- [Announcer] On this edition of "Great Lakes Now," opponents say Enbridge's Line 5 oil pipeline in the Straits of Mackinac threatens to pollute the Great Lakes.

- 740 miles of shoreline were vulnerable to a potential oil spill.

- [Announcer] But Enbridge says the pipeline is safe.

- There are an incredible number of precautions that are in place.

- [Announcer] In the balance, jobs, the economy, the lakes, and the climate.

How does it get decided?

(screen whooshes) (cheerful music) (screen whooshes) - [Announcer] This program is brought to you by The Fred A. and Barbara M. Erb Family Foundation, the Charles Stewart Mott Foundation, Laurie & Tim Wadhams.

- [Announcer] The Consumers Energy Foundation is committed to serving Michigan, from preserving our state's natural resources and sustaining our future to continuing business growth, academic achievement, and community involvement.

Learn more at consumersenergy.com/foundation.

- [Announcer] The Richard C. Devereaux Foundation for Energy and Environmental Programs at DPTV, the Polk Family Fund, Eve & Jerry Jung, The Americana Foundation, The Brookby Foundation, Founders Brewing Company, and viewers like you, thank you.

(screen whooshes) - Hi, I'm Ward Detwiler.

Welcome back to "Great Lakes Now".

Enbridge's Line 5 oil pipeline through the Straits of Mackinac has been controversial for years, but recently, the conflict has intensified and now involves the federal governments of the U.S. and Canada.

In this episode, where does the conflict over Line 5 stand, and how will it be resolved?

(screen whooshes) - [Narrator] Under the Straits of Mackinac, where Lake Michigan meets Lake Huron, twin pipelines stretch 4 1/2 miles across the lake bed, carrying more than 23 million gallons of oil and natural gas liquids every day.

They're part of Enbridge's Line 5, the pipeline at the center of one of the biggest political and environmental battles in the Great Lakes.

The story begins in 1950, when a pipeline was built from the oil fields of Western Canada to the shores of Lake Superior.

The plan called for the oil to be taken by ship from Superior, Wisconsin through Lake Superior and Lake Huron to refineries in Sarnia, Ontario.

But in 1951, a tanker exploded after unloading oil in Sarnia, killing one person and injuring several more, and ships can't sail between Superior and Sarnia in the wintertime.

(suspenseful music) So a new pipeline was planned to connect Superior and Sarnia by running through Wisconsin and Michigan, including through the Straits of Mackinac, where the line would split into two parallel pipelines.

And in 1953, the state of Michigan granted an easement for the construction and operation of Line 5 in a document that includes a number of specific requirements, including a protective outer layer and a maximum distance of 75 feet between supports.

It includes broader requirements, as well.

Kelly House, an environmental reporter for "Bridge Michigan," has covered Line 5 extensively.

- The easement mandates that Enbridge needs to exercise the due care of a reasonably prudent person in its operation of the pipeline.

And given where the debate over the pipeline is now, the question really is whether or not Enbridge is exercising due care in protecting the straits from a potential oil spill.

- [Reporter] Engineering history in the making, as construction crews race a December 1st deadline to complete the world's longest pipeline.

- [Narrator] completed in 1953, Line 5 was a triumph of engineering.

It was part of a growing North American pipeline network that promised affordable, reliable, and safe delivery of a vital commodity.

For decades after its construction Line 5 was uncontroversial.

- People didn't really realize it was there.

And speaking with folks who were at the top of state government during the time when this became an issue, a lot of them have told me, you know, "I was surprised to learn it was even there."

- [Narrator] Most of the time, pipelines function without incident, and industries have been built on reliable delivery of oil through pipelines.

- I'm once again honored to rise in the legislature to speak to you about an important topic to my constituents, and all Ontarians, in fact, the future of Line 5.

- [Narrator] Bob Bailey is a member of the Legislative Assembly of Ontario, where he represents Sarnia-Lambton.

The area's petrochemical industry depends on the pipeline network, including Line 5.

