But one thing I’ve said from the very beginning is that the most important reason to support the effort to Shut Down Line 5— in fact, the only reason you really need— is because that’s what the twelve Michigan tribes want. And it’s important to understand why. So for now I’m just going to shut up, urge everyone else to do the same, and instead just listen to Native voices.

Yesterday, the Anishinaabe Friendship Center in Lansing held a public education rally featuring a number of extraordinary Anishinaabe speakers. Their remarks were powerful, eloquent, brilliant, and moving. Please listen to them. And then let’s support them in this fight.

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Speakers:

Jefferson Ballew (Pokagon Band of Potawatomi)

Miengun Pamp (Saginaw Chippewa Indian Tribe of Michigan)

Winnay Wemigwase (Tribal Chair, Little Traverse Bay Band of Odawa)

Lucas Sprague (Tribal Chief, Saginaw Chippewa Indian Tribe of Michigan)

Andrea Pierce (Little Traverse Bay Band of Odawa)

Dr. Nichole Keyway Biber (Little Traverse Bay Band of Odawa)

Aja Wheatley-Medwayosh Washington (Wasauksing First Nation from Nkwejong)

Teresa Melendez (Pokagon Band of Potawatomi)

Nathan Issac (Aamjiwnaang First Nation)

The implication is almost always that tunnel opponents are the cause of the delays and, hence, in a scandalous turn of irony, are prolonging the very risks—namely, the continuing operation of the twin pipelines—they claim to be worried about.

Let’s put this nonsense to rest.

Is it true that absent delays caused by opponents, the tunnel would be built by now? The answer depends in part upon how long tunnel construction will take. And the truth is, nobody really knows, including Enbridge. When the Snyder administration passed the tunnel legislation back in 2018, Enbridge said the project would take 7-10 years to complete. Six months later, they decided they could build it even faster. In 2019, Peter Holran, director of U.S. government affairs for Enbridge, told the press that Enbridge could complete the project in just 4-5 years. “Assuming we work through a normal permitting timeline,” Holran insisted, “we should be under construction by 2021.” But Holran’s projections were ludicrous.1 In fact, Enbridge didn’t even apply for necessary permits from the Michigan Public Service Commission and the United States Army Corps of Engineers for a full year after Holran’s comments, in 2020.

A “normal” review by the MPSC for a project of this magnitude and sensitivity was never going to take less than a year. In fact, one year would have been extraordinarily quick. The review—and this is absent legal challenges and other forms of delay— ultimately took three years. Had that been the final word in the matter and had Enbridge hastily begun construction, which would take five years (if we’re being extremely generous), the tunnel still wouldn’t be done for another two years. That’s 2028.

But it wasn’t the final word. Enbridge still needed USACE approval. That review took five years. But that’s not abnormal. Following more than a year of initial review, hearings, and public comments—all “normal” procedures—the USACE determined that the project would require an Environmental Impact Statement, also completely normal for a project of this scope (can anyone imagine approving a project like this without a robust environmental review?). According to a study by the federal Council on Environmental Quality (CEQ), the EIS process takes, on average, 3.5 years. And that’s almost exactly how long it took in this case. All told, under a totally “normal permitting timeline,” it took the USACE five years to reach its decision, just last week. So could the tunnel be built by now? No. Even if Enbridge began construction tomorrow, the tunnel couldn’t be finished until 2031 at the earliest.

So let’s just be clear: there is no scenario whatsoever under which the tunnel could have been completed by now. In fact, up to this point, tunnel construction has not been delayed at all. The love-the-tunnel crowd might want to give that talking point a rest.

But this still leaves the matter of all the litigation. Are the protracted legal proceedings solely the result of actions by tunnel opponents? Not by a long shot. It was Enbridge that sued Governor Whitmer in federal court. It was Enbridge that failed to file a timely motion— a full year-and-a-half late, as a matter of fact—to remove Attorney General Nessel’s case to federal court. It was Enbridge that appealed the Sixth Circuit Court of Appeals ruling, dragging the case all the way to the US Supreme Court. I could go on. The point here is that Enbridge, despite their public relations confabulations, isn’t looking to speed this matter up so they can complete the tunnel as quickly as possible. They are perfectly happy with these delays.

So if we’re going to indulge in “by now” scenarios, maybe we should consider some others:

By now—almost six full years after Governor Whitmer revoked Enbridge’s easement—the State could have devised a careful plan to ensure that after a shutdown, residents of the Upper Peninsula who currently rely on propane would have a reliable and affordable source of energy to heat their homes.

By now—almost six full years after Governor Whitmer revoked Enbridge’s easement—Enbridge could have set in motion an orderly decommissioning plan, one that respects State authority, removes all risk from the Great Lakes, and also upholds its obligations to shareholders. After all, they pay a lot of people a lot of money to figure out just such things.

Also by now—almost six full years after Governor Whitmer revoked Enbridge’s easement—Enbridge refineries in Ontario and elsewhere that rely on Line 5 feedstock could have plans in place to leverage alternative supply chains so that they can continue to meet their needs for the time being.

None of these things are insurmountable hurdles. If anything, I might submit that they’re quite a bit easier to accomplish than the massive, unprecedented, years-long undertaking of constructing a first-of-its-kind four-mile-long tunnel through the Straits of Mackinac.

And then there are far more significant by nows to consider. By now—more than forty years since the industry’s own scientists confirmed that the ongoing combustion of fossil fuels posed an urgent threat to all life on the planet—we already could have decarbonized. By now we could have subsidized and incentivized development of renewable energy technology in the same way we have coal, oil, and gas for decades. By now, we could have invested in and built the infrastructure needed to support wind and solar. By now we could have retrofitted countless homes and commercial buildings to run efficiently with renewables. By now we could have transformed our economy from one that relentlessly and self-destructively pursues growth to one that is sustainable for generations and aims to meet everyone’s basic needs.

Why has that utterly achievable transformation been delayed? Certainly not because of environmental activists. It has been delayed because of decades of deliberate disinformation campaigns by the oil industry and its trade association, the American Petroleum Institute (of which Enbridge has long been a member in good standing). Without those decades of obstruction, we could have already been living without Line 5 oil by now.2

And perhaps even more important than that, Indigenous justice has been delayed for at least two hundred and fifty years. By now the settler state could have abandoned its centuries-old policies of Indigenous land dispossession and resource exploitation. By now, we could have learned to respect tribal sovereignty and Native lifeways. By now, we could have ceased violating treaties.

Climate justice and a historical reckoning are long overdue. Are we going to spend the next five or ten years focused on Enbridge’s short-term corporate profits, or should we spend them focused on healthy Great Lakes and a clean, habitable planet for future generations?

I’m sure you’ve heard the news by now, so ably explained and contextualized this week here at The Current by David Holtz: the Michigan Supreme Court last Friday issued a stern rebuke to the Michigan Public Service Commission (MPSC) for its insufficient review of the Enbridge tunnel permit. Writing for the majority in the 6-1 decision, Justice Welch tried hard to be gentle, gracious, and generous toward the MPSC, but let’s be honest: the Commission received a pretty serious spanking from the Court.

Frankly, I’m not surprised by the decision itself. The MPSC, as the ruling points out, conducted a shoddy review and grounded its approval in some untenable exclusions and glaring incoherencies. And if you watched the Supreme Court hearing last March, you saw rock star attorney Riyaz Kanji, representing Flow Water Advocates in the case, just mop the floor with the lawyers from Enbridge and the MPSC. I’d have been shocked had the decision gone the other way.

But as I’ve spent the past few days reading over and thinking through the implications of the ruling, something else has blown my mind: for the first time in more than a decade I find myself flipping a familiar question on its head. Victories are rare for the little guys, and usually, after Enbridge has thrown its weight around, manipulated the public with expensive PR campaigns, gotten its way with the legislature, or successfully exploited captured regulatory agencies or politicians (I’m looking at you, Governor Whitmer), we in the movement find ourselves scrambling around and asking, “where do we go from here?”

But this time, remarkably, that question is for Enbridge: where do they go from here?

Let me spin this out. The upshot of the Michigan Supreme Court ruling is that the matter will now go back to the MPSC, where the Commission will have to abide by a different set of rules than the ones they set forth the first time around. The narrow review they conducted, the narrow review Enbridge wanted conducted, was the MPSC’s pathway to approval. That pathway is no longer available. Now, per the Court’s instruction, the Commission has to take into consideration the state’s Public Trust obligations. It also has to consider the environmental harms associated with the continued operation of the entire 645-mile pipeline, not just the portion that crosses the Straits. Given this new scope of review, it’s hard to see how the MPSC gets to a yes.

And the same principle will apply to the recently issued permit from the Michigan Department of Environment, Great Lakes, & Energy (EGLE). Given the State Supreme Court’s sweeping ruling, which applies to all state administrative agencies, you can bet that approval will now be challenged, and with almost certain success. That means EGLE will have to review Enbridge’s permit for a third time. And given both the Court’s directives and the political headwinds (not least the considerable fallout for Governor Whitmer after EGLE’s approval), it’s hard to imagine that agency getting to a yes this next time. The tunnel, it seems, is doomed.

Not that Enbridge ever wanted to build it anyway. It’s always been a chimera. But it has served Enbridge well, allowing them to delay the inevitable. But if I’m right and the tunnel is doomed, where does that leave Enbridge? Well, first, they’re going to have to lean even more heavily on the ruling in federal court last December. If you recall, that ruling held that the state’s actions to shut down the pipeline, including revoking the easement and asserting the public trust doctrine, are pre-empted by the federal Pipeline Safety Act, which gives the Pipeline and Hazardous Materials Safety Administration (PHMSA) exclusive jurisdiction over all matters pertaining to pipeline safety. That case is currently under appeal and, in my opinion, is likely to be overturned (though I won’t try your patience here with even more protracted armchair legal analysis).

But here’s the thing about the federal case: Enbridge has litigated itself into a corner. You see, if Enbridge prevails and federal pre-emption stands, the tunnel agreement with the state, which is by definition a pipeline safety instrument, is nullified. As I pointed out at the time, the state will have no legal way to enforce it, and Enbridge won’t be legally beholden to it. More importantly, and by the same logic, if the preemption ruling stands, the original 1953 easement granting Enbridge permission to operate the twin pipelines at the Straits will no longer be valid. After all, that easement was granted only upon condition that Enbridge comply with a number of very specific safety provisions. If those provisions in the easement are legally invalidated because they fall under the exclusive authority of the federal government, then the entire easement is invalidated. And that will mean that Enbridge has no authorization to operate Line 5 at the Straits. In other words, even if Enbridge wins in federal court, they lose.

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And where does that leave Enbridge? The other pending litigation is Attorney General Nessel’s case. That case, you might recall, the US Supreme Court sent back to state court where it belongs, but it is stayed pending the result of the federal case. If it does get a hearing, it’s hard to know what Enbridge is going to argue there. Their old standby, the federal preemption claim, won’t fly. That means they’ll have to rehash failed strategies from the Bad River Case or peddle the same arguments they’ll now have to take to the MPSC: that the State didn’t come forward with a suit a long time ago, that the pipeline does not violate the Public Trust, that its operation doesn’t run afoul of the Michigan Environmental Protection Act. But surely even, Enbridge knows those arguments are weak and unlikely to prevail.

