Old pipelines become new flashpoints for U.S., Canada environmental clashes

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Four years after a Democrat last occupied the White House, Canada’s energy industry is once again being forced to defend pipelines as necessary infrastructure to move a vital resource — oil — to market.

But this time, it's not just new projects being scrutinized for their potential to tie the continent to carbon-intensive fossil fuels for decades. Instead, environmentalists and their Democratic allies are using U.S. state laws and permitting rules to target old systems that they say are unsafe and have outlived their time.

The new battles have become domestic and international flashpoints, pitting states against states and the U.S. against Canada. And they could multiply as North America’s pipelines age and as activists seize on a legal weapon unrelated to climate change and greenhouse gas emissions.

In Michigan, the fight is raging over Line 5, a conduit that has snaked under the Great Lakes since 1953. The pipeline is under attack from Gov. Gretchen Whitmer, a Democrat, after years of public concern about its safety, given its path through the heavily traveled Straits of Mackinac between Lake Michigan and Lake Huron.

“I don’t think anyone today would permit such an oil pipeline flowing through 20 percent of the world’s freshwater," former Michigan Rep. Mark Schauer, a Democrat, said in an interview. "It makes no sense whatsoever.”

The regulatory and legal processes governing repairs and expansions give pipeline opponents an opening to appeal to political leaders or judges to weigh in on the need for safety of aging lines.

Enbridge Inc., a Canadian energy transportation company that owns the line, promised former Gov. Rick Snyder, a Republican and Whitmer’s predecessor, that it would replace the portion of the pipe under the straits and encase it in a concrete tunnel to protect against anchor strikes — all at no cost to the state.

But Whitmer’s administration, led by Attorney General Dana Nessel, says the 68-year-old line is too dangerous to keep operating in the interim. Nessel also challenged a state law authorizing the tunnel in 2019. She lost, but the case showed that Whitmer isn’t keen on that project moving forward either.

Michigan isn’t the only place where old pipelines have become new targets. Environmentalists and Native American tribes are fighting another Enbridge-owned pipe, Line 3 in Minnesota, in a case that has drawn the attention of national green groups.

The fight over Line 3 is also happening under a Democratic administration. Gov. Tim Walz has tried to balance the project’s environmental impact against labor unions — a critical political constituency — that support it. The replacement project was prompted by the pipeline’s age and safety, but the clash over it has become about climate as well as Indigenous people's rights.

Anti-pipeline campaigns typically invoke climate change as their raison d’etre. But Whitmer’s focus on the prospect of a spill has won plaudits from Michigan residents who remember the 2010 Kalamazoo River spill, when an estimated 1 million gallons of diluted bitumen — the cocktail that moves heavy oil sands crude by pipe — burst from an Enbridge line.

The rupture went undetected by the company’s control room for 17 hours and became one of the largest inland oil spills in U.S. history. (The largest spill came from Line 3 in Minnesota, though before Enbridge purchased it.)

About 43 percent of hazardous liquids pipelines in the U.S. are more than 50 years old, and federal decommissioning rules are vague and don’t require much of the operators, said Bill Caram, executive director of the Pipeline Safety Trust, an advocacy group formed after a fatal pipeline explosion in Washington state in 1999.

A network of 71 pipelines moves oil and natural gas across the 5,525-mile border, according to the Canadian embassy, 50 of which flow from Canada to the U.S. That infrastructure shipped 4.1 million barrels a day of crude oil and petroleum products from Canada to the U.S. in 2020.

When President Joe Biden rejected the proposed Keystone XL pipeline on his first day in office, citing climate concerns, Canada and its top oil-producing province, Alberta, ramped up diplomatic efforts to keep Line 5 operating and push back against Whitmer’s involvement.

“Does the governor not understand the damage to the ongoing relationship?” Mike Bradley, the mayor of Sarnia, Ont., said in March during a parliamentary hearing on the issue.

Protecting the Great Lakes is a top priority for Whitmer, who “fully stands behind her decision" to shut down Line 5, spokesperson Bobby Leddy said.

“These oil pipelines in the Straits of Mackinac are a ticking time bomb, and their continued presence violates the public trust and poses a grave threat to Michigan's environment and economy,” he said.

Leddy didn’t disclose whether the Biden administration has reached out to Whitmer on the issue. A White House spokesperson didn’t respond to a request for comment.

