BAY MILLS INDIAN COMMUNITY

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“GNOOZHEKAANING” PLACE OF THE PIKE

WEBSITE: BAYMILLS.ORG

BAY MILLS TRIBAL ADMINISTRATION

12140 West Lakeshore Drive

Brimley, Michigan 49715

PHONE: (906) 248-3241

FAX: (906) 248-3283

October 14, 2022

DELIVERY – VIA Electronic Submission at https://www.line5tunneleis.com & Electronic Mail

Katie L. Otanez

Regulatory Project Manager, Regulatory Office

U.S. Army Corps of Engineers, Detroit District

477 Michigan Avenue

Detroit, MI 48226-2550

katie.l.otanez@usace.army.mil

RE:

BAY MILLS INDIAN COMMUNITY’S COMMENTS ON THE SCOPE OF THE

ENVIRONMENTAL IMPACT STATEMENT FOR THE ENBRIDGE LINE 5 TUNNEL PROJECT

Gnoozhekaaning, “Place of the Pike,” or Bay Mills Indian Community (“Bay Mills”)

provides the enclosed comments on the scope of the Environmental Impact Statement (“EIS”)

that the U.S. Army Corps of Engineers is preparing as it evaluates Enbridge Energy, Limited

Partnership’s (“Enbridge”) application for a permit pursuant to Section 404 of the Clean Water

Act (“CWA”), 33 U.S.C. § 1344, and Section 10 of the River and Harbors Act, 33 U.S.C. § 403.

Enbridge seeks to construct a tunnel beneath the lakebed of the Straits of Mackinac and route a

pipeline through it so that it may operate the Line 5 pipeline. Bay Mills submits these comments

as a sovereign tribal nation, a consulting tribal nation, and a cooperating agency.

The proposed construction and the Line 5 pipeline are in an area of abundant resources

and enormous cultural, spiritual, and economic importance to Bay Mills. The gravity of this

proposal must be reflected in the scope of the EIS.

Miigwetch,

Whitney B. Gravelle

President, Executive Council

Environmental Impact Statement Scoping Comments of

Bay Mills Indian Community Addressing the Proposed Line 5

Tunnel Project

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................................... 1

II. THE EIS SHOULD HONOR THE DEEP CONNECTION AND PROTECTED INTERESTS OF BAY MILLS AND

OTHER TRIBAL NATIONS IN THE AREA OF LINE 5 AND THE PROPOSED PROJECT. ....................................... 2

The Straits Are At The Center Of Bay Mills’ Creation Story. ............................................................. 2

Bay Mills’ Identity Is Tied To The Water And Fisheries. .................................................................... 3

C. Bay Mills Retains Tribal Treaty Rights In The Great Lakes Basin And Has Fiercely Fought To Protect

Treaty Rights And Resources. ................................................................................................................... 4

D. The Straits of Mackinac Are A Traditional Cultural Property That Merits Special Consideration In

The EIS Process. ........................................................................................................................................ 7

III. THE NATIONAL ENVIRONMENTAL POLICY ACT, EXECUTIVE ORDERS ON ENVIRONMENTAL JUSTICE,

AND THE NATIONAL HISTORIC PRESERVATION ACT SUPPORT A COMPREHENSIVE EIS. ............................. 9

Under NEPA, An EIS Should Be More Extensive Than The Proposed Project. .................................. 9

B. The Corps Must Review The Proposed Project Through A Lens of Environmental Justice And The

Federal Government’s Commitment To Protect Tribal Treaty Rights. ................................................... 10

C. The National Historic Preservation Act’s Section 106 Process Must Inform The EIS Process,

Including The Development, Consideration, And Selection Of Alternatives. ......................................... 12

IV. THE SCOPE OF THE EIS SHOULD ADDRESS THE DEFICIENCIES IN THE APPLICANT’S PERMIT. ............ 14

V. THE EIS SHOULD ADDRESS WHETHER THERE IS A NEED FOR THIS PROJECT AND EVALUATE A WIDE

RANGE OF ALTERNATIVES. .......................................................................................................................... 17

A. There Is No Established Need For The Continued Transportation Of Oil And Propane Products

Through The Line 5 Pipeline.................................................................................................................... 17

The Corps Must Consider Alternatives In Which No Pipeline Would Cross The Straits. ................ 20

C. The Tunnel Agreements Between The State Of Michigan And Enbridge Do Not Determine Or Limit

The Scope Of The EIS, Location, Or Project Alternatives. ....................................................................... 22

VI. THE SCOPE OF THE EIS MUST INCLUDE RELATED ACTIONS ON THE LINE 5 PIPELINE. ....................... 22

The EIS Must Consider The Environmental Impacts Of Other Segments Of Line 5 Requiring Permits.

........................................................................................................................................................ 24

B. The EIS Must Consider the Environmental Impacts Of Decommissioning The Line 5 Dual Pipelines,

Including Alternative Methods Of Decommissioning. ............................................................................ 25

The EIS Must Consider The Environmental Effects Of Repairs To Line 5. ....................................... 27

VII. THE EIS MUST INCLUDE THE LIKELIHOOD AND ENVIRONMENTAL IMPACTS OF AN OIL SPILL IN THE

GREAT LAKES BASIN. ................................................................................................................................... 28

Pipelines Spill. ................................................................................................................................. 28

Oil Spills Harm Fish, Birds, Plants, And Other Organisms. .............................................................. 30

Spilled Oil Moves Through Connected Waters. .............................................................................. 31

D. This Project Threatens The Ceded Territory With An Oil Spill By Causing Line 5 To Continue

Operating Into The Future. ..................................................................................................................... 34

VIII. THE EIS MUST ADDRESS CLIMATE CHANGE. ....................................................................................... 35

The EIS Must Account For How The Proposed Project Will Cause Greenhouse Gas Emissions. .... 35

Legal requirements in the statute, case law, and Executive Orders ........................................... 35

GHG emissions calculation .......................................................................................................... 37

Impacts of GHG emissions .......................................................................................................... 38

The EIS Must Account For The Synergistic Effects Of Climate Change. .......................................... 41

IX. THE EIS MUST ADDRESS THE ENVIRONMENTAL IMPACTS OF TUNNEL CONSTRUCTION AND

OPERATION. ................................................................................................................................................ 42

A. The Evaluation Of A First-Of-Its-Kind Underground Tunnel Transporting Hazardous Liquids In The

Great Lakes Necessitates An Extra Level Of Scrutiny Of Potential Environmental Impacts. .................. 42

Untested pipeline design ............................................................................................................ 43

Concerns based on the geological setting for the Project .......................................................... 43

Explosion risk based on the design of the tunnel ....................................................................... 48

Species ............................................................................................................................................ 51

Wetlands ......................................................................................................................................... 56

Rare Natural Community Types ...................................................................................................... 57

Water quality .................................................................................................................................. 58

Air quality and Greenhouse Gas Emissions..................................................................................... 58

Impacts to Indigenous Women ....................................................................................................... 59

Cultural Resources .......................................................................................................................... 59

THE EIS CANNOT IGNORE ENBRIDGE’S CAVALIER APPROACH TO PIPELINE SAFETY. ......................... 60

The EIS Must Take Into Account Enbridge’s Safety Record. ........................................................... 60

B. Enbridge’s Cavalier Approach To Safety Extends To Its Disregard For Tribal, State, And Federal

Government Requests And Orders. ........................................................................................................ 63

XI. CONCLUSION ....................................................................................................................................... 64

I. INTRODUCTION

Gnoozhekaaning, “Place of the Pike,” or Bay Mills Indian Community (“Bay Mills”)

provides these comments on the scope of the Environmental Impact Statement (“EIS”) that the

U.S. Army Corps of Engineers (the “Corps”) is preparing as it evaluates Enbridge Energy, Limited

Partnership’s (“Enbridge” or the “applicant”) application for a permit pursuant to Section 404 of

the Clean Water Act (“CWA”), 33 U.S.C. § 1344, and Section 10 of the River and Harbors Act, 33

U.S.C. § 403. Enbridge seeks to construct a tunnel beneath the lakebed of the Straits of

Mackinac (“the Straits”) and route a pipeline through it so that it may operate the Line 5

pipeline (the “Project” or “Proposed Project”). Enbridge proposes this Project in an area of

abundant resources and enormous cultural, spiritual, and economic importance to Bay Mills,

and the gravity of this proposal must be reflected in the scope of the EIS.

Bay Mills previously has expressed concerns about deficiencies in Enbridge’s application

materials, including missing information about the purported need for this Project,

decommissioning the dual pipelines, and cumulative environmental impacts, among other

things. Those information gaps about this Project persist and must be corrected—and Bay Mills,

other tribal nations, and the broader public must be provided an opportunity to comment on

any new information.

It is critical that the Corps prepare a comprehensive EIS that respects tribal nations and

resources. Bay Mills’ comments highlight the following essential topics that must be included in

the scope of the EIS:

•

the relationship between the EIS and the review of this Project pursuant to

Section 106 of the National Historic Preservation Act (“NHPA”), and how the

Section 106 review informs an alternatives analysis in the EIS;

•

appropriate alternatives for this EIS, including alternatives in which there is no oil

pipeline crossing the Straits;

•

related and connected actions on the Line 5 pipeline;

•

the environmental effects of an oil spill in the Great Lakes Basin as a

consequence of this Project;

•

the Project’s contributions to climate change and the way that the effects of

climate change may impact the Project; and

•

the environmental effects of Project construction and operation, including the

risk of catastrophic failure, explosion, or oil spill based on engineering design for

this first-of-its-kind tunnel, as well as construction impacts to species, wetlands,

water quality, and air quality.

Bay Mills’ comments are informed by tribal teachings and experiences, tribal leadership,

scientists with the Bay Mills Biological Services Department, and support from Great Lakes

Indian Fish and Wildlife Commission (“GLIFWC”), consulting engineers, 1 and counsel. Bay Mills

is a federally recognized Tribal Nation 2 and a sovereign nation with an inherent right to selfgovernance and self-determination, and it has a government-to-government relationship with

both the United States and the State of Michigan. Bay Mills submits these comments as a

sovereign tribal nation, a consulting tribal nation, and a cooperating agency. 3

II. THE EIS SHOULD HONOR THE DEEP CONNECTION AND PROTECTED INTERESTS OF BAY

MILLS AND OTHER TRIBAL NATIONS IN THE AREA OF LINE 5 AND THE PROPOSED

PROJECT.

Bay Mills is one of several Tribal Nations of Anishinaabe people (Ojibwe, Odawa, and

Potawatomi) with a deep connection to the lands and waters of the Upper Great Lakes.

Enbridge proposed the Project in an area of enormous importance to these Tribal Nations. Bay

Mills recognizes the Straits of Mackinac as the center of creation. The Straits of Mackinac are

more than a waterway; they are a place of ongoing spiritual significance to the way of life of

Bay Mills since time immemorial. The Straits are also home to many species, natural resources,

treaty resources, and cultural resources that are important to Bay Mills. The Project and the

Line 5 pipeline thus pose serious threats to the exercise of Bay Mills’ reserved treaty rights,

ability to preserve cultural resources, cultural and religious interests in the Great Lakes, and

economy, as well as the health and welfare of tribal citizens.

Every aspect of the Corps’ EIS process must be conducted in a way that ensures and

maintains respect towards Tribal Nations and protection of tribal resources. The potential

impacts from the Proposed Project’s construction on cultural and natural resources must be

evaluated in the EIS. This assessment must begin with the identification and recognition of

these resources, including not only specific land and water areas, sites and structures, but also

plants and animals, fish and water, and human relationships with nature and the environment,

including cultural and spiritual relationships. It must include economic and social effects, which

are interrelated with the natural or physical environmental effects. 4

The Straits Are At The Center Of Bay Mills’ Creation Story.

As President Gravelle has recounted in testimony to the Michigan Public Service

Commission, the Straits are central to Bay Mills’ creation:

Pre-Filed Rebuttal Testimony of Richard B. Kuprewicz, Exh. BMC-37, Appl. for Auth. to Replace and Relocate

Segment of Line 5 Crossing the Straits of Mackinac (MPSC No. U-20763). Curriculum Vitae of Brian O’Mara (included

as Attachment A).

87 Fed. Reg. 4636 (Jan. 28, 2022). Bay Mills was first recognized by Congress in the Treaty of Sault Ste. Marie in

1820 and was officially recognized by an Act of Congress on June 19, 1860.

Bay Mills also refers to and incorporates fully herein the comments on this Project that it provided the Corps on

July 14, 2020, and December 14, 2020.

40 CFR § 1502.16(b).

According to our oral histories, the creation of North America began with a

flooded Earth. The animals received instructions from the Creator to swim deep

beneath the water and collect soil that would be used to recreate the world. All of

the animals failed, but the body of the muskrat, the last animal that tried,

resurfaced carrying a small handful of wet soil in its paws. It is believed that the

Creator used the soil collected and rubbed it on the Great Turtle’s back, forming

the land that became known as Turtle Island, the center of creation for all of North

America. According to history, the Great Turtle emerged from the flood in the

Straits of Mackinac. The word “Mackinac” is derived from the original name of the

Great Turtle from the Ojibwe story of Creation. The Straits are more than a

waterway; they are a place of ongoing spiritual significance to the way of life of

Bay Mills since time immemorial. 5

The Straits of Mackinac are not only the center of Bay Mills’ creation story, but, as

addressed throughout these comments, the Straits play an ongoing central role in the lives of

Bay Mills’ citizens through ongoing reliance on the area for their livelihood, ceremony and

tradition, and identity.

Bay Mills’ Identity Is Tied To The Water And Fisheries.

Water is critical to Bay Mills’ identity. Women are water keepers in Anishinaabe culture;

they maintain and protect water for their people, pray and care for the water during

ceremonies. They also pass on water teachings to the next generation. 6 If the water is

contaminated by tunnel construction, spills, or other possible outcomes, it directly affects the

ability of Anishinaabe tribal nations to maintain their historic traditions.

Fish and fishing are also critical to Bay Mills’ identity. Lake Whitefish, Lake Trout, and

other fish are used in cultural traditions for naming and for feasting in celebration of children,

ghost suppers, burial ceremonies, and other cultural traditions, and Lake Whitefish are sacred

to the Anishinaabe. 7

Fishing is a traditional and cultural practice for Michigan Tribal Nations, including Bay

Mills. 8 Over half of the Bay Mills’ citizen households rely on fishing for some or all of their

income. In addition, traditional fishing knowledge is passed down from each generation, and

fish are an important food used in ceremonies.

Within the Straits of Mackinac are numerous spawning grounds for different fish

species, including walleye and Lake Whitefish. If Lake Whitefish, Lake Trout, and other fish are

Pre-Filed Direct Testimony of Pres. Whitney Gravelle at 7, Appl. for Auth. To Replace and Relocate Segment of

Line 5 Crossing the Straits of Mackinac (MPSC No. U-20763) (hereinafter “Gravelle Testimony”).

Id. at 1.

Id. at 8.

Pre-Filed Direct Testimony of Jacques LeBlanc Jr. at 4, Appl. Pre-Filed Direct Testimony of Pres. Whitney Gravelle

at 7, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing the Straits of Mackinac (MPSC No. U20763) (“[Fishing] is not just part of my history; it is who I am.”)

harmed by tunnel construction, the ongoing operation of the dual pipelines until the tunnel is

constructed, or an oil spill from Line 5, a critical component of the tribal livelihood and tribal

community would be impacted. The EIS needs to address this potential loss in the EIS, and it

must do so in consultation with Bay Mills and other Tribal Nations.

Bay Mills Retains Tribal Treaty Rights In The Great Lakes Basin And Has Fiercely

Fought To Protect Treaty Rights And Resources.

Bay Mills is the modern-day successor in interest to the bands of Ojibwe people who

were identified by the negotiators for the United States as living near Sault Ste. Marie in the

Treaty of Sault Ste. Marie of June 16, 1820; the Treaty of Washington of March 28, 1836, 7 Stat.

491; the Treaty of Detroit of July 30, 1855; and the Treaty of Detroit of August 2, 1855. 9

Through these treaties, Tribal Nations retain all rights not expressly granted. 10

Specifically, as signatories to the 1836 Treaty of Washington, the Ojibwe and Ottawa

ceded to the federal government over 14 million acres of land and, in addition, the waters of

Lake Superior lying eastward of the Chocolay River, the northern portion of Lake Huron to the

mouth of the Thunder Bay River, the waters of Lake Michigan from Ford River south of

Escanaba to Grand Haven on Lake Michigan’s southeastern shore, and all the waters connecting

the three lakes. 11 This area, known as the ceded territory, includes a large part of the upper and

lower peninsulas and the Straits of Mackinac, and paved the way for Michigan’s statehood. 12

The Tribal Nations only agreed to this vast cession of their ancestral home upon

assurance that they would have the continued ability to exercise their inherent rights, reserved

by the Treaty, to hunt, fish, and gather throughout the ceded territory. 13 The Tribal Nations

carefully protected their traditional lifeway and its reliance on the environment’s natural

resources for food, shelter, medicines, and trade. 14 If permitted, the Project would be

constructed and would operate in the ceded territory.

Bay Mills has fought to protect its treaty rights through litigation, obtaining decisions

from the Michigan Supreme Court and a federal district court recognizing the treaty-protected

rights and limitations on the state’s power to regulate treaty-protected fishermen. 15

Gravelle Testimony at 8.

United States v. Winans, 198 U.S. 371, 381 (1905) (explaining that treaties are “not a grant of rights to the

Indians, but a grant of right from them, a reservation of those not granted”).