That leaves them with just one final card to play: the 1977 Transit Pipeline Treaty with Canada. You can bet they’ll enlist the Canadian Prime Minister to push hard on diplomacy with the US government. How that might go, given the caprices of the idiot manchild who currently occupies the White House, is anybody’s guess. But even with his support, the Treaty offers Enbridge no certain cover, not with Article IV, which states clearly that the international agreement does not exempt pipeline operators from compliance with “regulations by appropriate governmental authorities,” including “environmental protections.”

Obviously, we’ve got a long way to go. And maybe by tomorrow morning, my fever-dream of optimism will dissipate. But as it looks right now, Enbridge is reeling.

“The Great Lakes are the largest freshwater system on Earth... As the many Indian Tribes involved in this litigation point out, the Great Lakes and the Straits of Mackinac have nourished life in this region for thousands of years.”

Crediting the Tribes first tells you what the six-justice majority thought it was doing. This wasn’t an administrative appeal. It was a statute being restored to the purpose it was written for.

The case, In re Application of Enbridge Energy to Replace and Relocate Line 5, landed July 31 as the final decision of the Court’s term and 56 years to the week after Gov. Bill Milliken signed the Michigan Environmental Protection Act (MEPA) into law on July 27, 1970. At issue: the Michigan Public Service Commission’s approval of Enbridge’s plan to bore a concrete tunnel beneath the Straits and run a new 30-inch pipe through it, replacing the aging dual pipelines that sit exposed on the lakebed today.

Justice Elizabeth Welch, writing for Chief Justice Cavanagh and Justices Bernstein, Bolden, Thomas, and Hood, held three things:

• Courts review MEPA decisions de novo with no deference to agencies like the PSC. The Court reversed the Court of Appeals, which had deferred to the PSC’s experts who sided with Enbridge.

• The PSC, said the Court, drew the harm too narrowly. It confined its review to the four-mile tunnel segment and refused to ask whether the tunnel would extend the life and the spill risk of the remaining 641 miles of Line 5.

• MEPA requires independent review of the public trust doctrine, separate from ordinary environmental harm. The statute protects “the air, water, or other natural resources, or the public trust in these resources.” The PSC said public trust wasn’t its job. The Court of Appeals agreed. The Supreme Court reversed and vacated the PSC’s approval.

That third holding is a genuine revival of public trust as a driver in environmental decision-making in Michigan. The first two are course corrections. The third rewrites what Michigan agencies have to consider going forward.

To understand why any of this matters, go back to a woman in Belmont who wasn’t a lawyer.

In 1968, Joan Wolfe founded the West Michigan Environmental Action Council. She’d cut her teeth fighting to ban DDT and learned the hard way that Michigan courts wouldn’t let ordinary citizens sue on the environment’s behalf. So in 1969 she asked University of Michigan law professor Joseph Sax to draft a bill that would fix that. Sax wrote it. Wolfe built the coalition– civic groups, the League of Women Voters, the UAW–and packed committee rooms with ordinary people.

The Michigan Chamber of Commerce fought it hard. It passed anyway. Milliken signed it in 1970 as Public Act 127, the first statute of its kind anywhere, later copied by at least seven states and echoed in federal environmental law. Milliken appointed Wolfe to the Natural Resources Commission, where she became its first woman chair. She died in 2021 at ninety-one.

MEPA’s impact wasn’t in the rules it created. It was in the standing it created, which is the right of any person to walk into a Michigan courtroom and defend air, water, and land they don’t own a share of. And crucially, the law didn’t hand standard-setting to an agency. As the Court put it again Friday, the Legislature “left to the courts the important task of giving substance to the standard by developing a common law of environmental quality.” That was a deliberate judgment about which institutions to trust. As the Court wrote in 1975, “Not every public agency proved to be diligent and dedicated defenders of the environment.”

Nine years after MEPA passed, Wolfe’s own organization proved the point. In West Michigan Environmental Action Council v Natural Resources Commission (1979), WMEAC challenged the DNR’s plan to permit oil and gas drilling in the Pigeon River Country State Forest, then home to roughly two hundred of the last significant elk east of the Mississippi.

The Supreme Court blocked the permits and laid down the principle at the heart of Friday’s ruling: “Courts can discharge their responsibility to make such determinations only if they make independent, de novo judgments.” Deference to the agency, the Court said, would leave MEPA unable to do its job, because environmental protection “demands” strict scrutiny.

The elk survived, and the DNR now counts roughly 1,150 in and around the Pigeon River Country, enough that the state’s problem today is surplus, not extinction. The symmetry is hard to miss: in 1979 it was an oil company drilling in a state forest, and in 2026 it’s an oil company running a pipeline under the Straits. Both times, the real question was whether an agency’s word was final.

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Between 1979 and Friday, MEPA was quietly hollowed out. The sharpest blow landed in 2004, when a four-justice majority in National Wildlife Federation v Cleveland Cliffs Iron Co imported federal constitutional standing doctrine and gutted MEPA’s “any person” provision, the exact feature Wolfe had commissioned Sax to write in the first place. Her family later called the dismantling of her signature achievement one of the deep sorrows of her life.

The Court reversed course in Lansing Schools (2010), but by then years of citizen suits had already been shut out. The quieter erosion was procedural as permitting migrated into agencies and appeals routed through the Court of Appeals instead of circuit court, deference to agencies over citizens and courts swallowed the statute whole.

That’s the erosion Friday’s ruling fixes, and it fixes it in the direction of more judicial scrutiny, in a decade when courts, including the U.S. Supreme Court, have mostly been narrowing environmental review. Michigan just went the other way, on the strength of a 56-year-old state statute that was never merely procedural.

The smallest-sounding holding may be the most durable one. For decades, “public trust” sat in MEPA’s text doing almost no independent work, treated as roughly synonymous with “natural resources.” The Court held Friday that it means something separate and that a factfinder must ask not just whether a project pollutes the water, but whether it impairs the public’s ancient rights to fish it, hunt it, travel it. The Court got there because Tribal nations– Bay Mills, Grand Traverse Band, Little Traverse Bay Bands, Nottawaseppi Huron Band–and FLOW Water Advocates pushed it there. Which is exactly the mechanism Joan Wolfe asked Joseph Sax to build in 1969: ordinary parties, deputized to stand up for water none of them own.

Whether it holds is another question. The legislature could weaken MEPA; a future Court could rule differently. And when it comes to the future of the Line 5 tunnel, federal courts are considering whether Michigan has any right to protect the Great Lakes from this dangerous pipeline. But for now, MEPA is Michigan’s best friend for protecting the Great Lakes and environment. And Michigan’s citizens were reempowered Friday because some of them cared enough to go to court to demand the state government follow the law.

A History Lesson for Brad Shamla

(July 29, 2014)

Looks like Enbridge needs another history lesson. To mark last week’s anniversary of the Marshall spill, Enbridge VP Brad Shamla penned an editorial that was published in the Battle Creek Enquirer and the Detroit News. A version of the op-ed also appeared as a “letter” (that is, a paid advertisement) in the Detroit Free Press (and probably elsewhere, we’re not sure).

It’s a fine-sounding letter, carefully crafted, we’re sure, by a whole committee of people in the vast Enbridge public relations department. The trouble is, it’s also disingenuous, starting with its very first sentence. See if you can spot the problem:

July 26, 2010, is a day that no one at Enbridge will ever forget.

Yep, that’s right: in an article whose central point is memory and commemoration, the importance of always remembering what happened in Marshall, Shamla gets the date of the spill wrong. July 26, 2010 is NOT the day the “Line 6B pipeline failed near Marshall.” As everybody knows, the failure occurred on July 25.

So what gives? Is it possible Shamla doesn’t know this? Is it merely a typographical mistake? Or might it be, once again, a willful distortion of the facts on the part of Enbridge? You won’t be surprised to learn that we think it’s the latter. Shamla (and Enbridge) date the spill on July 26, presumably, because it allows them to forget what happened the day before, when Enbridge ignored evidence of a problem with the line, ignored its own safety protocols, turned up the pressure on the line, and gushed oil out of the ruptured seam in Line 6B for 17 hours. Here’s the National Transportation Safety Board’s account of what happened:

On Sunday, July 25, 2010, at 5:58 p.m., eastern daylight time, a segment of a 30-inch-diameter pipeline (Line 6B), owned and operated by Enbridge Incorporated (Enbridge) ruptured in a wetland in Marshall, Michigan. The rupture occurred during the last stages of a planned shutdown and was not discovered or addressed for over 17 hours. During the time lapse, Enbridge twice pumped additional oil (81 percent of the total release) into Line 6B during two startups; the total release was estimated to be 843,444 gallons of crude oil. The oil saturated the surrounding wetlands and flowed into the Talmadge Creek and the Kalamazoo River. Local residents self-evacuated from their houses, and the environment was negatively affected.

So far from remembering the Marshall spill, Shamla and Enbridge are actually rewriting history in order to conveniently erase some key facts from the historical record– facts that point directly to the real causes of the spill and its severity.

This revisionism is part and parcel with all of the new measures Shamla touts as Enbridge’s response to the lessons they learned from the spill. Mainly, those measures consist of throwing a lot of money around. Don’t get us wrong, some of the measures Shamla describes seem like good things. But not one of them gets at the core of the problem. Not one of them addresses or acknowledges the principal reason (according to the NTSB) the Marshall spill was so very bad: Enbridge’s “culture of deviance” from following its own safety protocols. Prior to the Marshall spill, Enbridge had all the tools it needed to prevent the spill: detection equipment that found anomalies, control center rules that could have shut down the pipe right away. But Enbridge disregarded or ignored those things. Spending money on new equipment, putting in place new rules and protocols isn’t going to matter one little bit if Enbridge doesn’t change its culture. The former is easy; the latter is very difficult– even more difficult if you’re unwilling even to acknowledge the problem.

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“We will not forget the Marshall incident,” Shamla tells Michiganders, which may be true. Unfortunately, the incident Enbridge has “memorialized,” the incident Enbridge vows not to forget, appears to be a fictionalized version of the incident, only loosely based on actual events.

Oil transported safely is bad for the Great Lakes.2

Oil transported safely is bad for the Great Lakes.3

Oil transported safely is bad for the Great Lakes.4

Oil transported safely is bad for the Great Lakes.5

Oil transported safely is bad for the Great Lakes.6

Oil transported safely is bad for the Great Lakes.7

Oil transported safely is bad for the Great Lakes.8

Oil transported safely is bad for the Great Lakes.9

Oil transported safely is bad for the Great Lakes.10

Oil transported safely is bad for the Great Lakes.11

Oil transported safely is bad for the Great Lakes.12

Oil transported safely is bad for the Great Lakes.13

Oil transported safely is bad for the Great Lakes.14

Oil transported safely is bad for the Great Lakes.15

Air quality wasn’t much better. In the second week of November 1953, for example, New York City experienced a miasma of smoke, lead, and other pollutants so thick and foul that residents found it dangerous to leave their homes. Later studies found that the air pollution that week led to the deaths of as many as 25 New Yorkers per day. Conditions weren’t much better elsewhere.

