A political and now legal pipeline scrap between Enbridge and the government of Michigan has exposed the vulnerability of much of Eastern Canada’s economy if, as threatened, the state makes good on its threat to shut down two parallel 7.25-kilometre lines under the Straits of Mackinac between Lake Huron and Lake Michigan.

The 51-centimetre lines, known jointly as Line 5, are part of a link between Enbridge terminals at Superior, Wisconsin, and Sarnia, Ontario, an overall distance of 1,038km. Buried until they reach a water depth of 20 metres in the Straits, which bottom out at 90m, they transport up to 86,000 cubic metres a day of light conventional and synthetic crude oil and natural gas liquids (NGLs).

There have been previous calls for a shutdown over the environment threat posed by hypothetical leaks but the latest campaign is fronted by Michigan’s Democratic Party Governor, Gretchen Whitmer, who alleges that there have been repeated violations of a 1953 land easement granted for the lines. “Continued operation of the dual pipelines violates the state’s solemn duty to protect the Great Lakes under the public trust doctrine,” she says.

Whitmer and her Department of Natural Resources (DNR) notified Enbridge last November that the easement would be revoked and the Governor called for operations to cease by May 2021. The delay allowed for what the Governor’s office said would be an orderly transition to protect the state’s energy needs for the rest of the 2020-2021 heating season.

Michigan depends on the NGLs to produce propane that meets more than half of that state’s needs as well as a significant share required by neighbouring Ohio and, beyond that, Pennsylvania.

“After spending more than 15 months reviewing Enbridge’s record […] it is abundantly clear that today’s action is necessary,” DNR Director Daniel Eichinger said. “Enbridge’s historic failures and current non-compliance present too great a risk to our Great Lakes and the people who depend upon them. Our number one priority is protecting the Great Lakes and we will continue to work with our partners across Michigan in pursuit of that objective.”    

Calgary-based Enbridge, which monitors Line 5 continuously, says there have been no leaks from the current infrastructure since it was built 67 years ago by the Bechtel Corp. for Lakehead Pipe Line Company Inc. after the Michigan government had granted the easement.

Enbridge’s head office counters that “there is no credible basis” for terminating the easement. “This notice and the report from Michigan Department of Natural Resources are a distraction from the fundamental facts,” said Vice-President Vern Yu, who also is President of the company’s Liquids Pipelines division. “Line 5 remains safe, as envisioned by the 1953 Easement, and as recently validated by our federal safety regulator. We will continue to focus on […] ensuring the Great Lakes are protected while also reliably delivering the energy that helps to fuel Michigan’s and the region’s economy.”

While the underwater link remains fundamentally sound, minor external damage was found after Line 5 was struck by a tugboat anchor in 2018 but it remains structurally sound. Also, some outer coating has worn through and lakebed erosion has necessitated steel braces in some places and an underwater survey last year found that a screw anchor had shifted. Enbridge had already been faulted for what the state’s Attorney General said was noncompliant with the spacing between anchors.

Enbridge’s response to the incidents and growing concerns about overall safety is a proposed tunnel which it says would enhance protection and facilitate maintenance. In December 2018, the Mackinac Straits Corridor Authority (MSCA), which would own the tunnel and provide independent oversight, approved a multi-purpose tunnel which would accommodate utility lines in addition to the commodity pipelines. The MSCA also approved the transfer of a property right, permitting Enbridge to construct the new tunnel in bedrock.

However, a 10% increase in capacity at a cost of US$100 million, with no change to the pipelines themselves, sparked renewed public concern about the prospects of a submarine spill despite Line 5’s record. That concern was fuelled by spills from other Enbridge lines in Michigan.  By 2016, eight counties or municipalities had called for Line 5’s shutdown.

A subsequent study by the University of Michigan and the National Oceanic & Atmospheric Administration concluded that a leak could affect some 1,100km of shoreline as well as 15% and 60% of open water, respectively, in Lake Michigan and Lake Huron and recommended a shutdown pending a full risk analysis by the state.

But Whitmer has been adamant that Enbridge had been “ignoring structural problems that put our Great Lakes and our families at risk” by presenting “an unacceptable risk of a catastrophic oil spill […] that could devastate our economy and way of life.” 

Last June, the state argued in Michigan County Court that the infrastructure is a public nuisance and violates the Michigan Environmental Protection Act because of the pollution risk. “We cannot prevent accidental or emergency anchor deployments in one of the busiest shipping channels in the Great Lakes,” Attorney General Dana Nessel said. “It only takes one such incident to cause an environmental and economic catastrophe. That is a risk no one should be willing to take".

On the other hand, Republicans in the Michigan Senate say that a shutdown would create other problems, not only the loss of construction jobs from the tunnel project but also the fact that finding other sources of propane could require 30,000 truckloads and 9,600 rail cars annually.

Gov. Whitmer’s May 12 deadline for a Line 5 shutdown has come and gone and now the dispute is headed for the courts, which is Enbridge’s preferred approach to the dispute.

U.S. Energy Secretary Jennifer Granholm, a former Governor of Michigan (2002-2011), said May 11 that President Joe Biden’s Democratic Party administration – which favours an accelerated shift to renewable energy sources – would leave it for Michigan and Enbridge to sort out in the U.S. District Court for the Western District of Michigan.

The same day, however, the Canadian government filed an supporting amicus curiae (friend of the court) brief in support of Enbridge. Arguing that a shutdown would deal a “massive and potentially permanent” blow to Canada’s economy and energy, the brief warns that “a hastily and unduly imposed shutdown would undermine the confidence in reciprocal, enforceable commitments and cross-border co-operation that lies at the heart of the United States-Canada relationship.

Natural Resources Minister Seamus O’Regan pointed out in a statement that the brief supports “continued mediation” between Enbridge and Michigan but that Ottawa’s legal position is that U.S. Federal Court should have jurisdiction. Meanwhile, he was “confident” that mediation would yield a solution.

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Ken Pole