The Building Tradesman Newspaper

Friday, November 15, 2019

Line 5 tunnel construction upheld by judge, but appeal awaits

By Marty Mulcahy, Editor

LANSING - A Michigan Court of Claims judge declined to block the proposed construction of a utility tunnel to house the Line 5 petroleum pipeline underneath the Mackinac Straits.

Judge Michael J. Kelly on Oct. 31 ruled that ancillary legal issues involving the Line 5 Tunnel would not make the authorizing law unconstitutional. Kelly's ruling overturns an opinion issued in March by Michigan Attorney General Dana Nessel, who said the legislation - hastily adopted by the signature of Gov. Rick Snyder in last year's lame duck legislative session - that authorized an authority to permit the tunnel violates the state Constitution because it goes beyond what it disclosed in the title of the act. 

The law spawns a public authority to set up and manage a utility tunnel under the Straits, encapsulating a re-routed Line 5 pipeline, which currently rests on the lake bed between St. Ignace and Mackinaw City. The pipeline is owned and operated by Canada-based Enbridge.

"The title of PA 359 stresses that the Corridor Authority is to acquire and operate a utility tunnel across the Straits of Mackinac," Kelly wrote in his ruling. "The precise parameters for how the same is to be accomplished need not be spelled out in painstaking detail in the Act's title."

Nessel and Gov. Gretchen Whitmer vowed to appeal. Nessel said "the State of Michigan will not rely on a foreign corporation to protect and preserve our state’s most precious resource, its Great Lakes.” A statement from Whitmer said "the governor is committed to protecting the Great Lakes. The administration clearly disagrees with today’s ruling, and we plan to appeal."

Years of protests by environmentalists led to the decision by Enbridge to move the petroleum line into the utility tunnel 100 feet under the Straits through bedrock, encapsulating Line 5 as well as other utility lines like electrical and telecommunications services. The legislative action taken late last year to create the Corridor Authority to develop and oversee the utility tunnel was a triggering permitting step for the structure, although Enbridge had already been performing planning, design and geological pre-engineering work.

The $500 million tunnel project would employ hundreds of building trades workers in a region that rarely sees a project of this scope. 

A statement by Enbridge following the ruling said "we are pleased that the Michigan Court of Claims ruled in our favor. We are reviewing the decision and may have further comment. Enbridge remains fully committed to the Great Lakes Tunnel project. We continue to believe the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated during the period while the tunnel is being constructed. And we are committed to build it.”

Whitmer and Nessel have joined environmentalists in seeking a shutdown of the formation of the tunnel authority. “This ruling is scary for the Great Lakes," said Mike Shriberg, Great Lakes executive director for the National Wildlife Federation said in a press release. "Whether the Court of Appeals eventually reverses this decision or not, without a timeline for shutting down the existing Line 5 any tunnel discussion is as illusory as a Halloween.”

Line 5 runs from Superior, Wisconsin to Sarnia, Ontario. It is 30 inches in diameter except at the bottom of the Straits, where it splits into two 20-inch lines. Enbridge said the line transports about 22.7 million gallons per day of product, which includes crude oil and natural gas liquids, including propane. There have been arguments supporting and rejecting increased costs to Michigan motorists and propane users if the line is shut down.

The Michigan Building and Construction Trades Council is a supporter of the construction of the Line 5 Tunnel, especially because of the significant creation of jobs in the building trades. Occasionally unions and the Michigan Chamber of Commerce agree on an issue, and this is one of those times.

“We are extremely pleased with Judge Kelly’s ruling that PA 359 of 2018, legislation passed to facilitate construction of a tunnel under the Straits of Mackinac, is constitutional,” said Jim Holcomb, executive vice president & general counsel for the Michigan Chamber. “The facts are clear that the Legislature understood exactly what they were voting on and that all procedural steps in passing the law were consistent with the Constitution.”

“The Michigan Chamber of Commerce believes the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated while the tunnel is built. Line 5 is critical to satisfying the energy needs of Michigan businesses and homeowners."