As battles over oil pipeline grind on, tribes fear Great Lakes, treaty rights at risk

Just the name — Line 5 — can elicit polarizing emotions.

To some, Enbridge Inc.'s pipeline is an environmental roll of the dice, what Michelle Woodhouse, the program manager of water for Environmental Defence Canada, calls “gambling with the world’s largest freshwater system.”

To others, it's a safe way to move 22 million gallons of crude oil and natural gas liquids every day — "energizing Michigan since 1953," as Enbridge's website boasts.

The pipeline crosses 645 miles, beginning at Enbridge's Superior Terminal, in Superior, Wisconsin, continuing through northern Wisconsin, crossing Michigan's Upper Peninsula, traveling under the Straits of Mackinac, through Michigan's Lower Peninsula and on to refineries in Sarnia, Ontario. 

The Calgary-based company earns up to $2 million per day from the pipeline, and supplies upwards of 55% of Michigan’s propane needs, according to the Enbridge website. The pipeline also serves refineries in Ohio, Pennsylvania, Ontario and Quebec. 

Line 5 has had 35 spills in its history — about one every other year — releasing a total of more than 1 million gallons of oil into the environment. The pipeline is operating with expired easements — the rights to cross a piece of land — on the Bad River reservation near Lake Superior and throughout Michigan. There seems to be no end to legal battles and safety concerns.

The Line 5 pipeline has even gotten the attention of the United Nations. In May, an advisory body on Indigenous issues recommended that the U.S. and Canada shut the oil pipeline down. 

Now, environmental activists increasingly say the Biden administration is their ultimate hope. They argue Line 5 is one of the greatest threats to the Great Lakes, which hold 20% of the world’s freshwater, and supply drinking water to more than 40 million people.

This is a matter of “national freshwater security,” which is why Biden needs to step in, said Whitney Gravelle, president of the Bay Mills Indian Community in Upper Michigan. 

“If the Biden administration wants to … act as real climate leaders, then they need to listen to frontline communities, Indigenous peoples and scientists, and immediately shut down Line 5,” said Osprey Orielle Lake, the executive director of Women’s Earth and Climate Action Network. 

So far, Biden has said nothing, and it's hard not to factor in the 2024 presidential election.

Keeping the pipeline operational runs counter to environmental justice initiatives embraced by the Biden administration, as well as its promise to help the country transition to a clean, carbon-neutral economy. 

However, shutting down the pipeline would hurt union jobs – a hallmark of the Democratic platform. Terminating the pipeline "presents severe consequences for people and industries in the U.S. and Canada," Enbridge said in an emailed statement to the Milwaukee Journal Sentinel, part of the Paste BN Network.

Bad River Band frustrated with Enbridge

The conflict over the pipeline is taking place on three fronts: the Bad River Band’s lands, the state of Michigan and the Straits of Mackinac, which separate Lakes Michigan and Huron.

The Bad River Band of Lake Superior Chippewa first filed a lawsuit in 2019 to remove the Line 5 pipeline. The pipeline operates on 12 miles of its land even though the easement expired in 2013 after the tribe refused to renew it, fearing environmental damage.

The Bad River flows into Lake Superior and is home to the Kakagon Sloughs, a system of wetlands with the largest natural wild rice bed on the Great Lakes. 

After three years, U.S. District Judge William M. Conley ruled last September that Enbridge was trespassing on the tribe’s land, but stopped short of shutting it down.

Things took a turn on the tribe's land this spring − literally.

Major flooding moved one bank of the meandering Bad River, closing the gap between the buried pipeline and the water to less than 15 feet at multiple locations. When the tribe first filed the lawsuit in 2019, it stated that a particular bank − called the Meander − stood 320 feet away. And for the tribe, even that was too close.

Worried that rushing flood waters could expose and rupture the pipeline, the Bad River Band submitted an emergency filing in May asking the court with renewed urgency to shut down the pipeline. 

Judge Conley didn’t issue a ruling, but instead said that the tribe wasn't helping matters by not taking steps to prevent erosion along the river. 

In 2022, Enbridge also proposed to reroute the pipeline at the request of the Bad River Band. The company proposed a new 41-mile section that would go around the reservation. The reroute would still sit in the Bad River watershed and would cross 186 waterways. Enbridge has applied for permits for the project.

Enbridge is still optimistic it can work with the tribe.

"Enbridge remains open to working with the Band to address the current situation at the Meander and move forward with the relocation project," the company said in an emailed statement.

The Band's position is that it shouldn't have the responsibility of helping the company prevent erosion and keep its pipeline in service, or otherwise accommodate a pipeline it considers dangerous.

And so the sparring continues. Earlier this week, representatives of Wisconsin Jobs & Energy Coalition were in Superior touting the important of keeping Line 5 operating. Their argument: Without it, thousands of trucks would clog Wisconsin freeways, which no one wants.

