A coalition of more than 200 business owners from throughout the Great Lakes region is calling on the Michigan Department of Environment, Great Lakes, and Energy to reject permits for Enbridge’s Line 5 tunnel pipeline, urging other business owners to sign on to a joint letter opposing the project.

Line 5 stretches from Superior, Wisconsin to Sarnia, Ontario, with a four-mile segment of dual pipelines located on the lakebed within the Straits of Mackinac, where Lake Michigan and Lake Huron meet. 

In its call for support, the Great Lakes Business Network pointed to a recent spill of up to 1,900 gallons of drilling fluid in Wisconsin as part of Enbridge’s effort to reroute Line 5. The project came after a federal judge found the company had trespassed on the Bad River Band of Lake Superior Chippewa’s reservation for more than a decade by continuing to operate the pipeline following the expiration of its easement.

Enbridge Spokesperson Ryan Duffy told Michigan Advance the company reported the release of the clay and water mixture used for drilling to the Wisconsin Department of Natural Resources on Saturday, and that it had been contained using sandbags and silt fence and that the cleanup is well underway.  

“We will continue to work with the DNR on completion of the clean-up,” Duffy said in an emailed statement. 

Wisconsin Public Radio reported concerns from the Bad River Band and environmental advocates that the release violates Enbridge’s waterway and wetland permit, with one condition stating the company “shall not discharge drilling mud into wetlands, waterways or sensitive areas.”

The Bad River Band has also challenged the reroute, noting that the pipeline would still encircle the reservation and threaten waters, fish and wild rice, which are culturally sacred and economically critical to its members.

Tribal communities and environmental advocates have called for a shutdown of the more than 70-year-old pipeline for years, pointing to a series of anchor strikes which dented the pipeline, and the 2010 Kalamazoo River oil spill from Enbridge’s Line 6B as among their reasons for concern.

While Enbridge has agreed to replace the two segments of pipeline with a new segment housed within a tunnel embedded within the bedrock beneath the lakebed, opponents have raised their further concerns with the safety of the tunnel project, including unstable bedrock, high water pressure and the presence of gasses that could lead to an explosion.

Whitney Gravelle, president of the Bay Mills Indian Community previously told Michigan Advance the tunnel would bore through several cultural sites, archaeological resources and what Anishinaabe consider to be the site of creation.

In order to move forward, the tunnel project is in need of permits from the United States Army Corps of Engineers and EGLE. Another vital permit granted by the Michigan Public Service Commission is under review by the Michigan Supreme Court, following challenges from tribal communities and several environmental advocacy groups.

While Enbridge has touted support from businesses in the region, the Great Lakes Business Network has rejected that notion, calling all business owners and leaders who care about the Great Lakes to submit their signatures by the close of business on July 2.

“We cannot stand by while a Canadian oil company claims to speak for our business community,” Great Lakes Business Network Co-Chairs, Pete Laing and Travis Hixton said in a statement. “The Great Lakes are our economic engine supporting tourism, shipping, real estate, and countless jobs. A decade of destruction to our bottomlands for an unnecessary tunnel is bad for business and bad for our future.”

Following the Great Lakes Business Network’s call for signatures, Great Lakes Michigan Jobs, which says it represents more 75,000 Michigan businesses, issued its own statement calling on EGLE to renew Enbridge’s National Pollutant Discharge Elimination System permit.

If reissued, the permit would allow Enbridge to release roughly 6 million gallons of treated wastewater into the Great Lakes per day between two facilities located on the north and south sides of the straits.

“We strongly support Line 5 and the Great Lakes Tunnel and urge EGLE to renew the permit to allow tunnel builders to treat and clean wastewater,” Mike Witkowski, the director of environmental and regulatory policy at the Michigan Manufacturers Association, said in a statement.

A group of Ashland residents held a protest Wednesday against the use of municipal water for constructing the controversial reroute of Enbridge’s Line 5 oil pipeline across northern Wisconsin. 

The reroute has been protested and challenged in court by locals, members of the nearby Bad River Band of Lake Superior Chippewa and environmental groups for years. 