Other scourges threatened the environment and nonhuman animals as well. In 1953, a physician named Morton Biskind published a scientific article warning of the dangers of newly developed pesticides like DDT. Despite his warnings, pesticide use only accelerated, poisoning birds, fish, squirrels, and even house cats. It would be another decade before Rachel Carson’s foundational book, Silent Spring, finally convinced policymakers and the public of the reckless use of these harmful chemicals, many of them manufactured from petroleum feedstock.

But for sheer devastation, pesticides don’t come close to nuclear radiation. In 1953, the U.S. government conducted what it called Operation Upshot-Knothole at its Yucca Flat test site in Nevada. The series of eleven nuclear shots, most notoriously, the detonation termed “Dirty Harry,” released as much radiation as the infamous 1986 Chornobyl disaster in Ukraine. Thousands of residents of nearby St. George, Utah, were exposed, as were thousands of sheep and other livestock on surrounding ranches. Government attempts to downplay the exposure obscured the data, but rates of cancer and deaths of animals far exceeded norms. Infants who received fresh milk within days of the tests revealed radiation levels hundreds of times over limits considered safe, even in 1953.

Remarkably, the government’s nuclear program wasn’t even the worst example of the era’s disregard for (some) human lives. In May 1953, before the ink had even dried on President Eisenhower’s permit allowing Line 5 to cross the international border at the St. Clair River, Eisenhower issued Executive Order 10450, which banned homosexuals from all federal employment. In 1953, states could still legally ban interracial marriage. In 1953, Jim Crow reigned across the South, making sure that schools, buses, restaurants, and other public spaces remained racially segregated. Redlining was also a common practice in the North.

On August 1, 1953, just days before Line 5 would be dragged across the Straits of Mackinac, the U.S. Congress passed House Concurrent Resolution 108, which initiated the federal government’s new termination policy, renouncing federal recognition of Native American tribal sovereignty—yet another attempt to annul treaties and force the assimilation of Indigenous peoples into settler culture. In 1953, only one woman served in the United States Senate. In 1953, not a single woman held the governorship of a U.S. state. In 1953—I’m not making this up—the Eisenhower administration launched what it called, in brazenly racist language, “Operation Wetback,” a military-style campaign to remove Mexican immigrants from cities all across the United States

The list goes on. In 1953, the U.S. experienced a polio epidemic. In 1953, houses were still built with asbestos. In 1953, people smoked cigarettes on airplanes, in schools, and in hotel lobbies. In 1953, house paint was laced with toxic lead. In 1953, seatbelts were not standard in cars. And in 1953, people—but not everyone!— thought it was a good idea to lay twin oil pipelines on the bottomlands of the Straits of Mackinac, one of the most sensitive ecosystems on the planet.

Welcome back to 1953.

Yesterday, Governor Whitmer’s Department of Environment, Great Lakes, and Energy granted Enbridge a key permit for the foolhardy Line 5 tunnel; the United States Army Corps of Engineers permit will surely follow very soon. Although not surprising, it’s a stunning decision, and not only— though this is bad enough— because it gives Enbridge permission to desecrate Indigenous burial grounds. It’s also in keeping with the Trump administration’s campaign to Make America 1953 Again. After all, for virtually every item I’ve listed above, there’s a precise counterpart today: the gutting of the Environmental Protection Agency and the rollback of water and air quality regulations, the complete dismantling of the Endangered Species Act, the assault on DEI designed to undo progress on racial equality, militarized ICE thugs deployed to American cities to deport immigrants, rescinding federal protections for LGBTQ+ people, the (fortunately failed) attempt to overturn birthright citizenship that would threaten Native American citizenship rights, Trump’s recent announcement that he wants to restart nuclear weapons testing. All this is not a coincidence.

And yet, you’d have hoped a Democratic Governor wouldn’t be complicit in returning us to such a destructive past.

The tunnel has always been an absurdly backward-looking idea, a twentieth-century plan for a twenty-first-century world. The last thing a planet on fire needs is a billion-dollar investment in fossil fuel infrastructure. Just step outside right now and try to breathe the air from wildfires raging in Minnesota and Canada. That fact alone makes the decision bad enough. But it’s much worse than that. We should also recognize that this decision is inseparable from the broader effort, taking place on any number of fronts, by racist authoritarians to erode democracy and drag America back to a time when health, dignity, opportunity, and civil rights extended to the few, not to the many, and a time when corporate abuse of the nonhuman world went almost entirely unchecked. So let’s just be honest: more than just a risky idea, the tunnel is a fascist project.

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Governor Whitmer and EGLE had a chance to decide between the past and the future, between the world as it was 73 years ago and the world as it could be, between capitalist profit and a clean, habitable planet for generations to come, between fascist authoritarianism and egalitarian democracy. They chose the world of 1953.

A couple of months ago, on April 15, the Trump Administration announced that it had issued a series of Presidential Permits for Enbridge’s cross-border pipelines. This included a permit for Line 5, which, as you know, crosses the St. Clair River, the international boundary between the U.S. and Canada. Both the timing and the purpose of the action remain a mystery, and the story barely made the press. Aside from an industry outlet, which also wondered what the point of the action might be, the only news outlet that appears to have covered the story is Michigan Advance (which has done outstanding work for years reporting on Line 5 developments). Here’s what reporter Jon King wrote: “The permit replaces a 1991 authorization for the Michigan crossing near Marysville in St. Clair County and allows the Canadian company to continue operating and maintaining the existing pipeline facilities at the international boundary.”

But King made a mistake. The new permit does not replace a “1991 authorization.” As the permit itself states, the “permit supersedes and revokes the Presidential permit issued previously, dated April 28, 1953” [emphasis mine].

And this, friends, is where things get weird.

First of all, King’s error is understandable. Along with the Line 5 permit, President Trump issued a second permit for the St. Clair River crossing: one for Line 6B (which Enbridge now calls Line 78). That one, the memorandum states, “supersedes and revokes the Presidential permit issued previously, dated December 12, 1991.” It’s easy to get the two permits confused (as we’ll see). But even weirder is that Line 6B was built in 1969, so shouldn’t the new permit replace the one issued at that time? The answer to that question turns out to be no. So let’s back up.

Recall that when Line 5 was constructed in 1953, Enbridge was called Lakehead Pipe Line Company, Inc. And at that time, the company sought and was granted a Presidential Permit for Line 5 from President Eisenhower. In the two decades that followed, Lakehead expanded its system of pipelines in the Great Lakes region. Accordingly, they applied for and received additional permits for other international border crossings in North Dakota, in New York state, and again in St. Clair County, for Line 6B.

What happened was that, in 1991, Lakehead underwent a corporate restructuring. As part of that restructuring, all of the company’s pipeline assets were transferred to a newly formed company: a Master Limited Partnership named Lakehead Pipe Line Partners, L.P. Under the terms of their Presidential Permits, this transfer of ownership required Lakehead Partners to apply for new permits for all of those border-crossing facilities. They filed an application for those permits in 1991.

A few years ago, in the course of some basic research into the history of Line 5, my research assistant and I sought access to all of Lakehead’s cross-border permits, both the originals and the updated versions following the corporate restructuring. But while we were able to locate both the 1953 and 1968 permits for the St. Clair River crossing, we could find only one permit for the St. Clair River crossing after the restructuring in 1991. This didn’t make sense. Making matters worse, that one existing permit did not specify whether it was for Line 6B or for Line 5. Both are 30-inch-diameter pipelines, and the permit said nothing about the year of the prior permit it was meant to supersede, making it hard to determine which pipeline it was meant to authorize. The State Department representative (the agency responsible for maintaining these permits) with whom we corresponded was likewise baffled and couldn’t answer definitively.

For a number of reasons, we suspected the permit was for Line 6B. For one thing, Lakehead Partners’ application refers to “Presidential Permits granted in the 1960s.” For another, in all of its more recent legal filings in the Line 5 dispute with the Whitmer administration, Enbridge repeatedly states that “Line 5’s crossing of the international boundary is federally authorized by a Presidential Permit issued to Enbridge for Line 5. President Dwight D. Eisenhower issued this permit on April 28, 1953,” implying that it is the only permit they have.

But one thing to note here is that it is simply not true that such a permit was issued to Enbridge. As explained above, the permit was issued to Lakehead Pipe Line, Inc, an entirely distinct corporate entity from Lakehead Pipe Line Partners, the Limited Partnership that changed its name to Enbridge in 1998. Equally interesting is that nowhere in any of its filings does Enbridge mention an updated permit for Line 5 in 1991. And as I’ve said, both our exhaustive searches and our correspondence with the State Department yielded no such permit.

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The logical conclusion, then, was that for whatever reason, no permit was ever granted to Lakehead Partners for Line 5 in 1991. This conclusion is confirmed by correspondence between Lakehead Partners’s attorneys and the State Department in 1993. In that correspondence, both parties recognize “discrepancies” in the company’s permits, not least among them a missing permit from 1991. But what’s strange is that the attorney for Lakehead Partners isn’t even aware of the 1953 Presidential Permit. “Lakehead has no indication that its predecessor in interest, Lakehead Pipe Line Company, Inc, ever sought or received Presidential Permit authorization for the 30-inch pipeline placed in service January 1, 1954,” the attorney says. Stranger still, he believes that in 1953, “there was no requirement for an oil pipeline to obtain Presidential Permit authorization for an international border crossing.” Both of those assumptions are demonstrably wrong, and it’s especially mystifying that the attorney isn’t aware of the 1953 permit’s existence.

At any rate, in the same 1993 correspondence, the Lakehead attorney requests a new permit for Line 5. But at this point, the paper trail ends completely. And while it is theoretically possible that an updated permit from 1993 exists in some dusty file cabinet in the basement of the State Department building, no one has been able to turn it up. Which is to say there is no evidence to suggest that the permit requested in 1993 was ever issued. This explains why President Trump’s authorization last April only references the permit from 1953

What does this all mean? First, let me say that I don’t think anything nefarious is at play here, only incompetence. Most of this seems to be a matter of clerical sloppiness at Lakehead or at the State Department, or both. Some lawyers and bureaucrats failed to dot some i’s and cross some t’s. But what I also find interesting is the lack of institutional memory (or maybe this is also minor incompetence) at Lakehead/Enbridge. They managed to realize they were missing a 1991 permit, but for some reason couldn’t find the one from 1953? They entered into a major legal dispute with the State of Michigan, but didn’t recognize that the sole permit they held was invalid? I don’t know how to explain these things.

Regardless, one thing seems pretty certain: from 1991 until April 2026—that’s a full 35 years—Enbridge operated Line 5 without a crucially important required cross-border permit. It’s a shame the Whitmer Administration didn’t know this when the Governor and the Attorney General filed their suits to have the pipeline shut down. The Biden Administration would have had an easy means to support the State’s action, citing the missing permit and refusing to issue a new one. What could have been?

