Crude oil continues to flow — for now — through Enbridge’s controversial pipeline that serves Toledo-area refineries, among others.
But several officials agree that recent events in Washington and elsewhere have kickstarted more controversy, leaving both sides wondering what the long-term outlook is at a time in which climate change, access to clean water, and rising fuel prices have loomed large on the minds of many North Americans.
The issue has become so touchy that even a hint of policy movement by the Biden Administration has a powder-keg effect, as one Toledo refinery official noted.
Although White House Deputy Press Secretary Karine Jean-Pierre said at a Nov. 8 news conference that Mr. Biden has no plans to shut down the pipeline, the issue caught fire in the national media, with questions raised about what powers President Biden might have over Line 5.
According to a whitehouse.gov transcript of that news conference, the Biden Administration’s upcoming talks with Canadian Prime Minister Justin Trudeau should not be interpreted as a sign of disagreement.
In October, Canada took the unprecedented move of invoking dispute resolution provisions of the 1977 Transit Pipelines treaty, in large part because of the ongoing feud Mr. Trudeau has had with Michigan Gov. Gretchen Whitmer and Michigan Attorney General Dana Nessel over Line 5’s future.
The latter two are fiercely determined to shut down the pipeline as a means of protecting the Great Lakes from a potentially catastrophic oil spill. Mr. Trudeau wants to keep the crude flowing, agreeing with others that the Enbridge plan to build a tunnel beneath the Straits of Mackinac offers sufficient protection.
“We expect that both the U.S. and Canada will engage constructively in those negotiations,” Ms. Jean-Pierre said. “In addition to being one of the closest allies, Canada remains a key U.S. partner in energy trade, as well as efforts to address climate change and protect the environment.”
She later added that an environmental impact statement the U.S. Army Corps of Engineers is doing on the potential impact of running two Line 5 replacement lines through such a tunnel “will help inform any additional action or position the U.S. will be taking on the replacement of Line 5.”
Line 5 is a single pipeline along much of the route it takes between the United States and Canada.
It splits into dual lines across the Straits of Mackinac for engineering reasons. The pipeline was originally built in 1953 to move fuel products more efficiently and to help reduce the odds of a spill with fewer shipments by ship, rail, or truck.
Scott Hayes, who’s been following Line 5 developments closely as PBF Toledo Refining’s health, safety, environmental and governmental affairs manager, said there is “this powder keg now” because of pandemic-driven inflation, problems with domestic refining capacity, and rising gasoline prices.
Mr. Biden got drawn into the controversy because of Canada’s decision to invoke the treaty, which has never been done before. According to Reuters news service, Mr. Trudeau did that to help safeguard the pipeline and essentially force Mr. Biden into arbitration.
At the same time, U.S. District Judge Janet Neff of the Western District of Michigan is being asked to rule on whether Ms. Whitmer had the authority to issue a cease-and-desist order last May.
Enbridge has ignored the order, and the courts have allowed the pipeline to remain open pending the outcome of that case.
In 2015, former President Barack Obama “killed the Keystone Pipeline, and now there are whispers and rumors of shutting down Line 5,” Mr. Hayes said. “You just can’t turn off the spigot and think everything’s going to be OK. Let’s have a rational approach. Let’s do it in a way that protects our jobs and the economy.”
Mr. Hayes, who appeared on Fox and Friends last week to give an affected refinery perspective, told The Blade the only comfort he has at the moment is a Bloomberg article which states the Biden Administration is not closing down the pipeline.
“We’re thankful that it appears that the President of the United States has listened and has taken the position we’re not going to shut this thing down,” he said.
Mr. Biden is in an awkward position because he supports high-paying union jobs but also wants to help America wean itself off fossil fuels to combat climate change, Mr. Hayes said.
Ohio Lt. Gov. Jon Husted told The Blade that he and other members of the DeWine administration will continue their campaign to keep Line 5 open.
“I won’t speculate on what the court will do or what the [Biden] Administration will do. I just know that closing down Line 5 is a bad thing to do,” Mr. Husted said. “Line 5 poses no immediate environmental threat. But its closing would pose an immediate economic impact on working families in Michigan and Ohio.”
He said he considers closing down the pipeline to be a greater environmental risk.
“It’s not like people are going to stop driving,” Mr. Husted said. “You’re going to have to truck the fuel in, which is going to cause more traffic and environmental consequences.”
Spokesmen for Ms. Whitmer and Ms. Nessel did not return requests for comments.
