Administrative Law Judge Orders Narrow Scope in Public Service Commission’s Line 5 Tunnel Replacement Permit Decision

The ruling prohibits the Commission from hearing critical evidence highlighting the environmental risks, climate change impacts, and public need for extending the life of the Line 5 pipeline


Mary Rock, Earthjustice, (248) 766-8541

Whitney Gravelle, Bay Mills Indian Community, (906) 248-8120

David Gover, Native American Rights Fund, (720) 647-9637

Today, an administrative law judge in Michigan issued a decision determining what evidence could be presented before the Michigan Public Service Commission (MPSC) in its upcoming hearing over whether to grant Enbridge an operating permit for its Line 5 tunnel construction project in Straits of Mackinac.

Last October, the judge had issued a ruling regarding what kind of evidence the MPSC was allowed to consider, but that ruling was made prior to Michigan Governor Whitmer’s November order that revoked and terminated the 1953 easement that had allowed Enbridge to operate the pipeline in the Straits. The order stipulates that Enbridge must shutdown operation of its existing dual pipelines in the Straits by this May. The administrative law Judge’s new ruling was made with consideration of the governor’s order.

In the new ruling, the Judge stuck with his previous decision made last October, again excluding evidence concerning the public need for extending the life of Line 5 by constructing the pipeline tunnel, the environmental risks (ie: oil spills) of the entire Line 5 pipeline and not just the segment beneath the Straits, and the impacts on climate change that continuing to operate Line 5 would impose.

Taking a leading role among the intervening parties in the MPSC’s decision is the Bay Mills Indian Community, a Tribal Nation that calls the Straits of Mackinac home and has treaty rights to the waters to hunt, fish and gather. Bay Mills is opposing the existing Line 5 pipeline and the tunnel construction project, and is being represented by Earthjustice and the Native American Rights Fund (NARF) in the legal proceedings.

In response to the decision, the Tribe’s legal representatives made the following statements:

“The unfathomable damage that Line 5 could inflict upon our treaty-protected waters, cultural resources, and critical plant and fish populations is too great to justify the pipeline’s continued operation or potential replacement,” said Bay Mills Tribal Attorney Whitney Gravelle. “We are deeply disheartened that today’s ruling will exclude critical evidence about environmental risks and climate change from the scope of the Commission’s permitting consideration, but we remain determined to stop this project from moving forward.”

“We are disappointed by today’s ruling, which adopts an overly narrow interpretation of the scope of this contested case and the Michigan Public Service Commission’s authority,” said Earthjustice Attorney Mary Rock. “Given the fact that the existing pipeline in the Straits of Mackinac must shut down because of the Governor’s revocation and termination of the 1953 easement, it only makes sense to assess whether building a massive tunnel so that the pipeline can transport oil beneath sensitive and critical waters for decades to come is really necessary and environmentally sound. We will continue our advocacy on behalf of Bay Mills and its opposition to the tunnel project.”

“Today’s ruling is deeply concerning, because evidence related to the public need for this pipeline and the environmental risks of its operation are both essential parts of the decision about whether to approve the tunnel project,” said Native American Rights Fund attorney David Gover. “We will continue to support Bay Mills and shine a light on the very real threats this project poses to the Tribe’s Treaty rights, livelihoods, and cultural resources.”

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