The MPSC has announced that portions of the permit review process will need to be redone because of the governor’s plan to revoke the Line 5 easement. They go on to say that earlier steps were made on the assumption that the easement would still be in effect, and the commission needs to consider the possibility that it would not.
MPSC orders rehearing, new schedule for Enbridge Line 5 application in light of state's revocation of pipeline easement
FOR IMMEDIATE RELEASE December 9, 2020
The Michigan Public Service Commission today remanded a key issue in Enbridge Energy Ltd.’s application to relocate the Line 5 pipeline to a tunnel beneath the Straits of Mackinac, citing Gov. Gretchen Whitmer’s revocation of the 1953 pipeline easement as a significant development in the case that requires new legal briefings from parties in the case and an adjusted case schedule.
Enbridge in April filed an application (Case No. U-20763) for siting approval under Act 16 of 1929 to replace and relocate the segment of Line 5 in the Straits of Mackinac into a new tunnel it proposes to build under the lakebed. Following a Commission order establishing a contested case hearing process to evaluate the application, Enbridge in September filed a motion seeking to limit the scope of the case. The administrative law judge on Nov. 6 granted the motion in part and denied it in part, and parties in the case had filed appeals and responses.
On Nov. 13, Governor Whitmer and the state Department of Natural Resources revoked and terminated the 1953 easement under which Enbridge built and operated Line 5 in the Straits and ordered the company to cease operations of the dual pipelines no later than May 13, 2021. Attorney General Dana Nessel filed an action in Ingham County Circuit Court, also on Nov. 13, in support of the revocation. Enbridge later challenged the revocation in federal court.
The Commission’s order today finds that the revocation of the easement requires remanding Enbridge’s motion to limit the scope of the case for a rehearing, stating that clarity on the scope of the case is of critical importance to the proceeding. The ALJ’s previous ruling on the motion, along with the motion itself and responses filed to it, were premised on the existence of the 1953 easement, and the State of Michigan’s revocation of the easement represents a significant change of facts in the case.
The Commission said a rehearing gives parties in the case the opportunity to file briefs on whether, and to what extent, Governor Whitmer’s termination of the 1953 easement changes the scope of review in this case, and how any changes may affect issues in Enbridge’s motion to limit the case’s scope.
The Commission directed the ALJ and parties in the case to adjust the schedule to allow for the rehearing and for participants to file new arguments on the proper scope of the case in light of the revocation.