At any rate, how did the hapless, bumbling Trump administration catch wind of this? According to the orders, Enbridge filed an application for the new permits in January of this year. Why they finally did so is anybody’s guess. Did they only just recently discover the problem themselves? How could their army of highly paid attorneys working on the Line 5 case night and day not have known this before? Either way, it looks to me like they found a clever means to make the request while downplaying the missing permit. After all, there was no reason whatsoever to re-seek perfectly valid permits for all the other border crossings. My hunch is that they figured it would be conspicuous to issue a permit only for Line 5. Asking for authorization for all of them all at once makes the whole affair look like some dull basic accounting, just a bit of housekeeping. Nothing to see here, no need for media coverage.

And now that the authorizations have been granted, it’s all moot anyway.

But let me do a bit of accounting of my own: Enbridge may finally have its border crossing permit for Line 5, but the company remains in violation of the terms of the Line 5 easement. Enbridge continues to trespass on the Bad River reservation. Enbridge has a long history of flouting the law, breaking promises, breaching agreements, and violating regulations and the conditions of permits. In that context, operating Line 5 without a valid permit for 35 years seems perfectly fitting. What can’t they get away with?

A major flaw of our regulatory systems is not just capture but naivety. Agencies assume good faith on the part of those they are meant to regulate, just as they assume that existing enforcement mechanisms are adequate to incentivize compliance. There are plenty of good reasons for the Michigan Department of Energy, Great Lakes, and Environment to deny Enbridge its wastewater permit, for example, or for the Michigan Public Service Commission to reject Enbridge’s application to build the tunnel. But the best reason of all—Enbridge’s appalling track record in the state—is the one neither agency will consider at all.

In fact, this will be the first of two posts addressing some recent Line 5 news that you might have missed. I don’t mean the appearance of Enbridge’s disturbing geo-technical report on the tunnel, so helpfully explained here by my friend David Holtz last month. I also don’t mean the good news of the U.S. Supreme Court’s unanimous affirmation that Enbridge isn’t exempt from basic procedural requirements. Enbridge’s argument was so laughably bad in that case that they couldn’t even convince corporate toadies like Alito and Thomas to vote in their favor. I also don’t mean the bad news that EGLE plans to issue Enbridge its water discharge permit for the tunnel project, an appalling, if unsurprising, decision. Instead, I want to discuss two stories that I suspect passed by largely unnoticed.

The first story is the latest Enbridge-related oil spill. On March 11, the Suncor refinery in Sarnia, Ontario, identified a “hydrocarbon sheen” on the surface of the St. Clair River. The company quickly responded with containment booms, absorbent material, and vacuum equipment to recover the oil that had somehow made its way into the river. In the days that followed, Suncor announced that the source of the leak was “third-party pipeline infrastructure.” The infrastructure in question turned out to be the Sun-Canadian pipeline, which had developed a half-inch pinhole that released about 400 liters (or roughly 100 gallons) of oil into the river.

The spill was not from Line 5. Not this time. Line 5 has itself leaked in Sarnia repeatedly. According to records from Canada’s National Energy Board, Enbridge is responsible for dozens of releases in Sarnia over the past 50 years, at least one annually. Not all of these are from Line 5; they also include Line 6B (now called Line 78) and Line 9. But it’s all the same.

That’s because Line 5 (and 9 and 78) and the Sun-Canadian line are all part of the same system. Like Line 5, the Sun-Canadian line was built in 1953. It carries refined products from the Sarnia refineries east to markets in London and Toronto. So the two pipelines are linked as in a chain: Line 5 feeds the refineries, which, in turn, feed the Sun-Canadian line.

The Sarnia petrochemical refineries, known collectively as Chemical Valley, are the most troublesome—and in my view, the most unfortunately forgotten— part of the Line 5 story. The refineries are the reason that Line 5 exists, and, in turn, Line 5 is the primary reason the refineries have expanded and flourished. The origins of Chemical Valley date back to the 1850s, when some of the earliest North American oil wells were drilled in nearby Lambton County. The first major refinery was established in Sarnia in 1871, and others soon sprang up, fed first by the local oil fields, then later by oil from the even large Lima oil fields in Ohio.

Later in the mid-twentieth century, when explorers struck oil up in Alberta two thousand miles to the west, it proved more cost-effective to transport the oil to already-existing refineries in Sarnia than to build new ones closer to the site of extraction. Thus, Line 5, an extension of the first Interprovincial Pipe Line from Edmonton to Superior, Wisconsin, was born. And since Line 5 oil transport significantly increased the amount of crude in need of refining, Chemical Valley expanded accordingly. That expansion happened to coincide with extraordinary innovations in the chemical manipulation of hydrocarbon molecules, such that crude oil and gas could be transformed not just into asphalt, kerosene, or gasoline, but into an astonishing variety of chemical substances that form the basis of plastics, fertilizers, pesticides, and so much more.

But those remarkable advancements in chemical science have proven deadly. I’ve written before about the role of Line 5 in plastic pollution (a topic that still receives too little attention). Equally devastating, if not more so, is the role Line 5 has played in the production of herbicides and insecticides. Six decades ago, in her classic book Silent Spring, Rachel Carson described in vivid, horrifying detail the devastating effects that chlorinated hydrocarbons—that is, pesticides created by the petrochemical manipulation of petroleum feedstock—have had on ecosystems and on plant and animal (including human!) life. For almost three quarters of a century, Sarnia refineries like Imperial Oil, fed by Line 5, have produced enormous amounts of material used in the production of those pesticides, which have in turn caused the unintended deaths of untold numbers of creatures—fish, birds, ground squirrels, cattle, even human beings. Line 5 oil and gas has played a key role in making all that killing possible.

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In my very first post for The Current just over a year ago, I calculated that, according to the 1,000-ton rule in climate science, Line 5 is responsible for as many as 9 million human deaths. We should add to that tally the amount of nonhuman life Line 5 oil has helped kill by way of plastic pollution and chemical poisons. The number is unquantifiable, but surely exceeds human fatalities by an order of magnitude. Line 5 oil is, to borrow a phrase from Carson, an elixir of death.

So I wonder: what might public discussion of Line 5 look like if it focused less on the prevention of impending catastrophe, or on comparatively trivial matters like the totally-solvable heating needs of a relatively small number of homes in the UP, or on the price of gasoline (subject to far more volatile circumstances than any one pipeline), and focused instead on the staggering amount of death for which Line 5 is responsible?

After all, it only gets worse.

Chemical Valley is also the site of one of the most appalling examples of settler colonial environmental injustice in all of Canada. The Sarnia refineries encircle, almost completely, the reserve of the Aamjiwnaang First Nation. Back in 1952, when Line 5 was first proposed, the tribe objected to it, but as in the U.S., they were overrun and overruled by the settler state that favored Enbridge (then called Lakehead) every step of the way. But in addition to land dispossession (with its echoes of the Bad River situation in Wisconsin), the Aamjiwnaang have been forced to endure the daily, unrelenting emission of toxic pollutants into the air, land, and water. As a result, generations of Aamjiwnaang have suffered from the ill effects of petrochemical poisons. Those horrendous effects upon tribal members have been well-documented in books, films, magazine articles, and numerous scientific studies: rampant migraines and skin rashes, chronic respiratory problems, elevated rates of cancer and miscarriage.

The Aamjiwnaang First Nation reserve, in other words, is a sacrifice zone. This is the story Enbridge and the petrochemical industry doesn’t want you to know. And this is also how you and I save a few cents per gallon at the gas pump. The health of the Aamjiwnaang is the cost of Line 5's ongoing operation.

Let’s not forget that most of us have the luxury of thinking about Line 5 only as a disaster-waiting-to-happen, in precisely the same way that so many of us have the luxury of thinking about climate change as a distant threat. But for others, like the countless innocent critters killed so we can rid ourselves of a few pests, or like the Aamjiwnaang citizens who live in proximity to, rather than safely distanced from, toxic sites of petrochemical production, the disaster is already here.

Next time: The Curious Case of the Presidential Permit

Violations of due process are acts of violence because they cause harm. The ongoing operation of Line 5 is an act of violence against critical Great Lakes laws that protect our freshwater for you and me.

On the Bad River Band’s land, Enbridge continues to operate the 73-year-old Line 5 oil pipeline illegally. The company has been trespassing on the Bad River’s land for over a decade, blocking removal through legal maneuvers and attempts to manufacture consent. Meanwhile, Enbridge has long known of defects along Line 5’s entire length. Erosion along the banks of the Bad River has left the pipeline increasingly exposed; one storm could endanger the entire Bad River community.

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The ongoing illegal operation of Line 5, and Enbridge’s efforts to weaken Tribal and state sovereignty through court appeals and delays, are acts of violence. So are Enbridge’s proposed re-route and tunnel, which are not good-faith solutions but an abuse of power. Enbridge uses the threat of force to keep oil flowing across protected resources at all costs.

Enbridge knows Line 5 is not needed. Under oath, its own experts admitted the pipeline can be shut down with no noticeable impacts. Multiple industry experts agree. An orderly shutdown would not harm energy supplies, but it would uphold Great Lakes protections and honor Tribal sovereignty. How long will we allow the violent path to be chosen instead?

Enbridge’s efforts to narrow permit reviews of the tunnel and the Bad River re-route - to silence the treaty rights for the Bad River Band and public voices of opposition - also attempt to eliminate Great Lakes laws. And now Enbridge is rushing to destroy forests and treaty-protected water to try and deny the due process of the Bad River Band, violating their full right to defend their land and water from this unnecessary violence.

Enbridge’s use of force also includes funding local police to protect their rush to destroy land, an act that attempts to suppress peaceful protest through a promise of violence, much like water protectors faced along Enbridge’s rushed and environmentally disastrous Line 3 expansion. Protecting water by peacefully protesting is not violence; it is standing up to a system that is built by and for oil corporations, a system designed to extract, silence and diminish the public, Tribal treaties, and the once protected Great Lakes.

Enbridge’s acts of violence are a sign of weakness, not power. Every decision-maker has refused to answer this one question seriously: Is the risky Line 5 pipeline needed for Wisconsin or Michigan? The answer is no.

There are safer pathways for Line 5 products to reach all the same customers. I dream of a world where leadership acknowledges this reality and focuses on protecting our freshwater and communities above all else. That world starts with acknowledging the ongoing acts of violence from oil corporations that are destroying our land, water, climate, and peace.

We do not have to wait for a spill or for Enbridge to make an arrest to call this violence. The threats that grow risk, the delays in the courts, and the ongoing occupation are themselves forms of violence. The only question is whether we name it.

Now add an uncontrolled source of explosive methane gas. That, in summary, is what Enbridge’s long-concealed geotechnical report assesses: the proposed Line 5 tunnel through the Straits of Mackinac. The report’s long-delayed public disclosure is in a filing with the Michigan Department of Environment, Great Lakes, and Energy (EGLE), which is expected to issue a crucial decision on July 16 on a required permit to construct the proposed tunnel.