Gravelle Testimony at 9-10.

Id.

United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979); People v. LeBlanc, 399 Mich. 31; 248 NW2d 199

(1976).

Figure 1: 1836 Ceded Territory Map

Treaties are the supreme law of the land. 16 Federal agencies, including the Corps, have a

trust responsibility to tribal nations. 17 Agencies cannot act to render treaties meaningless; only

an act of Congress can diminish a treaty. 18 If the resources that a treaty right depends upon are

destroyed, the right is violated. 19 A recognition of the supremacy of tribal treaty rights is

apparent in Executive Order 13175 and the Memorandum of Understanding Regarding

Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and

Reserved Rights (“MOU”), to which the Department of Defense is a signatory. Section 3(a) of

Executive Order 13175 provides in relevant part: “Agencies shall respect Indian tribal selfgovernment and sovereignty, (and) honor tribal treaty and other rights.” 20 The MOU recognized

that “integrating consideration of tribal treaty and reserved rights into agency decision-making

and regulatory processes is consistent with the federal government’s trust responsibility to

federally recognized tribes and to fundamental principles of good government.” Treaties

themselves are “the source of legal authority to ensure that agency processes account for

reserved treaty rights.” 21 Thus, the Corps must not permit any project that will diminish Bay

Mills’ tribal treaty rights. As emphasized throughout these comments, that includes direct and

indirect harm to the Tribal Nations’ resources in the Great Lakes from Project construction or

operation, including oil spills and climate change.

Notably, Bay Mills has recognized that the Line 5 pipeline poses an existential threat to

treaty-protected rights and resources. On March 16, 2015, the Bay Mills Executive Council

adopted and approved Resolution No. 15-3-16-B, requesting that “any regulatory body with

oversight authority over the subject matter and/or geographic area to take any and all actions

reasonable and necessary to mandate and enforce the decommissioning of Line 5 at the Straits

of Mackinac.” 22 The Resolution explains its support for the decommissioning of Line 5 because

of Bay Mills’ concern about discharge of petroleum products into the Straits, as any discharge

would adversely affect fish shoaling, spawning and nursery areas in both Lakes Michigan and

Huron which encompass the most productive fishing areas in the 1836 Treaty ceded waters.

People v. Jondreau, 384 Mich 539 (1971) (interpreting U.S. Const., Art. VI, cl.2. and the Treaty of 1836).

See https://www.usace.army.mil/Missions/Civil-Works/Tribal-Nations (outlining the Corps’ Trust Responsibility

and referring to: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Presidential Memorandum (29 Apr. 1994)

Government-to-Government Relations With Native American Tribal Governments; Executive Order 13175 on

Consultation and Coordination with Indian Tribal Governments (06 Nov. 2000); and, the Office of the Secretary of

Defense, Trust Responsibility and Consultation Matrix.) In carrying out its federal trust responsibility, it is the Corps’

responsibility to ensure that tribal “treaty rights are given full effect,” including denying a permit for a project that

would impair treaty rights. Nw. Sea Farms, Inc. v. U.S. Army Corps of Eng’rs, 931 F. Supp. 1515 (W.D. Wash. 1996).

People v. LeBlanc, 399 Mich. 31, 58 (1976) (citing Menominee Tribe v. United States, 391 US 404, 413 (1968)).

See United States v. Washington, 853 F 3d 946 (9th Cir 2017), aff’d by Washington v. United States, 138 S. Ct.

1832. (2018) (holding that where state-owned culverts located under state roads obstructed fish passage,

diminishing the supply of fish, the state had violated its duty owed to tribes under treaties that

guaranteed fishing rights).

Executive Order 13175. Section 3(a).

Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of

Tribal Treaty Rights and Reserved Rights (Nov. 9, 2021).

Resolution No. 15-3-16-B, Support for Decommission of Enbridge Line 5 Oil Pipeline Under the Straits of

Mackinac (March 16, 2015). Notably, Bay Mills was not consulted when the dual pipelines were initially

constructed in 1953.

Moreover, a catastrophic oil spill into the Straits would devastate the aquatic ecosystem,

damage the shorelines, and disrupt, degrade, and diminish the tribal fishery reserved by treaty.

This Resolution recognized that “the human and natural ecosystems of the Straits of Mackinac

are both too complex and too fragile for a replacement pipeline for Line 5 to be successfully

sited and constructed within the reasonably foreseeable future.” 23

More recently, on May 10, 2021, the Bay Mills Executive Council adopted and approved

Resolution No. 21-05-10A, banishing Enbridge’s dual pipelines from the Bay Mills Indian

Community reservation and the lands and waters of the ceded territory, including the Straits of

Mackinac. 24 Banishment is a traditional, historical, and customary form of tribal law that has

existed since time immemorial and is only exercised by Bay Mills when egregious acts and

misconduct have harmed tribal citizens, treaty rights, territories, and resources. Banishment is a

permanent and final action.

Banishment was based, in relevant part, on Enbridge’s demonstrated actions that it

does not honor the rights and interests of Tribal Nations. These actions include: altering

underwater archeological reports; utilizing traditional cultural practices against Tribal Nations;

and, attempting to initiate non-expert cultural survey work in the Straits of Mackinac without

informing or engaging permitting authorities. Banishment further recognized that continued

operation of the Line 5 Dual Pipelines will result in a rupture of the pipeline, causing

catastrophic damage to the lands and waters near the Straits of Mackinac, destruction of tribal

treaty rights, and harm the people who depend on the Great Lakes for their economic

livelihood, their quality of life, their cultural wellbeing, and their very existence.

The Straits of Mackinac Are A Traditional Cultural Property That Merits Special

Consideration In The EIS Process.

The Straits of Mackinac are a place of deep spiritual and cultural meaning to Bay Mills,

where there are important cultural and historic resources, some of which are still being

discovered and studied. Bay Mills, the Corps and SHPO 25 all agree that the Straits of Mackinac

are a Traditional Cultural Property (or Traditional Cultural Landscape). 26 Accordingly, it is

essential that the EIS evaluate the impacts of tunnel construction on this special place and

identify ways to avoid (or mitigate) those impacts. The EIS must recognize and identify the

Id. (emphasis added)

Resolution No. 21-05-10A, Banishment of Enbridge Energy, Inc. Line 5 Dual Pipelines from the 1836 Treaty of

Washington Ceded Territory, waters of the Great Lakes, and the Straits of Mackinac (May 10, 2021).

Letter from Stacy Tchorzynski, Michigan State Historic Preservation Office Senior Archaeologist to Joseph Haas,

Michigan Department of Environment, Great Lakes and Energy (“EGLE”) Gaylord District Supervisor, (November

2020) (included as Attachment B); see also Letter from Whitney Gravelle, President of Bay Mills Indian Community,

to Martha MacFarlane-Faes, Deputy State Historic Preservation Officer (Oct. 12, 2022) (included as Attachment C).

See 54 U.S.C. § 302706; see also National Register Bulletin 38, Guidelines for Evaluating and Documenting

Traditional Cultural Properties (1990) (discussing Traditional Cultural Properties and defining “traditional cultural

significance”).

existence of sacred sites, culturally identified as places where significant events occurred as

well as burial or cremation places. 27

Ethnohistorian Dr. Charles Cleland described the rich history of the Straits of Mackinac

in his testimony presented to the Michigan Public Service Commission:

In the case at hand, the Straits of Mackinac area was occupied in the past by

people of several native societies, particularly the Ojibwa (Chippewa) and the

Odawa (Ottawa) and more recently by modern Euro-Americans. In the case of

Native American occupation sites, they collectively contain a record of thousands

of years of tribal history. This very ancient history is preserved only in

archaeological context. Such sites are non-renewable, so that once they are

damaged or destroyed, there are no alternative means of learning about the lives

of the native people who first settled and developed unique adaptations to the

natural environment in what is today northern Michigan.

In more recent times, the Straits area was also the scene of Euro-American

settlement during the eighteenth and nineteenth centuries; sites such as Fort

Michilimackinac and Fort Mackinac on Mackinac Island and the Pere Marquette

Mission at St. Ignace as well as their associated settlements are very valuable in

Native American, American, Canadian, French and British history as well as to the

modern historic tourism industry.

Regretfully, the archaeological sites which incorporate so many details about the

lives and cultures of previous occupants of the Straits area have long been under

dire threat of destruction due to modern development, rendering those that

remain intact of much greater importance. Fortunately, many have been

recognized by their listing on the National Register of Historic Places and Sites

which signifies their importance for our national patrimony. It would be difficult,

perhaps impossible, to find any other small area of North America that has such a

huge concentration of important historic sites. 28

Further, Dr. Cleland testified that there are 141 terrestrial archaeological sites included in the

State of Michigan’s SHPO files in close proximity to the Straits of Mackinac, including nineteen

that are listed on the National Register of Historic Places, three that are part of Historic

Archaeological Districts, and one site that has been designated as a National Historic Landmark.

These sites may be endangered by the continued operation of the Line 5 dual pipelines and the

tunnel construction. 29

As a way to protect tribal interests and the integrity of these sites, the Corps should not identify in public

materials the exact location of culturally significant sites.

Pre-Filed Testimony of Charles E. Cleland at 10-11, Appl. for Auth. to Replace and Relocate Segment of Line 5

Crossing the Straits of Mackinac (MPSC No. U-20763).

Id at 18-19.

More information is needed to fully understand the cultural and archaeological sites in

the Straits. SHPO characterized the discovery of significant cultural resources as a likelihood,

stating “we expect numerous additional resources to be present that have yet to be reported,

documented, and evaluated.” 30 As discussed further in the Section 106 discussion, infra at III.C,

archaeological sites within the project area, surrounding area, and downstream areas must be

identified and addressed in the EIS. The EIS must also acknowledge and describe sacred sites,

burial sites, and cremation within the project area and surrounding areas potentially affected

by the proposed project.

For the NEPA and permit evaluation processes, care must be taken to protect the

cultural sites from damage during surveys and to keep locational information confidential for

spiritual reasons, and to prevent looting and vandalism. Identification needs to be done in

consultation with and at the direction of appropriate tribal entities.

Historic and cultural resources are not simply about a moment in history; they are part

of a continuum of living knowledge. Bay Mills and its tribal citizens carry cultural practices today

and continue to honor their ancestors.

III. THE NATIONAL ENVIRONMENTAL POLICY ACT, EXECUTIVE ORDERS ON ENVIRONMENTAL

JUSTICE, AND THE NATIONAL HISTORIC PRESERVATION ACT SUPPORT A COMPREHENSIVE

EIS.

Under NEPA, An EIS Should Be More Extensive Than The Proposed Project.

The National Environmental Policy Act (“NEPA”) and its implementing regulations 31

support a comprehensive EIS. NEPA requires agencies to analyze the environmental impacts of

their actions. NEPA’s implementing regulations demand that federal agencies, “to the fullest

extent possible . . . [u]se all practicable means, consistent with the requirements of [NEPA] and

other essential considerations of national policy, to restore and enhance the quality of the

human environment and avoid or minimize any possible adverse effects of their actions upon

the quality of the human environment.” 32

To achieve these objectives, NEPA requires all federal agencies—including the Corps—to

prepare an EIS for all “major Federal actions”—such as the Proposed Project—"significantly

affecting the quality of the human environment,” 33 and these rules set the broad contours for

the scope of an EIS. 34 The scope of an EIS consists of actions, including connected, cumulative,

Attachment B at 2.

The 1978 Council on Environmental Quality (“CEQ”) regulations implementing NEPA apply to this EIS. The CEQ

regulations were revised in 2020, then revised again in 2022. The Corps has acknowledged that the 1978

regulations apply here, consistent with 40 C.F.R. § 1506.13 (2022).

40 C.F.R. § 1500.2(f) (1978).

42 U.S.C. § 4332 (C).

40 C.F.R. § 1508.25 (1978). An EIS “should be ‘more extensive than the proposed project,’” as environmental

effects would be experienced beyond an immediate construction site. Congress enacted NEPA “to reduce or

and similar actions; alternatives, including the no action alternative, other reasonable courses

of actions, and mitigation measures; and impacts, which may be direct, indirect, or

cumulative. 35

While the Corps’ permitting authority under the Clean Water Act and Rivers and Harbors

Act may be limited to jurisdictional waters, its NEPA responsibility is not. The Corps has

“responsibility under NEPA to analyze all of the environmental consequences of a project,” and

the scope of an EIS extends beyond jurisdictional waters. 36 The agency must look to the future.

A critical part “of an agency’s responsibilities under NEPA is to predict the environmental

effects of [a] proposed action before the action is taken and those effects fully known,” 37 thus,

“reasonable forecasting and speculation is…implicit in NEPA.” 38 Throughout the process, the

agency cannot simply accept an applicant’s information or conclusions; an agency must verify

the accuracy of information supplied by the applicant. 39

The Corps Must Review The Proposed Project Through A Lens of Environmental

Justice And The Federal Government’s Commitment To Protect Tribal Treaty

Rights.

The Corps must incorporate environmental justice 40 and the federal government’s

commitment to respect tribal knowledge and rights throughout the entire EIS process. Both

Executive Orders and Council on Environmental Quality (“CEQ”) guidance require consideration

eliminate environmental damage.” Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105, 117 (D.N.H. 1975)

(citing Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19 (8th Cir. 1973) (finding that it was unreasonable for an EIS

to ignore possible environmental effects that could occur in an environmentally fragile area thirteen miles south of

the project).

40 C.F.R. § 1508.25(a)-(c) (1978).

See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1122 (9th Cir. 2005) (affirming a district court conclusion

that the Corps had improperly constrained its NEPA analysis).

Scientists’ Inst. For Pub. Info., Inc., v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 1973).

Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1310 (D.C. Cir. 2014); see also Scientists’ Inst. For Pub.

Info., Inc., 481 F.2dat 1092 (stating that courts “must reject any attempt by agencies to shirk their responsibilities

by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry.’”).

40 C.F.R. § 1506.5 (1978); 33 C.F.R. Part 325, App. B § 8(f)(2).

There is no one preferred definition for environmental justice. In 1991, the First National People of Color

Environmental Leadership Summit developed a set of environmental justice principles that still guide the

environmental justice movement today. See Environmental Justice Principles.

http://www.columbia.edu/cu/EJ/Reports_Linked_Pages/EJ_principles.pdf. According to the Corps, environmental

justice is “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or

income with respect to the development, implementation, and enforcement of environmental laws, regulations,

and policies, with no group bearing a disproportionate burden of environmental harms and risks.” See

https://www.army.mil/article/254935/assistant_secretary_of_the_army_for_civil_works_issues_environmental_j

ustice_guidance_to_the_army_corps_of_engineers

of the potential impacts on “frontline communities,” like tribal communities, which are likely to

be disproportionately impacted by the environmental impacts of the Project. 41

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority

Populations and Low-Income Populations,” provides that all federal agencies must:

make environmental justice part of [their] mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health and

environmental effects of [their] programs, policies, and activities on minority

populations and low-income populations in the United States. 42

Its provisions apply fully to programs involving tribal nations and members. 43 Executive Order

12898 is intended to require consideration of environmental justice concerns in the NEPA

process. 44 Executive Order 12898 emphasizes “the importance of research, data collection, and

analysis,” particularly with respect to “multiple and cumulative exposures” to environmental

hazards for low-income populations, minority populations, and Indian tribes. 45 Further, it

provides for agencies to collect, maintain, and analyze information on patterns of subsistence

consumption of fish, vegetation, or wildlife. Where an agency action may affect fish, vegetation,

or wildlife, that agency action may also affect subsistence patterns of consumption and indicate

the potential for disproportionately high and adverse human health or environmental effects

on low-income populations, minority populations, and Indian tribes. 46

Accordingly, the scope of the EIS must evaluate the potential for the Project’s

construction or operation to pollute fish, vegetation, and wildlife that are part of the food chain

for tribal members. 47

Recent executive orders reinforce the need to pay special attention to environmental

justice impacts of the Corps’ decision-making processes. Executive Order 14008, “Tackling the

Climate Crisis at Home and Abroad,” directs federal agencies to promote environmental justice

See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 140 (D.D.C. 2017) (holding

that an environmental assessment failed to properly consider the environmental justice implications of a project

where it did not consider the cultural, social, and economic factors that are distinct to the Tribe and that “might

amplify its experience of the environmental effects of an oil spill”).

Exec. Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations (Feb. 11, 1994).

President Clinton, Memorandum for the Heads of All Departments and Agencies: Executive Order on Federal

Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (February 11,

1994), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/ReqEO12898envjustice.pdf.

See 59 Fed. Reg. 7629 (1994).

Exec. Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations (Feb. 11, 1994).

Council on Environmental Quality, Environmental Justice Guidance Under NEPS (Dec. 10,1997),

https://www.epa.gov/sites/default/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf (hereinafter “CEQ

Environmental Justice Guidance”)

The CEQ has oversight of the Federal government’s compliance with Executive Order 12898 and NEPA. See CEQ

Environmental Justice Guidance.

by “[d]eveloping programs, policies, and activities to address the disproportionately high and

adverse human health, environmental, climate-related and other cumulative impacts on

disadvantaged communities, as well as the accompanying economic challenges of such

impacts.” 48 Executive Order 13990, “Protecting Public Health and the Environment and

Restoring Science to Tackle the Climate Crisis,” recognizes the importance of ensuring access to

clean air and water, limiting exposure to dangerous chemicals and pesticides, and holding

polluters accountable. 49 The Corps should promote environmental justice through enhancing its

public participation processes and evaluating the disproportionate impacts of the Line 5 tunnel

project. As explained by CEQ, “[t]he participation of diverse groups in the scoping process is

necessary for full consideration of the potential environmental impacts of a proposed agency

action and any alternatives.” 50

The Corps’ evaluation of environmental justice impacts of the Project will demonstrate

that constructing a tunnel and routing a pipeline through the Straits of Mackinac will

disproportionately harm Bay Mills and other Tribal Nations. The EIS should consider a full range

of the potential environmental justice impacts including, but not limited to, the following:

•

Threats to tribal fisheries;

•

Impairment of tribal members’ ability to harvest natural resources for food,

medicine, and ceremony along the route of the pipeline;

•

Harm to resources of cultural, economic, and spiritual importance to Bay Mills;

•

Frustration of spiritual activities such as ceremonies in and around the Straits;

and,

•

Social, economic, and health impacts for Bay Mills and other tribal communities.