“Michels Construction, a subcontractor of Enbridge, is taking precious water from Lake Superior out of the City of Ashland municipal water supply to build Line 5,” the protesters said in a joint statement. “This sacred water is being used to devastate our wetland and forest ecosystems and being returned with unknown contaminants for our community to deal with. This is a violation of the Great Lakes Compact and a direct threat to Anishinaabe Treaty Rights. Ashland needs to stand by their resolution of support to the Bad River Tribe and demand a halt to Michels’ water usage.”

Locals have seen Michels construction trucks being filled with water at the Ashland water station. Ashland municipal water comes from Lake Superior. Locals argue the public hasn’t been notified of a contract with Michels for the water use nor has there been a discussion over how much water would be used. 

Enbridge plans to use a process called horizontal directional drilling to pass 30,000 feet of pipe underneath 23 bodies of water in the region, according to the project’s environmental impact statement. About 15% of the relocated pipeline is being installed using this process, through a contract with Michels Construction. 

Enbridge spokesperson Juli Kellner said in a statement that using city water helps the company make sure it comes from a clean source.

“Buying water from a municipal source, instead of permitting water taken from area lakes or rivers, ensures the water is properly treated – and compensates the city fairly,” she said.

HDD involves drilling a hole underneath the body of water through which the pipeline is then fed. The drilling process requires water to be mixed with clay and other additives to use as lubricant for the drills and other tools. The other additives are contain “proprietary ingredients” that are kept from public view, however the Wisconsin Department of Natural Resources documents show the company agreed that any ingredients used will comply with state standards. 

“The drilling fluid would consist primarily of water (approximately 95%) and bentonite, which is a type of clay,” according to the environmental impact statement. “Water for the drilling fluid would be obtained from a known safe source free of bacterial and chemical contamination. Additives could be included in the drilling mud to improve its ability to transport cuttings to the surface, provide a stable hole, and lubricate the drilling tools. Enbridge has stated in its Construction Site General Permit application that the company will only use additives that are considered pre-approved for use in potable well drilling or are listed on the DNR’s Approved Horizontal Directional Drilling Products List.” 

However the HDD process can often cause inadvertent releases of the lubrication slurry, raising concerns among residents. 

As a community on one of the Great Lakes, Ashland is subject to the Great Lakes Compact, an agreement among the American and Canadian governments dictating how the lakes’ water can be used. The compact requires that any water taken be returned in a clean state. 

The Ashland city administrator did not respond to a request for comment about the approval of the water usage.

The Wisconsin Department of Natural Resources (DNR) held a public information hearing on four permit applications by Enbridge for streambank erosion control on the 41-mile reroute of Line 5, a light crude oil and natural gas pipeline. The 16 people who spoke all voiced opposition, either specifically to the permits or to the reroute itself, and many cast aspersions on the Canadian pipeline corporation.

In addition to ongoing legal challenges, the four permits are among the last hurdles in Wisconsin that Enbridge needs to clear to reroute its pipeline around the Bad River Band of Lake Superior Chippewa Indians Reservation, which borders Lake Superior.

Enbridge is under a court order that has been stayed in a federal appeals court to remove the existing Line 5 pipeline from the reservation by June. The Bad River Band has rejected several offers from Enbridge to keep the line on the reservation, and after Enbridge was ordered to remove the line from the reservation, the Band redirected its opposition to the reroute, arguing that it poses an environmental threat to its watershed.

Enbridge is seeking four streambank erosion-control permits for four waterways in Ashland County: an unnamed tributary to the Brunsweiler River, Beartrap Creek, Bay City Creek, and Little Beartrap Creek.

Joe McGaver of Enbridge Environment Projects detailed the work proposed for each of the four sites. He noted that Lake Superior Consulting identified the erosion issues, and the measures to address them are intended to “stabilize the streambanks and prevent continued erosion” below the ordinary high-water marks.

He also noted that Enbridge and the riparian landowners — those owning the land along the waterways — are “co-applicants” and also “co-permittees.”

At a recent Bayfield County Court hearing on April 16 requesting a stay of ongoing work on the reroute, pending a judicial review of approved permits, lawyers representing Bad River and environmental groups contended that under state statute only the riparian owner can seek a permit for modification of the shoreline. But the legal counsel for the DNR responded that it was its practice to use “co-applicants” in similar projects.

Comments

Ashley Guardado of Hempstead, New York, representing Women’s Earth and Climate Action Network, urged the DNR to deny the four permits because they would jeopardize the waterways and the “pristine ecosystems that depend on them.”