- It's provided for a number of jobs in the Sarnia-Lambton area, like over 5,000 direct jobs in the industry itself, in the refineries and/or chemical plants, and then upwards of 6,000 to 7,000 skilled tradespeople who also work in the plants.

Also, the other impact of Line 5 is there's 23,500 estimated downstream jobs.

Major impact on the Sarnia-Lambton community.

- [Narrator] But pipeline incidents are not unheard of.

The U.S.

Pipeline and Hazardous Materials Safety Administration, or PHMSA, shows between 233 and 336 significant incidents with U.S. pipelines in each year between 2001 and 2020.

Pipeline proponents contend that spills are more likely when oil is moved by other means, like ships or trucks or rail.

Mike Fernandez is senior vice president and chief communications officer for Enbridge.

- There's both energy and safety concerns when it comes to actually moving things to rail, as opposed to pipeline.

And we're in the pipeline business because pipelines are safer than these other modes of transportation for moving oil and natural gas.

- [Narrator] In 2010, testifying before a U.S. congressional subcommittee, Enbridge Vice President of U.S Operations Richard Adams insisted that, in the event of a rupture, "Our response time from our control center can be almost instantaneous."

(melancholy music) But less than two weeks later, Enbridge Line 6B ruptured in Marshall, Michigan.

And instead of being instantly shut down, the oil continued to flow and spill for nearly 18 hours.

At the time, Beth Wallace was one year into a job with the National Wildlife Federation.

She grew up near the site of the Line 6B spill.

- My dad had originally thought that someone was tarring a roof when it happened, and then later found out that there was one of the largest inland oil spills in U.S. history right in our backyard.

- [Narrator] In all, Line 6B spilled almost a million gallons of oil into Talmadge Creek and the Kalamazoo River, which runs into Lake Michigan.

- It was heartbreaking to see the place you grew up in destroyed.

- [Narrator] Federal investigators later learned that Enbridge had been aware of cracks in Line 6B for five years, but failed to make repairs.

Wallace learned that Enbridge also owned Line 5, 16 years older than Line 6B.

- [Beth] And I could not believe that the same company that just caused the largest inland oil spill in U.S. history was the company operating them.

- In 2013, Wallace coauthored a National Wildlife Federation report called "Sunken Hazard," which called attention to the risks Line 5 posed to the Great Lakes.

- We really hit a roadblock in gathering information about the integrity of the pipeline.

So we hired a dive crew and decided to get our eyes on it ourselves!

- [Narrator] The underwater video seemed to show that parts of the pipeline were missing their protective coating.

Perhaps more alarming, long stretches of the pipelines were suspended above the bottom of the straits without support, an apparent violation of the 1953 easement.

- Even though the state wrote the easement to let them build this thing, and wrote in the requirement that there couldn't be any unsupported spans greater than 75 feet, there's some spans that are four or five times longer than what the state mandated should ever be allowed to develop.

- [Narrator] Having seen the effects of the Line 6B rupture, some worried that a similar spill could happen in the Straits of Mackinac.

Enbridge says Line 5 is operating safely.

- What happened 11 years ago has really created kind of a clarion call inside the company about putting safety first.

Moving to the pipeline that sits at the lake bed of the Straits of Mackinac, there are an incredible number of precautions that are in place.

We run a device every so often in order to check the strength of the pipe and to check the coating of the pipe and the like.

And that data is fed into our federal regulator, PHMSA, to make sure they have a chance to look at all of that data.

PHMSA, as late as this past fall, gave us a clean bill of health.

So the pipeline is safe and fit to operate.

- Pipeline breaks in Michigan and around the country have impacted the environment and endangered public health.

- [Narrator] In 2015, then-Michigan Governor Rick Snyder responded to public concern by forming the Pipeline Safety Advisory Board to study the issue, take public comment, and advise the governor on pipeline safety, planning, and emergency response.

The board commissioned a report on the risks posed by Line 5 and alternatives, including using other pipelines.

At board meetings, some members of the public voiced strong opinions on Line 5.

(people chattering) - That body of water is one of the most precious in the world.