The Corps must respect the Tribal Nations’ perspective and stake in the Proposed

Project.

The National Historic Preservation Act’s Section 106 Process Must Inform The

EIS Process, Including The Development, Consideration, And Selection Of

Alternatives.

The Corps’ development, selection, and evaluation of project alternatives in the NEPA

process must be informed by the National Historic Preservation Act’s (“NHPA”) Section 106

Exec. Order No. 14008, 86 Fed. Reg. 7619, 7629. Section 220 of Exec. Order 14008 creates an interagency

working group, including HUD and EPA, and calls on the group to address “current and historic environmental

injustice.” Id. at 7630. Note that although Exec. Order 14008 and the implementing memos and materials use the

phrase “disadvantaged communities,” there are more appropriate terms that should be used, and community

members should be consulted on the preferred term.

Exec. Order No. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the

Climate Crisis (Jan. 20, 2021).

See CEQ Environmental Justice Guidance.

process; specifically, the Corps must develop and evaluate alternatives that avoid, minimize, or

mitigate adverse effects to historic properties. The Advisory Council on Historic Preservation’s

Section 106 implementing regulations, which are binding on all federal agencies including the

Corps, 51 require the Section 106 process to be “initiated early in the undertaking’s planning, so

that a broad range of alternatives may be considered during the planning process for the

undertaking.” 52 Indeed, in order to resolve any adverse effects to historic properties that may

occur because of the undertaking, the Corps must “develop and evaluate alternatives or

modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on

historic properties.” 53

For the Corps to meet this regulatory requirement, the Section 106 process cannot be

delayed, and the information gained from it must be used in developing, selecting, and

evaluating project alternatives in the parallel NEPA process. If the Corps develops and selects

project alternatives without the consideration of potential adverse effects to historic

properties, the Corps will foreclose its ability to meaningfully consider alternatives and

modifications to the Line 5 tunnel project that could avoid, minimize, or mitigate those adverse

effects. 54 This would be unlawful.

The Corps was presented with a unique opportunity to initiate the Section 106 process

well before the formal EIS process commenced, allowing it to engage in early and meaningful

consultation with consulting parties, including Tribal Nations and Bay Mills. The Corps

announced that it would develop an EIS for the Line 5 tunnel project, instead of an

Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 607 (9th Cir. 2010) (“[F]ederal

agencies must comply with these regulations.” (citations omitted)). The Corps purports to comply with Section 106

not by following the procedures set forth in Part 800, but those set forth in 33 C.F.R. Part 325, Appendix C. As Bay

Mills has repeatedly stated, the Corps’ use of Appendix C to fulfill its Section 106 obligations is unlawful, because

Appendix C is not a legally valid counterpart regulation. Sayler Park Vill. Council v. U.S. Army Corps of Eng’rs, No. C1-02-832, 2002 WL 32191511, at *7 (S.D. Ohio Dec. 30, 2002) (“[B]y issuing a permit to Lone Star without having

complied with the regulations issued by the ACHP, the Corps violated the NHPA.”). First, the ACHP never approved

or concurred in the adoption and use of Appendix C. Comm. to Save Cleveland’s Huletts v. U.S. Army Corps of

Eng’rs, 163 F. Supp. 2d 776, 792 (N.D. Ohio 2001) “All parties agree that there is no record of the ACHP ever

approving or concurring in the Corps’ regulations.”). The ACHP’s approval or concurrence was, at the time

Appendix C was developed and adopted, and still is, a requirement for any agency, including the Corps, to develop,

adopt, and use counterpart regulations (or alternate procedures). Accord 36 C.F.R. § 800.14(a); 36 C.F.R. § 800.15

(1986); 36 C.F.R. 800.11(a) (1979). Second, most of the provisions in Appendix C conflict or are inconsistent with

the corresponding provisions in Part 800 and the NHPA. (Cleveland’s Huletts, 163 F.Supp.2d at 792 (“[T]he Corp’s

procedures are inconsistent with, and indeed, in derogation of those ACHP regulations.”). The NHPA specifically

requires agency-specific policies and procedures for implanting Section 106 to be consistent with the ACHP’s

regulations at Part 800. 54 U.S.C. § 306102(b)(5)(A); 36 C.F.R. § 800.14(a).

36 C.F.R. § 800.1(c); see Safeguarding the Historic Hanscom Area’s Irreplaceable Res. v. Fed. Aviation Admin., 651

F.2d 202, 214 (1st Cir. 2011) (“This directive makes it pellucid that agencies are not expected to delay NHPA review

until all details of the proposal are set in cement.”).

36 C.F.R. § 800.6(a).

Id. § 800.1(c) (“The agency official must complete the section 106 process ‘prior to . . . the issuance of any

license.’ This does not prohibit [the] agency official from conducting or authorizing nondestructive project planning

activities before completing compliance with section 106, provided that such actions do not restrict the

subsequent consideration of alternatives to avoid, minimize or mitigate the undertaking’s adverse effects on

historic properties.”).

Environmental Assessment (“EA”), in June 2021. The Corps published its NOI in August 2022.

Over that 14-month period, the Corps suspended the Section 106 process, refusing to engage in

any consultation with consulting parties, including Tribal Nations and Bay Mills. Bay Mills

objected to this suspension and urged the Corps to reinitiate the Section 106 process. 55

Had the Corps not suspended the Section 106 process, or had it reinitiated the process

upon Bay Mills’ request, the Corps could have spent the last 14 months consulting with Bay

Mills, other Tribal Nations, and consulting parties about the historic properties that may be

affected by the undertaking and what the potential adverse effects could be. The information

gained from these consultations could have informed the Corps’ development and selection of

project alternatives in the NEPA process, as is required by the regulations. Instead, the Corps

chose to ignore Tribal Nations and its Section 106 obligations and refused to engage in Section

106 consultation during that 14-month period. Now that the EIS process is underway, the Corps

still has not reinitiated the Section 106 process. This is unacceptable and unlawful. Bay Mills is

deeply concerned that the Corps will not engage in meaningful consultation with consulting

parties early enough so that the Section 106 process can have a meaningful impact on the

permitting process, including the development, selection, and evaluation of project

alternatives, as well as the Corps’ final decision on whether to issue Enbridge a 404 permit.

The Section 106 process is not a post-decision mitigation measure meant to offset the

undertaking’s adverse effects; instead, it is meant to inform agency’s decision making to avoid,

minimize, and mitigate those potential adverse effects in the first place through the

development of project alternatives and modifications. Therefore, it is imperative that the

Corps initiate the Section 106 process early in its permitting process and meaningfully integrate

it with the on-going NEPA process. If the Corps proceeds with developing and selecting project

alternatives in the NEPA process, without input from the Section 106 process, it runs the risk of

being too invested in its analysis of those alternatives to be willing or able to seriously consider

different alternatives and project modifications that could resolve adverse effects to historic

properties. Further, as discussed below, because serious concerns have arisen related to the

Section 106 pre-construction surveys, the entire EIS process should be paused now because the

Corps will not be able to meaningfully consider alternatives or modifications developed with

the benefit of the Section 106 process.

The Corps’ failure to meaningfully consider such alternatives or modifications would be

unlawful.

IV. THE SCOPE OF THE EIS SHOULD ADDRESS THE DEFICIENCIES IN THE APPLICANT’S PERMIT.

Enbridge’s permit application was jointly submitted to the Corps and the Michigan

Department of Environment, Great Lakes, and Energy (“EGLE”) in April of 2020. 56 At the time of

Bay Mills Indian Community Request for the U.S. Army Corps of Engineers to Reinitiate the National Historic

Preservation Act Section 106 Process (included as Attachment D).

See Enbridge’s Joint Permit Application for a Permit for the Line 5 Tunnel and Pipeline Project Under Section 404

of the Clean Water Act and Section 10 of the Rivers and Harbors Act, Application Number LRE-2010-004653-56A19.

submission, the Corps notified Enbridge that additional information was necessary in order to

continue processing its application. 57 Despite Enbridge’s submission of incomplete application

materials, however, the Corps moved forward with publishing a public notice about the

Proposed Project in May of 2020. 58 Because the public notice was required to “include

sufficient information to give a clear understanding of the nature and magnitude of the activity

to generate meaningful comment,” the Corps was in error for publishing the notice in May of

2020 based on Enbridge’s incomplete application materials. 59

Following public notice, Bay Mills commented that Enbridge’s rushed, chaotic, and

incomplete submission of its permit materials and the ongoing safety problems with its Line 5

pipeline operation did not instill confidence in Enbridge’s ability to proceed with this Project in

a way that protects precious Great Lakes resources. 60 That lack of confidence has only been

amplified as the NEPA process unfolded. To date, Enbridge’s plans remain inadequate,

incomplete, and demonstrate an overall lack of understanding about the complexities of

tunneling through the Straits and little awareness about the effects its Project will have on

Tribal Nations.

An application for a permit must include, among other things, a complete description of

the proposed activity; the location, purpose, and need for the proposed activity; all activities

that the applicant plans to take which are reasonably related to the same project; a description

of any dredging in navigable waters that the activity would entail; a description of the discharge

of any dredged or fill material into the waters of the United States that the activity would

entail, including the source of the material, purpose of the discharge, description of the

material, the method of transportation and disposal, and the location of the disposal site; and a

statement of how impacts to waters of the United States are to be avoided or minimized for

activities involving discharges of dredged or fill materials. 61 A permit application is complete

only “when sufficient information is received to issue a public notice.” 62 Enbridge’s application

See Comments of Bay Mills Indian Community Seeking the Denial of Enbridge’s Application for a Permit for the

Line 5 Tunnel and Pipeline Project Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors

Act, Application Number LRE-2010-004653-56-A19, dated July 2020 at Exhibit F; See also Id. at Exhibit E (EGLE letter

noting deficiencies in Enbridge’s permit application)

Army Corps of Engineers, Public Notice Re Enbridge Energy, LP No. LRE-2010-00463-56-A19, at 2 (“Public

Notice”) (May 15, 2020)

33 C.F.R. Sec. 325.3(a) (“The notice must, therefore, include sufficient information to give a clear understanding

of the nature and magnitude of the activity to generate meaningful comment.”); see also Ohio Valley Envtl. Coal. v.

U.S. Army Corps of Eng'rs, 674 F.Supp.2d 783, 804 (S.D.W.Va.2009) (holding that Corps erred by issuing public

notice that “contained no substantive information on mitigation”); Friends of the Earth v. Hall, 693 F. Supp. 904,

948 (W.D.Wash.1988) (holding that Corps erred by failing to give notice of a monitoring plan because it was “the

single most important feature” of the project); Nat'l Wildlife Fed'n v. Marsh, 568 F. Supp. 985, 991, 994–95

(D.D.C.1983) (holding that Corps erred by failing to issue notice of a “staff evaluation,” which evaluated benefits

and rated alternative sites, because it was “the most important document influencing the [Corps'] decision” and

differed substantially from information Sec. included in the public notice).

See July 2020 Comments of Bay Mills Indian Community at 2.

33 C.F.R. § 325.1(d).

33 C.F.R. § 325.1(d) and 325.3(a)

was incomplete at the time it was submitted, and remains substantially incomplete today, for

the following reasons:

•

The application lacks an explanation for the need for the Project. 63

•

The application lacks an adequate description of the decommissioning options

for the dual pipelines. 64

•

The application does not address cumulative impacts to the affected

watersheds. 65 Enbridge’s application is silent about the cumulative impacts that

its Project will cause, and Enbridge has failed to adequately address cumulative

impacts in its supplemental materials.

•

The application and supplemental materials fail to include a complete

description of the type, composition, and quantity of the material to be dredged,

the method of dredging, and the site and plans for disposal of the dredged

material.

•

The application and supplemental materials fail to include an adequate

statement describing how impacts to waters of the United States are to be

avoided and minimized, as required by section 325.1(d)(7)(1).

•

The application fails to include any financial assurances, or an adequate

statement that either describes “how impacts to waters of the United States are

to be compensated for” or “explain[s] why compensatory mitigation should not

be required for the proposed impacts.” 66

It is unacceptable that, more than two years after submitting its application, Enbridge’s

application materials and supplemental submissions remain incomplete. At present, Bay Mills

and the public are missing information that they should be able to comment on, and the Corps

is missing out on the benefits of those public comments.

Moreover, an issuance of the permit based on Enbridge’s incomplete application would

run afoul of the “hard look” of the Project that is required by NEPA. 67 Indeed, “[a]ccurate

scientific analysis, expert agency comments, and public scrutiny are essential to implementing

See Section V.A, infra.

See Section VI.B, infra.

See Sections VII, VIII (discussing impacts from the Project’s contributions to oil spills and climate change); IX.B,

IX.C, IX.D (discussing impacts to species, wetlands, and water quality); IX.A (discussing releases into the Straits from

a tunnel boring failure or an explosion), infra.

33 CFR § 325.1(d)(7); see also Section VII.D, infra.

The court will overturn an agency's decision as arbitrary and capricious under ‘hard look’ review if […] the

agency failed entirely to consider an important aspect of the problem…” Sierra Club v. Flowers, 423 F. Supp. 2d 1273,

1310–11 (S.D. Fla. 2006), supplemented sub nom. Sierra Club v. Strock, 495 F. Supp. 2d 1188 (S.D. Fla. 2007), vacated

sub nom. Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir. 2008), and vacated in part sub nom. Sierra Club v. Van

Antwerp, 526 F.3d 1353 (11th Cir. 2008)

NEPA.” 68 “NEPA procedures must insure that environmental information is available to public

officials and citizens before decisions are made and before actions are taken” and that the

information must be of “high quality.” 69 As part of the EIS process, these deficiencies in the

permit application must be corrected immediately. Once the information is provided by

Enbridge, the Corps should issue a supplemental, revised, or corrected public notice based on

the change in the application data that would affect the public’s review of the proposal. 70

V. THE EIS SHOULD ADDRESS WHETHER THERE IS A NEED FOR THIS PROJECT AND EVALUATE

A WIDE RANGE OF ALTERNATIVES.

In the NOI, the Corps’ statement of purpose and need is so narrow that it seems to leave

room for just one result: the construction of the Project. 71 But “a statement of purpose and

need ‘will fail if it unreasonably narrows the agency’s consideration of alternatives so that the

outcome is preordained.’” 72 The EIS must not be so limited. Consideration of such a narrow

range of alternatives is inconsistent with the Corps’ obligations under the implementing

regulations of Section 106 of the NHPA. The EIS should address whether there is a need for the

Project and consider a full range of alternatives, including alternatives in which there would be

no pipeline crossing the Straits. A tunnel in the straits is not a foregone conclusion.

There Is No Established Need For The Continued Transportation Of Oil And

Propane Products Through The Line 5 Pipeline.

The scope of the EIS should include an evaluation of the purported need for this

Project. 73 Moreover, the Corps should address the needs and welfare of the people and the

relative need for the proposed project before issuing any permit under Section 404 of the Clean

See 40 C.F.R. § 1500.1(b) (1978) (“NEPA procedures must insure that environmental information is available to

public officials and citizens before decisions are made and actions are taken.”)

40 C.F.R. § 1500.1(b) (1978).

Citizens of Karst, Inc. v. United States Army Corps of Eng’rs, 160 F. Supp. 3d 451, 459 (D.P.R. 2016) (citing Sec.

325.2(a)(2)).

Other sections of the NOI are also unduly narrow. Both the “Purpose and Need” and the “Location” sections of

the NOI suggest that connecting the North Straits Facility and Mackinaw Station, in Mackinac County and Emmet

County, respectively, is part of the purpose of the Project and a foregone conclusion. Notice of Intent To Prepare a

Draft Environmental Impact Statement for the Line 5 Tunnel Project, Mackinac and Emmet Counties, Michigan, 87

Fed. Reg. 50,075 (Aug. 15, 2022). As written, the underlying need for a pipeline in or under the Straits is assumed—

and there is no basis for that assumption.

Protect Our Communities Found. v. Jewell, 825 F.3d 571, 579–80 (9th Cir. 2016); see also Simmons v. U.S. Army

Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997) (stating that it is contrary to NEPA for agencies “to contrive a

purpose so slender as to define competing ‘reasonable alternatives’ out of consideration (and even out of

existence).”); Coal. for Advancement of Reg'l Transp. v. Fed. Highway Admin., 576 F. App. 477, 487 (6th Cir. 2014)

(stating that an agency “cannot define a project’s purpose and need so narrowly that it contravenes NEPA’s

mandate to evaluate reasonable alternatives.”) (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196

(D.C. Cir. 1991)).

See 40 C.F.R. § 1502.13 (1978); see also 33 C.F.R. § 325.1(d)(1).