“Approving these permits would also enable construction activities that pose long-term risks to water quality, habitat, and the broader watershed,” she said, and noted beyond the local creeks and river, the larger concern is the Great Lakes, which hold 20% of the world’s fresh water.

“So I urge you to consider what it really means to jeopardize these waterways and the ecosystems at both a local and a global level, be it encroaching on the tribal sovereignty and the rights of Indigenous nations that are within this territory to exacerbating the climate crisis and deepening our dependence on fossil fuels that move us only further away from the just transition that Wisconsin, the United States and the world very urgently need,” she said.

Gracie Waukechon, a Wisconsin resident, said the DNR shouldn’t approve the permits out of concern for the environment, and also because Enbridge isn’t legally qualified to seek the permits regarding riparian ownership and Enbridge’s history of environmental damage, including the 2010 crude oil spill of nearly 1 million gallons into the Kalamazoo River in Michigan.

Skylar Harris, representing Midwest Environmental Advocates (MEA), said her organization would submit detailed written objections to the specific permit application, but addressed the DNR’s interpretation of Wisconsin’s Public Trust Doctrine.

“Riparian ownership language in Section 30.12 of the Wisconsin statutes was created in 1949 pursuant to the public trust doctrine to give landowners the ability to live along navigable waters and engage in limited construction activity that would improve navigation or protect the property from erosion and other hazards,” she said. “Because the Legislature was trying to limit the types of construction that could occur in navigable waters, non-riparians were explicitly excluded from permit eligibility. Enbridge has filed these applications for project permits, which is a non-riparian claiming that easements and co-applicant agreements with landowners are sufficient to get around the clear statutory prohibition against construction by non-riparians.”

She said the DNR supports Enbridge’s position and had “tentatively” made the determination to grant the permits, which, she said, would be “a blatant violation of explicit statutory mandates and a violation of the public’s constitutional right to use and enjoy Wisconsin’s navigable waters,” and would set a precedent for other commercial development and environmental damage.

Jadine Sonoda of Madison said Enbridge had raised concerns for Wisconsin because of issues during its Line 3 construction in Minnesota, where it had pierced an aquifer in Northern Minnesota and had agreed to a $2.8 million legal settlement.

Matthew Bourke of Michigan wondered if the DNR investigated any concerns raised in prior hearings, and he questioned why Enbridge had been allowed to pursue permits when it had been found to be trespassing on the Bad River reservations, and a court case in Michigan is challenging the closing of a section of the pipeline under the Straits of Mackinac.

Patricia Hale, an attorney from Antigo also argued Enbridge didn’t have a right for the permits.  

“This is not their (Enbridge) property,” she said of the waterway banks, adding that Enbridge shouldn’t be allowed to request permits based on the easement, because the public has voiced its opposition to Enbridge’s latest permit application for a Line 5 reroute.

Joe Bates, a Bad River tribal elder from Odanah, said Enbridge is endangering Wisconsin waterways by operating a pipeline originally built in 1953.

“This reroute also violates our treaty of 1854,” said Bates. “It (1854 treaty) guarantees us a permanent homeland.”

Bates said the reroute would surround the reservation, requiring members to seek permission from Enbridge to cross it to gather, hunt, or fish in the ceded territories, lands off the reservation where tribal members have rights to pursue resources. At the April 16 court hearing, legal counsel for Enbridge said the corporation would allow permission to tribal members to cross its pipeline for those who have a legal reason to do so. 

“I urge you to please deny permits to Enbridge,” said Bates.

Jennifer Boulley, a Bad River member living in Washburn, also noted that just that morning the US Supreme Court ruled the case in Michigan regarding Line 5 under the Straits of Mackinac will stay in a state of Michigan court and not a federal court as Enbridge had requested.

“Were just hoping that the DNR will continue to listen to the people and not the money, so we can save this water for future generations,” she said.

RJ Claire of Ashland County said the focus of the hearing is on specific technical issues, but she encouraged the DNR to consider a broader perspective on potential harm and environmental impact, and she accused the DNR of being complicit in enabling Enbridge to commit “violence” against the environment.

