CARRIE LA SEUR, legal director of For Love of Water, speaks at a news conference Jan. 15 after arguing an appeal against a permit for Enbridge’s proposed Line 5 tunnel project under the Straits of Mackinac. (Kyle Davidson/Michigan Advance)

After the Michigan Court of Appeals’ decision to uphold a key permit for Enbridge’s Line 5 tunnel project, members of four Native American Tribes and three environmental organizations are asking the Michigan Supreme Court to review the lower court’s decision, arguing it violates the public trust doctrine, alongside the state constitution and the Michigan Environmental Protection Act.

On Wednesday, the Great Lakes advocacy organization For Love of Water — or FLOW — announced it had filed an application for leave to appeal with the Michigan Supreme Court.

The Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, and the Nottawaseppi Huron Band of the Potawatomi also filed a separate application for leave to appeal alongside the Environmental Law and Policy Center and the Michigan Climate Action Network.

For many years, Native American tribes and environmental advocates have called for a shutdown to the pipeline, which transports more than 22 million gallons of crude oil and light synthetic crude daily from northern Wisconsin through the Upper and Lower Peninsula into Sarnia, Ontario.

About four miles of the 645-mile long pipeline runs through the Straits of Mackinac, where Lake Huron and Lake Michigan meet. The pipeline’s opponents have repeatedly warned that a spill into the Great Lakes would be catastrophic with a University of Michigan study finding the Straits would be the “worst possible place” for a Great Lakes oil spill, quickly contaminating nearby shorelines, with another study finding a spill could bring more than $6 billion in damage to the environment and local economies.

Additionally, a 2018 anchor strike that dented the pipeline in three places generated further concerns of a spill, with Enbridge later agreeing to replace the dual pipelines running through the Straits with a new segment inside a concrete-lined tunnel located beneath the lakebed in hopes of containing any spills.

In order to move forward, the project must receive permits from the Department of Environment, Great Lakes and Energy, the United States Army Corps of Engineers and the Michigan Public Service Commission, the state’s energy regulator.

Attorneys representing the tribes and environmental organizations argued the Commission had blocked them from presenting evidence challenging the public’s need for petroleum products transported by Line 5 and detailing the scope of the project’s environmental impact, and that the commission failed to consider the pipeline’s impacts on climate change and greenhouse gasses alongside evidence supporting alternatives to the tunnel.

However, the three judge panel hearing the case determined there was “no basis to reverse or remand” the commission’s permitting decision.

In its request to the Michigan Supreme Court, attorneys representing the tribes argue the Public Service Commission failed to properly consider the risk of oil spills when approving the project, violating the state constitution and state laws requiring agencies to protect the state’s natural resources from pollution and destruction.

“Even if the public has been misled into believing this tunnel project is safe, the truth is that it is not,” Whitney Gravelle, president of the Bay Mills Indian Community said in a statement.

“Enbridge’s track record speaks for itself — catastrophic spills, environmental destruction, and a complete disregard for tribal sovereignty and the rights of future generations,” Gravelle said. “The Straits of Mackinac are not just a waterway; they are the heart of creation for Anishinaabe people and a vital source of life for all who depend on the Great Lakes. An oil spill here would be devastating, not only to our way of life but to the entire region.”

The Michigan Climate Action Network and the Environmental Law & Policy Center argued the Court of Appeals’ decision does not follow the Michigan Environmental Protection Act’s requirement of rigorous, independent determinations of all likely environmental effects of Enbridge’s proposed tunnel project.

“We are asking the Michigan Supreme Court to accept this appeal so that it can provide much needed guidance on the proper interpretation and application of Michigan’s Environmental Protection Act,” said David Scott, a senior attorney for the environmental law and policy center. “We hope that the Supreme Court will review this case because it involves important environmental, health, and welfare issues for the people of Michigan, and important legal issues for Michigan courts to properly and consistently fulfill their responsibility under the Environmental Protection Act.”

In its own brief, FLOW argues the commission is obligated to follow the public trust doctrine under common law, which requires the state to manage natural resources for the benefit of the public.

“The Great Lakes are a public resource of incalculable value,” FLOW’s Legal Director Carrie La Seur said in a statement. “The MPSC has a fundamental responsibility to protect these waters, and its decision-making must be guided by the public trust doctrine. The Court of Appeals’ ruling dangerously undermines that responsibility.”

Enbridge spokesperson Ryan Duffy told the Michigan Advance in an email that the Court of Appeals correctly affirmed the Commission’s permitting decision.

“The Michigan Court of Appeals concluded that the MPSC appropriately examined the location of the Line 5 replacement segment within the Great Lakes Tunnel, consistent with Michigan law,” Duffy said.

“As we proceed with this modernization project, we remain committed to operating Line 5 responsibly with enhanced safety measures in the Straits that protect Michigan’s natural resources and infrastructure in the Straits,” he said.

While the tunnel project has also received permits from EGLE, the Department is currently reviewing two applications, one to redo its Wetlands Protection and Great Lakes Bottomlands permits and another for its National Pollutant Discharge Elimination System permit, which is intended to protect water quality by limiting the amount of pollutants that can be discharged into a body of water.

The U.S. Army Corps of Engineers is still working to develop a draft environmental impact statement for the project, after announcing in March 2023 that it would extend its environmental review of the effort. The Corps is expected to issue the draft state this spring, though environmentalists and tribal nations have raised concerns that the Corps could fast track its consideration of the project following an executive order from President Donald Trump.

“The federal government is bending over backwards to fast track required permits in support of a Canadian company’s fossil fuel project that provides minimal benefit to domestic energy production,” said David Gover, managing for the Native American Rights Fund. “But today, it’s up to Michigan’s courts and elected leadership to be responsible public stewards for clean water, for Tribal rights, and for every community along the Great Lakes.”

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