Water Act. 74 The published NOI has a one sentence “Purpose and Need” section that is overly

narrow as to the purpose and silent as to the need for the Project:

Purpose and Need: The purpose of the project is to provide transportation of light

crude oil, light synthetic crude oil, light sweet crude oil, and natural gas liquids

between Enbridge’s existing North Straits Facility and Mackinaw Station, and to

approximately maintain the existing capacity of the Line 5 pipeline while

minimizing environmental risks. 75

Limiting the purpose of the project to transportation of fuels “between Enbridge’s existing

North Straits Facility and Mackinaw Station” defines reasonable alternatives out of existence,

which federal agencies are prohibited from doing. 76 This unreasonably narrow geographic

definition of the Project’s purpose must not be used to limit the scope of the EIS.

Similarly, a purpose of “approximately maintain[ing] the existing capacity of the Line 5

pipeline” appears to unreasonably limit the Corps’ review of alternatives and must not be used

to bar the review of reasonable alternatives. Transporting the fuels through other pipelines

with existing capacity or transporting the fuels by truck or rail are all “reasonable alternatives”

that the Corps must review. 77

In fact, before accepting that fuels must be transported—let alone be transported at a

set capacity between specific locations—a need for the fuels must be established. There is no

basis to suggest that the existing capacity of Line 5 is necessary now, let alone in the future.

This is especially true in light of the climate crisis and governmental goals for carbon emissions

reductions. 78

No studies or reports demonstrate that the products transported by the Line 5 pipeline

(especially at its current capacity) are needed in the region. Instead, expert testimony in other

Line 5 proceedings, the historical record, and independent reports demonstrate that there is no

such need:

•

Line 5 has been shut down with no impact on gasoline prices. In 2020, the dual

pipelines in the Straits were damaged and a state court ordered the dual

33 C.F.R. § 320.4(a).

Notice of Intent To Prepare a Draft Environmental Impact Statement for the Line 5 Tunnel Project, Mackinac and

Emmet Counties, Michigan, 87 Fed. Reg. 50,076 (Aug. 15, 2022).

Coal. for Advancement of Reg'l Transp. v. Fed. Highway Admin., 959 F. Supp. 2d 982, 1001 (W.D. Ky. 2013), aff'd

576 F. App’x 477 (6th Cir. 2014) (“However, an agency may not define its objectives so narrow as to confine its

range of alternatives since doing so would eviscerate NEPA's mandate to rigorously explore and evaluate all

reasonable alternatives.”) (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991)); see

also Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997).

40 C.F.R. §§ 1500.2(e), 1506.1(b) (1978); 40 C.F.R. §1508.1(z) (2022).

See, e.g., Executive Directive No. 2020-10, Building a Carbon-Neutral Michigan (Sept. 23, 2020) (committing

Michigan to “economy-wide carbon neutrality no later than 2050,” with an interim goal of achieving a 28%

reduction below 1999 levels in greenhouse gas emissions by 2025); Exec. Order No. 13990, Protecting Public

Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021).

pipelines to shut down completely for a week and for one of the dual pipelines

to be shut down for 78 days. 79 During that period of time, gas prices in Michigan

and Toronto remained near the United States and Canadian averages for gas

prices. 80

•

Neil Earnest, an expert hired by Enbridge, has concluded that Line 5 has little

impact on fuel prices: “The estimated impact of a Line 5 shutdown on Wisconsin

and Michigan gasoline, jet fuel, and diesel prices is an increase of 0.5 cents per

gallon.” 81

•

The Upper Peninsula Energy Task Force, an entity created by the Michigan

governor, commissioned an economic analysis of propane supply alternatives to

Line 5, and the analysis concluded that any shortfall in propane supply from a

disruption to Line 5 could be overcome through a combination of readily

available alternatives that include delivery of propane by rail, truck, and pipeline

from Edmonton, Alberta, and Conway, Kansas. 82

•

There are practical and economic alternatives to propane, including electric heat

pumps and electric hot water heaters. 83

Energy demands may be satisfied by other methods that may result in fewer

greenhouse gas emissions. It is imperative that any mention of a supposed need for fossil fuels

account for how long those fossil fuels would be transported and burned in the future and the

climate, policy, and environmental justice implications of that usage.

To date, no need for the Project is established, and if no need is established, the Corps

should halt the EIS process and deny the application. At the very least, for public transparency,

the Corps must state a need in the EIS so that an appropriate set of alternatives can be

Gus Burns, Enbridge Line 5 Remains Shut Down Pending Michigan Judge’s Ruling, MLIVE.COM (June 30, 2020),

https://www.mlive.com/public-interest/2020/06/enbridge-line-5-remains-shut-down-pending-michiganjudgesruling.html; Kelly House, Judge: Enbridge can resume full operations on Michigan Line 5 pipelines, THE

BRIDGE (Sept. 9, 2020) https://www.bridgemi.com/michigan-environment-watch/judge-enbridge-can-resume-fulloperationsmichigan-line-5-pipeline.

Laina G. Stebbins, Study: Partial Line 5 Shutdown Has Not Impacted Gas Prices, Despite Enbridge Warnings,

MICH. ADVANCE (Aug. 10, 2020)., https://michiganadvance.com/2020/08/10/study-partial-line-5-shutdown-hasnotimpacted-gas-prices-despite-enbridge-warnings/.

Expert Report of Neil K. Earnest at 12, Bad River Band of the Lake Superior Tribe of Chippewa Indians v. Enbridge

Energy Co., et al., No. 3:19-cv-00602-wmc (W.D. Wis. May 27, 2022) ECF No. 262.

Analysis of Propane Supply Alternatives for Michigan, PUBLIC SECTOR CONSULTANTS 67 (2020)

https://www.michigan.gov/documents/egle/egle-psc-upetfReport_Analysis_of_Propane_Supply_Alternatives_for_Michigan_683751_7.pdf.

Direct Testimony of Dr. Elizabeth A. Stanton at 14-17, Appl. for Auth. To Replace and Relocate Segment of Line 5

Crossing the Straits of Mackinac (MPSC No. U-20763), https://mipsc.force.com/sfc/servlet.shepherd/version/download/0688y000001qFWcAAM. .

evaluated, and because evaluating need is a component of the public interest review the Corps

must conduct before issuing a permit, pursuant to Section 404 of the Clean Water Act. 84

The Corps Must Consider Alternatives In Which No Pipeline Would Cross The

Straits.

The EIS must include a robust consideration of alternatives in which there would be no

pipeline in or beneath the Straits of Mackinac.

There are several independent reasons to include “no pipeline in the Straits”

alternatives in the EIS. First, there is no established need for Line 5 to operate. As Section V.A,

supra, explains, there is no economic or energy security need for continuing to use this pipeline,

let alone building and rerouting new segments of it. Alternatives to this Project could include an

electric grid more reliant on renewable energy.

Second, even if there were a need for fossil fuel products that Line 5 transports—which

there is not—there is no reason for these products to travel through the Straits of Mackinac.

The opposite is true: A fossil fuel pipeline has no place in waters of such immense cultural,

spiritual, and economic significance to Bay Mills and other Tribal Nations. Alternatives to this

Project could be reliance on other existing pipelines or the use of truck and rail infrastructure.

Third, the Clean Water Act requires the Corps to presume that there are “practicable

alternatives that do not involve special aquatic sites,” 85 such as the wetlands on either side of

the Straits, 86 to this project because it is not “water dependent.” Transporting fuel through a

pipeline is not water dependent, 87 and Enbridge’s desire to locate the pipeline in the Straits

does not make this project water dependent. 88 The Corps must presume that there is a

33 C.F.R. § 320.4(a).

33 C.F.R. § 230.10(a)(3).

40 C.F.R. § 230.3(m); id. § 230.41.

See Delaware Riverkeeper Network v. Sec'y of Pennsylvania Dep’t of Envtl. Prot., 870 F.3d 171, 180 (3d Cir. 2017)

(recognizing that “[i]n the context of the federal regulatory scheme . . . [an] agency will presume that the applicant

can select a different pipeline route or other alternative that does not affect an aquatic site”); Bering Strait Citizens

for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947 (9th Cir. 2008) (recognizing that a

proposed gold mine is not water dependent even if the applicant wishes to mine in a watershed because not all

gold mining requires access or proximity to water); City Club of New York v. U.S. Army Corps of Eng’rs, 246 F. Supp.

3d 860, 870 (S.D.N.Y. 2017) (“A project whose fundamental goal is to provide park and performance space is not

water dependent, regardless of whether the [applicant] prefers to build such space on a pier.”); see also Sierra

Club v. Van Antwerp, 709 F.Supp.2d 1254, 1261 (S.D. Fla. 2009) (noting that dams and marinas are water

dependent) (quoting Army Corps of Engineers Standard Operating Procedures for the Regulatory Program

(October 15, 1999)), aff’d, 362 Fed. App’x 100 (11th Cir. 2010).

Similarly, the basic purpose of a limestone mine is mining limestone, regardless of the permit applicant’s

preferred mining location. Sierra Club v. Van Antwerp, 362 F. App’x at 106. In Sierra Club v. Van Antwerp, the court

recognized that the Corps had correctly defined the purpose of a project as the extraction of limestone, but then

acted arbitrarily and capriciously by concluding that the project was water dependent. The court rejected the idea

that, although the extraction of limestone is not always water dependent this particular project was water

dependent because of its location, and vacated the section 404 permit.

practicable alternative to the Project that does not involve the proposed location for the

Project.

Fourth, alternatives where there are no pipelines in the Straits overlap with “No Action”

alternatives that NEPA requires the Corps to consider. 89 “Where a choice of ‘no action’ by the

agency would result in predictable actions by others, this consequence of the ‘no action’

alternative should be included in the analysis.” 90 Uncertainty regarding what would happen in

the absence of an agency action supports the discussion of multiple no action alternatives. 91

The scope of the EIS must account for the various scenarios that would occur in the absence of

agency action here, including those in which no pipeline operates in the Straits because:

•

Enbridge complies with or is forced to comply with the Notice of Revocation and

Termination of the 1953 easement and ceases to operate the dual pipelines in

the Straits; 92

•

A court enjoins the operation of the dual pipelines in the Straits in the ongoing

litigation brought by the Michigan Attorney General; 93

•

Enbridge ceases to operate Line 5 (including the dual pipelines in the Straits)

because it is forced to cease operating a portion of the pipeline in Wisconsin as a

result of ongoing litigation; 94 or,

•

Enbridge ceases to operate the dual pipelines earlier than it would cease to

operate the Project, consistent with its depreciation study for the current

pipeline system (by 2040) as compared to the length of time for which it has

obtained an easement to operate the Project (99 years). 95

43 C.F.R. § 1502.14(d), 1508.25(b).

Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ’s National Environmental Policy

Act Regulations, 46 Fed. Reg. 18,026 (March 23, 1981).

See Indigenous Envtl. Network v. U.S. Dep’t of State, 347 F.Supp.3d 561, 575 (D. Mont. 2018) (recognizing the

appropriateness of considering three no action alternatives in the absence of the Keystone pipeline).

State of Michigan, Notice of Revocation and Termination of Easement (Nov. 13, 2020).

See Nessel v. Enbridge Energy, LP, et al, No. 1:21-cv-01057 (W.D. Mich.); see also Press Release, Governor

Gretchen Whitmer, Governor Whitmer Takes Action to Protect the Great Lakes (Nov. 30, 2021),

https://www.michigan.gov/whitmer/news/press-releases/2021/11/30/governor-whitmer-takes-action-to-protectthe-great-lakes.

Enbridge was found liable of trespass on the Bad River Band Reservation by a federal court this year. Bad River

Band of the Lake Superior Tribe of Chippewa Indians v. Enbridge Energy Co., No. 19-cv-602-wmc, 2022 WL

4094073, *1 (W.D. Wis. Sept. 7, 2022). Litigation is ongoing.

Enbridge Energy, Limited Partnership, Enbridge May 2021 Depreciation Study Update at 2 (May 21, 2021); see

also Sheri McWhirter, Line 5 tunnel could be a ‘stranded asset’ in 20 years, report suggests, MLIVE (Jan. 20, 2022).

Enbridge filed the May 2021 Depreciation Study Update regarding the Lakehead Pipeline System with the Federal

Energy Regulatory Commission pursuant to 18 C.F.R. 347.1(e)(1)-(5).

Finally, the Advisory Council on Historic Preservation’s Section 106 implementing

regulations require the Corps 96 to consider “a broad range of alternatives.” 97 In order to resolve

any adverse effects to historic properties that may occur because of the undertaking, the Corps

must “develop and evaluate alternatives and modifications to the undertaking that could avoid,

minimize, or mitigate adverse effects on historic properties.” 98 Naturally, to avoid, minimize, or

mitigate adverse effects, alternatives that do not involve a pipeline in the Straits must be

considered given that the Straits are a Traditional Cultural Property and home to many historic

properties. 99

The Tunnel Agreements Between The State Of Michigan And Enbridge Do Not

Determine Or Limit The Scope Of The EIS, Location, Or Project Alternatives.

The NOI acknowledges a Tunnel Agreement executed by Enbridge and the State of

Michigan and Public Act 359; 100 however, neither the Tunnel Agreements nor Act 359

circumvent the EIS process or any other permitting process. Instead, both the Tunnel

Agreement and Act 359 demand that the permitting processes be carried out, anticipating and

supporting a full EIS. Subject to the consent and approvals of federal and state agencies, 101 Act

359 “creates the Corridor Authority and . . . authorizes the Corridor Authority to operate the

utility tunnel.” 102 The Tunnel Agreement dated December 19, 2018 followed Act 359 and

recognized that there were “required” governmental permits or approvals that would precede

any construction or use in furtherance of a tunnel. 103 In conditioning the construction of a

utility tunnel on agency approvals, Act 359 and Tunnel Agreements not only contemplate the

possibility that the tunnel would not be approved, but they do not limit the reviews that

permitting agencies like the Corps must conduct. The Corps should not artificially limit the

alternatives to the project based on Act 359 or the Tunnel Agreements.

VI. THE SCOPE OF THE EIS MUST INCLUDE RELATED ACTIONS ON THE LINE 5 PIPELINE.

The scope of the EIS must account for the relationship between this Project and other

connected, cumulative, and similar actions, including: (1) other actions along Line 5 that require

federal approval, including the Line 5 Segment Relocation Project that is being considered by

“[F]ederal agencies must comply with these regulations,” and the Corps is a federal agency. Te-Moak Tribe of W.

Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 607 (9th Cir. 2010) (citations omitted)).

36 C.F.R. § 800.1(c); see Safeguarding the Historic Hanscom Area’s Irreplaceable Res. v. Fed. Aviation Admin., 651

F.2d 202, 214 (1st Cir. 2011) (“This directive makes it pellucid that agencies are not expected to delay NHPA review

until all details of the proposal are set in cement.”).

36 C.F.R. § 800.6(a).

See Sections II.D, III.C, supra.

100

Notice of Intent To Prepare a Draft Environmental Impact Statement for the Line 5 Tunnel Project, Mackinac

and Emmet Counties, Michigan, 87 Fed. Reg. 50,075 (Aug. 15, 2022).

101

MCL § 254.324a(4).

102

Enbridge Energy, LP v. State, 2020 WL 3106841, ***4 (Mich. App. June 11, 2020).

103

Tunnel Agreement between the Mackinac Straits Corridor Authority and Enbridge Energy, Limited Partnership

at 1, 3, 8-9 (Dec. 19, 2018), https://www.michigan.gov/-/media/Project/Websites/MDOT/AboutUs/Commissions/MSCA/Documents/MSCA_Tunnel_Agreement_Enbridge_Energy.PDF?rev=fc26f727ef02446081e6

5a510aee72b8

the Corps’ St. Paul District (File No. MVP-2020-00260-WMS) 104 and the applications for Line 5

special use permits currently and/or imminently pending before the U.S. National Forest 105; (2)

the decommissioning of the dual pipelines; and (3) planned and future projects to repair,

reroute, and maintain Line 5 to keep oil flowing to and from this Project. To look only at the

Straits would effectively ignore the impacts of this Project.

NEPA’s implementing regulations direct federal agencies to consider three types of

actions in order to determine the scope of an EIS: connected actions, cumulative actions, and

similar actions. 106 The tunnel, reroute, and U.S. National Forest projects of Line 5, as well as the

decommissioning of the dual pipelines and repairs to Line 5, are all connected, cumulative, and

similar actions, and thus the Corps should address the environmental effects of all of these

actions in the EIS for the Project. 107 There is sufficient federal “control” over other parts of the

project (through permit approvals) that the cumulative federal involvement calls for this

inclusive scope. 108

Connected actions are “closely related and therefore should be discussed in the same

impact statement.” 109 Actions are connected if they: “[a]utomatically trigger other actions

which may require environmental impact statements”; “[c]annot or will not proceed unless

other actions are taken previously or simultaneously”; or “[a]re interdependent parts of a larger

action and depend on the larger action for their justification.” 110 Projects are “connected”

where they lack independent utility. Further, where projects are concurrently pending before

U.S. Army Corps of Engineers, Public Notice Re MVP-2020-00260 (Jan. 6, 2022),

U.S. Forest Service, Enbridge Energy Limited Partnership SUP (last visited Sept. 29, 2022),

https://www.fs.usda.gov/project/?project=44889&exp=detail. Line 5 travels through multiple National Forests,

including the Chequamegon-Nicolet National Forest (special use permit expired and application for renewal

pending), the Ottawa National Forest (special use permit expiring in 2024), and the Hiawatha National Forest

(special use permit expiring in 2026). Line 5’s history of oil spills includes environmental damage in the National

Forests. For example, in 1980, oil leaked from Line 5 in the Hiawatha National Forest, and “contaminated soil and

groundwater persisted at the site for more than three decades.” See Keith Matheny, 30 years later, contamination

remained at site of pipeline spill, Detroit Free Press (May 7, 2016),

https://www.freep.com/story/news/local/michigan/2016/05/07/enbridge-line5-oil-spill-hiawatha-nationalforest/83507228/.

