The Enbridge Line 5 Pipeline has stirred controversy in Michigan for most of the past decade. This pipeline carries Canadian oil products from Superior, Wisconsin to southern Ontario via Michigan.

A five-mile span of the pipeline runs along the lake-bed beneath the Straits of Mackinac, from Michigan’s Upper Peninsula to the Lower Peninsula. If When this pipeline ruptures, it can release up to one million gallons of oil into the heart of the Great Lakes – the largest source of freshwater on the planet.

A recent public opinion poll shows that a majority of Michigan citizens want the Line 5 Pipeline shut down entirely; and, nearly two-thirds of northern Michigan residents want the Line 5 Pipeline shut down.

The Bay Mills Indian Community, along with every other federally recognized tribe in Michigan, wants the Line 5 Pipeline shut down and removed from the Great Lakes. An oil spill in the Straits of Mackinac would destroy the drinking water source for many of our communities, cause lasting damage to our environment and public health, and irreparably damage the fishing rights our tribe reserved in the 1836 Treaty of Washington.

The concern about the safety of this pipeline is not hypothetical: in 2010, a separate pipeline owned & operated by Enbridge broke open, and spilled more than 800,000 gallons of oil into the Kalamazoo River system in southern Michigan.  It was the largest on-shore oil spill in the history of the United States. Earlier this year, a boat dropped an anchor in the Straits of Mackinac, damaging the Line 5 Pipeline itself and causing a chemical spill from an adjacent electrical transmission line.

The State of Michigan has responded to the public scrutiny of the Line 5 Pipeline by studying the situation. In November 2017, the State of Michigan signed an agreement with Enbridge to allow the Line 5 Pipeline to continue to operate beneath the Straits of Mackinac under certain restrictions (for the time being). The State is also continuing to study some alternatives to the existing pipeline; including whether the Line 5 Pipeline should be moved into a tunnel beneath the Straits.

Michigan’s tribes, and the public, have focused on engaging the State of Michigan in its review process.

While we have all been engaged on the State’s review process, it appears that the Federal Environmental Protection Agency has been working with Enbridge to ensure that it is able to continue to operate the Line 5 Pipeline for the foreseeable future.

The timeline of events can get a little confusing, but I will set it out here as clearly as possible:

• Several years after the 2010 Enbridge oil spill in the Kalamazoo River System, the U.S. Environmental Protection Agency and the U.S. Department of Justice filed a lawsuit against Enbridge. The lawsuit related to Enbridge pipelines operating in southern Michigan and Illinois.
• In 2016, at the end of the Obama Administration, the Federal Government negotiated a settlement agreement with Enbridge. That agreement required Enbridge to take certain steps to make its pipelines safer. It also required Enbridge to make certain changes to the Line 5 Pipeline beneath the Straits of Mackinac – which had nothing to do with the Kalamazoo River System oil spill. The EPA and the Department of Justice did not notify the tribes who have protected treaty rights in the Straits of Mackinac that the Federal Government was proposing changes to the Line 5 Pipeline. I wrote about this issue here.
• Upon learning about the proposed settlement agreement, the Grand Traverse Band of Ottawa and Chippewa Indians filed a pleading in the case to object to the agreement. The Court simply ignored the pleading, and did not issue a ruling on it. The EPA and DOJ met with the Michigan tribes to hear their concerns, but made no changes to the agreement and made it clear that they were not obligated to consult.
• The settlement agreement was finalized and entered as a Federal Court order in 2016.

Over the past several years, Enbridge has been working to make structural changes to the Line 5 Pipeline a little bit at a time. This work has included replacing and installing new anchor supports. Enbridge’s work has been exempted from scrutiny under the National Environmental Policy Act, because each action has been relatively minor.

The National Environmental Policy Act, and related federal regulations are intended to prohibit “segmentation” – breaking a large environmental impact into very small pieces, in order to avoid environmental review.

Earlier this year, Enbridge filed a request with the U.S. Army Corps of Engineers for permission to install 48 new anchor supports on its Line 5 Pipeline. In a change from its previous practice, the Army Corps of Engineers agreed to consult with Michigan’s treaty tribes over this large-scale construction work on the Pipeline. The Army Corps went even further, and announced that it would actually require Enbridge to undergo the review process under the National Environmental Policy Act.

This was a large step, and a recognition by the Army Corps of Engineers that Enbridge was going far beyond small repairs and maintenance on the Line 5 Pipeline. It appears that the Army Corps of Engineers recognized what has been apparent for some time – Enbridge is effectively trying to construct a new pipeline beneath the Straits of Mackinac.

This is where the EPA comes in.

On May 3, 2018, the EPA issued a letter to several tribal leaders in Michigan (including myself) informing us that they were proposing an amendment to the 2016 settlement agreement with Enbridge that would require allow Enbridge to install new anchor supports on the Line 5 Pipeline beneath the Straits of Mackinac. The EPA informed the tribes that, if we wished to comment on changes to the settlement agreement, we would have to meet EPA officials within 10 days to do so.

The Tribes were not provided with copies of the proposed changes to that agreement. Nearly a month later, we still haven’t seen the proposed changes (we’ve asked).

Here is the consequence of the EPA’s secret negotiations with Enbridge: If the EPA and Enbridge change their settlement agreement to allow Enbridge to install dozens of new anchor supports on the Line 5 Pipeline, the Federal Court will approve the agreement and enter it as a Court Order. Federal court orders have the force of law, and federal agencies have no discretion on whether to comply with the law. This means that federal agencies would have no discretion to deny Enbridge’s request to change the Line 5 Pipeline.  When a federal agency doesn’t have discretion to make a decision, it is often exempted from conducting environmental review.

The ultimate conclusion would be that Enbridge could effectively be allowed to construct a new oil pipeline beneath the Straits of Mackinac without any public scrutiny or environmental review process. And, our Great Lakes and tribal treaty rights will be put at greater risk without any meaningful chance to provide input to our Trustee – the United States Federal Government.