For years, Enbridge resisted releasing key sections of its Geotechnical Baseline Report on the proposed tunnel project. Even the version now in the public record is redacted in critical areas.

Enbridge says the report was written for contractor negotiations, not permitting. But EGLE had to request the document in late 2025, and it took Enbridge months to provide it. The report wasn’t part of the Michigan Public Service Commission permit record in 2023. A report describing the ground conditions of the tunnel route was withheld from permitting agencies for years. Draw your own conclusions.

But what remains, together with independent expert analysis, is sufficient to explain the company's reluctance to share it.

The Rock Enbridge is Betting On

A tunnel boring machine (TBM) needs stable, competent rock to grip, push against, and seal itself into. The Straits of Mackinac does not reliably offer that. Here is how geologist Mike Foley, who spent his career assessing project risks for the oil industry, summarizes what he read in the report:

Nearly 70 percent of the proposed route runs through the Pointe Aux Chenes Formation, which is a highly fractured, incompetent claystone. ‘Incompetent’ is an engineering term of art: it means the material cannot reliably support stress without deforming, cracking, or collapsing. Enbridge’s own rock strength analysis classified most of it as ‘weak to very weak’ on the standard rock quality scale.

There is one location in particular that concerns Foley most. At the deepest point of the tunnel, where pressures will be highest, the planned route appears to come within just 30 feet of an ancient erosional channel filled with loose, unconsolidated glacial sediment.

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Enbridge’s own report confirms an ancient riverbed — the “Mackinac River” — lies beneath the Straits, filled with soft, unstable sediments. Then it claims the tunnel won’t encounter it while simultaneously requiring engineers to prepare for exactly that scenario if conditions differ. But if the tunnel boring machine drifts even slightly from its planned path, or if the geology is more variable than sparse borehole data suggest, the machine could punch into that sediment zone. The consequences could be severe and potentially irreversible.

History offers a useful precedent. This is not speculation about what might go wrong but a record of what has gone wrong before.

In December 2013, a tunnel boring machine in Washington State struck an uncharted steel pipe, which was a single unexpected obstruction, and broke down. The project halted for roughly two years while crews excavated a rescue shaft and rebuilt the machine. Litigation over insurance costs dragged on for years afterward.

The Line 5 tunnel route relies on approximately 20 boreholes spread across nearly four miles, with gaps between sampling points often exceeding 1,000 feet. In some stretches, a single borehole hundreds of feet away is the primary evidence for what the ground looks like. That is an extraordinarily thin basis for predicting what a multi-million-dollar machine will encounter.

While the geotechnical report briefly references gas potential — with key sections redacted (see below)—independent tunnel expert Brian O’Mara raises a concern that goes far beyond what the report acknowledges. O’Mara has more than 35 years of geological engineering experience in tunnel construction. His assessment is direct: methane dissolved in groundwater will seep into any tunnel drilled through these formations. It will not be a temporary construction hazard. It will be ongoing and permanent.

This transforms the project from a difficult construction challenge into something more dangerous: a confined, high-pressure industrial tunnel with a continuous fuel source for an explosion. The danger threshold for methane is low. Just 5 percent of methane in the air creates an explosive mixture. Tunnels offer limited ventilation and no escape route for a pressure wave. The historical record on this is sobering:

A sealed annulus design, which would reduce methane infiltration, has not been adopted. The project also lacks a Failure Modes and Effects Analysis, a basic engineering safeguard that catalogs how individual system failures can cascade. Its absence is not a technicality. It means there is no systematic accounting of how one failure might trigger the next.

The methane risk does not stand alone. The geotechnical report itself identifies a series of conditions that would challenge any tunneling project and that interact with each other in ways that make collective failure more likely than any single risk in isolation.

Continuous pumping and water treatment would be required throughout construction. The report also acknowledges 'rapid failure' or 'fast raveling' as a potential condition. This is the sudden collapse of material into the tunnel bore, something extremely difficult to respond to in a confined space under high pressure.

What the Law Requires and What This Project Does

Michigan’s Great Lakes Submerged Lands Act requires that no activity impair public trust waters. The Clean Water Act requires that projects avoid and minimize impacts wherever possible. This project, as described in its own technical documentation, runs counter to both standards.

Violating the Great Lakes Submerged Lands Act, the project would disturb unstable geological formations, risk collapse and groundwater interaction, and require continuous industrial intervention throughout its operational life. That is not protection of the resource. It is a permanent risk management imposed upon it.

Violating the Clean Water Act, the project requires continuous water withdrawal and discharge, introduces chemical treatment systems into the environment, and poses a documented risk of contamination. In the worst case, O’Mara identifies — a methane explosion or structural tunnel failure — the tunnel could collapse, releasing oil or natural gas liquids directly into the Straits.

Mackinac Bridge Risk

The geologically mixed conditions, which include the ancient riverbed running beneath the Mackinac Bridge corridor, also raise a concern that has received little attention: the risk of a caving event affecting the bridge itself during nearby tunnel construction. The report does not appear to address this directly.

What This Report Reveals

● Geology that is fractured, weak, and partially collapsed from ancient dissolution events

● A critical proximity to an unconsolidated sediment channel at the deepest, highest-pressure point

● A continuous, permanent methane infiltration hazard with no sealed annulus mitigation

● Sparse borehole data — roughly 20 samples across 4 miles — insufficient to characterize conditions the machine will actually encounter

● No reliable excavation rate, meaning timeline and cost projections are essentially guesswork

● No Failure Modes and Effects Analysis — no systematic accounting for how failures cascade

● Continuous industrial intervention is required, permanently, as an operating condition

● Redactions in key sections of the report that would reveal the full scope of risk

You don't build a tunnel through collapsing rock, under crushing pressure, with a known methane source, beneath the most important freshwater system in North America, and call it an engineering solution. You call it what Enbridge's own report describes it as: a project defined by unknowns, managed by assumptions, and protected by redactions. EGLE's July 16 decision on whether to grant a permit for the proposed tunnel will determine whether Michigan accepts that framing or demands something better.

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Tell Governor Whitmer and EGLE Director Roos that we are watching and expect a decision denying the Enbridge tunnel permit. There is still time for you to act, and it only takes a minute.

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I don’t mean the Straits of Mackinac, which were a topic of conversation last week at the Michigan Supreme Court. That hearing involved a legal challenge to the Michigan Public Service Commission’s (MPSC) approval of Enbridge’s Line 5 tunnel permit. I watched the hearing on Wednesday. And while it’s hard to really know what the Justices are thinking, my impression was that it went quite well for the good guys. Riyaz Kanji, the attorney for the appellants, For Love of Water (now Flow Water Advocates), is a legal marvel and a brilliant litigator. He argued a powerful case. Fingers crossed the Justices heard him.

But the Strait I’ve been thinking about these past few weeks is halfway across the world, off the coast of Iran. The Strait of Hormuz between the Persian Gulf and the Gulf of Oman, you might have heard, is a crucial choke-point for the international transport of oil produced in the Middle East. As much as 20 million barrels of oil move through that stretch of water every day, accounting for 20% of global oil consumption. But right now, thanks to our recklessly ignorant President and the warmongering, cosplaying adolescents he’s installed at the Defense Department, we’re in a pointless war with Iran, tanker shipments through the Strait of Hormuz have ceased almost entirely, and the price of oil has shot up to $100 per barrel—nearly twice what it was at the beginning of the year. Prices at the pump and for food and consumer goods are on the rise as well. So much for “energy security.”

As it turns out, the Straits of Mackinac and the Strait of Hormuz, both conduits for the international transport of petroleum, have overlapping histories. In August 1953, while Lakehead (now Enbridge) contractors were pulling the first of the twin pipelines across the Straits, the United States Central Intelligence Agency was plotting a coup to topple Iranian Prime Minister Mohammed Mossadegh and regain Western control of the Iranian oil industry. In some newspapers of the period, you could even read about the unfolding events, oceans apart, side-by-side.

Mossadegh had risen to power as champion of nationalizing Iran’s oil industry. For decades, Iranian oil—as well as profits from that oil—was controlled by the Anglo-Iranian Oil Company. The British company had gained concessions (legal agreements to produce and sell the country’s oil resources) in Persia at the beginning of the century. But after the first World War, a number of factions and groups in Iran had grown increasingly dissatisfied with the terms of those concessions: Anglo-Iranian reaped in annual profits of as much as $250 million while paying the Iranian government less than $90 million in royalties. The charismatic Mossadegh gained political power by exploiting widespread animosity toward the British generally and the Anglo-Iranian Oil Company in particular. Just days after his appointment as Prime Minister in 1951, he helped pass a new nationalization law, declared the end of colonialism, and seized control of Iran’s oil

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However, the expulsion of Anglo-Iranian meant that Iran had no way to produce or distribute the oil resources it now controlled. Left with neither profits nor royalties, the country slid into recession. Meanwhile, the British scrambled to try to convince Iran to enter into a new agreement, and the U.S. worried that the whole affair would leave Iran vulnerable to its Cold War rival, Russia, eager to exploit instability in Iran and gain control of the Iranian oil fields.

So the CIA convinced British intelligence and the Iranian Shah Mohammed Reza Pahlavi to oust Mossadegh. But before what was called “Operation Ajax” even began, Mossadegh was tipped off. He rallied his supporters against the Shah, who was forced to flee the country. Unexpectedly, just days later, pro-Shah Iranians themselves rallied to their monarch’s defense. Iranian soldiers joined the protestors, and soon Mossadegh was forced to leave the country. In the aftermath of these turbulent events, the US helped establish a consortium of corporations, including several American oil firms, to advance Iranian oil interests. This group profited from Iranian oil until Iran’s 1979 revolution.

This petrogeopolitical shitshow formed a not insignificant backdrop to the construction of Line 5. Before the pipeline could be built, Lakehead needed approval from the Petroleum Administration for Defense, which approved the allocation of steel for the project. And executives from Lakehead’s contractor Bechtel frequently described the pipeline as a “national defense project.” Instability in Iran, along with decolonization elsewhere in Asia and Africa, played an important role in the framing of Line 5 in terms of national (both Canadian and American) interests—what today the oil industry likes to call “energy independence.”

But the current war in Iran shows how, for at least three quarters of a century now, energy independence has been a fantasy, or simply a convenient fiction. No amount of domestic production, no amount of neo-colonial interference, and no amount of senseless bombing exempts us from the turbulence of global oil markets. What it yields instead is death and ecological destruction. Maybe you’ve seen the recent footage of refineries ablaze in Iran, Iraq, and Saudi Arabia, sending noxious billows of black smoke into the atmosphere, which in some cases returns to the ground in the form of toxic “black rain,” killing flora and fauna, poisoning humans.

What history shows, in other words, is that global oil production is a death trap. If we were serious about “energy security” or “energy independence”—those terms so favored by the oil industry and its political supporters—we’d be investing in energy forms that can’t be claimed by nation-states. Unlike oil fields, after all, the wind and the sun can’t be contained by borders or hoarded by countries. The current war in Iran offers yet another in a long line of reminders that there can be no security and no independence under the petro-energy regime. Wars and death and pollution are features, not bugs, of the global oil industry.