106

40 C.F.R. § 1508.25 (1978).

107

See Kleppe v. Sierra Club, 427 U.S. 390, 409-10 (1976); Native Ecosystems Council v. Dombeck, 304 F.3d 886,

893-94 (9th Cir. 2002).

108

33 C.F.R. § Pt. 325, App. B(8)(d). The November 21, 2021 Memorandum of Understanding Regarding

Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights, to

which the Department of Defense (Corps) and Department of Agriculture (Forest Service) are both signatories,

counsels in favor of the Corps, Forest Service, and Tribal Nations working together to ensure that treaty rights and

resources “are considered early in . . . decision-making processes.”

https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-and-reserved-rights-11-152021.pdf.

109

40 C.F.R. § 1508.25(a)(1) (1978).

110

40 C.F.R. § 1508.25(a)(1).

104

105

an agency, proposed by the same company, and logically interdependent, they may be

connected. 111

Cumulative actions are actions “which when viewed with other proposed actions have

cumulatively significant impacts and should therefore be discussed in the same impact

statement.” 112 Where multiple proposed actions are pending before an agency at once, the

agency should consider the cumulative and collective impacts of those actions. 113 A meaningful

cumulative impact analysis must identify: “(1) the area in which the effects of the proposed

project will be felt; (2) the impacts that are expected in that area from the proposed project; (3)

other actions—past, present, and proposed, and reasonably foreseeable—that have had or are

expected to have impacts in the same area; (4) the impacts or expected impacts from these

other actions; and (5) the overall impact that can be expected if the individual impacts are

allowed to accumulate.” 114

Similar actions are actions “which when viewed with other reasonably foreseeable or

proposed agency actions, have similarities that provide a basis for evaluating their

environmental consequences together, such as common timing or geography.” 115

The EIS Must Consider The Environmental Impacts Of Other Segments Of Line 5

Requiring Permits.

The Project is dependent on the approval of the proposed Relocation Project and the

reauthorization of multiple Forest Service special use permits. The Relocation Project and

National Forest segments are necessary to supply the fuels to be transported by the Proposed

Project. 116 Oil from Alberta, Canada will not be able to reach its destination in Sarnia, Ontario

via the Project without the oil flowing through the segments of Line 5 traversing around the

Bad River Reservation and through the pipeline as it crosses the Chequamegon-Nicolet National

Forest, the Ottawa National Forest, and the Hiawatha National Forest. If any one of these

projects is not permitted, the product will not reach the Straits and there will be no purpose for

the tunnel project. Each segment of the pipeline cannot proceed without the other. The

Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1307, 1315 (D.C. Cir. 2014); see also Hammond v.

Norton, 370 F. Supp. 2d 226, 253 (D.D.C. 2006) (holding that an agency improperly segmented its analysis of a

pipeline project by concluding that part of the pipeline project had independent utility).

112

40 C.F.R. 1508.25(a)(2).

113

Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214-15 (9th Cir. 1998) (concluding that five

potential logging projects in the same watershed “were reasonably foreseeable” and an EIS was required to

address their cumulative effects).

114

Delaware Riverkeeper, 753 F.3d at 1319 (quoting Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (D.C. Cir. 2002).

115

40 C.F.R. § 1508.25(a)(3).

116

See Hammond v. Norton, 370 F. Supp. 2d 226, 253 (D.D.C. 2006) (stating that, for the agency to treat the

pipeline projects as independent, it had to substantiate “with record evidence beyond mere assertions of [the

applicant’s representatives or agency personnel] the existence of reasonably certain alternative petroleum supply

sources . . . or other circumstances indicating with reasonable clarity that the Williams pipeline will not rely on the

proposed Equilon pipeline”).

111

Relocation Project, special use permits, and this Project are interdependent parts of the entire

Line 5 and depend on each other and the continued operation of Line 5 for their justification.

Moreover, these projects are proposed by the same company, at approximately the

same time, along the same pipeline, and all within the ecological area of the Great Lakes

Basin. 117 When viewed together, the Project, the Relocation Project, and the reauthorization of

the Forest Service special use permits are actions have reasonably foreseeable and cumulatively

significant impacts, and thus the impacts of each action must be included in this EIS. Therefore,

each of these actions should be discussed in this EIS.

The EIS Must Consider the Environmental Impacts Of Decommissioning The

Line 5 Dual Pipelines, Including Alternative Methods Of Decommissioning.

Enbridge has characterized decommissioning as “the only activity that is certain to occur

once the Project has been constructed.” 118 Decommissioning of the existing Line 5 dual

pipelines is an integral part of the Project, and the environmental impacts of each of the

decommissioning alternatives must be considered in the EIS. 119 However, Enbridge has also

changed its plans for decommissioning—and Enbridge’s changing plans cannot be a basis for

improperly segmenting decommissioning from the Project. 120 The scope of the EIS must

address all impacts of each possible decommissioning alternative.

At the inception of the Line 5 Tunnel Project plan, Enbridge, the Corps, and the State of

Michigan acknowledged in writing on multiple occasions the need for compliance with federal

and state regulations and well as the need to study two options for decommissioning: removal

of or abandonment of the pipelines in place.

Enbridge’s April 8, 2020 Joint Permit Application includes decommissioning of the

existing pipelines, stating that “[o]nce the new segment of the pipeline across the Straits is put

into service, the existing dual pipelines will be decommissioned in accordance with federal,

state, and local regulations . . .” 121 On April 14, 2020, recognizing the inadequacy of this

description, the Corps sought substantial additional information about the Project including

See Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1307, 1315 (D.C. Cir. 2014) (dismissing the idea that

a single, linear pipeline could have logical termini other than the two major points it connected); Hammond v.

Norton, 370 F. Supp. 2d 226, 253 (D.D.C. 2006) (noting that pipeline projects initially proposed by the same

company were not independent).

118

Letter from Paul Turner, Environmental Specialist, Enbridge Energy, to Kerrie Kuhne, U.S. Army Corps of

Engineers at 1 (March 25, 2021) (responding to an Army Corps of Engineers Information Request that was dated

January 25, 2021). In this response, Enbridge also announced its intent to decommission the pipelines by

“deactivating them in place.” Id. As noted in the response, the proposal to decommission in place has not been

approved by the State of Michigan. Id.

119

See 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.25(a)(1); 33 U.S.C. § 1344; 33 C.F.R. § 320.4(e).

120

While the NOI mentions Enbridge’s plans to decommission the dual pipelines in place, it does not indicate that

it will be studying the decommissioning alternatives in the draft EIS. Notice of Intent To Prepare a Draft

Environmental Impact Statement for the Line 5 Tunnel Project, Mackinac and Emmet Counties, Michigan, 87 Fed.

Reg. 50,076 (Aug. 15, 2022).

121

See Joint Permit Application at 103.

117

details of the decommissioning, and indicated that Enbridge’s permit application would not be

deemed complete unless the information was submitted. 122

On May 4, 2020, in response to the Corps’ information request, Enbridge provided two

options for decommissioning the pipelines. 123 The first option was “Abandonment in Place of

Dual Pipelines:” Enbridge would leave all 21,000 feet of each pipeline in place and would purge

and clean the pipelines and plug/grout the ends. 124 The second option was “Removal of

Unburied/Exposed Sections of the Dual Pipelines:” Enbridge would remove those portions of

the pipelines that are fully or partially exposed and not fully buried along the shoreline. The

removal option would entail: (1) purging/cleaning the pipelines; (2) removing all screw anchor

supports or cutting them near the mudline; (3) “jet sledding” the partially covered portions of

the pipelines and anchor supports to remove sediment to allow for cutting and removal; (4)

cutting the pipelines into segments; (5) capping the ends of the remaining, buried portions of

the pipelines; (6) winching the pipelines segments of pipe that are closer to the shoreline of the

Straits and cutting them into lengths suitable for transportation; (7) cleaning and transporting

the pipeline segments off-site; and (8) monitoring the remaining sections of the pipelines. 125

The Corps’ May 15, 2020 Public Notice included these two decommissioning options. 126

Throughout the Michigan permitting process for the Project, EGLE inquired about

Enbridge’s plans to decommission the dual pipelines; in response to one of EGLE’s inquiries,

Enbridge acknowledged that decommissioning may involve disturbance to the bottomlands,

require an NPDES permit, and cause other environmental impacts. 127

Letter from Kerrie Kuhne, Chief, Permit Evaluation Western Branch, U.S. Army Corps of Engineers to Paul

Turner, Environmental Specialist, Enbridge Energy (April 14, 2020).

123

Letter from Paul Turner, Environmental Specialist, Enbridge, to Kerrie Kuhne, U.S. Army Corps of Engineers at 5

(May 4, 2020). This description of decommissioning—a part of the Project and an activity reasonably related to the

Project—lacks sufficient detail for the permit application to be deemed complete. See Section III, supra; 33 C.F.R. §

325.1(d)(1); 33 C.F.R. § 325.1(d)(2).

124

Letter from Paul Turner, Environmental Specialist, Enbridge, to Kerrie Kuhne, U.S. Army Corps of Engineers at 5

(May 4, 2020).

125

Id.

126

Army Corps of Engineers, Public Notice Re Enbridge Energy, LP No. LRE-2010-00463-56-A19, at 2-3 (“Public

Notice”) (May 15, 2020) (“the pipeline would be purged, cleaned, and abandoned in place, or . . . the pipeline

would be cleaned, and exposed portions of the pipeline between the 65-foot depth contours would be removed.”)

(emphasis added). The Tunnel Agreements between the State of Michigan and Enbridge also contemplate that the

two alternatives for decommissioning will be considered by regulatory agencies and will require regulatory

approvals. Second Agreement Between the State of Michigan, Michigan Department of Environmental Quality, and

Michigan Department of Natural Resources and Enbridge Energy, Limited Partnership, Enbridge Energy Company,

Inc., and Enbridge Energy Partners, L.P., Sec. H (Oct. 2018), available at:

https://www.michigan.gov/documents/line5/Enbridge_Second_Agreement_with_Governor_Snyder_October_201

8_695450_7.pdf; Third Agreement Between The State Of Michigan, Michigan Department Of Environmental

Quality, And Michigan Department Of Natural Resources And Enbridge Energy, Limited Partnership, Enbridge

Energy Company, Inc., And Enbridge Energy Partners, L.P., Sec. 7.2. (Dec. 2018), available at

https://www.michigan.gov/documents/mdot/ThirdAgreementMichiganEnbridge_684307_7.pdf. The two options

listed are abandon the lines in place or remove only those portions not fully buried.

127

Letter from Paul Turner, Environmental Specialist, Enbridge, to Kerrie Kuhne, U.S. Army Corps of Engineers at 5

(May 4, 2020),

122

However, in March 2021, without explanation or support, Enbridge began asserting that

it would decommission in place without consideration of the alternatives or environmental

impacts. 128 The NOI repeats Enbridge’s plans to decommission in place upon completion of the

tunnel construction: “Upon completion, Enbridge proposes to decommission the existing

submerged Line 5 dual pipelines crossing the Straits by purging, cleaning, and abandoning them

in place.” 129 The NOI does not indicate that the EIS will consider the impacts of both

decommissioning in place and removal of the pipelines; the Corps should not accept Enbridge’s

unilateral selection of one decommissioning option without undertaking the proper analysis

required under NEPA.

The direct, indirect, and cumulative impacts of decommissioning must be assessed.

These effects include impacts to cultural and archeological resources, threatened and

endangered species, critical spawning grounds, environmental impacts, and public trust

considerations. 130 As the Corps and SHPO have acknowledged, the Straits are a Traditional

Cultural Property, which means that the removal of the extant lines might disturb the

bottomlands and disrupt the integrity of the Traditional Cultural Property. Even under the

narrowest decommissioning option—leaving the pipelines in place—there are potential effects;

given the pipelines’ elevated position in many sections, the danger of anchor strikes remains,

risking disturbing the retired lines and impacting surrounding bottomland resources. Corrosion

of the abandon lines could harm surrounding aquatic environments. 131 Maintenance of the

remaining pipelines threatens critical elements of the Traditional Cultural Property because the

maintenance equipment and activities could disturb cultural resources.

The decommissioning options should not be segmented from the rest of the Project or

ignored.

The EIS Must Consider The Environmental Effects Of Repairs To Line 5.

The direct, indirect, and cumulative environmental effects of this Project include the

effects of likely future projects to repair, reroute, or maintain Line 5 to keep the Project

operating as a pipeline through and on either side of the Straits. In other words, this Project is a

foot-in-the-door for other projects along Line 5. First, the Project will require repairs to the

proposed tunnel or pipeline in the tunnel, including the possibility of flammable or explosive

product escaping during a repair. Second, the Project will entail repairs to the facilities and

pipeline on the north and south sides of the Straits, especially in light of potential erosion along

the lakes. Third, foreseeable effects of the Project include repairs to the pipeline traveling to

and from tunnel to other segments where products are added to the pipeline or taken off of

the pipeline, including the possibility that repairs will cause the clearing of wetlands or other

habitats, trenching through waterways, or other land- or water-based environmental impacts.

Enbridge Response to Army Corps of Engineers Information Request, at 1 (March 25, 2021).

Notice of Intent To Prepare a Draft Environmental Impact Statement for the Line 5 Tunnel Project, Mackinac

and Emmet Counties, Michigan, 87 Fed. Reg. 50,076 (Aug. 15, 2022).

130

Id.

131

See Second Agreement Sec. H; Third Agreement Sec. 7 (“Permanent Deactivation of Dual Pipelines”).

128

129

The impacts of all of these projects add up. To that end, the EIS should include information on

how long a pipeline built in 1953 is expected to safely function.

It is reasonably foreseeable that such repairs will occur, and they must be within the

scope of the EIS.

VII. THE EIS MUST INCLUDE THE LIKELIHOOD AND ENVIRONMENTAL IMPACTS OF AN OIL SPILL

IN THE GREAT LAKES BASIN.

The Proposed Project is one of the key determinants of whether and how long into the

future Line 5 will continue to operate. The environmental effects of the Proposed Project thus

include the direct, indirect, and cumulative impacts of Line 5—namely, the risk that oil spills

into the environment. 132 Accordingly, the impacts of an oil spill from Line 5 into any of the

interconnected waters of the Great Lakes Basin must be part of the scope of the EIS. A tunnel,

or any other purported solution to the risk of the dual pipelines spilling in the Straits, is not

foolproof and does not reduce the likelihood of an oil spill elsewhere along the pipeline. 133 Oil

pipelines spill, damaging the environment. In the Great Lakes Basin, where the waters are

interconnected, a spill from Line 5 in one waterway will travel through the waters, thus

threatening a larger area.

The Corps cannot narrow its focus to the Straits crossing or Mackinac and Emmet

Counties – as the NOI appears to – because the Project implicates a much larger area. 134 An EIS

cannot set artificial boundaries on hydrologically connected resources or on ecosystems. 135

Pipelines Spill.

It is not a matter of if a pipeline will spill oil, but a matter of when. Data from the

Pipeline and Hazardous Materials Safety Administration (“PHMSA”), reveals that pipeline spills

or leaks occur approximately every other day in the U.S. From 2004 to 2017, PHMSA data

showed there were an average of 186 incidents involving crude oil pipeline systems in the

See Delaware Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014) (requiring meaningful analysis of

cumulative impacts); Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (D.C. Cir. 2002) (same); Indigenous Envt’l

Network v. United States Dep’t of State, 347 F. Supp. 3d 561, 582, 590 (D. Mont. 2018) (requiring an agency to

address oil spills more fully, including with information about new spills and new studies and by conducting

additional modeling).

133

To the contrary, this Project likely would increase the risk of a spill by extending the lifespan of the pipeline.

134

See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1122 (9th Cir. 2005) (“[W]hile it is the development's

impact on jurisdictional waters that determines the scope of the Corps' permitting authority, it is the impact of the

permit on the environment at large that determines the Corps’ NEPA responsibility. The Corps’ responsibility under

NEPA to consider the environmental consequences of a permit extends even to environmental effects with no

impact on jurisdictional waters at all.”).

135

See id.; see also Cumulative Environmental Risk of Crude Oil and Natural Gas Pipelines in the 1836, 1837, 1842,

and 1854 Ceded Territories, by Esteban Chiriboga, Environmental Specialist, Great Lakes Indian Fish and Wildlife

Commission (April 2022) (hereinafter “Cumulative Environmental Risk Report”) (included as Attachment E).