And the destruction of that water will lead to environmental, economic, emotional, and spiritual disaster.

- Look, I'm starting- - What we wanted to do was show you what the birds will look like, what our fish will look like, what the shoreline will look like.

- [Narrator] Outside of the Straits of Mackinac, there have been spills from Line 5, releasing more than a million gallons of oil in all.

Still, Enbridge says concerns over a spill in the straits are unwarranted.

- It's important to remember that not a drop of oil has ever gone into the Straits of Mackinac, where that pipeline exists today, and has existed since the 1950s.

And this is a pipeline that still is very sturdy, very able to carry out its intended mission, and from an environmental standpoint, it's much better than the alternatives.

- [Narrator] Pipeline proponents say that if Line 5 shuts down, refineries and chemical plants like those in Sarnia will bring in oil by other means, which carry their own environmental risks.

- And it's something like 540,000 barrels a day, every day, 7 days a week, 24 hours a day, they're coming through the pipeline.

So to replicate that, we'd be looking at a minimum of 800 railcars a day and upwards of 2,000 tanker trucks, which would have to move that product across the Blue Water Bridge, through Michigan, through Port Huron, across the bridge.

- [Narrator] A Line 5 shutdown could cause economic problems, including energy shortages or price spikes.

But for some, the threat of a spill from a pipeline in the waters of the Great Lakes is unacceptable.

Chris Shepler's family started a ferry service to and from Mackinac Island in 1945.

His livelihood depends on the health of the Great Lakes.

- Where we're standing right now is basically ground zero, if we have the pipeline in our minds.

Over my right shoulder right here is Mackinac Island.

The bridge is right here.

The pipeline is located a couple miles west of the bridge.

(gentle guitar music) Look, I'm a conservative Republican, and I don't like people telling me how to run my business.

It's not just about ferrying people to a beautiful island.

It's about ways of life.

If you had a spill of any kind of magnitude, it wouldn't take very long to move 20, 30, 40 miles.

You're looking at a half a day, you're looking at six hours, and this thing is all over the place.

This is the worst possible scenario for an oil spill, as University of Michigan and their scientists have told us.

- [Narrator] In 2016, the University of Michigan Water Center released a study commissioned by the National Wildlife Federation, which simulated how the complex currents of the straits would spread oil after a spill from Line 5.

- We came up with the kind of astounding number of 740 miles of shoreline were vulnerable to a potential oil spill.

I think a lot of people were shocked that things could move so quickly and such a great distance.

- [Narrator] Enbridge has questioned the simulation, and the company maintains that the pipeline is in good shape.

But many pipeline critics don't trust the company's claims.

- So I believe this pipeline in as good condition as it was the day it was installed.

- Oh, come on.

(audience shouting) - Our corrosion prevention system is doing its job.

- So I do think that there is a trust issue.

And you know, Enbridge also has been criticized for being less than forthright about the problems that do exist on the pipeline.

- [Narrator] Then, on April 1st, 2018, a close call.

An articulated tug and barge dragged its 12,000-pound anchor over the bottom of the Straits of Mackinac, striking three underwater electrical transmission cables and Line 5's twin pipelines.

The pipelines sustained only superficial damage, and Governor Snyder issued an emergency order prohibiting ships from dropping anchors in the Straits of Mackinac.

But for some, the strike highlighted the risks of Line 5.

- That anchor strike was yet another galvanizing moment, you know?

The pipeline was dented, and I think it really raised the danger from something theoretical for people to something real.

- [Narrator] Many felt disaster had been narrowly averted.

2018 was an election year.

Governor Rick Snyder, a Republican, was term-limited, and Democratic Candidate Gretchen Whitmer held clear views on Line 5.

- It's a matter of time.

Pipelines don't last forever.

We cannot wait.

And we can't wait for a tunnel to be built, either.

We have to get the threat out of the water now.

- [Narrator] Democrat Dana Nessel, running to become Michigan's top lawyer and law enforcement official, made action against Line 5 a campaign promise.

- I will file suit in a court of claims to shut down Line 5.