Which is to say that the tenacious effort by Enbridge and its backers in the US and Canadian governments to keep Line 5 running for another century or more is nothing but an effort to maintain a permanent state of war, to perpetuate ecocide, to commit ourselves to ensuring that the horrors of the past (and present) will continue into the future. “Energy security” assumes the inevitability of war, just as “energy independence” assumes ongoing dependence upon oil. We should reject those assumptions. Shutting down Line 5 is not just a call to embrace less destructive forms of energy; it’s a call to commit ourselves to less violence. It’s a call for peace.

Governor Whitmer’s EGLE is deciding whether to grant Enbridge the permit it needs to keep Line 5 pumping through the Great Lakes for another century. Send her a message: We are awaiting her correct decision.

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Although oil has spilled into the environment for as long as humans have sought to harness it, the Santa Barbara blowout inaugurated what today we might call the charismatic oil spill disaster: massive in scope and scale, befouling otherwise pristine sites populated by large animals with popular appeal, and providing striking, often horrifying, visuals. It’s precisely the kind of event that gets conjured when we talk about a Line 5 spill in the Straits of Mackinac.

The problem with the focus on a charismatic spill, however, is that it can overshadow disasters that are less visible, that unfold more slowly, and aren’t confined to a single compelling site. Biodiversity loss, species extinction, and climate change — these calamities are harder to crystallize in a single image or a simple, galvanizing narrative. However, they pose threats that are at least as dangerous, if not more so, as an oil spill from a ruptured pipeline. No tunnel can solve that problem.

In fact, Enbridge’s Line 5 tunnel will only intensify those dangers by locking in oil transport and combustion for decades to come. And that’s very bad news, according to the Intergovernmental Panel on Climate Change. Three years ago, in their Sixth Assessment Report, the group of scientists made it clear that the continued operation of existing fossil-fuel infrastructure alone would not prevent global temperatures from reaching the dangerous 1.5°C threshold. The conclusion to draw from the report was clear: we can’t afford any new coal plants, gas wells, or oil pipelines.

And make no mistake about it: what’s bad for the climate is bad for the Great Lakes. More extreme weather events will lead to greater nutrient runoff; combined with warmer temperatures, this creates ideal conditions for harmful algal blooms. Reduced ice cover will mean reduced protection for delicate fish eggs and will leave shorelines more prone to erosion. Fluctuating lake levels will mean damage to sensitive manoomin (wild rice) beds. Warmer water temperatures will mean compromised food webs and better conditions for invasive species, placing already vulnerable fish populations at even greater risk. And the implications of all of this for fisheries, for tourism and recreation, for Indigenous lifeways, and more will be devastating.

So don’t fall for the lie, peddled by Enbridge and their thoughtless supporters, that the tunnel will somehow protect the Great Lakes. It won’t. If anything, the tunnel poses an even greater risk to the lakes than a pipeline breach. The disaster it will help create won’t be quite as dramatically visible as an oil spill. It won’t look like oil-soaked birds and blackened shorelines. Instead, it will take the form of a slow, prolonged, mostly invisible, but almost certainly irreversible, ecosystem collapse. And once the whitefish are gone from waters that can’t sustain them, they won’t be coming back.

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More than a decade ago, at the Oil and Water Don’t Mix rally at Bridge View Park in St. Ignace that launched the movement to shut down Line 5, the visionary activist Bill McKibben warned not just of oil spills, but of what he called “carbon spills,” the steady, ongoing release of greenhouse gas emissions into the atmosphere. The greatest danger to the Great Lakes, McKibben predicted, may not be oil that leaks into the water, but oil that gets delivered safely to the refineries, day after day, year after year.

If you’re not serious about climate change, you’re not serious about caring for the Great Lakes. Pretend measures, like Enbridge’s Great Lakes tunnel or the Bad River re-route, aren’t solutions to any real problem; they’re just ways to keep the oil flowing. And that makes them, ultimately, no different than the outright climate change denialism that is now, as of last week, official US government policy. For that reason, we can’t let regulators, policymakers, and political leaders delude themselves and gaslight us into believing that supporting or permitting the tunnel is what’s best for the Great Lakes. It’s a dirty trick, a Trojan horse, a sleight of hand. It’s a (climate) disaster masquerading as an environmental safeguard.

The final choice to stop a dangerous new oil tunnel rests with Michigan’s EGLE, and Gov. Whitmer can deny the last permit Enbridge needs. They need to hear from you. Send an email now - it’s easy to act here:

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What this last fact means for the case, therefore, is anybody’s guess. But as David points out, one thing is clear: “if Enbridge wins, corporations will have a new playbook for neutralizing state environmental protection. They can wait and see how state proceedings unfold. If the state court seems hostile, remove to federal court years later.” It could take generations to overturn such a ruling.

Meanwhile, there’s been another legal development just this week. The U.S. Justice Department—no longer independent, but another arm of the imperial presidency—has asked a federal judge to stay a 2023 Court Order to shut down Line 5 by June 16 of this year if the line has not been removed from the Bad River Reservation. While conceding that Enbridge is trespassing on tribal land, the DoJ’s Statement of Interest nevertheless rehashes, in more hyperbolic terms, Enbridge’s arguments about the effects of the shut down, citing the President’s ridiculous “National Energy Emergency,” warning of the dangers of “malign foreign actors worldwide,” and laughably exaggerating the potential “harm to energy markets.” The filing also cites the 1977 Transit Treaty, worrying about the U.S. “trade relationship and diplomatic relationship with Canada.” This last line of reasoning is especially rich given the President’s ham-fisted tariff policies, which, as Canadian Prime Minister Mark Carney made clear in a speech in Davos late last month, have made the Canadian government perfectly willing to sever longstanding close ties with the United States and pursue new economic and strategic partnerships elsewhere in the world.

But perhaps most striking of all in the filing is how much the DoJ whines about time. “Three years” to re-route the pipeline, the Department insists, “proved insufficient.” On the one hand, of course, this is obviously true: given current legal challenges to permits in Wisconsin, there is very little chance that Enbridge can complete the reroute by June 16. But on the other hand, Enbridge and the DoJ always knew that three years would be insufficient; nobody can be surprised by how long permitting processes take to play out.

On the other other hand, however, the dispute in Wisconsin with the Bad River Band has never really been about the past three years. Enbridge’s easements on Bad River land expired in 2013—twelve years ago. The Band passed a resolution in 2017, eight years ago, stating it wouldn’t renew those easements. The Band filed suit against Enbridge in federal court in 2019—six years ago. So Enbridge has had more than a decade—at least—to figure out how to get their pipeline off of the Bad River reservation. But like all entitled bullies, they wagered that they would never really have to do anything, that they would get their way, either by throwing more money at the Band or by gaining favor with powerful politicians and friendly courts. Now, a little panicked by a looming deadline, they’ve gotten the US government to step in and beg on their behalf for yet more time.

Or to put all of this differently, Enbridge and the DoJ would have us all believe that the problem here is some three-year deadline imposed by Judge William Conley back in 2023. But in doing so, they seek to erase centuries of American history—not just the twenty-first-century history of Enbridge’s expired easements, but the much longer history of how the U.S. government first granted those easements on the Bad River Band’s behalf three-quarters of a century ago. Or the even longer history of land dispossession that led to the creation of the Bad River Reservation in 1854. Or the still longer and even more brutal history of violence and genocide going back five hundred years that left Indigenous peoples with little choice but to cede their land in Treaties with the US government in the first place.1

“Stay” is a legal term describing an action a court can take to stop or place a temporary hold on a legal proceeding or an action by a party. More colloquially, we might just see calls to “stay” as a common tactic of deferral, one that has historically been employed by those in power to put off, forestall, delay, or otherwise obstruct calls for social change, demands for social and environmental justice.2 We should understand this request for a stay by Enbridge and the DoJ in this context: as just another example of how those who benefit most from maintaining a destructive status quo seek to postpone doing what’s right, whether that means granting civil rights to minority groups, respecting Indigenous sovereignty, or addressing the climate crisis.

It’s hardly a coincidence, then, that last week the Bulletin of Atomic Scientists reset their famous “Doomsday Clock” to eighty-five seconds until midnight. That’s the closest the clock has ever been set to the hour when the earth becomes uninhabitable due to nuclear threats, global warming, and destructive technologies like AI. The scientists’ symbolic timekeeping offers a frightening reminder of the real-world dangers of these endless delays, of inaction—of one stay after another. The Bad River Band has already been waiting far longer than they ever should have had to for the basic right to govern their own affairs and cultivate their own relations with the land. All of us have waited too long for our leaders to take real steps toward decarbonization. It’s past time to say time’s up for Enbridge and the self-destructive practices their shabby little pipeline represents.

Tune into the free Oil & Water Don’t Mix campaign briefing on February 10. Attorney Riyaz Kanji is our special guest. He will make you smarter by detailing the upcoming legal actions related to Line 5. Ask questions, learn stuff, have fun. Join us on Zoom.

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The Sixth Circuit Court of Appeals called this maneuver what it was: too late. Federal law gives defendants just 30 days to remove a case to federal court. Enbridge missed that deadline by more than two years.

Now Enbridge wants the U.S. Supreme Court to rewrite the rules. And in doing so, the Court will decide something far more consequential: Can states protect their own waters when a pipeline company claims federal law shields it from accountability?

At our February Campaign Briefing, Riyaz Kanji—one of the nation’s leading tribal rights attorneys and founding partner of Kanji & Katzen—will decode exactly what Enbridge is attempting and why it matters far beyond Michigan. Register now to attend the online briefing.

Kanji has spent his career at the intersection where federal power collides with state sovereignty and treaty obligations. When he looks at Enbridge v. Nessel, he sees a company that participated in state court for 887 days before deciding it preferred federal court. He sees a Sixth Circuit opinion holding the company to the rules Congress wrote. And he sees a Supreme Court poised to decide whether those rules have teeth when corporate interests are at stake.

Michigan Attorney General Dana Nessel filed her lawsuit in Michigan state court in June 2019, citing violations of Michigan’s public trust doctrine, common-law public nuisance, and environmental protection laws. These are fundamentally state law claims about state-owned waters.

Enbridge responded by fighting in state court for over two years. It filed motions, participated in hearings, and briefed federal preemption arguments. Then, in November 2020, Governor Whitmer filed her own lawsuit to revoke the 1953 easement. Enbridge immediately—within 11 days—removed that case to federal court.

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But Enbridge left the Attorney General’s nearly identical case in state court for another full year. Only after a federal judge ruled favorably in the Governor’s case did Enbridge finally remove the Attorney General’s case, citing that favorable ruling as justification.

The Sixth Circuit saw through this strategy. Enbridge itself admitted the two cases involved “the same basic facts and claims.” If the Governor’s case could be removed immediately, so could the Attorney General’s. Federal removal law exists to prevent exactly this forum shopping. The 30-day deadline is “mandatory,” the court held, with no room for exceptions when companies game the system.