132

United States each year, averaging 42,517 barrels of crude oil released per year. 136 Twenty-nine

percent of that oil was never recovered from the environment. 137

Enbridge’s record for oil spills highlights the need for the EIS to study and analyze spill

scenarios. From 1999 to 2010, Enbridge pipelines spilled nearly 7 million gallons of crude oil in

over 800 different incidents across the United States and Canada. 138 The combined

environmental effect of these incidents to wetlands, surface and ground waters has not been

quantified. The most notorious spill involves Enbridge’s ruptured 6B pipeline which spilled over

a million gallons of heavy crude oil into the Kalamazoo River in the lower peninsula of Michigan

in 2010. Cleanup activities at this site are ongoing and the total cost to the environment

currently exceeds $1.2 billion, including clean-up costs, remediation, and fines levied against

Enbridge. 139 One of the largest inland crude oil spills in the United States occurred at Enbridge

Line 3 pipeline near Grand Rapids, Minnesota where approximately 1.7 million gallons of crude

oil were spilled, much of it into the Prairie River, only 2 miles from reaching the Mississippi

River. 140 Line 5 itself has spilled approximately 1 million gallons of oil in approximately 30

separate incidents; see Figure 2. For example, a spill in the Hiawatha National Forest that

occurred around 1980 was never properly cleaned up by Enbridge. 141 Elevated levels of

petrochemicals were detected by field surveys in 2011 in the soil and in groundwater, and the

Attachment E, Cumulative Environmental Risk Report at 2 (citing an analysis of PHMSA information conducted

by the U.S. Forest Service); see also Troy R. Thompson, US Forest Service Hydrogeological Assessment of the

Enbridge Pipeline Section on the Chequamegon-Nicolet National Forest: Technical Report at 4, USDA Forest

Service, Region 9 (2019).

137

Attachment E, Cumulative Environmental Risk Report at 2 (citing an analysis of PHMSA information conducted

by the U.S. Forest Service)

138

National Wildlife Federation, Importing Disaster: The Anatomy of Enbridge’s Once and Future Oil Spills 3 (2012),

https://www.nwf.org/~/media/PDFs/Global-Warming/Reports/NWF_EnbridgeOilSpill_WEB_Final.ashx.

139

See Garrett Ellison, New price tag for Kalamazoo River oil spill cleanup: Enbridge says $1.21 billion, MLIVE (Nov.

5, 2014). https://www.mlive.com/news/grand-rapids/2014/11/2010_oil_spill_cost_enbridge_1.html.

140

Dan Kraker & Kirsti Marohn, 30 years later, echoes of largest inland oil spill remain in Line 3 fight, MPR NEWS

(March 3, 2021), https://www.mprnews.org/story/2021/03/03/30-years-ago-grand-rapids-oil-spill. Even after this

disaster, Enbridge has had multiple releases in its construction of a new Line 3. On July 6, 2021, near Palisade,

Minnesota, 80-100 gallons of drilling fluid were released into the Willow River, and the Minnesota Pollution

Control Agency later found that there had been more releases of drilling fluid, totaling 28 releases at river

crossings from June 8 to August 5, 13 spills into wetlands, and 14 releases in upland areas. Regulator reports new

spills along Line 3 construction route, AP NEWS (Aug. 10, 2021), https://apnews.com/article/business-environmentand-nature-fcc53cb031a58e4536c1c29bcaec2100.

141

See Keith Matheny, 30 years later, contamination remained at site of pipeline spill, DETROIT FREE PRESS (May 7,

2016), https://www.freep.com/story/news/local/michigan/2016/05/07/enbridge-line5-oil-spill-hiawatha-nationalforest/83507228/.

136

U.S. Forest Service has no record that Enbridge notified them of this release before 2012. 142 A

significant oil spill is a probable negative effect of the proposed project, with many negative

direct, indirect, and cumulative impacts to be considered in the EIS.

Figure 2 Map of Known Crude Oil Pipeline Spills in the Ceded Territory through 2017, prepared by GLIFWC

Oil Spills Harm Fish, Birds, Plants, And Other Organisms.

Oil is toxic to aquatic and terrestrial organisms. Freshwater fish, an important piece of

this ecosystem and a major source of income for subsistence fishers, are seriously affected by

oil releases. Fish can be affected through a variety of pathways across life stages. Effects of oil

spills on fish include fish mortality, a decline in abundance and diversity of fish, and fish

consumption advisories affecting the ability of community members to fish for consumption. 143

While dead fish may be observed immediately after the spill, sublethal effects have been

observed two months following a spill, while increases in fish deformities have been observed

two years after a spill. 144

Id.

See Attachment E, Cumulative Environmental Risk Report at 10.

144

See Attachment E, Cumulative Environmental Risk Report at 10.

142

143

Birds that spend time near or in waterbodies, such as Canada geese, mallard ducks, and

great blue herons, are also highly susceptible to the impacts of oil spills. 145 For example, the

Marshall, Michigan spill led to the death of 52 birds, and necessitated rehabilitation for 144

birds affected by released oil. 146 Oil spills may also require birds to be relocated from the area,

in addition to the resources needed to clean and release birds safely into the environment.

Amphibious and terrestrial animals are also affected by oil spills. Oil-coated skin or

scales in amphibians and reptiles can lead to absorption of toxins, and potentially

suffocation. 147 Spills in warmer times of the year are particularly dangerous to reptiles and

amphibians. The Marshall, Michigan spill resulted in over 100 dead reptiles, and thousands of

turtles requiring capture and treatment for oil effects. 148 Mammals that are adapted to living

near water (semi-aquatic mammals) are also prone to impacts from oil spills. The Marshall,

Michigan spill killed 40 mammals, primarily affecting muskrats, raccoons, and beavers. 149

These effects extend to benthic organisms, microorganisms, and plant life. 150 The effect

on microorganisms can lead to permanent impacts on the quality of the soil, requiring soil

tilling, burning, fertilizer, or bioremediation techniques to return the soil to its original quality,

but these processes require long periods of time. 151 Upon plant exposure to oil, deciduous

plants may show effects within hours, and recovery and regrowth are impeded for many years

into the future. 152

Spilled Oil Moves Through Connected Waters.

The waters of the Great Lakes Basin are connected. A spill from the Project, including

where the pipeline will be routed in and out of the tunnel on the sides of the Straits, would

reach beyond the area of the Straits that the NOI suggests the EIS would be limited to. That

would cause devastating effects to tribal, commercial, and recreational fishing, as well as long

term damage to tourism in the area, ecosystems in the lakes and along the shorelines, and the

many species that live in or migrate through that habitat.

See Attachment E, Cumulative Environmental Risk Report at 11.

147

See Attachment E, Cumulative Environmental Risk Report at 11.

148

See Attachment E, Cumulative Environmental Risk Report at 12.

149

See Attachment E, Cumulative Environmental Risk Report at 12.

150

See Attachment E, Cumulative Environmental Risk Report at 10, 20.

151

See Attachment E, Cumulative Environmental Risk Report at 20 (citing Hemmings, D., T. Noble, S. Gilmour, M.

Doucet, J. Leatherdale and N. Reid. 2015, A Multiple Lines of Evidence Approach to Remediation of a Sensitive

Unique Environment, Proceedings of the 38th AMOP Technical Seminar, Environment Canada, Ottawa, ON).

152

See Attachment E, Cumulative Environmental Risk Report at 20. After oil spills near the Great Slave Lake,

regrowth was considerably less robust in oil-exposed plants, while plants in oil-saturated soil did not regrow. After

one season, recovery ranged from only 20%-55% (depending on oil exposure and treatment). Id. Another study

showed that changes in species composition and decreased vegetation may last 10 years. Id. (citing Robson, D.B.,

Knight, J.D., Farrell, R.E. and Germida, J.J., 2004, Natural revegetation of hydrocarbon- contaminated soil in semiarid grasslands, Canadian Journal of Botany, 82(1), pp.22-30.).

145

146

Line 5 is located within the Great Lakes watershed and there are areas where oil spilled

from this pipeline could flow into Lake Superior, Lake Michigan, and/or Lake Huron through

tributaries that have no flow interruptions such as lakes or dams; see Figures 3 and 4. Thus, any

spill from Line 5 is a spill of product that would not be in the pipeline or spilled from it without

this Project. Because of the interconnectedness of Great Lakes Basin waters, a spill from one

part of Line 5 can reach waterways throughout the Basin.

Figure 3: Crude oil spill pathways from Line 5 to Lake Superior, prepared by GLIFWC

Figure 4: Crude oil spill pathways from Line 5 to Lakes Michigan and Huron, prepared by GLIFWC

This Project Threatens The Ceded Territory With An Oil Spill By Causing Line 5

To Continue Operating Into The Future.

Permitting this Project would have enormous costs in the form of allowing the Line 5

pipeline to operate and/or extending the lifetime of the Line 5 pipeline. Without a pipeline

segment in the Straits, it is unlikely that oil would flow through any other part of Line 5. There

are 454 miles of the Line 5 pipeline in the Ceded Territories under the 1836, 1837, 1842, and

1854 Treaties. Based on GLIFWC’s analysis of reasonable hazard zones, 153 within the Ceded

Territories, Line 5 places at risk of oiling and explosion impacts:

•

275,002 acres of land,

•

450 or more inland lakes,

•

2,254.2 river miles,

•

101,892 acres of wetlands. 154

Accordingly, a cumulative impacts analysis must include all potential impacts where the

pipeline travels, including the lands and waters downgradient of the pipeline. An appropriately

scoped EIS will include a detailed fate and transport model that illustrates the potential spatial

extent of downgradient impacts of a failure of Line 5 in the Great Lakes basin. This information

is necessary to evaluate the risk of spilled oil reaching the Great Lakes, as well as the impacts of

spilled oil on other lands and waters in the Ceded Territory, on public lands (e.g., state forests),

drinking water sources, plants, and animals that tribal members harvest, etc. The modeling

must include a variety of scenarios, including a range of small incidents to catastrophic failures

on the pipeline. The modeling must include different temporal scenarios and it should account

for seasonal variation in conditions such as ice cover, which may hinder spill response time, and

spring floods, which may move the oil across the ecosystem more quickly. Different climatic

scenarios should account for the likelihood of climate change exacerbating oil spill risks by

increasing extreme weather events and contributing to erosion around the pipeline, among

other things.

Additionally, the EIS should include information on how Enbridge would respond to oil

spills in each of those scenarios, including whether Enbridge has the ability to pay for an oil spill

clean-up and response. 155 Enbridge’s ability to pay for a clean-up remains an open question.

Although the Third Tunnel Agreement between the State of Michigan and various Enbridge

See Attachment E, Cumulative Environmental Risk Report at 3 (“In general, the analysis follows methods

detailed in an Environmental Protection Agency guidance document titled ‘Applying Cumulative Impact Analysis

Tools to Tribes and Tribal Lands’ (Appendix 3.1-B).”).

154

See Attachment E, Cumulative Environmental Risk Report at 29 (percentages of ceded territory at risk from Line

5 events, out of total risk to ceded territory from crude oil and natural gas pipelines).

155

See EPA Scoping Comments – Notice of Intent to Prepare a Draft Environmental Impact Statement for the

Enbridge Line 5 Tunnel Project, Mackinac and Emmet Counties, Michigan at 26-27 (Oc. 7, 2022) (hereinafter “EPA

Scoping Comments”)..

153

entities called for the maintenance of liability insurance until the dual pipelines are

decommissioned, Enbridge entities involved in the proposed project either did not exist at the

time or did not exist in their present form. 156 Cleanup and remediation of an oil spill requires a

lot of time and money. The EIS should describe, in detail, the types of financial assurance that

Enbridge has or can be required to provide to ensure that the public is not burdened with

cleanup and remediation costs.

VIII.

THE EIS MUST ADDRESS CLIMATE CHANGE.

The EIS Must Account For How The Proposed Project Will Cause Greenhouse

Gas Emissions.

The EIS must evaluate the greenhouse gas (“GHG”) emissions and climate change

impacts of the Proposed Project and alternatives. The NOI is correct to include “climate change,

including greenhouse gas emissions and the social cost of greenhouse gases” in the list of

relevant issues. 157 The Proposed Project is a fossil fuel pipeline that would, for nearly a century,

transport fuels that emit GHGs when burned. GHG emissions wreak havoc on the climate,

changing temperature and precipitation patterns and devastating natural resources that are

culturally, spiritually, and economically important to tribal communities like Bay Mills.

Moreover, holdings from federal courts regarding NEPA review and this administration’s orders

and guidance demand that the Corps take a hard look at the Proposed Project’s GHG emissions

and do all it can to reduce GHG emissions. An EIS that properly accounts for the GHG emissions

of this Proposed Project will conclude that the project would have dramatic environmental

impacts and is inconsistent with this Administration’s and the Corps’ climate plans and

guidance.

Legal requirements in the statute, case law, and Executive Orders

GHG emissions and their climate impacts are a proper subject of NEPA analysis—and a

necessary subject of environmental effects and cumulative impacts analyses when an agency

considers permitting a pipeline. NEPA requires agencies to take a “hard look” at the

environmental effects of their actions. Agencies must use the best scientific information

available in their NEPA analyses, including information about climate change. 158 Climate

Third Agreement Between the State of Michigan, Michigan Department of Environmental Quality, and Michigan

Department of Natural Resources and Enbridge Energy, Limited Partnership, Enbridge Energy Company, Inc., and

Enbridge Energy Partners, L.P., Sec. 5.1 (Dec. 2018),

https://www.michigan.gov/documents/mdot/ThirdAgreementMichiganEnbridge_684307_7.pdf.

157

Notice of Intent To Prepare a Draft Environmental Impact Statement for the Line 5 Tunnel Project, Mackinac

and Emmet Counties, Michigan, 87 Fed. Reg. 50,076 (Aug. 15, 2022).

158

See, e.g., San Juan Citizens All. v. U.S. Bureau of Land Mgmt., 326 F. Supp. 3d 1227, 1249-50 (D.N.M. 2018)

(summarizing cases).

156

change, and the GHG emissions that cause it, are a necessary subject of direct, indirect, and

cumulative effects analyses when an agency considers permitting a pipeline. 159

Moreover, federal administrative orders and guidance call on federal agencies to reduce

GHG emissions and factor climate pollution and impacts into decision making. Executive Order

13990 recognizes the threat of climate change and provides that it is the policy of the

Administration “to reduce greenhouse gas emissions” and “bolster resilience to the impacts of

climate change.” 160 The Executive Order 13990 further “directs all executive departments and

agencies (agencies) . . . to immediately commence work to confront the climate crisis.” 161

Executive Order 14008 recognizes that climate change considerations are central to

United States national security and foreign policy, that there must be a “Government-wide

approach that reduces climate pollution in every sector of the economy,” and that the federal

government must take a coordinated approach with state, local, and tribal governments. 162 Per

Executive Order 14008, the Corps prepared a Climate Action Plan, which calls for preparing

responses to climate change and reducing the nation’s vulnerability to climate change. 163

Additionally, the Memorandum of Understanding Regarding Interagency Coordination

and Collaboration for the Protection of Tribal Treaty Rights and Reserved Rights (“MOU”)

requires the Corps to consider and account for the effects of its actions (such as permitting an

oil pipeline) on habitats that support treaty-protected rights and resources (such as the 1836

Treaty Territory), including via climate change. 164

The inclusion of climate change in the EIS is especially important to Bay Mills because

climate change disproportionately impacts Tribal communities. An analysis of climate impacts

of this project should include the GHG emissions from project construction, as well as from the

fuels to be transported by the project. Climate change impacts plants and animals that are

significant in tribal cultures, ceremonies, medicines, diets, and economies. Climate change also

creates more extreme weather events including flash floods which impact rural, low-laying

Indigenous Envtl. Network v. U.S. Dept. of State, 347 F. Supp. 3d 561, 578-79 (D. Mont. 2018); see also Food &

Water Watch v. FERC, No. 20-1132, 2022 WL 727037 (D.C. Cir. Mar. 11, 2022); Center for Biological Diversity v.

Bernhardt, 982 F.3d 723, 736-40 (9th Cir. 2020) (holding that a federal agency that assumed the permitting of oil

infrastructure would not affect climate change is arbitrary and capricious); Friends of the Earth v. Haaland, 2022

WL 254526 at *17 (D.D.C. 2022) (same); Indigenous Envtl. Network v. U.S. Dep’t. of State, 2019 WL 652416, *4-5

(D. Mont. Feb. 15, 2019) (recognizing that omitting an analysis of greenhouse gas emissions from pipelines in an

EIS was an “error [that] precluded informed decision-making and public participation based on complete

information”).

160

Exec. Order No. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the

Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021).

161

Exec. Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate

Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021).

162

Exec. Order 14008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619 (Jan. 27, 2021).

163

U.S. Army Corps of Engineers, USACE Climate Action Plan (2021), https://www.sustainability.gov/pdfs/usace2021-cap.pdf

164

Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of

Tribal Treaty Rights and Reserved Rights (Nov. 9, 2021), https://www.doi.gov/sites/doi.gov/files/interagency-mouprotecting-tribal-treaty-and-reserved-rights-11-15-2021.pdf.

159

tribal communities. These same weather patterns cause more frequent power outages, which

last longer in rural areas.

GHG emissions calculation

The EIS should incorporate Peter A. Erickson’s GHG emissions calculation for the

Proposed Project. Mr. Erickson quantified the GHG emissions from the Proposed Project in

testimony publicly filed with the Michigan Public Service Commission. 165 Mr. Erickson is a

Senior Scientist and the Climate Policy Program Director at Stockholm Environment Institute

U.S., a 501(c)(3) organization affiliated with Tufts University. 166 He has done numerous GHG

emissions calculations, 167 and courts have often relied on and favorably cited his methodology

and calculations in the NEPA context. 168 Mr. Erickson’s calculation is based on a method

consistent with those used in other GHG assessments of oil pipelines, as well as in peerreviewed, scientific literature, and standards for life-cycle assessments and oil market

analysis. 169 Information provided by Enbridge and published information about energy use and

the activities involved in the proposed project were used in the GHG accounting. 170

There are two main ways that the Proposed Project will cause GHG emissions. First, the

equipment used to build and operate the tunnel will cause GHG emissions. 171 Emissions sources

during construction include the use of a tunnel-boring machine and other electric- and dieselpowered equipment, as well as the production and installation of construction materials such

as steel and concrete. 172 There will be annual GHG emissions from the energy required to

operate the proposed project’s ventilation fans, sump pump, tunnel service vehicle, and

lighting. To evaluate the combined effects of emissions from different GHGs, where each gas

causes different amounts of warming, climate scientists combine GHG emissions into a single

metric of carbon dioxide equivalent (“CO2e”). 173 According to Mr. Erickson’s calculation,

Direct Testimony of Peter A. Erickson, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing the

Straits of Mackinac (MPSC No. U-20763), (hereinafter “Erickson Testimony”). Rebuttal Testimony of Peter A.

