Gongwer News Service
In approving Enbridge Energy’s application for its proposed Line 5 tunnel project, the Public Service Commission did not properly weigh the potential climate effect, consider all possible alternatives or allow interveners the ability to provide evidence, attorneys for the project’s opponents told the Court of Appeals.
During Tuesday oral arguments in a consolidated set of eight lawsuits involving the PSC’s application granted to Enbridge, a lawyer for the company said the case simply involved the application of the segment of the line through the Straits of Mackinac. He added it was not a case involving the entire Line 5 pipeline, which he said opponents of the application were seeking to attempt.
Hearing the case was a three-judge Court of Appeals panel consisting of Judge Anica Letica, Judge Michael Kelly and Judge Randy Wallace.
Adam Ratchenski with Earth Justice spoke on behalf of multiple tribal groups and said there were two key reasons the court should remand the issue back to the PSC.
First, he said the PSC violated the Michigan Administrative Procedures Act and the state’s rules of evidence by barring intervening parties from introducing evidence related to the public need for the product that would be moved through the proposed tunnel and making explicit findings adverse to interveners in its December 2023 order approving the Enbridge application.
Second, he said the final order was unlawful and an abuse of commission discretion, alleging it had violated the Michigan Natural Resources and Environmental Protection Act by barring interveners from conducting discovery and submitting evidence about the potential environmental effects of allowing the project to proceed.
Further, Ratchenski said, the PSC in its final order made factual findings on issues it had ruled outside the scope of the case, when it established a public need for the products being shipped through the replacement segment of the line and the need to relocate the segment into a tunnel.
“The commission relied upon record evidence in reaching this conclusion, and that evidence went directly to the public need to preserve and extend the pipeline’s continued operation, which is the precise topic the commission barred intervening parties from submitting evidence on,” Ratchenski said.
He added barring the right to present evidence and argument on issues of fact was a violation of the Administrative Procedures Act.
“Due to its own error, the commission was left with an incomplete record, a record that contained factual evidence supporting its finding for a public need for the products shipped through the replacement project, but not evidence to the contrary, because intervenors were barred from developing and submitting it,” Ratchenski said.
John Bursch, representing Enbridge, said everyone agrees that the existing pipeline would be safer within a tunnel.
“But instead of supporting that safety upgrade, the interveners seek to use that four-mile replacement, the safety improvement, to attack the entire 645-mile pipeline,” Bursch said.
The way to revoke the permit for the full pipeline would be for the interveners to file an action with the PSC, but they have not done that and instead are muddying the issue before the court, Bursch said.
“What they’re trying to do is hijack this very simple proceeding and turn it into something else that they did not file,” Bursch said.
Mark Granzotto, representing the Environmental Law and Policy Center and the Michigan Climate Action Network, echoed many of Ratchenski’s arguments. He said his clients had the right to submit evidence on the issue of greenhouse gas emissions and any pollution arising from the proposed project.
He said his clients presented evidence from three qualified experts on emissions and potential environmental effects of the project.
“They asked for expert testimony on the question of greenhouse gas emissions, and they got it, and after getting it, they ignored it,” Granzotto said.
Carrie La Seur, representing For Love of Water, posed similar arguments.
“The commission failed to evaluate alternatives outside the three alternatives in the straits … That’s not what MEPA requires,” La Seur said. “A full evaluation of alternatives was essential to meet the compliance. The commission should have allowed the parties to submit full and comprehensive evidence on whether there were feasible and prudent alternatives outside the straits.”
Bursch said the PSC correctly followed its own precedent and focused only on the four-mile segment in the straits.
“The very small job of this court is to determine if there’s a public need for the upgrade, and they don’t even challenge that, nor could they, because Act 359 establishes the public need for the upgrade,” Bursch said, referencing the 2018 law that authorized the tunnel project.
He added that if Enbridge knew that the proceedings would have turned into a referendum on the entire pipeline, it never would have devised the tunnel project and would have let the existing pipeline continue to operate.
“There’s no company, whether it’s a pipeline company or an electric line transmission company, that would ever seek to improve safety or replace or maintain a line ever, if they knew that going forward with that application was going to put the entire existing transmission line or pipeline at risk. That’s simply absurd,” Bursch said.
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