State OKs Line 5 tunnel permits — with a few caveats

State regulators approved two key environmental permits on Wednesday that are vital for Enbridge Inc.’s Great Lakes Tunnel Project to move forward.

Enbridge first submitted permit applications for the Great Lakes Tunnel Project to state and federal regulators in April 2020. The project, approved by the Michigan Public Service Commission in December 2023, proposes to replace a segment of the Canadian company’s aging Line 5 pipeline in the Straights of Mackinac with a 3.6-mile tunnel beneath the lakebed — prompting concerns from many environmental groups.

Efforts to shut down the 73-year-old pipeline — which carries crude oil from northwest Wisconsin, through Michigan, to Sarnia, Ontario — have been underway for years.

Michigan Attorney General Dana Nessel sued the company in 2019 for allegedly violating the Michigan Environmental Protection Act and creating a public nuisance, however, a federal judge blocked that effort in December.

State officials say the two permits issued Wednesday by the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and the state Department of Natural Resources (DNR) come after an extensive review of potential risks the project could pose and several public hearings.

Read more: Does Line 5 put Michigan’s Great Lakes at risk for a ‘catastrophic’ oil spill?

Though the DNR determined the project would adversely impact at least two rare plants growing in the area, Houghton’s goldenrod and dwarf lake iris, as well as several bat habitats, the agency ultimately concluded that the project’s impacts aren’t likely to jeopardize the species’ existence.

Both agencies say the permit approvals require the company to take actions to reduce the impacts on local ecosystems.

Specifically, the DNR is requiring that Enbridge:

• Keep topsoil and collect seeds to restore part of the Houghton’s goldenrod and dwarf lake iris populations after construction
• Monitor restored areas for at least five years to ensure healthy regrowth
• Clear trees only during winter months to avoid disturbing bats
• Take care throughout construction zones to avoid damaging sensitive plant areas
• Keep surrounding vegetation as natural as possible and limit herbicide use
• Consider long-term protection, such as a conservation easement, to protect surrounding rare plants
• Explore additional opportunities to support recovery efforts for impacted rare plants

Enbridge will also be required to submit an improved wetland mitigation plan as a condition of the EGLE permit, the agency said.

Still, many environmentalists say those protective measures don’t go far enough.

“EGLE’s approval of a risky fossil fuel project that degrades water quality in order to extend profits for Big Oil is a denial of the reality of the many energy alternatives to Line 5 that Michiganders have long demanded.” said Dr. Denise Keele, executive director of the Michigan Climate Action Network in a statement.

The state says there are still several other permits that will need to be approved for construction on the project to begin.

==

A federal judge has blocked Michigan’s effort to shut down the Line 5 pipeline that runs under the Straits of Mackinac.

The order came Wednesday, Dec. 17, prohibiting the state from enforcing a 2020 order that would have stopped Enbridge from using the 4-mile strip beneath the Straits of Mackinac. The judge said this would have effectively shut down the pipeline.

Line 5 is an oil pipeline owned by Canadian company Enbridge Energy. It carries crude oil from northwest Wisconsin, through Michigan, to Sarnia, Ontario, Canada.

Michigan Attorney General Dana Nessel has been fighting to shut down Line 5 since taking office in 2019. The pipeline, which is 72 years old, crosses from the Upper Peninsula to the Lower Peninsula through the Mackinac Straits. Native Americans, environmentalists and others warn that a pipeline rupture in the Great Lakes would be catastrophic.

Related: Does Line 5 put Michigan’s Great Lakes at risk for a ‘catastrophic’ oil spill?

U.S. District Judge Robert Jonker’s order Wednesday stated in part, “Pipeline safety generally, and protection of the Straits of Mackinac, are critical interests to be sure, but when it comes to Line 5, they are the responsibility of the United States and Michigan lacks the power to interfere.”

In his order, Jonker acknowledged that an oil spill in the Great Lakes would undoubtedly be an environmental catastrophe borne almost exclusively by the state. However, he said concerns about protecting the lakes from a pipeline spill must be addressed by Congress and the president.

Related: Federal report warns of environmental risks from Line 5 tunnel project in Straits of Mackinac

The Attorney General’s Office released the following statement:

“In this matter our office represents Governor Whitmer and DNR Director Bowen.  We are consulting with their offices for review of the opinion and determination of next steps, which could include efforts to appeal this ruling. From our own preliminary review, it appears this opinion is wrongly decided on the law and an affront to Michigan’s sovereign interests in managing the use and occupation of its submerged lands.

The Attorney General’s lawsuit, Nessel v. Enbridge, remains pending before a state court."

Enbridge released the following statement:

“Enbridge welcomes today’s decision by the Federal District Court granting our motion for summary judgment. This ruling prevents Governor Whitmer and the Michigan Department of Natural Resources from taking further action to shut down Line 5. The Court’s decision safeguards both the United States and Canada from the significant energy disruptions that would have resulted from a closure.

For more than five years, state officials have sought to close Line 5 based on unsupported claims about its safety. The Court affirmed that the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the exclusive federal regulator of pipeline safety. PHMSA has taken no action against Line 5, underscoring its safe operation. Enbridge has always worked closely with PHMSA and will continue to do so.

The Court also agreed with Enbridge that the Michigan’s attempts to revoke the pipeline easement violates express U.S. foreign policy in favor of the uninterrupted flow of oil through Line 5.  As the court emphasized, both the U.S. and Canada “agree that a compelled pipeline shutdown of Line 5 would conflict with those domestic and foreign affairs policies.”

Any dispute over its continued operation must be resolved through the 1977 Transit Treaty’s dispute resolution process, which Canada has already invoked. Today’s ruling makes clear that efforts by Michigan officials to permanently shut down Line 5 would interfere with U.S. foreign affairs—authority vested exclusively in the federal government.

Those who rely on Line 5—including workers, refiners, and consumers—can be assured that this decision ensures the continued delivery of critical energy to Michigan and the region."