Reports & Info

April 13, 2016

The Honorable Rick Snyder
Office of the Governor
P.O. Box 30013
Lansing, Michigan 48909

Attorney General Bill Schuette
G. Mennen Williams Building, 7th Floor 525 West Ottawa Street
P.O. Box 30212
Lansing, Michigan 48909

TAKE ACTION NOW
Join our efforts and sign our petition to Michigan's Governor and Attorney General urging them to use their authority to enforce the easement

Interim Director Keith Creagh
Michigan Department of Environmental Quality (“DEQ”) 525 West Allegan Street
P.O. Box 30473
Lansing, Michigan 48909

Interim Director Bill Moritz
Michigan Department of Natural Resources (“DNR”) Executive Division
P.O. Box 30028
Lansing, MI 48909

Re: Recommendation to the State of Michigan to Terminate The 1953 Line 5 Easement with Enbridge

Dear Governor Snyder, Attorney General Schuette, Interim DEQ Director Creagh, and Interim DNR Director Moritz:

Line 5 in the Straits of Mackinac and crossing Great Lakes tributary lakes and streams is an imminent, high-risk infrastructure emergency for the State of Michigan. And yet, it’s been two years this month since the State of Michigan launched its initial investigation to determine if Enbridge is in compliance with the 1953 public trust Easement that grants this private corporation limited authority to use the public waters and bottomlands of the Great Lakes for pipeline construction and transport of oil (the “Easement”) (see Appendix 1).

In these two years, the undersigned have examined the scientific, logistical, and legal aspects of Enbridge Energy LLP’s (“Enbridge”) twin, 20-inch Line 5 pipelines in the Mackinac Straits (“Line 5”). Based on this examination, it is clear that the State of Michigan has substantial legal and factual cause to terminate the Easement and prohibit the transport of oil through Line 5, protecting the Great Lakes from a catastrophic oil spill. As held by United States and Michigan Supreme Court decisions, easements or occupancy conveyances to private persons or corporations are always subject to a continuing and perpetual responsibility of the grantor state. Under these decisions, a public trust conveyance or easement is revocable and is necessarily subject to modification if the state determines that new circumstances require such a change to protect the public trust.

The State of Michigan is now knowledgeable of the high risks and substantial consequences that a rupture in Line 5 poses to the Straits of Mackinac and the Great Lakes that termination of the Easement is imperative. By this letter, you are put on notice that Enbridge currently is operating in violation of the 1953 Easement with the State of Michigan based on at least the following eight known and ongoing breaches of express terms and conditions:

1. Standard of Care as a Reasonably Prudent Person (Section A)

2. Indemnity Provision (Section J)

3. Pipeline Wall Thickness Provision (Section A (11))

4. Pipeline Exterior Slats and Coating Requirements (Section A (9))

5. Pipeline Minimum Curvature Requirement (Section A (4))

6. Maximum Unsupported Span Provision (Section A (10))

7. Federal Violation of Emergency Oil Spill Response Plan (Section A)

8. State Violation under the Michigan Environmental Protection Action (Section A)

Although it may be that none of these ongoing breaches can be remedied within the Easement’s 90- day cure period, the State of Michigan should immediately give written notice of these breaches to demand compliance with and enforce the obligations and liability of Enbridge under the Easement. The State should also put Enbridge on notice that it is in violation of the obligations that are inherent in public trust in the waters, bottomlands, fish, aquatic habitat, and protected uses. Enbridge’s continuing and ongoing violations of the 1953 Easement, public trust law, and the Michigan Environmental Protection Act (“MEPA”) are more fully described in the attached Memorandum.

Evidence of these violations has continued to mount. In early 2016, Enbridge finally disclosed new information about pipeline dents, 36 cracks and 26 percent loss of pipeline wall thickness in portions of Line 5 in the Straits, calling the integrity of the pipeline’s infrastructure and operation into serious question. Just two weeks ago, the University of Michigan released a comprehensive computer modeling study demonstrating that more than 700 miles of shoreline in Lakes Huron and Michigan are potentially vulnerable to an oil spill from Line 5. Moreover, public concern is at a fever pitch; over thirty local units of government, including Mackinac Island and Bois Blanc, and six Native American tribes have recognized the magnitude of this threat, and have accordingly passed resolutions demanding the State of Michigan protect the public interest and restrict the flow of oil in Line 5 to prevent a catastrophic oil spill in the Great Lakes (see Appendix 5). Based on all of this information, the State of Michigan and you as its duly elected public officials have an affirmative legal duty to take immediate action. Such action is needed to address the unacceptably high risk of a catastrophic oil spill in the Great Lakes that would devastate our public drinking waters, our economy, and our Pure Michigan way of life.

State officials have advised that the State will not complete its risk or alternative assessments for the Michigan Pipeline Safety Advisory Board to review until June 2017. Given Enbridge’s significant easement violations and public trust obligations, we, the undersigned, believe that it is imprudent for the State of Michigan to wait over a year until the final risk and alternatives reports are slated for completion. Therefore, we urge the State of Michigan to immediately notify Enbridge in writing that the State is terminating the 1953 Easement (per Section C) on the basis of these multiple breaches of the terms and conditions of the easement and consistent with your legal trustee responsibilities to the citizens of Michigan.

Sincerely,

Dr. Phil Bellfy, Director, Article 32.org

Rev. Deb Hansen, Concerned Citizens of Cheboygan and Emmet County (CCCEC)

Nic Clark, Director, Michigan Clean Water Action

Jane TenEyck, Executive Director, Chippewa Ottawa Resource Authority (CORA)

Wenonah Hauter, Executive Director, Food & Water Watch (F&WW)

Liz Kirkwood, Executive Director, For Love of Water (FLOW)

Anne Zukowski, Board Member, Friends of the Jordan River

Nick Schroeck, Executive Director, Great Lakes Environmental Law Center

Hans Voss, Executive Director, Groundwork Center for Resilient Communities

James Clift, Deputy Director, Michigan Environmental Council (MEC)

Peggy Case, President, Michigan Citizens for Water Conservation (MCWC)

Murtaza Nek, Michigan Coalition Against Tar Sands (MICATS)

Lisa Wozniak, Executive Director, Michigan League of Conservation Voters (MLCV)

Greg Reisig and Ann Rogers, Co-Chairs, Northern Michigan Environmental Action Council (NMEAC)

Karen Martin, Founder, Straits Area of Concerned Citizens for Peace, Justice, and the Environment (SACCPJE)

David Holtz, Executive Committee Chair, Sierra Club Michigan Chapter

Beth Wallace, Owner and Writer, Surf Great Lakes

Pete Stauffer, Environmental Director, Surfrider Foundation

Bill Latka, Coordinator, TC350.org

Horst Schmidt, President, Upper Peninsula Environmental Coalition (UPEC)

Bill Henne, Chair, Water Air Team Charlevoix (WATCH)

Rachel Hood, Executive Director, West Michigan Environmental Action Coalition (WMEAC)

Hans Cole, Director of Environmental Campaigns and Advocacy, Patagonia

cc: Pipeline Safety Advisory Board
Deputy Attorney General, Carol L. Isaacs
Division Chief, S. Peter Manning
Michigan Agency for Energy, Executive Director, Valerie J.M. Brader

Enclosures.