This isn’t about pipeline safety regulations. It’s about whether a state can invoke its own laws to defend waters that belong to its citizens, in this case, the Great Lakes. Enbridge wants federal courts to decide this because they’ve shown more sympathy to preemption arguments. But Michigan brought this case under Michigan law in Michigan courts for Michigan waters.

Now the Supreme Court must decide if corporations can manipulate removal deadlines to escape state court accountability and whether states retain meaningful authority to protect their natural resources.

If Enbridge wins, corporations will have a new playbook for neutralizing state environmental protection. They can wait and see how state proceedings unfold. If the state court seems hostile, remove to federal court years later. If Enbridge’s 887-day delay is permissible, why not 1,000 days? 1,200?

The Sixth Circuit recognized that allowing such delays would gut removal deadlines’ purpose, which is preventing defendants from “snatching” cases from state courts except when “some clear rule demands it.” Removal statutes must be “strictly construed” because they “encroach on a state court’s jurisdiction.”

If the Supreme Court allows Enbridge to bypass these deadlines, it signals to every pipeline and energy company facing state environmental lawsuits that you can wait, watch, and remove when convenient, effectively choosing your preferred forum years into litigation.

While courts don’t capture this in their opinions, Michiganders who’ve organized against Line 5, the tribal nations fighting for treaty rights, and thousands of regular citizens understand that the Great Lakes aren’t a risk worth taking.

At our February Campaign Briefing, you’ll hear Kanji’s legal analysis and learn about the multi-front strategy that will continue regardless of the Supreme Court’s timing. You’ll meet the organizing team driving this campaign forward and discover concrete actions you can take right now.

Enbridge would prefer you focus on arcane statutory details. That’s misdirection. This case is about whether states can use their own courts to enforce their own laws protecting their own waters.

The Supreme Court will rule on removal deadlines. But they’re really deciding when federal authority overrides state sovereignty, and who gets to decide?

Line 5 won’t be shut down by judicial opinions alone. It will be shut down because people refused to accept that corporate convenience outweighs community safety. Join us in February. Understand the legal battlefield. Meet the movement. Protect the Great Lakes.

For you law nerds and super-engaged Line 5 activists, track the Enbridge v Nessel U.S. Supreme Court case at Scotus Blog.

For me, one teacher of this lesson is the nineteenth-century philosopher-poet Ralph Waldo Emerson. In an essay from 1841 titled “Circles,” Emerson spoke of those beholden to the world as it is: “People wish to be settled,” he wrote, “only as far as they are unsettled is there any hope for them.”

The debate over Line 5 could benefit from some unsettling. Those who insist upon its continuing existence often seem unable to imagine a world without Line 5. They treat the transport of 540,000 barrels of oil per day to refineries in Sarnia as a thing that just has to happen, as if it’s some kind of natural law, like the rising and setting of the sun. You see it in their arguments in favor of Line 5, which are invariably predicated on the idea that, above all, its oil must be delivered. “But how will Yoopers heat their homes?” they say. “But aren’t tanker trucks rumbling over the Mackinac Bridge even more dangerous?” “Are you going to give up your car?” Recently, I encountered one person who said that without Line 5, “life as we know it will cease to exist.”

To be fair, those of us who want to see Line 5 shut down are occasionally guilty of this ourselves. For example, we often speak of “alternatives” to Line 5, as if to concede that the oil must arrive at its destination, but there are other ways to get it there. So even when we do manage to imagine a world without Line 5, we still struggle to imagine a world without 540,000 bpd arriving at Sarnia refineries.

We might call this tunnel vision. After all, the premise of Enbridge’s phantasmagorical tunnel, the reason people foolishly take it seriously, is that it assumes the oil must be delivered at all costs. And a whole bunch of people in positions of influence—politicians, regulators, decisionmakers—have viewed the Line 5 issue in precisely these narrow terms, as a matter of “balancing” environmental protection with the (inevitable) demand for oil. This is tunnel vision.

I reject this view. A few weeks ago, I wrote that we don’t need Line 5 and its dirty fuel. And I meant it. And in meaning it, what I am saying is that things don’t have to be this way. And in saying that things don’t have to be this way, I am saying something straightforward, something everyone knows but that many people simply refuse to accept. I am saying something unsettling: we don’t have to consume so much oil.

So the problem is not that we need to get the oil to market safely (the premise of the tunnel). The problem is that we won’t let go of the idea that we have to get the oil to market. As a result, too many people are asking the wrong questions. Instead of “how will we replace all that oil and keep things as they are?” we should be asking, “how can we arrange things differently so that we don’t use so much oil?” We already have simple answers to this question: give up on the fantasy of endless economic growth, decrease production and reliance upon single-use plastics, invest in public transportation (so that we fly and drive less), plan neighborhoods around walkable access to basic services, build and retrofit homes with heat pumps and solar panels, buy less disposable shit. And on and on.

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Obviously, all this isn’t going to happen overnight; nobody is suggesting that it will. But we should have been making these plans decades ago. And perhaps we would have, if it weren’t for the power and influence, and the climate misinformation, spread by the likes of Enbridge for the past four decades (or longer). Despite that, it’s not too late to start.

If shutting down Line 5 were about nothing more than getting an aging pipeline out of the water, if it weren’t about addressing the climate crisis, about reducing fossil fuel consumption, about a habitable future, about cultivating better relations with the more-than-human world, about respecting Indigenous rights and lifeways, it wouldn’t be a movement worth having. It would just be a technical problem with a technical solution, one that basically accepts the way things are. But shutting down Line 5 is ultimately a step toward changing the way things are.

At the end of “Circles,” Emerson addresses those who worry about maintaining a certain way of life—in our case, the way of life produced by fossil fuels. “The way of life is wonderful,” he says, “it is by abandonment.” A new year is a fit occasion to abandon old and outmoded ways of thinking and living. So let’s make 2026 the year of abandonment. We have much to gain and little to lose by abandoning Line 5.

But taken in context, the ruling has far-reaching and troubling consequences. It places the fate of the world’s largest freshwater system in the hands of a federal agency—the Pipeline and Hazardous Materials Safety Administration (PHMSA)—that is increasingly captured by industry influence and politically weakened at precisely the moment robust oversight is most needed.

PHMSA is charged with ensuring the safety of more than three million miles of pipelines nationwide. Its mandate includes preventing failures, enforcing safety standards, and protecting communities and ecosystems from disastrous spills. Yet PHMSA has long been criticized for lax enforcement, delayed rulemaking, and an overreliance on voluntary compliance by pipeline operators. Now, those structural weaknesses are being compounded by leadership ties to the fossil fuel industry and active efforts to roll back the agency’s enforcement authority.

Photo by Dmitry Plain on Pexels, collar added by Gemini

Data analyzed during Paul J. Roberti’s nomination as PHMSA director showed that the agency initiated fewer enforcement actions in the first half of 2025 (only 46 cases) than in any other year in the agency’s 20-year history. In March 2025, the agency reportedly went an entire month without filing a single enforcement action for the first time ever.

Judge Jonker’s ruling means that even when a pipeline poses an existential threat to a state’s natural resources, economy, and public trust waters, that state must stand aside and hope federal regulators act decisively. In Michigan’s case, that hope is thin.

Line 5 is nearly 72 years old, spans the volatile currents of the Straits of Mackinac, and has already experienced documented damage, including anchor strikes and coating loss. A spill in this location would spread oil rapidly into Lakes Michigan and Huron, contaminating drinking water for millions, crippling fisheries, and devastating tourism and tribal treaty resources. Michigan officials argued that this unique risk justified state action under its public trust responsibilities and that it violated easement agreements. Judge Jonker disagreed.

The practical effect is not merely legal—it is political. The ruling tells states that no matter how clear the danger, no matter how great the local harm, they cannot act if the federal government declines to do so. And it tells pipeline companies that as long as they can influence federal regulators, they can continue operating aging infrastructure indefinitely.

This is especially alarming given PHMSA's current trajectory. Leadership drawn from the oil and gas sector raises serious concerns about regulatory capture—the well-documented phenomenon in which agencies come to identify more closely with the industries they regulate than with the public they are meant to protect. At the same time, proposals to weaken enforcement tools, reduce penalties, and delay new safety standards further erode PHMSA’s capacity to act as an effective watchdog.

Under this framework, Line 5’s future hinges not on science, risk assessment, or public interest, but on the political will of an agency subject to intense industry pressure. If PHMSA fails to act, Michigan has no backstop. Neither do the Great Lakes.

This is not what cooperative federalism is supposed to look like. The Pipeline Safety Act was never intended to become a shield against accountability or a mechanism for overriding state responsibility to protect critical natural resources. Yet Judge Jonker’s ruling effectively converts federal preemption into federal paralysis.

The stakes extend far beyond Michigan. Across the country, states are confronting aging pipelines that cross rivers, wetlands, and population centers. If states are barred from acting—even when federal regulators are compromised or inactive—then communities everywhere are exposed to unacceptable risk.

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The lesson of Line 5 is clear: concentrating authority at the federal level only works if federal oversight is strong, independent, and insulated from industry influence. Today, it is not.

If courts insist that only the federal government can act, then Congress and the administration must ensure that PHMSA has leadership committed to public safety, the resources to enforce the law, and the political independence to stand up to powerful fossil fuel interests. Without that, Judge Jonker’s ruling does not protect uniform regulation—it endangers the Great Lakes and sets a dangerous precedent for the nation.

When the state cannot act, and the federal government will not, the public is left exposed. That is the real consequence of this ruling—and it is one we cannot afford.

Well, okay, that wasn’t exactly the ruling of Judge Robert J. Jonker of the U.S. District Court in Lansing, but that will be its effect. What the ruling actually says is that federal law—specifically the 1992 Pipeline Safety Act and the 1977 Treaty with Canada—preempts any attempts by the State of Michigan to enforce the pipeline safety terms of the 1953 easement that grants Enbridge permission to operate Line 5 beneath the Straits of Mackinac. It’s a sweeping decision and, if it is not overturned on appeal, it will likely have some pretty severe consequences with regard to both state efforts to protect the environment and to private contracts (ie, easement agreements) between pipeline operators and other parties. Going forward, companies like Enbridge will almost certainly try to call anything and everything a safety issue, giving them even more power to impose their will upon landowners, municipalities, and states than they already possess. That will be bad for everyone.

Meanwhile, I suspect the “build the tunnel” crowd is already celebrating this news, believing it represents some kind of victory for them. But if that’s you, you might not want to pop the cork on the champagne just yet. One of the perverse consequences of the ruling is that Enbridge now has no incentive whatsoever to go forward with the tunnel project. Before yesterday, one could at least say that they were bound by the agreement they had entered into with the state. This ruling lets them completely off the hook.

You see, if Judge Jonker’s ruling holds and the Pipeline Safety Act does pre-empt any attempt to enforce the safety provisions of the 1953 easement or, more broadly, any attempt on the part of any state to regulate pipeline safety at all, that decision must also apply to the so-called “Third Agreement”—that’s the tunnel agreement—between Enbridge and the State. That settlement is specifically predicated on the condition that Enbridge comply with the same safety provisions of the easement that Jonker’s ruling says it is unlawful for the state to enforce. If anything, the Third Agreement is an even more explicit safety instrument than the easement ever was.

