The cancellation of the Enbridge Line 5 easement was big news following the cancellation of Keystone XL but Line 5 has been big news for years and is back in the spotlight this month.
According to Marilyn Gladu, Engineer, former Director of Engineering at Suncor, and current MP for Sarnia-Lambton, the Enbridge Line 5 shutdown has been big news ever since Michigan governor Gretchen Whitmer got elected on the promise to shut it down in 2019.
The Line 5 shutdown saga comes to a head this month
Even though Line 5 has regularly undergone numerous environmental and safety reports which reveal no issues and it is reported that the line has operated without incident for 65 years, Whitmer has made Line 5 her ”cause celebre.” Gladu explains that after making the Line 5 shut down part of her platform, Whitmer preceded to use several judicial methods to effect a shutdown and had those decisions overturned by the court in Michigan, in favour of Enbridge. Finally, Whitmer resorted to issuing an executive order giving Enbridge until May 12th to shut down Line 5- just days from now.
In March, Enbridge executive vice-president Vern Yu appeared before a House of Commons committee stating that courts in the United States could take “many, many years” to resolve the battle over Line 5 as he asked for the Federal government’s help to negotiate a solution to the dispute. By mid-April, a multi-party Canadian House of Commons Special Committee issued a report recommending urgent, bi-national executive action according to a press release by Enbridge.
A Team Canada approach
As the May 12th deadline looms, Marilyn Gladu indicates that there is now multi-level government involvement in the dispute, but she still calls upon the Federal government for action.
“All levels of government continue to work with a “Team Canada approach”, to ensure that Line 5 stays open. The matter is currently before the U.S. federal court, and I am calling on our federal government to provide an amicus* brief of support.” She adds that … “Amicus briefs are due by May 11th, and those must be reviewed along with the completion of mediation before the court can rule, so I would expect that to be more than a month away.” (Note- an amicus is someone who is not a party to a case who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case)
The multi-level government involvement that Gladu refers to includes US state officials.
“We are looking at this from every angle possible- so we are in contact with the Natural Resources Minister Seamus O’Reagan and calling on the Prime Minister to call Joe Biden and get him to intervene. When this pipeline was first put in place- when the federal treaty was signed it was signed by Pierre Elliott Trudeau and Jimmy Carter. Joe Biden was a senator at the time and he voted in favour of putting this line in place. There are lobby efforts in Washington by both the Federal government and the province of Ontario as well as all the different states. For example, the governor of Ohio is concerned about the impact to Ohio of Line 5 going down and has been contacting Governor Whitmer. Wisconsin and Pennsylvania have contacted her as well so that the pressure on Governor Whitmer from other states is also being brought to bear.”
Activism vs Economic loss
The history of Governor Whitmer’s focus on Line 5 is an interesting one. Governor Whitmer is what many would consider to be an environmental activist and although she has issued an executive order, there is a dispute as to whether she has the authority to do anything because the Line is an interstate pipeline and a federal treaty allows the Line 5 to operate. So other states- Ohio, Pennsylvania, Michigan, and Wisconsin are all involved, and there has to be a federal decision to revoke the permit.
To be clear, Line 5 brings propane and crude oil from Alberta into Sarnia and to the US Midwest. In addition to the three Sarnia refineries, it feeds refineries in Ohio, Michigan, Pennsylvania, and Montreal. Line 5 connects up to Sarnia and Line 9 which then takes products to Montreal. There’s a huge number of folks that are getting fuel by that pipeline as well as downstream products.
There would be a huge impact to the closure of Line 5 as there would be an economic loss on both sides of the border because of the jobs related to Line 5 and the cost to the refineries to find an alternative. There are not enough railcars and trucks to deliver the volume that’s coming through line 5, so obviously, supply and demand will take effect and it will become more expensive to pursue an alternative. The refineries state that they may be able to take advantage of oil coming up in pipelines from Texas but there is no guarantee that there is any capacity for them. What’s more likely is that we will receive more Saudi Arabian and Venezuelan oil processed in the refineries in the East that will then be shipped back with Line 9 reversed to bring products back to Ontario and Quebec.
Marilyn Gladu says this would not be good for Canada on any level. She’s not just referring to the 23,000 jobs loss in the Sarnia area, she is also talking about the loss of the contribution of Canadian oil to our GDP. Gladu doesn’t believe that that executive order is valid because Governor Whitmer doesn’t have the authority and so Enbridge has to argue in court.