- [Narrator] In October, a month before the election, and before the Pipeline Safety Advisory Board could deliver their report, Governor Snyder announced a deal with Enbridge.

It included the possibility of a new pipeline that would cross the Straits of Mackinac inside a tunnel beneath the lake bottom, protecting it from currents and anchor strikes.

Some felt that in the making of the deal, Snyder had ignored the wishes of pipeline opponents and voters.

- It was made in the 11th hour of his administration, so it was read by many as also an attempt to sort of bind the incoming governor's hands and make it more difficult, if not impossible, for her to take the action that she had promised in her campaign, which was to shut down Line 5.

- [Narrator] On November 6th, Nessel and Whitmer both won their elections, becoming Michigan's next attorney general and governor.

But a month after the election, as a lame duck, governor Rick Snyder signed a bill allowing the tunnel plan to move ahead.

- Good morning, everyone!

- [Narrator] Whitmer and Nessel took office on January 1st, 2019, becoming Michigan's governor and attorney general.

(crowd cheering) - My friends, my family, my fellow Michiganders- - [Narrator] Almost immediately, Whitmer asked Nessel to conduct a legal review of the legislation authorizing a new pipeline tunnel.

Three months later, Nessel said the law was unconstitutional and agreements for the tunnel plan were void.

That argument was later rejected by a Michigan court, and some who want Line 5 shut down were disappointed that the Whitmer administration was negotiating with Enbridge over the proposed pipeline tunnel.

- So I think you've heard, increasingly, arguments from some of the pipeline opponents that, you know, Governor Whitmer has not been aggressive enough toward Enbridge.

They've sort of compared her to Attorney General Dana Nessel, who has initiated some legal action and is actively fighting the pipelines.

There were negotiations ongoing, but she wasn't as active in pursuing a shutdown.

- [Narrator] Negotiations between Whitmer's administration and Enbridge broke down in June of 2019, and shortly thereafter.

- Hi, I'm Michigan Attorney General Dana Nessel.

- [Narrator] Attorney General Nessel announced that she would ask a court to order Line 5 decommissioned.

As the lawsuits proceeded, the risk of a rupture on the aging pipelines seemed only to grow.

As part of a federal consent decree stemming from the spill from Line 6B, Enbridge established their Straits Maritime Operations Center, which uses cameras, patrol boats, and warning messages to reduce the chances of another anchor strike.

But in June of 2020, after something struck the underwater pipelines, Enbridge reported, quote, "significant damage," and a judge ordered the pipelines temporarily shut down.

The east leg of the pipeline stayed offline for a week, and the west leg didn't come back online until September 9th.

Later that year, in November, Governor Whitmer notified Enbridge of her decision to revoke the 1953 easement.

The Notice of Revocation said the pipelines did not comply with easement requirements and cited damage to the protective coating, bends in the pipeline, and many unsupported spans longer than the 75-foot maximum.

More broadly, the notice cited the easement's due care clause.

- Whitmer's argument was basically that this 1953 easement requires due care in the operation of this pipeline, and it is physically impossible at this point for Enbridge to operate due care because the pipeline itself is too dire of an oil spill risk and shouldn't be there.

- [Narrator] Line 5 would have to shut down by May 13th of 2021.

Enbridge filed a federal lawsuit arguing that only the federal government, and not the state of Michigan, has the power to order a shutdown of Line 5.

And in January of 2021, the company said they would not comply with Whitmer's order to shut down Line 5.

The battle over Line 5 is also being fought in three additional venues.

The plan for the proposed pipeline tunnel will be reviewed at the state level by the Michigan Public Service Commission, a regulatory body that must approve pipeline citing.

The scope of the commission's review has yet to be determined.

- Enbridge argues, essentially, this is just a routine matter.

You should narrowly look at whether or not we should be able to move this piece of infrastructure from here to there.

Pipeline opponents sort of argue that nowhere else in Michigan's public deliberations about this pipeline has there been a holistic view that sort of asked those questions about climate, about safety, about economics, you know, about whether or not Michigan needs this pipeline.