In Canada, Prime Minister Justin Trudeau is again being pressured by the oil industry and his political rivals to protect cross-border pipelines. But unlike with Keystone XL, the Liberals are insisting that the continued operation of Line 5 is "nonnegotiable," Natural Resources Minister Seamus O'Regan said.

The fight over Line 5 is different from Keystone XL, Trudeau officials say. The Enbridge line is already moving oil, employing workers, and supplying homes and businesses in both countries, from Alberta to Quebec and Michigan to Ohio.

And Line 5, despite its age, has never spilled, which means it’s safe to operate until its replacement is complete, Liberals and Enbridge say.

But that argument sidesteps the question of just how safe a pipeline built in the 1950s can be, especially when it runs through an ecologically sensitive area.

An engineering concept known as the “bathtub curve” has held true for pipelines, Caram said, whereby new and old products experience high failure rates but settle into low incidence rates in middle age.

“That is going to become a bigger issue in the future,” Caram said. “We would love to see our regulations catch up before that starts happening.”

Michigan isn’t waiting around for the federal government.

Whitmer in November said the state would revoke the 1953 easement that allowed Enbridge to operate Line 5 through the straits, saying the agreement had violated the public trust doctrine that requires Michigan to protect the Great Lakes and their bottomlands.

She set a May 12 deadline for the company to cease operations, even as she noted that Enbridge could continue pursuing permits for its tunnel project.

“As of that date, Enbridge’s continued operation of the Line 5 pipelines in the Straits of Mackinac would be unlawful,” Leddy said, because the now-canceled easement is what allowed the company to run the pipes there.

Enbridge said it won’t shut off the conduit unless a court demands it, which spokesperson Ryan Duffy said the company views “as highly unlikely.”

“Line 5 is operating safely, reliably and is in compliance with the law,” Duffy said. “The state of Michigan has never presented any concrete evidence to suggest otherwise.”

The Kalamazoo River spill, from a pipeline built in 1969, prompted some in the state to begin questioning the location and integrity of other conduits, including Line 5.

Canadians, likewise, have a long memory when it comes to oil disasters, but they see things differently. In 2013, a train carrying oil from the Bakken shale formation derailed in the small town of Lac-Mégantic, Que., killing nearly four dozen people and destroying much of the downtown.

“This is a product that will still head southbound, but without Line 5, that means it will be on rail, on truck, and on ship, all of which are less reliable,” O’Regan said during a March hearing. “With regard to oil by rail and the tragedy of Lac-Mégantic, in 2013, it's far less safe.”

Michigan isn’t united behind Whitmer’s effort. Upper Peninsula residents and GOP lawmakers, including Rep. Jack Bergman, who represents the state’s northern regions, are alarmed at the governor’s move to shut down an integral conduit for propane, which is used to heat homes in the region.

“This has been a rallying cry for environmental groups outside of Michigan to try to push an agenda that’s going to affect not only my constituents [but] the state of Michigan, the Great Lakes states and commerce with Canada,” Bergman said in an interview.

Bergman and 14 other members in March wrote to Biden to raise concerns about what a Line 5 shutdown would mean to the economies of Great Lakes states, given the president's decision to cancel the Keystone XL project.

Canada and Enbridge have also drawn support from Ohio, which filed an amicus brief in the company’s lawsuit against Michigan arguing that the state is just as invested in the health of the Great Lakes as Michigan and that a shutdown would imperil hundreds of refinery jobs.

A shutdown “will result in a devastating financial impact on Ohio, Michigan, and the other States that rely on Ohio’s refineries—all of whom are already reeling from the unprecedented economic crisis caused by COVID-19,” Ohio Attorney General Dave Yost wrote in the brief. “Further economic disruption is something that all concerned should hope to avoid.”

While Enbridge is fighting to have its arguments heard in federal court, Michigan is trying to return the case to state court — where Whitmer’s government says it belongs because the state has jurisdiction over the bottomlands where Line 5 runs now. Washington, D.C., and 16 states have submitted briefs supporting Nessel’s motion to remand the case.

The parties are participating in court-ordered mediation, but most expect a judge to have the final say. In Canada, the federal government is weighing whether to file a brief supporting Enbridge's position or — if the tide turns decisively against the company — to invoke an obscure 1977 treaty ensuring that cross-border pipelines can run unimpeded.

Officials in Canada hope it doesn't come to that.

"The operation of Line 5 is nonnegotiable," O'Regan, Canada's Natural Resources minister, said in March.

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