Delay creates uncertainty
Court proceedings can take a lot of time and Gladu says the uncertainty alone will be damaging to the industry. Interestingly, the Governor and the state of Michigan have approved a project as a level of protection -a tunnel around the existing pipeline to essentially eliminate the ability for any kind of leak into the Straits of Mackinac and issued a permit to allow that project to go ahead. Perhaps, the best possible outcome would be for Prime Minister Trudeau to call Joe Biden to overrule the executive order, and immediately there will be certainty for everyone involved that Line 5 is going to continue to operate. The tunnel project could go ahead and that will address remaining concerns over the environmental impact or safety impact of a very unlikely event.
Enter the Transit Pipelines agreement and the principle of “Hydocarbons-In-Transit”
The debate will most likely end up focusing on the Transit Pipelines agreement between the United States of America and Canada, signed in Washington on January 28, 1977.
The agreement begins with statements that many energy industry workers hold as self-evident such as the efficient, economical, and safe nature of pipelines as a means of transport as in the following excerpt:
“BELIEVING that pipelines can be an efficient, economical and safe means of transporting hydrocarbons from producing areas to consumers, in both Canada and the United States;
NOTING the number of hydrocarbon pipelines which now connect Canada and the United States and the important service which they render in transporting hydrocarbons to consumers in both countries; and
CONVINCED that measures to ensure the uninterrupted transmission by pipeline through the territory of one Party of hydrocarbons not originating in the territory of that Party, for delivery to the territory of the other Party, are the proper subject of an agreement between the two Governments” Excerpt from the Transit Pipelines Agreement
Opposing fossil fuels by opposing pipelines
The safety of pipelines is a critical focus of Green extremists who seek to discredit the safety of ANY pipeline that transports hydrocarbons. In fact, in reference to Line 5, the National Wildlife Federation is claiming to have found previously unknown or largely forgotten incidents – unearthed in federal records and a NWF pipeline researcher claims Line 5 “has spilled at least 1.13 million gallons of oil in 29 incidents since 1968.” In their 2019 research, the NWF gives context to their identification of a Line 5 threat by referencing what they call “the colossal failure that caused the Line 6B spill into the Kalamazoo River in 2010.”
The crux of Green arguments seems to be that the transportation of hydrocarbons is ultimately an existential threat to the environment and humanity and this is voiced with inflammatory language. In the words of David Holtz, an activist and coordinator for Oil and Water Don’t Mix, a group of Michigan energy transition organizations fighting to shut down Line 5 … “Every day that pipeline lays on the lakebed, we’re a day closer to a catastrophe.” which is a gross exaggeration of Line 5’s risk.
Absence of challenge and the Line 5 tunnel
Just as in the recent Supreme Court of Canada decision on the constitutionality of the Carbon tax- it is critical that the Canadian Government formally challenges and argues against assertions that the pipeline is a threat. In the absence of any challenging viewpoints, the court may find that there is consensus that climate change is “a real and existential threat” and Line 5 by the mere fact it transports hydrocarbons, is also a threat to the environment. The Canadian government risks losing the case by inaction, although it was promising to hear Minister of Natural Resources Seamus O’Regan tell the parliamentary committee in early March that he would fight the shut down of Line 5. However, the message seems blunted by Environment Minister Jonathan Wilkinson’s recent comment that ” at the same time we need to be advancing on a cooperative basis the work we’re doing on climate action,” The government has indicated it would use the provisions of the 1977 Transit Pipeline Treaty which protect pipelines with hydrocarbons in transit. However, there is concern that the Federal government may be using the same strategy to support Line 5 that they used with Keystone XL which ultimately failed.
Greg McLean, MP Shadow minister of Natural Resources sees the possibility of a positive outcome from the dispute, saying…
“Right now the governor of Michigan is claiming that the pipeline is unsafe because it traverses the Great lakes, even though it’s never had an accident. It will be about a year and a half before Enbridge will be able to build a concrete tunnel under the lakes to hold those pipes. We’re trying to make sure that it doesn’t get cut off in the meantime.”
Maureen McCall is an energy professional who writes on issues affecting the energy industry.