“Again and again and again and again, tribal members have been expressing to the rest of us that what’s happening right now is an act of violence,” she said. “The DNR is participating in enabling the violence of Enbridge. Who among you is willing to start breaking that pattern? Again, I know this is a technical hearing, but I think it’s really, really, really, really important and crucial that we are looking at this in a holistic way. Because I would argue that from when we focus on the technical parts, that’s a form of just dismissing the violence that is occurring.”

Melanie Conners, a Bad Rivers member who said she lived near Bad River and the Kakagon Sloughs, a wetland that has received international recognition due to its environmental niche and wild rice bed for the band, read a definition from the Environmental Protection Agency (EPA) of “environmental justice” as “fair treatment and meaningful involvement of people, regardless of color, race, national origin or income, with respect to the development, implementation and enforcement and environmental law, regulations and policies.”

She questioned why Bad River members had to “bear the weight” of potential oil contamination.

“It’s Bad River tribal members who will be directly impacted,” she said, and added, “I harvest rice every year to sustain my family. How are you allowing this? This is environmental racism. Enbridge cannot guarantee that it will not contaminate our waters, our Kakagon Slough.”

Additional comments will be accepted until  May 2. Comments should be either emailed to macaulay.haller@wisconsin.gov or left via voice message at (608) 347-0240 or sent by mail to Macaulay Haller, 101 S. Webster Street, Madison,  53707-7921.

GET THE MORNING HEADLINES.

SUBSCRIBE

During a nearly four-hour hearing Thursday at the Bayfield County Courthouse in the city of Washburn, Wisconsin, Bayfield County Circuit Judge John Anderson consistently pressed lawyers petitioning for and against a stay or stoppage of work to reroute the Enbridge Line 5 pipeline in northern Wisconsin on the standard he should use in determining the likelihood of success of a judicial review.

Environmental groups and the Bad River Band of Lake Superior Chippewa Indians have applied for a stay of the Enbridge project based on their petition for review of an administrative court judge’s decision in February to approve permits to go forward with a 41-mile pipeline project. The plan is to reroute the pipeline around the Bad River reservation, after a court finding that the existing pipeline is illegally trespassing on tribal land.

Pipeline opponents argued that the judicial review would ultimately be successful, in part because the Department of Natural Resources (DNR) had inappropriately applied a state statute governing navigable waterways, and that ongoing pipeline work before the review is completed would result in irreversible harm. Even though the new route does not cross the reservation, it endangers water that the tribe depends on, Bad River representatives and environmental groups argue.

The legal counsel for the DNR and Enbridge pushed back, noting that there had been extensive work and public scrutiny of Enbridge’s permit application, and that there wasn’t a high likelihood of the judicial review succeeding.

Judge Anderson said after he received briefs from all parties by April 27, he will decide on the stay, depending on whether he is “convinced” the judicial review would “not go further.”

He framed his future decision on the negative chances of the review.

Arguments for the stay

“The Band has a significant interest,” said John Petoskey, an Earthjustice attorney representing Bad River. “It has an interdependent relationship, and it’s the only homeland it has ever had. The natural landscape is far more than a resource. It’s a way of life. That way of life requires a sustainable environment. It’s undisputed that the project will cause an impact.”

Judge Anderson questioned how to determine “irreparable” or “irreversible” damage.

Petoskey responded that destroying a wetland that has not been damaged in 100 years would mean the area will never be the same.

“When wetlands are destroyed, they don’t clean water or control floods and no longer provide services that help the tribe,” he said.

Petoskey also said the reroute will create a “belt” of restricted area around the reservation, where if tribal members go, they could be charged with a felony. However, later, Enbridge lawyer Eric Maassen, said Enbridge would recognize the rights of all tribal members who had a legal right to be on the land.

Robert Lee, representing the Sierra Club, League of Women Voters and 350 Wisconsin, expressed concern about at least 72 waterways the pipeline is supposed to cross.

He argued that under statute 30.12, only the riparian owners (landowners whose property adjoins or contains a natural waterway, and who therefore have the right to reasonable use of the water) can apply for permits for the waterways, and noted that Enbridge is not the riparian owner but a “co-applicant” with the riparian owners.

“Enbridge has the ability to acquire land,” he said, adding that all the company had obtained were easements with property owners.

“Under our view, that is unlawful if they are not the riparian owner,” he said.

Lee also noted that Enbridge had not been specific about what and where it would remove substances from navigable waters, and said under statute 30.20 the DNR had to know specifically what is to be removed to make a decision on a permit. He also noted that Enbridge said some bedrock would be destroyed but wasn’t specific where that would occur.

