“DIRE STRAITS” - OIL TRANSPORT IN THE GREAT LAKES BASIN ENVIRONMENTAL LAW SECTION WEBINAR, OCTOBER 14, 2015 JIM OLSON

FLOW Reports

1. Legal Analysis of Line 5, December 2013 to April, 2014. 2. Letter and Appendices to Governor’s Oil Pipeline Task Force, July 1,

2014, summarizing legal action and request for action to eliminate oil from Line 5 under Straits of Mackinac.

3. Composite Summary of Expert Comments, Findings, and Opinions on Enbridge Line 5 Oil Pipeline in Straits of Mackinac, April 30, 2015.

4. Scientific and Legal Policy Report on the Transport of Oil in the Great Lakes (Line 5 under the Straits), September 21, 2015.

A SCIENTIFIC AND LEGAL POLICY REPORT ON THE

TRANSPORT OF OIL IN THE GREAT LAKES: (1) RECOMMENDED IMMEDIATE ACTIONS ON THE TRANSPORT OF OIL THROUGH LINE 5 UNDER THE

STRAITS OF MACKINAC; AND (2) SUPPLEMENTAL COMMENTS ON THE MICHIGAN

PETROLEUM PIPELINE TASK FORCE REPORT Jim Olson and Liz Kirkwood

Flow for Love of Water Great Lakes Public Policy Center

September 21, 2015

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-645 miles long from Superior, WI to Sarnia, Ontario -30-inch pipeline on land -Twin 20-inch pipelines under Straits of Mackinac, 4.6 miles long -23 million gallons transported daily -(540,000 bpd) – 80% increase over original design (120,000 bpd) -1 million gallons of oil in pipeline

www.awesomestudio.com 6

ENBRIDGE LINE 5

Routes and Capacity 1. Line 5 to Sarnia – 30 in. dia. • original design 120,000 bbl. • Currently 540,000 bbl. (80% increase) • 50 - 80% crude oil, 20 - 50% NGLs 2. Line 5 spur from Marysville/Sarnia to

Detroit Marathon and Toledo – 16 in. dia. Source: Enbridge, MPC, SD&P Crude Oil Analysis

Line 6B 1. Line 6B – 36 in. dia. • Current capacity 240,000 bbl. • Projected capacity 500,000-570,000 bbl. -- 208% • Connected to Alberta Clipper (line 67 – 540,000 bbl. to

880,000 bbl.), line 6, 61, 7, through MN, WI, IL, IN., and from the west and south.

2. Line 6B spurs to Marathon and Toledo • 6B, Stockbridge (570,000 bbl.) to Detroit at Freedom

Junction; to Samaria and Toledo – 16 in. dia.

Source: Id.

Alternatives Investigation 1. No crude oil transport by ship. 2. Line 5 crude oil from northern lower Michigan and NGLs. 3. Enbridge quiet“ Keystone-Like” 5,000 mi. expansion

and/or corridors in place – plans Line 61, WI to Flanagan, IL 880,000 bbl.

4. Line 5 not essential to proposed capacity – • Line 5 Spur to Detroit and Toledo – 16 to 20% of Line 5 to

Sarnia; Marathon statements - dilbit or tar sands crude. • Line 6B expanding to 570,000 bbl. • Only 8% of Canadian crude oil goes to US.

LINE 5 PIPELINES 1953 EASEMENT WITH STATE

OF MICHIGAN

Act 10 Easement is subject to the Public Trust.

State’s perpetual public trust duty to

protect the waters and public trust uses.

Enbridge easement covenant to

prevent injury to public and private property

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“Unless action is taken, an oil spill in the Straits of Mackinac isn’t a question of if—it’s a question of when.” - NWF’s Sunken Hazard, 2012

INCREASING PUBLIC AWARENESS & CONCERN

A SPILL IN THE STRAITS: “WORSE POSSIBLE PLACE”

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"If you were to pick the worst possible place for an oil spill in the Great Lakes, this would be it" - David Schwab, Ph.D., research scientist at the University of Michigan Water Center

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INADEQUATE EMERGENCY RESPONSE FOR STRAITS PIPELINES

U.S. Coast Guard Commandant testified before Congress the he is “not comfortable” with agency’s preparedness for worst-case spill in the Great Lakes.

TASK FORCE REPORT SPECIFIC RECOMMENDATIONS REGARDING THE STRAITS PIPELINES

1. Prevent the transportation of heavy crude oil through the Straits Pipelines.

2. Require an independent risk analysis and adequate financial assurance for the Straits Pipelines.

3. Require an independent analysis of alternatives to the existing Straits Pipelines.

4. Obtain additional information from Enbridge relating to the Straits Pipelines.

“You would not build a Straits pipeline in this decade. I’m doubtful it will be open in future decades. … Its days are numbered, its duration is limited in my opinion.” -Michigan Attorney General Bill Schuette

"At end of the day, any mode of transport for petroleum products has some measure of risk,” ... Although the attorney general says the pipeline's days are numbered,… "it could be a huge number.” -DEQ Communications Director Brad Wurfel

CREATION OF PIPELINE SAFETY ADVISORY BOARD VIA EXECUTIVE ORDER

• 15-person Advisory Board • Charge to implement the Task Force Report

Recommendations, including state policies and procedures on pipeline safety, siting, emergency response, increased transparency

• First meeting: October 28, 2015 • NOTE: State of Michigan has independent

legal authority and duty to enforce 1953 Easement to protect Great Lakes.