Erickson, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing the Straits of Mackinac (MPSC No. U20763)

166

Sept. 14, 2022, Curriculum Vitae of Peter A. Erickson at Exhibit ELP-1, Appl. for Auth. To Replace and Relocate

Segment of Line 5 Crossing the Straits of Mackinac (MPSC No. U-20763), https://mipsc.force.com/sfc/servlet.shepherd/version/download/0688y000001qFWcAAM; Stockholm Environment Institute,

Peter Erickson, https://www.sei.org/people/peter-erickson/.

167

Erickson Testimony at 2.

168

Friends of the Earth v. Haaland, No. CV 21-2317 (RC), 2022 WL 254526, at **14 (D.D.C. Jan. 27, 2022); Ctr. for

Biological Diversity v. Bernhardt, 982 F.3d 723, 738 (9th Cir. 2020); Sovereign Inupiat for a Living Arctic v. Bureau of

Land Mgmt., No. 3:20-CV00290-SLG, 2021 WL 3667986, at **12 n. 129 (D. Alaska Aug. 18, 2021)).

169

Erickson Testimony at 5, 6.

170

Erickson Testimony at 12-13.

171

Erickson Testimony at 11.

172

Erickson Testimony at 12, 14.

173

Erickson Testimony at 11-12 (defining CO2e and noting that the Intergovernmental Panel on Climate Change

(“IPCC”) makes calculations in CO2e).

165

construction will cause 87,000 metric tons of CO2e emissions, and operation will cause at least

520 metric tons of CO2e annually. 174

Second, the products transported by the Proposed Project will release GHG emissions

when produced, processed, and combusted. 175 Based on the amount of crude oil and natural

gas liquids that the Proposed Project will transport, the proposed project is associated with an

additional 87,000,000 metric tons of CO2e annually, according to Mr. Erickson. 176

Impacts of GHG emissions

These GHG emissions will have real world impacts. 177 GHG emissions—including those

associated with the Project—cause climate change. 178 Climate change has had, and will have,

dramatic environmental impacts. These include increasing flooding, wildfires, droughts, heat

waves, expanding impacts of pests and pathogens, and other effects that pollute, impair, and

destroy natural resources. 179 In Michigan, and across the Midwest, “climate change will lead to

increased temperatures and precipitation that will reduce agricultural productivity, erode soils,

and lead to pest outbreaks, while also leading to poor air quality, substantial loss of life, and

worsening economic conditions for people.” 180

Climate change is uniquely burdensome for the Tribal Nations because of its impact on

treaty-protected natural resources that are culturally and economically important to the Tribal

Nations. GLIFWC climate change staff have conducted a vulnerability assessment of

Erickson Testimony at 11, 14; see also id. at 14-18 (regarding construction); id. at 18-19 (regarding operation

and noting that this is a “conservative estimate” of the amount of energy needed to operate the Project).

175

Erickson Testimony at 11, 20.

176

Erickson Testimony at 20; see also id. at 20-23 (explaining calculation).

177

One way that agencies address the impacts of greenhouse gas emissions is by using a calculation tool called the

“social cost of greenhouse gases” or “social cost of carbon.” Interagency Working Group on Social Cost of

Greenhouse Gases, United States Government, Technical Support Document: Social Cost of Carbon, Methane, and

Nitrous Oxide Interim Estimates under Executive Order 13990 (Feb. 2021), https://www.whitehouse.gov/wpcontent/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf; see also

Direct Testimony of Dr. Peter Howard, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing the

Straits of Mackinac (MPSC No. U-20763), (hereinafter “Howard Testimony”). The Corps should consider using that

tool in this EIS.

178

Direct Testimony of Dr. Jonathan T. Overpeck at 6, Appl. for Auth. To Replace and Relocate Segment of Line 5

Crossing the Straits of Mackinac (MPSC No. U-20763), (hereinafter “Overpeck Testimony”). “In the new, most

recent assessment of the science behind climate change, the Intergovernmental Panel on Climate Change

described the observed rate of climate change as both “unprecedented” and “unequivocally” caused by human

activities.” Erickson Testimony at 8 (citing Intergovernmental Panel on Climate Change, In Climate Change 2021:

The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the

Intergovernmental Panel on Climate Change, Cambridge University Press (2021)).

179

Overpeck Testimony at 8-9; Erickson Testimony at 7; see also id. 7 n. 11 (citing Holdren, J. P. (2018, September).

The Science & Policy of Climate Change: An Update on the Challenge and the Opportunity. Presented at the Lowemissions Solutions Conference, San Francisco, CA,

https://lowemissions.solutions/static/uploads/180911_GCAS_Holdren.pdf).

180

Erickson Testimony at 8; see also Jim Angel, et al., Midwest in IMPACTS, RISKS, AND ADAPTATION IN THE UNITED STATES:

FOURTH NATIONAL CLIMATE ASSESSMENT, VOLUME II at 872–940 (David Reidmiller, et al., eds. 2018),

https://nca2018.globalchange.gov/chapter/21/.

174

beings/species of particular interest to member tribes including Bay Mills, and the vulnerability

assessment integrates Traditional Ecological Knowledge and Scientific Ecological Knowledge. 181

Bay Mills has also worked with scientists to assess climate threats to species. For example:

•

Lake Whitefish – or adikameg – is a species held in sacred regard and is part of

Tribal Nations’ oral histories. This fish is one of the primary commercial and

subsistence fish for tribal fishers. 182 But Lake Whitefish is a cold water species,

and “[i]t is widely recognized that climate change leads to the warming of their

habitat.” 183 With climate change, fish habitats are impacted by warming waters,

and a weakened natural ecosystem creates opportunities for invasive species. 184

•

Walleye – or ogaa – a cool water fish, are also harmed by climate change.

Walleye support tribal commercial and subsistence fisheries. 185 As the climate

warms, walleye populations will become less sustainable. 186 As the warming

climate has increased the water temperatures of inland lakes, walleye

populations are already declining, 187 and additional population losses are

expected under projected climate scenarios. 188 Climate change will likely also

indirectly impair walleye populations in the Great Lakes by improving habitat

conditions for predator species and diminishing habitat conditions for prey

species. 189

•

Wild rice—or manoomin—is an irreplaceable cultural, spiritual, nutritional, and

commercial resource and sacred relative to Bay Mills and other Tribal Nations in

the Upper Midwest and Great Lakes region. 190 Bay Mills, along with other tribal

Hannah Panci, et al., Great Lakes Indian Fish and Wildlife Commission, Climate Change Vulnerability

Assessment: Integrating Scientific and Traditional Ecological Knowledge (April

2018),https://glifwc.org/ClimateChange/GLIFWC_Climate_Change_Vulnerability_Assessment_Version1_April2018.

pdf.

182

Gravelle Testimony at 15.

183

Gravelle Testimony at 16.

184

Overpeck Testimony at 26.

185

Direct Testimony of Dr. Karen M. Alofs at 3, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing

the Straits of Mackinac (MPSC No. U-20763), (hereinafter “Alofs Testimony”); Direct Testimony of Kevin Donner at

3, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing the Straits of Mackinac (MPSC No. U-20763),

(hereinafter “Donner Testimony”) . In addition to being important to tribal fisheries, walleye are an important part

of Michigan’s 2.3 billion dollar recreational fishing economy. Alofs Testimony at 3.

186

Alofs Testimony at 7.

187

Alofs Testimony at 8.

188

Alofs Testimony at 11.

189

Alofs Testimony at 12.

190

Hannah Panci, et al., Great Lakes Indian Fish and Wildlife Commission, Climate Change Vulnerability

Assessment: Integrating Scientific and Traditional Ecological Knowledge at 28 (April

2018),https://glifwc.org/ClimateChange/GLIFWC_Climate_Change_Vulnerability_Assessment_Version1_April2018.

pdf.

181

nations, has worked to revitalize wild rice beds. 191 Wild rice is an aquatic natural

grass that is a critical component of aquatic ecosystems, where it contributes to

nutrient cycling, habitat structure, and is a food source for a range of wildlife. 192

Future climate change-induced changes in temperature and precipitation will

have direct, negative impacts on wild rice. 193 Warmer temperatures are likely to

harm wild rice and contribute to population reductions. 194 Climate change

induced alterations in precipitation regimes will likely lead to flooding and high

water levels in the spring when wild rice is vulnerable to flooding, and drought

conditions later in the season that can impede harvesting. 195 Climate change will

also indirectly impair wild rice by improving habitat conditions for species that

damage wild rice waters and worsening pathogen and pest infestations. 196 In the

coming decades, the projected changes will be catastrophic for wild rice and the

tribal practices that depend upon a healthy wild rice species, if the severe effects

of future climate change that have been predicted are not prevented. 197

•

Loons—or maang—are culturally significant as one of the seven primary clans of

the Anishinaabe. Loons also are ecologically important as top trophic-level

predators in lake habitats. 198 Already, climate change has caused or contributed

to loon population loss, 199 and it is projected to have further negative effects on

loons by reducing breeding habitats in Michigan and increasing the frequency

and intensity of botulism outbreaks. 200 As a result, climate change will drastically

reduce the loon population in Michigan. Three degrees of global warming, by

2080, for example, likely will extirpate loons from the state of Michigan. 201

•

Sugar maple—or ininaatig—has profound cultural and traditional importance to

Tribal Nations. Harvesting maple syrup – or zhiiwaagamizigan – is a traditional

Peter F. David, Great Lakes Indian Fish & Wildlife Commission, Manoomin (Wild Rice) Enhancement and

Research in the Ceded Territories in 1998 (July 2010), https://s3.us-east2.amazonaws.com/glifwc.archive.bio/Administrative%20Report%2010-09.pdf; see also Gravelle Direct at 16 (wild

rice continues to be harvested near tribal nations reservations in Michigan).

192

Direct Testimony of Dr. Daniel Larkin at 4, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing

the Straits of Mackinac (MPSC No. U-20763), (hereinafter “Larkin Testimony”); Direct Testimony of John Rodwan at

6, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing the Straits of Mackinac (MPSC No. U-20763),

(hereinafter “Rodwan Testimony”).

193

Larkin Testimony at 10. And climate stressors are already affecting wild rice. Rodwan Testimony at 7-8; see also

id. at 15 (describing how climate change impacts, including storms and the humid weather that influences Brown

Spot Disease, have already affected wild rice).

194

Larkin Testimony at 11.

195

Larkin Testimony at 12-13.

196

Larkin Testimony at 13-14.

197

Larkin Testimony at 16.

198

Direct Testimony of Dr. Alec R. Lindsay at 3, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing

the Straits of Mackinac (MPSC No. U-20763), (hereinafter “Lindsay Testimony”).

199

Lindsay Testimony at 7.

200

Lindsay Testimony at 10-12.

201

Lindsay Testimony at 11. Loons will not fare much better elsewhere as, with three degrees of warming, they will

lose 97% of their breeding habitat in the continental U.S. Id.

191

practice, and maple syrup is considered a medicine, a traditional food, and a gift

that brings about a new season of life. 202 Sugar maple is also an important part

of the health of Michigan forests, providing ecosystem benefits such as healthy

soil that can support other species, water filtration and purification, and

landslide protection. 203 Climate change is the current “major threat” to sugar

maple. 204 Warming will cause large-scale shifts in forest tree species and other

vegetation, including greater tree mortality. 205 Climate change will cause

changes in temperature and precipitation that will threaten the tree species. 206

Increasing aridity due to climate change will hurt the sugar maple, and it will

compound other forest stresses such as invasive species, insect pests and plant

disease, and the likelihood of severe wildfire. 207

Sugar maple, along with the fishery, wild rice, and loons, are merely some examples of the

myriad ways that GHG emissions pollute, impair, and destroy not only natural resources, but

cultural practices and lifeways. Through GHG emissions the Proposed Project would compound

those climate impacts.

The Proposed Project would ensure the continued operation of Line 5’s shipment of

fossil fuels and their subsequent combustion. It is well established in the scientific community

that we must stop burning climate warming fuels altogether and in order to ensure the

sustainability of our planet. A consideration of the Project’s fossil fuel and climate impacts is a

necessary part of the EIS.

The EIS Must Account For The Synergistic Effects Of Climate Change.

The scope of the EIS must include addressing how climate change will affect the

Proposed Project and alternatives. The Corps must evaluate how the effects of climate change

such as changes in precipitation, flooding, and erosion increase risks of oil spills and

environmental harms from construction and operation of the Proposed Project. 208 For this

evaluation, the Corps cannot rely solely on historical climate data, but must use current data

Gravelle Testimony at 17.

Direct Testimony of Dr. Ines Ibanez at 3, Appl. for Auth. To Replace and Relocate Segment of Line 5 Crossing the

Straits of Mackinac (MPSC No. U-20763), (hereinafter “Ibanez Testimony”).

204

Ibanez Testimony at 7; see also id. at 10. “[T]he maple [syrup] industry is being impacted by climate change

including shifts in tapping season characteristics along with sap quality and quantity.” Rapp et al 2019. The Shifting

Sweet Spot of Maple Syrup Production: Climate Change Impacts on Sugar Maple Sap,

https://mapleresearch.org/wp-content/uploads/1019climate.pdf .

205

Overpeck Testimony at 25.

206

Ibanez Testimony at 8, 9.

207

Overpeck Testimony at 26.

208

See, e.g., Wild Fish Conservancy v. Irving, 221 F. Supp. 3d 1224, 1233 (E.D. Wash. 2016) (holding that the failure

to discuss the potential effects of climate change on the agency’s analysis of a hatchery’s operations and water use

was arbitrary).

202

203

and climate change projections. 209 Doing so is consistent with CEQ guidance for NEPA reviews,

which notes that “the reasonably foreseeable affected environment” includes “[t]he current

and projected future state of the environment” and explicitly recognizing the need for a proper

NEPA analysis to consider “the effects of climate change on a proposed action and its

environmental impacts.” 210 It is also consistent with the Corps’ Climate Action Plan, prepared

per Executive Order 14008, which includes a goal that the Corps’ investments be climate

resilient for future climatic conditions. 211

For this Proposed Project, then, the EIS must address how climate change impacts such

as increased and flashy spring floods, much more variable Great Lakes water levels, and

corresponding erosion will affect pipeline safety, the future of this proposed project, and the

environmental effects of this Proposed Project. For example, pipelines along inland waterways

are at particular risk of increased flood events and “unplanned discharges of oil into

waterways.” 212 Erosion along the Great Lakes may make the portions of the pipeline that go

into and come out of the proposed tunnel on either side of the Straits more vulnerable.

The scope of the EIS must address both how the proposed project will contribute to

climate change and how a worsening climate scenario will impact the project and increase

associated environmental risks.

IX. THE EIS MUST ADDRESS THE ENVIRONMENTAL IMPACTS OF TUNNEL CONSTRUCTION AND

OPERATION.

The Evaluation Of A First-Of-Its-Kind Underground Tunnel Transporting

Hazardous Liquids In The Great Lakes Necessitates An Extra Level Of Scrutiny

Of Potential Environmental Impacts.

The scope of the EIS must include an analysis of the Project’s design risks, and the direct,

indirect, and cumulative environmental impacts that would flow from those risks. This is critical

to this EIS because: (1) no similar project – a pipeline with hazardous liquids in an underground

See, e.g., AquAlliance v. U.S. Bureau of Reclamation, 287 F. Supp. 3d 969, 1028-29 (E.D. Cal. 2018) (relying on

historical data to assess the impacts of a water transfer program failed to address a key precipitation factor);

National Wildlife Fed. v. National Marine Fisheries Serv., 184 F. Supp. 3d 861, 918-19 (D. Or. 2016) (holding that

using recent ocean conditions as a baseline in an analysis of a hydropower project and assuming that they would

not worsen with climate change was arbitrary); Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 370

(E.D. Cal. 2007) (noting that it was a problem that an agency’s Biological Opinion “does not gauge the potential

effect of various climate change scenarios on Delta hydrology”).

210

Christina Goldfuss, Council on Environmental Quality, Final Guidance for Federal Departments and Agencies on

Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy

Act Reviews at 20, 4 (Aug. 1, 2016), https://ceq.doe.gov/docs/ceq-regulations-andguidance/nepa_final_ghg_guidance.pdf; see generally id. at 20-25.

211

USACE Climate Action Plan (Oct. 7, 2021), https://www.sustainability.gov/pdfs/usace-2021-cap.pdf.

212

R. M. Webb et al., Evaluating Climate Risk in NEPA Reviews: Current Practices and Recommendations for

Reform, Sabin Center for Climate Change Law, Columbia Law School & Environmental Defense Fund at 8 (Feb.

2022), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1185&context=sabin_climate_change;

see also Mashkiiziibii Natural Resources Department, Enbridge Line 5 Issues Within the Bad River Reservation (Feb.

2020), http://www.badriver-nsn.gov/wp-content/uploads/2020/02/202002_NRD_EnbridgeLine5_Brochure.pdf.