“If they don’t know the waters where blasting is to take place then public interest is not met,” he said.

Representing Clean Wisconsin, Evan Feinauer said, “They can’t build a pipeline and not do irreparable harm.”

Judge Anderson responded, “Can’t you say that about any project? Where is the line?

Feinauer responded, “Environmental resources will never be the same, even under the best-case scenario.”

Feinauer claimed the DNR didn’t have all the information in front of it when it issued permits, and Judge Anderson asked, “Whose fault was that?” Feinauer said Enbridge didn’t provide needed information on all the potential waterway crossings, including wetlands Enbridge had failed to include in its project proposal.

“I can’t think of a more important question than which wetlands,” said Feinauer.

Arguments against the stay

DNR counsel Gabe Johnson-Karp  said the factors Judge Anderson should consider in issuing a stay are “irrevocable harm” and “success on the merits” of winning the judicial review.  

“I have to consider the likelihood of success,” said Judge Anderson. “How do I do that if I don’t have the record yet?”  Anderson added that he does not intend to read all 113,000 pages of submitted documents.

Johnson-Karp also said the petitioners had failed to provide a “factual showing” of harm and had only addressed a “generalized harm.”

Anderson asked why the parties were even in court if four major waterway permits had not yet been issued. Johnson-Karp acknowledged a lot more work on the pipeline could be done before the four permits are issued.

Regarding the right to cross a navigable waterway and whether the application is solely the riparian owner’s responsibility, Johnson-Karp said the DNR has had a consistent practice of using a “co-applicant approach,” such as Enbridge is using, where Enbridge has an easement with owners.

Maassen also noted there were only four permits being pursued on the project, and he anticipated that they would be opposed.

Maassen said Enbridge has a “high confidence” it could lawfully work on the permit sites, and added, “Just because there are wetlands and forest doesn’t mean you don’t do infrastructure.”

If a three-month stay were issued, Maassen said, in actuality, it would be more likely to delay the project by six months as workers who had been assigned to the project would have left and more time would be needed to hire others.

Maassen also argued that Enbridge didn’t need to be the riparian owner on property it would only be working on in some cases for 24-48 hours.

And he contested the characterization that the blasting of bedrock is not in the public interest as a “woeful miscategorization.”

“If they can’t convince me there is a likelihood on the merits, does it end there?” Judge Anderson asked Maassen about the success of the judicial review and the request for a stay, and Maassen responded, “It does.”

Maassen added that if the pipeline didn’t proceed, it would increase the “threat to energy security” and place up to 700 union jobs at risk.

He also noted that there is a stay of a judgment in the U.S. Court of Appeals for the Seventh Circuit for Enbridge to stop using the existing Line 5 on the reservation by June 16. If  that judgement does not remain stayed, he said, it could negatively impact 10 refineries and cut off most of the propane supply for Michigan.

“There are no alternatives to this line,” said Maassen. “Some refineries will have to shut down, resulting in hundreds of millions of losses.

Lastly, Maassen said Enbridge is also requesting that the petitioners post a $49 million bond if a stay is ordered and Enbridge incurs a loss from the delay.

Petoskey, the Bad River lawyer, said the court did not have to consider economic factors when making decisions about wetlands, and he also noted courts have rejected requests for a bond when the litigants are seeking to protect environmental resources.

Lee, arguing for the Sierra Club, said the court has a responsibility to follow the “letter of the law to have riparian ownership,” and challenged the DNR’s use of “co-applicants” as a “made-up” application of the statute.

Asked by Anderson on the standard of success to be used in issuing a stay, Lee responded, “50-50 probability of success; that is sufficient.”

“I don’t think there is a reasonable likelihood of success,” countered Johnson-Karp on the chance the judicial appeal would succeed.

Anderson asked why Enbridge shouldn’t be the riparian owner or require Enbridge to buy the land? Maassen responded, “The whole notion that being a co-applicant is inappropriate I think is a bad argument.”

Anderson asked all the lawyers to submit briefs within 10 days, with specific attention on the issues he had raised during the hearing.

This report has been updated to reflect that Anderson is a Bayfield County circuit judge.

GET THE MORNING HEADLINES.

SUBSCRIBE