• Is the Advisory Board subject to FOIA and Open Meetings Act?

“Imminent” Harm or Hazard “… the existence of a condition relating of hazardous material that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to risk of that death, illness, injury, or endangerment.” 49 USC § 5102 (Title 49, Transportation, Subtitle III, Chpt. 51).

Ethyl Corp v EPA, 541 Fed 2d 1 (D.C. 1976) “Imminent” emphasizes the seriousness or magnitude of the harm, injury, or endangerment from a hazard, not the degree of probability of the occurrence. The court ruled that the central question for government to evaluate when evaluating “imminent” injury and facing uncertainty of devastating harm was the magnitude of harm, not the probability of occurrence. Government does not have to wait for a catastrophe or harm to occur, but can act to prevent it. See also Ray v Mason County, 393 Mich 294 (1975); Filer Twp v Aztec Production, Manistee County Cir. Ct. No. 97-8484-CE, Apr. 28, 1997 (Batzer, Cir. Judge) (catastrophic injury from high levels of H2S oil well).

THE PUBLIC TRUST DOCTRINE

Navigation Commerce Fishing Swimming

Drinking water Recreation Ecological values

Protects Both Water Resource & Public Uses

Public Trust Principles 1. Affirmative duty to protect public trust water,

ecosystem, and protected uses. 2. No subordination of paramount public trust

uses. 3. No alienation for primarily private purposes. 4. “Duly recorded” consideration and findings to

assure compliance with standards. 5. Informational , continuing and perpetual duty.

Act 10, PA 1953

1. Authorized utility easements on Great Lakes bottomlands. 2. Subject to public trust and state title in Great Lakes. 3. Subordinate to perpetual and continuing duty under public trust doctrine.

The Easement 1. “All damages and loss” covenant. (Task Force, p. 46) 2. Structural supports every 75 feet, (Id, p. 44) coupled with

risk, worst case, and alternatives assessment under GLSLA/MEPA.

3. Pipeline coating, Easement, A(9) 4. Erosion, mussels weight, curvature requirement under

dangerous stress. 5. “Reasonably prudent person” covenant to protect public

and private property, including duty to protect public trust in bottomlands, waters and their protected uses.

Great Lakes Submerged Lands Act 1. 1955 GLSLA requires occupancy and use

agreements, in accordance with narrow exception under GLSLA and public trust standards. Ill. Central R Rd v Illinois; 146 US 387(1892); Obrecht v National Gypsum, 361 Mich 399 (1960).

2. Perpetual, continuing duty. Id., Venice of America 160 Mich 680 (1910); Collins v Gerhardt, 237 Mich 38 (1926); Kootenai Env. Alliance v Panhandle Yacht Club, 671 P2d 1085, 1094 (ID 1993)

The “MEPA,” Part 17, NREPA 1. Duty to prevent or minimize environmental degradation.

Ray v Mason County, 393 Mich 294 (1975). See MEPA duty and Mich. Public Service Comm’n., Buggs v MPSC, 2015 WL 15975 (Mich App, Jan. 13, 2015); Gensco v DEQ, 250 Mich App 45, 55-56 (2002).

2. Duty to consider and determine likely effects and alternatives on units of government. Highway Comm’n v Vanderkloot, 392 Mich 159 (1974); MCL 324.1705(2).

3. Likely pollution or impairment is prohibited unless there is no feasible and prudent alternative. MCL 324.1703(1); 1705(2); Ray supra

Act 16. MCL 484.3 1. Intrastate portion of oil pipelines. 2. Approval based on “necessity” and “public convenience.” 3. Interpreted to include “routed in a reasonable manner”

and “in the public interest.’ 4. Rule-making authority. 5. MEPA duty to consider and determine likely effects and

alternatives. 6. Dozens of segmented pump stations, transfer stations, in-

line injection stations of anti-friction fluids. No comprehensive consideration of effects and alternatives.

PROPOSED 2015 PIPELINE IMPROVEMENT AND PREVENTING SPILLS ACT

1. Creates a ban on shipping crude oil on Great Lakes by vessel

2. Mandates a risk analysis water crossing study for Great Lakes pipelines

3. Great Lakes listed as High Consequence Areas (HCA)

4. Pipeline Information & Spill Response

Pipeline Advisory Board

1. A potential process to implement Task Force Recommendations, but no specific actions and no specific time lines. 2. Open to public, hearings, information and transparency? 3. Subject to OMA and FOIA?

FLOW REPORT SPECIFIC ACTIONS 1. Immediate elimination of oil transport under Straits segment pending

completion of alternative assessment, worst case assessment, to reduce or lower from “Tier 1” high level of risk of high magnitude of harm.

2. Immediate convening and completion of independent alternatives assessment by competent experts – National Academy of Science, state convened panel?

3. Attorney General and/or DEQ/DNR enforcement easement provisions, including general covenant and continuous, paramount public trust doctrine affirmative duty and principles.

4. Direct action under Easement, MEPA, and Public Trust if necessary. 5. Full review of GLSLA and MPSC lack of documented reviews of effects

and alternative of incremental expansion of Line 5 and 6B.

THANK YOU Volunteer or Donate @ FLOWFORWATER.ORG/DONATE For more information, please contact: FLOW 153 ½ E. Front Street Traverse City, MI 49684 231.944.1568 jim@flowforwater.org or flowforwater.org