What all this means is that Enbridge is free to walk away from the tunnel agreement and from every other safety promise they have ever made to the state of Michigan. There is not a single thing, legally speaking, that anybody but the Pipeline and Hazardous Materials Safety Administration (PHMSA) can do about it. And believe me, PHMSA isn’t going to do anything about it.

I have always maintained that Enbridge doesn’t want to build the tunnel. It has largely been a way to hedge their bets against state authority. They’ve been acting under the assumption that they are required to comply with the easement's conditions. But not anymore. Under this ruling, Enbridge is no longer beholden to any of the agreements it’s made concerning the ongoing operation of the dual pipelines beneath the Straits. The maximum curvature provision in the 1953 easement, for example? Unenforceable by the state. The provision in the First Agreement to repair the protective coating on the twin pipelines? Unenforceable by the state. The provision in the Second Agreement that Enbridge will shut down the twin pipelines during adverse weather conditions? Unenforceable by the state. The provision in the Third Agreement that Enbridge will continue to comply with the First and Second Agreements as well as with the terms of the 1953 easement? Unenforceable by the state.

If this ruling stands, the only entity with any authority over whether or how Enbridge operates Line 5 is PHMSA, an organization that has always been weak and is at present essentially nothing more than an arm of the pipeline industry, guided by an ecocidal Presidential administration and its appointed bootlickers. Why, under such favorable conditions, would Enbridge just voluntarily invest a billion dollars in a tunnel project when they can simply continue to operate what they have always insisted is a perfectly safe pipeline?

The answer: they won’t.

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Meanwhile, I’ve been nursing a gripe. Last month, I stumbled upon a radio interview about the Line 5 tunnel featuring Erica Fink, Enbridge Operations Manager here in Michigan. Fink appeared on a program called Michigan’s Big Show, hosted by some guy named Michael Patrick Shiels. I don’t really recommend listening; it’s an unsatisfying conversation, short, uninformative, and Shiels mainly plays the role of obsequious straight man to Fink’s gushy pitchwoman, as if they’re doing an infomercial on the Home Shopping Network.

But during the conversation, Fink said something that’s been bugging me for a long time. I’m sure you’ve heard it many times before from any number of Enbridge employees who are obviously trained to repeat it every chance they get, like automatons. Pipelines like Line 5, Fink said, are the “safest way to transport the energy we need.” I heard it again a couple of weeks later. I was reading a news report about the petition Attorney General Nessel has filed with the United States Supreme Court on behalf of Governor Whitmer. The boilerplate response by Enbridge spokesperson Ryan Duffy to the filing begins with this: “As a key component of interstate and international commerce, Line 5 transports critical energy resources across the region.”

You see the problem, right? It can be hard to spot because it’s become so familiar. Fink and Duffy want us to think that Line 5 transports “energy” or “energy resources.” But this is bullshit. Line 5 doesn’t transport energy; it transports petroleum—crude oil and natural gas liquids, to be precise. These products are not energy. They are fuel, fuel which, when combusted, can be harnessed as energy.

You might think I’m splitting hairs. After all, in everyday speech, energy and fuel are often used interchangeably. But that’s only because companies like Enbridge have conditioned us to speak that way. In fact, it started back in the 1970s, during the oil crisis. At that time, oil and gas companies wanted to distance themselves from the dirty politics of oil. So Exxon, for example, launched an ad campaign it called “Energy for a Strong America.” The strategy stuck. By the late 1990s, as the public witnessed the environmental effects of oil spills—in Santa Barbara, California, and Alaska’s Prince William Sound—and became increasingly aware that fossil fuel combustion was the main driver of global warming, more companies began to distance themselves from the stench of oil. ExxonMobil, Chevron, Shell, BP—all took to calling themselves “energy” companies. Enbridge did the same, taking its present name—a compound of “energy” and “bridge” in 1988. In 2000, British Petroleum even briefly renamed itself “Beyond Petroleum.” Other large pipeline companies similarly rebranded. Energy Transfer was founded in 2012. Kinder Morgan branded itself as an “energy infrastructure company.” TransCanada Pipeline changed its name to “TC Energy” in 2019.

This is more than just greenwashing. Fossil fuel companies would prefer we not think about the material properties of what they produce and transport: its odor, its filth, the violence required to extract it. They’d rather sell us a set of abstractions, like energy: power, vitality, life. Perhaps you’ve seen one of Enbridge’s “Life Takes Energy” ads, for example. They’re not selling oil, they’re selling loving parents, vacation memories, loyal pets. Dreams and aspirations.

The effect of all of this is to naturalize oil, to make it synonymous with the very concept of energy, to convince us that oil is somehow fundamental to our existence, necessary for our everyday wants and needs, crucial for the fulfillment of our fantasies and desires. They want oil to become so embedded into our ways of thinking and being that it feels like something we can’t possibly live without, like water or oxygen.

And it works. You see it every time the Reply Guy shows up in the comments section to ask you if you drive a car to work. Or when someone like Erica Fink talks about the “energy we need” and means petroleum. Or when the President of the United States declares a “National Energy Emergency” as a pretext for extracting more fossil fuels from the ground. When they say these things, they’re treating the consumption of oil as if it’s some natural law, like gravity, like the rising and setting of the sun.

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This is one reason I’m so wedded to thinking about matters historically. After all, in the long sweep of human history, the fossil fuel era is a tiny blip, barely two hundred years long, the oil era even shorter. And we know it’s not going to last much longer, no matter how long corporations like Enbridge and, unfortunately, too many ordinary people so besotted by oily ways of being that they can’t see past it, want to prolong it.

The good news—and this is something else the coupling of oil with energy tries to keep you from knowing—our attachment to oil, while deep, is not strong. People want to heat their homes affordably. They want access to safe, convenient, and reliable transportation. But they don’t really care what fuel— which source of energy— makes that possible: wind, solar, algae, gremlins, a hamster on a wheel. So while it is true that life takes energy, it’s not true that life takes oil.

So let’s stop letting those who do have an intense devotion to oil (because it makes them rich!) convince us that their interests are ours or our grandchildren’s. An overheated planet plainly shows that they are not. The truth is, we don’t need to run our cars on gasoline, and we don’t need to heat our homes with propane. Which is just another way of saying what everybody knows but some of us don’t want to admit: we don’t need Line 5 and its dirty fuel.

Unfortunately, we are decades late in accepting and acting on this fact. But that’s not a reason to invest in Line 5; it’s a reason to hasten its orderly dismantling.

Help ensure taxpayers don’t get taken advantage of by Enbridge and its proposed tunnel. Send a message to Governor Whitmer and EGLE Director Roos: Deny the Line 5 oil tunnel.

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Why not? Well, because in order to catch the tortoise, Achilles first has to reach the spot where the tortoise began the race. But by the time Achilles gets there, the tortoise has moved forward, however slowly. So Achilles then has to run to the spot—this time a much shorter distance, given how slow the tortoise moves—to where the tortoise has advanced. But upon reaching that spot, Achilles finds that the tortoise has inched forward once again; it is a race after all. The same is true for the next spot, and the next. The gaps between them get infinitely shorter and shorter, but every time Achilles gets to the place the tortoise was, the tortoise has moved forward. Forever.

If our state leaders were of a philosophical bent (one can dream, right?), they might have thought of this paradox upon hearing the news last week that the United States Army Corps of Engineers unexpectedly released a new Supplemental Draft Environmental Impact Statement for the Line 5 tunnel. For reasons that remain unclear, the supplemental EIS considers a new alternative to the tunnel: installing a new pipeline beneath the Straits using the Horizontal Directional Drilling method.

Everything about this development is sketchy. For one thing, as ace reporter Kelly House pointed out in Bridge Magazine, the USACE did not make the announcement via press release, as is customary. For another, it remains a mystery why the Corps decided to consider this additional alternative at this late date, months after the original EIS. Years ago, Enbridge claimed HDD was not feasible. Nor do we know who initiated this supplemental review and why. Enbridge spokesperson Ryan Duffy says it is “not something [Enbridge] pitched.” But that statement is contradicted by the Army Corps; they say they completed the review after having “received information from the Applicant [Enbridge] indicating that the HDD Installation Alternative is now feasible due to advances in technology.”

So at least one thing is clear: somebody’s not telling the truth here.

The whole affair smells to me like a shady backroom deal. In fact, it has the stench of the original tunnel deal, forged during the lame-duck period of the Snyder administration back in 2018.

You might remember that when the Second Agreement was reached, Enbridge projected that it would take them 7-10 years to build the tunnel. But then, suddenly, in May 2019, after the new administration began putting pressure on Enbridge to get the twin pipelines out of the water, Enbridge announced, via a letter to the state, that its engineers had magically discovered that they could build the tunnel much faster. With all the self-assurance of an experienced bullshit artist, they announced to the state that they could build the tunnel in just 3 years. As one newspaper reported it at the time, “Enbridge Energy has notified Gov. Gretchen Whitmer that it can commit to finishing a tunnel under the Straits of Mackinac and stop transporting oil through its aging pipeline by 2024.”

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Of course, today we’re well over a year past that absurd projection. But that, I suspect, is precisely what makes the HDD alternative seem appealing. Enbridge says they could complete that project in just two years. And that projection—which, I hasten to add, can’t be trusted any more than any other bullshit projection Enbridge has ever offered—is the only thing that could possibly recommend the HDD plan. After all, it’s a terribly risky method, one that caused all kinds of havoc in Minnesota during the Line 3 replacement project. And a pipeline pulled straight through the bedrock, one not encased in concrete, doesn’t come with any of the (theoretical) safety assurances of the tunnel. In fact, it’s pretty hard to imagine how an HDD-installed pipeline is any safer than the current aging twin lines.

But of course, none of that is the point. As I wrote here months ago, Enbridge doesn’t want to build the tunnel. That fact had me wondering what they would do to avoid it as they received more and more approvals from the state and from federal regulators. I think we now have our answer. They’re banking on the HDD alternative to be the one the US Army Corps deems least environmentally harmful. On that basis, the Corps will have to deny the tunnel permit, at which point Enbridge either gets to appeal that decision or start all over with an application for the HDD plan. Either way, it gets to delay taking action on Line 5 at the Straits—while at the same time insisting that they can fix the problem faster and faster, at ever-decreasing intervals: ten years, seven years, five years, three, two—maybe tomorrow.

Which brings me back to Zeno’s paradox. You see, Enbridge is banking on the fact that tomorrow never comes. They know that as soon as we arrive there, it’s today, and there’s another tomorrow ahead of us, in the same way that the tortoise will always be ahead of Achilles. And that’s precisely how Enbridge wants it. They want to look like they’re getting closer and closer and closer to a solution, but without ever arriving at one.

Tell Governor Whitmer you’re waiting for the right decision on the tunnel permit to protect the Great Lakes. It’s quick and easy to take action here:

MESSAGE WHITMER: NO TUNNEL PERMIT