209

tunnel – exists; (2) the geology of the Straits, which includes a valley within the bedrock and

methane pockets, makes the tunnel boring construction process particularly risky; and (3) the

Project is designed in a way that creates a unique explosion risk. Because the Straits are an area

of enormous cultural importance, they are not the place for an experimental pipeline.

Untested pipeline design

A project like this one—running a hazardous liquids pipeline through an underground

tunnel—has never been constructed. No other Army Corps District has permitted a design that

includes a hazardous liquids pipeline running through an underground tunnel. The EIS must

scrutinize all aspects of design and operation to ensure that tunnel construction will not cause

catastrophic damage to the Straits.

Enbridge’s application materials suggest that “[t]unneling as a means of carrying

pipelines through or below difficult obstacles is a proven technology, and is in use for this

application in many places around the world.” 213 However, this statement is followed up with

examples that are not only different types of pipelines (i.e., not hazardous liquids pipelines),

but each of the examples has since experienced serious environmental consequences. 214 When

taking the necessary “hard look” that NEPA demands, these examples strongly counsel against

building an untested pipeline tunnel in the Great Lakes.

Once Enbridge begins tunnel boring beneath the Straits, impacts will be irreversible. The

enormity of a decision to irreversibly alter the largest freshwater supply in the United States

must be recognized. The Corps’ EIS must acknowledge that the construction and operation of a

hazardous liquids pipeline through an underground tunnel has never been undertaken before

and, due to the novelty of the Project, explicitly detail the way in which the Corps is evaluating

the risk to the environment and Tribal Nations.

Concerns based on the geological setting for the Project

The scope of the EIS must include an in-depth analysis of the geology along the tunnel

configuration in the Straits so the Corps can assess the feasibility of constructing a tunnel there,

including the possible consequences of encountering methane and other toxic gas, using a

Dynamic Risk Assessment Systems, Inc. Alternatives Analysis for the Straits Pipelines, at Appendix E.1 Tunneling

Overview (Oct. 26, 2017).

214

For example, the U.S. Department of Defense shuttered the underground Red Hills fuel storage facility near

Pearl Harbor, Hawaii after nearby residents reported a petroleum-like smell and oily sheen in their tap water; and

a worker died during construction of the Corrib Gas pipeline tunnel with a tunnel boring machine in Ireland.

Karoun Demirgian & Alex Horton, Pentagon to Shutter Fuel Storage Facility That Contaminated Drinking Water at

Pearl Harbor, THE WASHINGTON POST (March 7, 2022), https://www.washingtonpost.com/nationalsecurity/2022/03/07/red-hill-fuel-storage-pear-harbor/; Company Fined 300,000 Over Death of Worker at Corrib

Gas Tunnel, THEJOURNAL.IE (June 14, 2017), https://www.thejournal.ie/corrib-gas-worker-death-fine-3443030Jun2017/; Mark Jansen, The Sleepy Irish Village That Challenged Shell Over Controversial Pipeline, THE ECOLOGIST

(March 21, 2011), https://theecologist.org/2011/mar/21/sleepy-irish-village-challenged-shell-over-controversialpipeline.

213

tunnel boring machine in challenging mixed-face conditions, and the possibility of, and the

consequences of, a bentonite slurry release.

First, the scope of the EIS must assess whether the geology of the Straits is consistent

with Enbridge’s claim that the Project will be constructed “entirely within the bedrock.” 215

Enbridge has not provided the Corps—or the public—with data sufficient to support this claim.

What is known is that there is significant overburden—a valley of mud, silt, and clay—in the

deepest part of the Straits; 216 however, the nature and depth of the bedrock valley in the

Straits remains unknown. Enbridge conducted 14 deep water borings in the “general vicinity” of

where the proposed tunnel will be located. 217 In at least one location (BH19-24), bedrock was

not even encountered. 218 Moreover, Enbridge has indicated the tunnel depth will be between

30 and 370 feet below the lakebed of the Straits but has not conducted any borings at that

lowest depth. Enbridge’s ability to complete the tunnel entirely in bedrock thus remains

unsubstantiated due to insufficient boring data from the Straits. 219 This unknown poses a risk to

the Straits as,

it is critical during the design of open water tunnels that engineers consider the

nature of the ground, or geology, along the alignment, the limitations of the site

investigation program in characterizing the ground, and the anticipated range of

ground behavior under the proposed excavation technique. One short section of

tunnel where a geologic condition was not identified, or not prepared for, can

result in a costly and potentially disastrous situation. 220

The Corps should require that sufficient boring data be collected by Enbridge, and

provide that data to the public for comment, before continuing forward with the EIS process.

Specifically, to better understand and analyze the risks associated with Enbridge’s open water

Notice of Intent To Prepare a Draft Environmental Impact Statement for the Line 5 Tunnel Project, Mackinac

and Emmet Counties, Michigan, 87 Fed. Reg. 50,076 (Aug. 15, 2022) (“Except for the entrance points on either side

of the Straits, the tunnel would be constructed entirely within the bedrock at depths between 30 feet and 370 feet

beneath the lakebed of the Straits.”)

216

See Line 5 Replacement and Tunnel Project Geotechnical Data Report, March 9, 2020 at Section 5.2.3

(Deepwater Borings);

217

See Id.; see also id. at Appendix B-2 (Boring Logs), http://www.deq.state.mi.us/documents/wrd-line5geotechnical-data-report.pdf.

218

Id. at Table 5.4 (Deepwater Drilling Program) (noting that BH19-24 indicated N/A for rock depth); see also id. at

Appendix B-2 (Boring Logs) at 260 (indicating that boring number BH19-24 was terminated at 156.5 feet and did

not encounter rock), http://www.deq.state.mi.us/documents/wrd-line5-geotechnical-data-report.pdf.

219

See McMillen Jacobs Associates, Technical Memorandum Re: DRAFT Geotechnical Exploration Level of Effort for

the Line 5 Replacement Tunnel at 3 (Jan. 13, 2021), https://www.michigan.gov//media/Project/Websites/egle/Documents/Multi-Division/Line5/MDOT_Question_on_Geotechnical_Investigation_Jan_2021.pdf?rev=2fe08f3e6cf64563869bf19780b1ccac (“A

minimum cover of approximately 25 feet of bedrock occurs near the middle of the alignment. However, due to a

significant number of borings terminating before the tunnel invert near the middle portion of the alignment, there

are portions of the alignment where the rock quality and conditions within the tunnel have not been directly

investigated. This lack of data spans the majority of the length of the middle half of the tunnel alignment.”).

220

Tunneling Beneath Open Water, A Practical Guide for Risk Management and Site Investigations, Thomas W.

Pennington P.E. (April 2011) at 33 (included as Attachment F).

215

tunnel design, the Corps should require that sufficient geological data on the Straits is collected,

and that Enbridge produce a comprehensive Geotechnical Baseline Report (“GBR”) so that it—

and members of the public—can analyze the geology of the Straits and risk of environmental

impacts during tunneling during the EIS process. Although Enbridge prepared a Geotechnical

Data Report, the data within the 3,000-page report, which was lacking in many respects, does

not include conclusions, recommendations, or interpretations of the findings. As a result, it is

largely inaccessible for public review. On the flip side, Enbridge’s Summary and Pamphlet of its

GDR is a 2-page summary of the 3,000-page document and, although readable, is missing huge

swaths of information and, critically, misinterprets key facts. In the U.S., GBR has become the

“preferred method” for understanding underground risks in construction. 221 A GBR “provides

an interpretation of the geotechnical data, subsurface and site conditions and ground behavior

likely to be encountered during the performance of the work,” 222 which Enbridge’s 2-page

summary fails to do. The scope of the EIS must address this deficiency in the applicant’s

materials. Further, once the critical geological data is provided by Enbridge, the Corps should

issue a supplemental, revised, or corrected public notice based on the change in the application

data that would affect the public’s review of the proposal. 223

Even if Enbridge gathers data that proves its tunnel can be completed entirely in

bedrock, the overburden that is present in the deepest part of the Straits necessitates the

tunnel be constructed in a U-shape or V-shape. This shape is not consistent with Enbridge’s

initial design plans and has not been adequately studied. A U- or V-shaped tunnel contributes

to the risk of an explosion during operation, as explained in more detail in Section IX.A.3.

Further, the U- or V-shaped tunnel contributes to the risk of flooding occurring both during

construction and operation. The scope of the Corps’ EIS must balance these geology

considerations with associated operational risks.

Second, the scope of the EIS must include an analysis of the risk of an explosion if and

when methane is encountered during tunneling. Only 24 groundwater samples were collected

in the location where Enbridge proposes to construct the tunnel and dissolved methane was

detected in four of the samples. 224 Significantly, none of the 24 samples were collected from

the deepest tunnel alignment) Because of the lack of geotechnical data, as explained above, it is

possible that elevated concentrations of methane will be encountered during construction

along the proposed path of the tunnel. Encountering methane during tunneling could lead to an

Id. at 85

223

See Section III supra.

224

See Line 5 Replacement and Tunnel Project Geotechnical Data Report, March 9, 2020 at Appendix F-3

Groundwater Testing Summary Table, http://www.deq.state.mi.us/documents/wrd-line5-geotechnical-datareport.pdf. This data is in direct conflict with the assumptions raised in the Technical Memorandum dated January

12, 2021 on the subject of Potential Gas Encounters in the Enbridge Line 5 Tunnel Project at page 4 (stating that

“no gas was actually encountered during the any [sic] of the geotechnical exploration program”). The scope of the

Corps’ EIS must recognize that the data suggests the presence of methane in the groundwater samples.

221

222

explosion during the construction phase of the project, risking both environmental

consequences and human life. 225

Third, the Corps should require that Enbridge identify the specific type of TBM that is

proposes be used for this Project and all risks of failure that may harm the environment. In

addition, the scope of the EIS must consider the risks of the TBM and analyze the

environmental impacts of the tunnel boring machine failing beneath the Straits. Based on the

limited geotechnical data available, it remains possible- despite Enbridge’s assertions—that the

Project would be constructed in both rock and sediments, including through karstic features or

poor rock conditions. This is referred to as “mixed face” condition and it is the most difficult of

all tunnel driving conditions. 226 Mixed face tunneling, combined with the very high ground and

groundwater pressures, increases the likelihood of a TBM failure or the TBM becoming stuck

and either abandoned in place or requiring a timely and costly rescue operation of the machine.

Fourth, the scope of the EIS must analyze the environmental risks posed by bentonite

slurry, a material that is used to stabilize the excavation and reduce groundwater inflow into

the tunneling process. The bentonite slurry system is a “closed loop” system:

Slurry is mixed in a treatment plan, cycled through the excavation face, and

returned to the treatment plant where the spoils are separated out for disposal.

The separated slurry is then recirculated in the tunnel or diverted to the water

treatment plant, if it does not meet design criteria. Slurry diverted to the water

treatment plant is treated for discharge into allowable discharge points subject to

meeting regulatory criteria. Solids from the water treatment plant are disposed of

off site. 227

Methane may also seep into the tunnel by way of groundwater infiltration and pose a risk of explosion during

operation of the pipeline. This, too, must be considered in the scope of the EIS. See Section IX.A.3., infra. The scope

of the Corps’ EIS must take consideration of the risk of methane explosion seriously to avoid the tragedies that

have occurred in previous Great Lakes tunneling projects. See James Graham, Lou Mleczko & James Tittsworth, In

Michigan History: Deadly Lake Huron Tunnel Explosion, THE DETROIT NEWS (Sept. 17, 2016),

https://www.detroitnews.com/story/news/local/michigan-history/2016/09/17/deadly-lake-huron-water-tunnelexplosion/90522336/ (detailing a methane explosion in Lake Huron); see also Elizabeth Lightfoot, Three Workers

Killed, One Missing in Tunnel Explosion, AP NEWS (Nov. 10, 1988),

https://apnews.com/article/a190525cd388425f128e5fc951bdc437 (detailing a methane explosion in Milwaukee).

226

Attachment F at 68 (Mixed Face Excavations); see also McMillen Jacobs Associates, Technical Memorandum Re:

DRAFT Geotechnical Exploration Level of Effort for the Line 5 Replacement Tunnel at Section 3.3 Design Challenges

due to Ground Conditions (Jan. 13, 2021), https://www.michigan.gov//media/Project/Websites/egle/Documents/Multi-Division/Line5/MDOT_Question_on_Geotechnical_Investigation_Jan_2021.pdf?rev=2fe08f3e6cf64563869bf19780b1ccac

(“However, due to the highly fractured and poorly cemented brecciated nature of the rock based upon core

recovery and RQD data, it is possible that the ground behavior will be very poor, especially in the zone of lowest

rock cover. However, as discussed above, there is a lack of boring information at tunnel depth within the roughly

middle half of the project.”).

227

Enbridge Energy, Technical Memorandum on the subject of Slurry Systems with Excavation by TBM (January 12,

2021).

225

The Corps’ EIS process must analyze every aspect of the bentonite slurry system to ensure that

a “release does not occur that impacts the underwater environment and that the risks

associated with the on-land facilities are avoided or minimized. In order to fully understand any

potential environmental impact, the Corps must require that Enbridge provide for public review

the specific chemical additives and bentonite source material properties of the slurry mixture it

intends to use as well as the details of how the slurry will be conveyed, monitored, contained,

and all other measures and practices that will be employed to prevent and respond to releases

into the environment.

As Enbridge described, the slurry will be injected at high pressure into the front

chamber of the TBM to balance earth and water pressures, and the slurry circulation system

carries the excavated material back to the surface. 228 Because of the very high earth and water

pressures that will be encountered under the Straits, the slurry will have to be injected at

roughly the same pressure to prevent an uncontrolled inflow of rock, soil and water into the

TBM and the tunnel. An uncontrolled over-excavation of solids (rock and sediments) can lead to

the development of large voids and possibly large sinkholes above the tunnel which could

seriously damage the existing Line 5 pipeline, especially the west leg which is closest to the

proposed tunnel alignment.

Over-pressurization of the bentonite slurry can lead to conditions where the slurry is

displaced well beyond the immediate vicinity of the TBM and can breach through the bedrock

and overlying sediments. In a worst-case scenario, the bentonite slurry would erupt through

the lake bottom surface (mudline), possibly damaging an existing Line 5 pipeline, and be

released into the water column and cover the bottom of the Straits which would be devastating

to the environment and ecosystem.

Bentonite slurry risks are also associated with the design, construction, and operation of

on-land facilities to treat the bentonite mixture once it enters the treatment facility and/or

maintained in storage tanks. The EIS must include a review of the design, construction, and

operation of the on-land facilities to ensure adequate containment and secondary containment

capabilities. In the event the bentonite mixture leaked into the environment it could cause a

catastrophic disaster on land, in the wetlands, and at the surface of the water. 229

While the impacts of a bentonite slurry risk during construction would be devasting to

the environment, the Corps must view the issues related to the risk of a release through an

environmental justice lens; in particular, how the devastation would affect the Tribal Nations

who depend on the Straits for economic, cultural, and spiritual needs. See Section II.B. Finally,

near-shore vibration impacts from tunnel construction must studied and included in the scope

228

229

Enbridge Energy, Tunnel Stability Pamphlet at 2 (April 7, 2020).

See EPA Scoping Comments at 18.

of the EIS. 230 The vibrations from tunnel boring may exceed the level that will result in damage

to fragile historic buildings, ruins, and ancient monuments. 231

There are significant geological risks involved in tunneling a Project of this size—

especially in an area with critical freshwater and other natural resources and enormous cultural

significance—and the scope of the EIS must analyze and assess those risks.

Explosion risk based on the design of the tunnel

The scope of the EIS must include an analysis of the risks associated with the design of

the tunnel intended to house a hazardous liquids pipeline in the Straits. The design of the

Project carries the risk of an explosion either from a hydrocarbon leak within the enclosed

tunnel or an infiltration of methane from the groundwater. An explosion by any means may

release Line 5 product into the Straits—causing an oil spill and other harms. 232 Explosion risks

are related to and foreseeable based on the design of the tunnel as proposed by Enbridge and

the direct, indirect, and cumulative effects of an explosion must be considered within the EIS. 233

First, the V- or U-shaped tunnel design has the potential to contain an explosive

atmosphere at its lowest part heightening the risk of product reaching the Straits by way of a

catastrophic explosion. As described above, the underground tunnel is designed to run deep

underground in a V- or U-shaped profile. Enbridge has proposed that that the purpose of the

tunnel is to house Line 5, which carries liquid propane and crude oil, two highly volatile and

flammable substances. Design plans also indicate both utilities and maintenance equipment.

Enbridge’s design thus includes an enclosed tunnel where the three necessary elements for an

explosion have the potential to be present at the same time: (1) a failure of the pipeline

resulting in a hydrocarbon release, (2) that forms a heavier than air vapor cloud, and (3) that is

ignited by a source of electricity. 234 The explosion risk from a hydrocarbon leak is a direct

consequence of Enbridge’s design plans and the Corps cannot ignore this connection in the

scope of its EIS.

The Project design has attributes that should be cause for concern. A hydrocarbon

release from a crack or rupture of the X70 pipeline running through the tunnel will mix with the

See Attachment B.

McMillen Jacobs Associates, Technical Memorandum Re: Vibration Impacts of the Enbridge Line 5 Tunnel

Project at 10 (Jan. 12, 2021) (listing the “Vibration Damage Potential Threshold Criteria” at a maximum peak

particle velocity of 0.08 in/sec for “Extremely fragile historic buildings, ruins, ancient monuments,” and noting that

vibratory impacts can be 0.1 in/sec at a depth o

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