'We're protecting it for everyone'

Tribes throughout the Great Lakes region say that environmental damage from spills infringes on their treaty rights, which the federal government is obligated to protect. 

In 2010, Enbridge’s Line 6B pipeline burst, leading to one of the largest oil spills in U.S. history. The spill released more than 1 million gallons of crude oil into Talmadge Creek near Marshall, Mich., which flows into the Kalamazoo River. 

The oil spill severely impacted the Nottawaseppi Huron Band of Potawatomi, Gravelle said, leaving other tribes fearing what such a spill on their land would mean for drinking water, ecosystems and culturally important food sources, like wild rice. 

Treaty rights are dependent on the natural landscape, and “if that is poisoned or harmed or damaged in any way, you no longer have a treaty right,” Gravelle said.

Indigenous people often have to stand at the front lines alone, Gravelle said, but “if we’re protecting the water and we’re protecting the land … we’re protecting it for everyone.”

An aggressive governor can't deliver. At least not yet.

In Michigan, Gov. Gretchen Whitmer and Attorney General Dana Nessels, both Democrats, came into office promising they would shut down Line 5.

In November 2020, Whitmer revoked the easement for Enbridge and ordered it to shut down the pipeline, saying the company violated the public trust doctrine meant to protect the state’s natural resources. The order told Enbridge to wind down operations in an orderly way to ease the state's energy transition.

The company sued in federal court, saying the governor didn't have the power to shut the line down. As that legal battle continues, MIchigan filed an amicus brief in Wisconsin supporting the Bad River Band's efforts against the company.

According to Beth Wallace, freshwater campaign manager at the National Wildlife Federation, Enbridge’s tactic through all the controversy has been to delay, so it can operate as long as possible and continue making money.

Another tactic has been invoking a 1977 treaty between the U.S. and Canada that guarantees the flow of oil and natural gas across the border, Wallace said.

Straits of Mackinac, the worst spot for an oil spill

The focus of the Whitmer administration's lawsuit is the section of Line 5 that runs on the lake bottom through the Straits of Mackinac, the 4.5 mile stretch between Michigan’s two peninsulas. 

The Straits is the worst spot in the Great Lakes for an oil spill because of the location and the strength of the currents, according to a study by the University of Michigan.

An oil spill in this spot would be like a “heart attack” to the Great Lakes, Gravelle said. 

There have been a few close calls. In 2018, a ship’s anchor struck the pipeline and damaged it. A second anchor strike damaged anchor supports on the pipeline, causing a temporary shutdown. 

Enbridge is currently pursuing a replacement tunnel through the Straits of Mackinac that will be bored through rock up to 100 feet below the lakebed, which its website states will nearly eliminate the chance of a pipeline incident.

The tunnel became possible after Michigan’s former Gov. Rick Snyder, a Republican, passed a bill one month before his term ended that created a three-member board that signed a 99-year lease agreement with Enbridge to continue operations of the Line 5 Tunnel.  

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Enbridge’s tunnel plans are still under review, and the federal permitting process was recently extended for the project. The start of construction has been pushed back; it's now slated for 2026. Some say it will never get built.

An analysis by the Michigan Public Service Commission found that if the pipeline continues to operate and the proposed tunnel is built, it would lead to more than $41 billion dollars in climate damage by 2070.  

“We can’t wait … for a tunnel to possibly be built to support an oil pipeline during a climate crisis,” Wallace said. 

Some want a larger conversation about our outdated infrastructure

During a time when there are simultaneous climate change, biodiversity and freshwater crises, Enbridge has unleashed a successful public relations misinformation campaign, Woodhouse said.

For instance, Enbridge has told people that oil prices will rise if the pipeline is shut down. However, one report by Environmental Defence Canada found that shutting down the pipeline would raise prices by under 2 cents per liter.

And in the Bad River Band case, a chemical engineering expert hired by Enbridge attorneys estimated the price increase for gas and diesel in Michigan and Wisconsin would be less 1 cent a gallon.  

The Environmental Defence Canada report showed that there are alternatives to the Line 5 pipeline to meet the energy demands in Ontario and Quebec. Another report found that this is also true in Michigan.  

And while the company claims the reroute around the Bad River Reservation will employ hundreds of union workers in Wisconsin, Wallace said employment numbers have been inflated in the past. 

For example, with Enbridge's Line 3 pipeline in Minnesota, the company claimed 80% of its construction jobs would stay in Minnesota, but only 20% did, she said. 

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Gravelle thinks the conversation needs to be about the larger issue of an outdated fossil fuel infrastructure.

“Line 5 is the perfect example,” she said.

The climate crisis will be a major issue in all future elections, Lake said, adding that the country needs political leaders who are prepared to transition the economy off fossil fuels. 

“Biden is not helping by picking when and where he decides to uphold rights,” Wallace said.

Caitlin Looby is a Report for America corps member who writes about the environment and the Great Lakes. Reach her at clooby@gannett.com or follow her on Twitter @caitlooby.