- [Narrator] The tunnel plan also needs federal approval from the U.S. Army Corps of Engineers, and President Biden has called for a whole-of-government approach to combating climate change.

- Federal agencies have guidance from the federal government to tell them that they need to consider climate impacts for the life cycle of these projects, not just during construction, but the long-term impacts that may occur.

They must consider climate change as part of their assessment of environmental impacts, and also looking at any potential alternative projects that require federal permitting.

- [Narrator] The Line 5 conflict has also become a matter of international diplomacy.

Here's Canadian Minister of Natural Resources Seamus O'Regan speaking to a parliamentary special committee.

- The operation of Line 5 is nonnegotiable.

- [Narrator] Enbridge and some Canadian officials have said that Line 5 is protected by the 1977 Transit Pipeline Treaty between the U.S. and Canada.

- And that treaty basically says, the oil needs to keep flowing except in limited circumstances, and under those circumstances, you can temporarily shut the pipeline down.

So that was sort of a new element of this, bringing it from a state issue to an international issue.

- [Narrator] But more than one treaty may apply.

In the U.S., the 1836 Treaty of Washington guarantees the Odawa and Ojibwe people the right to fish, hunt, and gather in lands and waters, including the Straits of Mackinac.

In Canada, First Nation rights may also become a factor.

Duke Peltier is Ogimaa, or chief, of Wiikwemkoong unceded territory on Lake Huron's Manitoulin Island in Ontario.

- The experiences that my community has is that there's plenty of other treaties that continue to be ignored by the Canadian government.

We've also been told that the public themselves, generally the public, have a right to water.

And I think by having a pipeline on the lake bed at the Straits of Mackinac severely puts that resource at risk from a number of different perspectives.

And I think that, should we wanna uphold treaty, then let's talk about all the treaties.

- [Narrator] Judges and regulators will weigh in on Line 5, but the meaning of the 1977 Transit Pipeline Treaty may be out of their hands.

Steven Ratner is Bruno Simma Collegiate Professor of Law at the University of Michigan.

- And the United States and Canada might just decide that for political reasons, they wanna come up with an alternative, essentially, to amend the treaty or interpret the treaty in a way that allows for the closure of Line 5, and maybe doesn't require that there actually be a plan in place.

And the two parties are perfectly within their sovereign rights to interpret this, to come up with an agreed interpretation of this treaty, or even amend the treaty, in a way that would allow the governor's plan to go forward, even without a replacement immediately on the horizon.

That is the way treaties work.

They can be amended by the parties, and they can come up with an agreed interpretation.

(screen whooshes) - Thanks for watching.

We have more Line 5 coverage at GreatLakesNow.org.

With the release of this episode, "Great Lakes Now" has been producing monthly shows for two years.

During that time, we've covered the causes of harmful algae blooms, high water and shoreline erosion, invasive species and the effects they're having, the race to protect a spawning reef in Lake Superior, mysterious sinkholes in Lake Huron, the hunt for a meteorite in Lake Michigan, historic disasters and fascinating shipwrecks, and we've only just begun.

What stories do you wanna see in the third year of "Great Lakes Now"?

Now let us know at GreatLakesNow.org.

When you get there, you can follow us on social media or subscribe to our newsletter to get updates about our work.

See you out on the lakes.

(upbeat music) (screen whooshes) (screen whooshes) - [Announcer] This program is brought to you by the Fred A. and Barbara M. Erb Family Foundation, the Charles Stewart Mott Foundation, Laurie & Tim Wadhams.

- [Announcer] The Consumers Energy Foundation is committed to serving Michigan, from preserving our state's natural resources and sustaining our future to continuing business growth, academic achievement, and community involvement.

Learn more at consumersenergy.com/foundation.

- [Announcer] The Richard C. Devereaux Foundation for Energy and Environmental Programs at DPTV, the Polk Family Fund, Eve & Jerry Jung, The Americana Foundation, The Brookby Foundation, Founders Brewing Company, and viewers like you, thank you.

(bright music)