plan to relocate the lakebottom petroleum pipeline inside an underground tunnel; a process Line 5 opponents hope will be a key forum for public scrutiny over the pipeline’s future.

Enbridge had asked the commission, Michigan’s energy regulator, to rule that it doesn’t need the state’s permission to relocate Line 5 inside the planned tunnel. The company argued that the commission’s 1953 approval of the existing dual-span lakebottom line also covers its plan to replace that section with a 30-inch diameter pipeline running through a concrete-lined tunnel deep beneath the lakebed. The company already has the state’s initial approval to build the tunnel, but it now needs the commission’s approval to move the pipeline into it.  

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The commission rejected the company’s argument and refused to grant its approval Tuesday, opting instead to forward the matter as a so-called “contested case,” allowing Enbridge and the public to debate the matter before an administrative law judge. 

Ultimately, commissioners will decide whether to grant Enbridge’s relocation request. The deliberations will test the loyalties of a commission whose political makeup has changed significantly since Democratic Gov. Gretchen Whitmer took office last year, replacing two former appointees of GOP predecessor Rick Snyder, Republican Norm Saari and Independent Rachel Eubanks, with Democrats Dan Scripps and Tremaine Phillips to create a 2-1 Democratic majority, with the third member, Chair Sally Talberg, being an independent. 

As the commission deliberates on the pipeline, Enbridge is moving forward with the tunnel plan. The company is awaiting state and federal permits with the goal of beginning construction on the tunnel next year.

Multiple parties, including Native American tribal governments and environmental groups who have advocated for the pipeline’s shutdown, have filed motions to intervene in the proceedings. They have long called for the 67-year-old pipeline’s shutdown, arguing it poses an unacceptable oil spill risk in the Straits, where it sits exposed on the lakebottom as it pumps crude oil and natural gas between Ontario and Wisconsin. 

Concerns about the lakebottom pipeline’s safety prompted GOP governor Snyder to negotiate the tunnel agreement with Enbridge in 2018, during the waning days of his administration and before his Democratic successor, Gretchen Whitmer, took office. Gaining the commission’s approval to locate the pipeline inside the tunnel is key to executing the plan.

Attorney General Dana Nessel — like Whitmer, a Democrat who has been critical of Enbridge — opposes the tunnel plan, and has launched lawsuits that aim to shut down the existing lakebottom pipeline and nullify the tunnel agreement. 

The debate over the pipeline’s fate has grown more heated since June 18, when Enbridge discovered “significant damage” to the pipeline and briefly shuttered both spans to investigate. That discovery, and Enbridge’s decision to partially reopen Line 5 two days later without the state’s permission, prompted backlash from Nessel and Whitmer, culminating in a judge’s decision last Thursday to grant Nessel’s request for a temporary restraining order closing Line 5 until further notice.

Ingham County Circuit Court Judge James Jamo has scheduled a hearing Tuesday afternoon to consider whether the temporary shutdown should continue. Enbridge argues the pipeline is safe to operate, and that it answers to federal regulators — not Whitmer or Nessel — on questions of pipeline safety. 

Enbridge officials have said the planned $500-million tunnel would virtually eliminate the threat of a Straits oil spill. But the tunnel won’t be complete until 2024 at the earliest, and Line 5 opponents argue that continuing to operate the lakebottom line in the meantime leaves the Straits vulnerable.

Alissa Day, a regulatory affairs staffer for the commission who raised the issue of Enbridge’s request to the commission Tuesday, said the plan to move Line 5 into the tunnel involves “significant factual and policy questions” that can only be resolved with further deliberation.

Commissioners agreed, voting 3-0 to declare that Enbridge does not have authority to relocate the pipeline without their approval.

In a statement Tuesday, Enbridge spokesman Ryan Duffy said the company “respects” the decision and “we look forward to the next steps in the regulatory process.”

“We know that the majority of Michiganders support the Great Lakes Tunnel project, including the replacement pipeline at issue in the MPSC proceeding, and we are committed to building it,” the statement said. “We appreciate the timeliness of the decision by the MPSC as it allows us to remain on schedule for completion of the project.”

As it evaluates Enbridge’s request to relocate Line 5 inside the tunnel, the commission will consider a host of questions about the pipeline’s safety, design and environmental impacts, its usefulness to the public, and possible alternatives to the relocation proposal. The process is expected to take at least a year.

Line 5 opponents plan to use the deliberative process to raise concerns about pipeline safety, and broader questions about the wisdom of investing in new fossil fuel infrastructure during a time of growing concern over climate change and economic shifts that have lowered the cost of renewable energy sources such as wind and solar. 

“This is an opportunity to closely scrutinize what’s happening with the pipeline,” said Mike Shriberg, Great Lakes regional executive director for the National Wildlife Federation. “It will be the first time that there's a real public debate, in a decision-making forum, about whether Line 5 writ large is in the public interest.”

Already, the commission has received thousands of public comments pertaining to Enbridge’s request, Commission Chair Sally Talberg said Tuesday. 

“It helped inform our decision today,” she said. 

The commission has scheduled a hearing on Aug. 24 to collect further public comment. It has not announced a schedule for proceedings before an administrative law judge.