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(This story was originally published by Bridge Michigan, a nonprofit and nonpartisan news organization. Visit the newsroom online: bridgemi.com.)
The Michigan Supreme Court on Friday ruled that the Michigan Public Service Commission erred when it granted a key permit for the Line 5 petroleum pipeline tunnel under the Straits of Mackinac.
Among other findings, the majority found the commission's permit review was overly narrow and failed to consider whether the tunnel will harm public trust resources.
The 6-1 decision sends the matter back to the commission for further proceedings -- further clouding the fate of the proposed pipeline project that has been in limbo for eight years.
The ruling stems from the Michigan Public Service Commission's December 2023 approval of a key permit for the proposed tunnel, which would reroute a 4-mile segment of the 645-mile pipeline that currently sits exposed on the lakebottom as it transports petroleum products from Superior, Wis., to Sarnia, Ontario. The pipeline extends through Dickinson and Iron counties en route to the Straits crossing to Lower Michigan.
A coalition of four Michigan tribal nations and a Traverse City-based environmental group challenged the approval, arguing the commission's analysis was flawed and the 72-year-old pipeline should be shut down rather than merely rerouted.
The issue reached the state Supreme Court after the Michigan Court of Appeals sided with the state.
In March arguments before the high court, an attorney for environmental groups challenging the permit argued the decision had been based on "a lopsided analysis that needs to be corrected." They sought a more thorough review of the tunnel plan, arguing the existing pipeline should be shut down rather than rerouted.
Enbridge lawyers argued the commission had correctly concluded that building the tunnel is the best way to avoid a spill, since the pipeline would keep flowing one way or another.
That argument rested on the assumption that Enbridge will win an ongoing legal battle with state officials who have ordered Line 5 shut down for fear that it could cause an oil spill in the Straits of Mackinac.
Dueling lawsuits over the pipeline's fate have yet to reach their conclusion. One case is on appeal after a federal District Court judge ruled in December that federal pipeline safety law leaves Michigan no authority to order a shutdown. The other is on hold in state court pending the outcome of the first case.
Friday's state Supreme Court decision further clouds the fate of a tunnel originally pitched in 2018 as a four-year, $500 million project that would come online by 2024.
The Michigan Department of Environment, Great Lakes and Energy recently granted one of the final permits Enbridge needs for the project, but the Bay Mills Indian Tribe has vowed to appeal the decision.
Enbridge is also awaiting a federal permit that the U.S. Army Corps of Engineers appears poised to grant.
Meanwhile, the existing pipeline continues to transport oil across Michigan and into Canada through the open water of the Straits.
Gov. Gretchen Whitmer ordered the pipeline shut down in 2020, following a series of anchor strikes that damaged the pipeline, but Enbridge has defied the order amid a court dispute about its legality.
A 2017 state-commissioned report found Line 5 has a 1-in-60 chance of breaking by 2053, while reports have offered varying estimates of how far oil might spread, from about 20 miles to several hundreds of miles.
Moving the pipeline into an underground tunnel would reduce the spill threat to "virtually zero," according to a 2018 Enbridge report. But the tunnel project would cause other harms, such as disturbing Native American burial sites, harming wetlands and rare species, and enabling continued reliance on fossil fuels that are dangerously warming the climate.