U.S. Sen. Sherrod Brown (D., Ohio) had little to say other than it is important as the Biden and Trudeau administrations begin talks “that we protect jobs in Ohio and our lakes, while also keeping energy prices affordable for families and ensuring pipeline safety.”
The lone comment from U.S. Sen. Rob Portman (R., Ohio) was this: “Given the high energy costs across the country, coupled with rising inflation, the Biden Administration should be doing all it can to pursue responsible energy policies that support our domestic energy industry, promote energy security and protect American jobs.”
Toledo Mayor Wade Kapszukiewicz agreed, saying that pipelines “are the safest way to transport fuel.”
“I am confident the Biden Administration recognizes this and that we can find the appropriate balance between protecting our environment and our economic health,” Mr. Kapszukiewicz said.
Though not legally binding, Ohio Sen. Theresa Gavarone (R., Bowling Green) and Ohio Sen. Kenny Yuko (D., Richmond Heights) have co-authored a resolution that implores Mr. Biden to keep the pipeline open.
It was introduced on the heels of a Senate resolution passed earlier this year which implores Governor Whitmer to reverse her position.
Nicholas Schroeck, an associate University of Detroit Mercy School of Law professor who runs that school’s Environmental Law Clinic, said Judge Neff’s upcoming decision over venue will be an important decision.
The case originally began in state court. Then, at Enbridge’s request, it was moved to federal court.
“The economic concerns of the Toledo refinery and the workers are certainly relevant and important, Mr. Schroeck said.
But he said there are other legal considerations in play, including the 1836 Treaty of Washington the United States has with Michigan tribes. It includes the Straits of Mackinac.
“The tribes retain hunting, fishing, and gathering rights in their ceded territory. An oil spill in the Straits would significantly impact the tribes’ fishing and hunting rights, as the Sault Ste. Marie Tribe of Chippewa Indians and the other tribes have repeatedly noted,” Mr. Schroeck said.
Michigan’s filing at the state level — over Enbridge’s refusal to honor Governor Whitmer’s easement terms — cites a public trust doctrine for the Great Lakes, he said.
Another U.S.-Canada treaty, the Boundary Waters Treaty of 1909, forbids one of those two countries from engaging in activities that pollute shared water resources along both of their borders, Mr. Schroeck said.
It applies not only to the Great Lakes but all boundary waters. That particular treaty was the basis for the creation of the venerable U.S.-Canada International Joint Commission, a special State Department-level commission that has been used to help resolve common boundary water issues for the past 112 years.
Governor Whitmer’s efforts to shut down Line 5 are robustly supported by several tribes and environmental groups, including the National Wildlife Federation, For Love of Water, or FLOW, the Michigan Environmental Council, the Sierra Club, and the Environmental Law and Policy Center.
The opposition goes well beyond environmentalists and tribes, though.
More than 170 members of the Ann Arbor-based Great Lakes Business Network stated in a March 24 letter to three Michigan legislators that Line 5 “continues to threaten economic and environmental disaster” a decade after Enbridge was cited for the massive Kalamazoo River oil spill, one of the largest inland oil spills in American history.
Breweries, wineries, and other water-dependent businesses are part of that network, which states on its website that it wants Line 5 shut down because it “poses an immediate threat to our businesses, economy and way of life.”
Ryan Duffy, Enbridge spokesman, said that “at the end of the day, this is about doing the right thing.”
“There are millions of businesses and thousands of businesses on both sides of the border who are dependent on Line 5 to provide the fuel they need for heating, manufacturing, airplanes, roads and automobiles,” he said. “Line 5 is vital energy infrastructure on a daily basis to Michigan, Ohio, and other states in the region, and Canada’s two largest provinces.”
Line 5 continues to operate safely, and will be safer with the construction of a tunnel beneath Lake Michigan’s lakebed, Mr. Duffy said.
He said the pipeline company supports tribal sovereignty and treaty rights.
“Engagement with and respect for First Nations, Tribes, and Indigenous peoples where we do business is very important to us,” Mr. Duffy said.
Enbridge continues to believe the dispute over Governor Whitmer’s edict belong in federal court, not state court, because of the potential impact on Canada, he said.
“In our view, the State of Michigan’s actions constitute a clear breach of the Transit Pipelines Treaty of 1977,” Mr. Duffy said. “We greatly appreciate the efforts from the Government of Canada and for their commitments to keep Line 5 open. We also greatly appreciate their desire to advance the timely construction of the Great Lakes Tunnel Project.”
First Published November 14, 2021, 4:26 p.m.
