|
The Michigan Public Service Commission (MPSC) issued an important ruling with three key points. All three points were in favor of the construction of the proposed Great Lakes Tunnel Project to house a new Line 5 pipeline. The Michigan Propane Gas Association (MPGA) intervened on this case and appreciated this favorable decision.
The three key points from the Commission ruling were:
- The approval of the siting application filed by Enbridge Energy LP for a proposed replacement segment of pipelines now located on the lakebed of the Straits of Mackinac, replacing them with a single pipeline in a tunnel deep below the lakebed.
- The proposed tunnel, its path, and its location were determined to be the best and safest option for the pipeline.
- The order determined there is a public need for the replacement section of Line 5 and the products it carries, including the natural gas liquids that are refined into propane.
In the approximately four miles of Line 5 crossing the Straits, there are currently two, 20-inch pipelines, the span of which are primarily near or on top of the lakebed. Enbridge would replace the dual pipelines with a single, 30-inch pipeline in the concrete-lined tunnel with an inside diameter of 21 feet, routed through bedrock 60-370 feet beneath the lakebed. The tunnel will have space for the Line 5 replacement segment in addition to ventilation systems, leak detectors, dewatering equipment, and equipment needed for inspections and maintenance, among other things. In 2018, the MPGA helped pass bipartisan legislation to create the Great Lakes Tunnel option and protect the Great Lakes. Enbridge initially filed its siting application in April 2020.
With the Commission order, Enbridge will be able to proceed with the construction of the replacement pipeline so long as the project receives approval by regulatory agencies including the Mackinac Straits Corridor Authority and United States Army Corps of Engineers. Upon construction of the tunnel, Enbridge will deactivate the existing dual pipelines once the replacement segment is placed into service.
Enbridge stated, “We are grateful to the organizations that intervened in the MPSC approval process to advance the project, including the National and Michigan Propane Associations, and the Michigan Laborers’ District Council. We are ready to begin work on this project. The only thing standing in the way of locating a replacement section of Line 5 into the tunnel is a decision on our permit application by the U.S. Army Corps of Engineers.”
Most recently, the U.S. Army Corps of Engineers indicated a decision is not expected until 2026. Construction of the tunnel will take an estimated 5 years to complete once the final approvals are granted.
While the U.S. Army Corps of Engineers continues its evaluation of the Tunnel, other legal battles continue. Notably, the Commission’s favorable ruling will likely be beneficial to Enbridge’s defense against Attorney General Dana Nessel’s ongoing litigation regarding the easement as well. If the legal arguments focus on safety and need of the pipeline, then the Commission ruling should help.
However, the Commission’s ruling won’t be a silver bullet for Enbridge, particularly with respect to the public trust claim, which focuses in part on whether the easement itself violated the public trust doctrine when it was originally adopted because it failed to contain findings that it met either of the two exceptions to the common law public trust doctrine’s prohibition of conveyances of public rights in Great Lakes bottomlands. In other words, to the extent the claims focus on the easement’s language, rather than potential ongoing threats, the Commission’s opinion will not provide any guidance.
As for next steps, the MPGA expects the Commission’s decision to be appealed. Further appeals, which could ultimately end up at the Michigan Supreme Court, would mean further delays of 2-3 years to the construction timeline.
| 
