# BAY MILLS INDIAN COMMUNITY > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A89ea146591d2178c ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text BAY MILLS INDIAN COMMUNITY “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 I. 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 A. The Straits Are At The Center Of Bay Mills’ Creation Story. ............................................................. 2 B. 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 A. 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 B. 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 A. 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 C. 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 A. Pipelines Spill. ................................................................................................................................. 28 B. Oil Spills Harm Fish, Birds, Plants, And Other Organisms. .............................................................. 30 C. 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 A. The EIS Must Account For How The Proposed Project Will Cause Greenhouse Gas Emissions. .... 35 1. Legal requirements in the statute, case law, and Executive Orders ........................................... 35 2. GHG emissions calculation .......................................................................................................... 37 3. Impacts of GHG emissions .......................................................................................................... 38 B. 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 1. Untested pipeline design ............................................................................................................ 43 2. Concerns based on the geological setting for the Project .......................................................... 43 3. Explosion risk based on the design of the tunnel ....................................................................... 48 B. Species ............................................................................................................................................ 51 C. Wetlands ......................................................................................................................................... 56 D. Rare Natural Community Types ...................................................................................................... 57 E. Water quality .................................................................................................................................. 58 F. Air quality and Greenhouse Gas Emissions..................................................................................... 58 G. Impacts to Indigenous Women ....................................................................................................... 59 H. Cultural Resources .......................................................................................................................... 59 X. THE EIS CANNOT IGNORE ENBRIDGE’S CAVALIER APPROACH TO PIPELINE SAFETY. ......................... 60 A. 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. 1 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 A. 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). 2 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. 3 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. 4 40 CFR § 1502.16(b). 1 2 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. B. 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”). 6 Id. at 1. 7 Id. at 8. 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.”) 5 3 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. C. 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”). 11 Gravelle Testimony at 9-10. 12 Id. 13 Id. 14 Id. 15 United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979); People v. LeBlanc, 399 Mich. 31; 248 NW2d 199 (1976). 9 10 4 Figure 1: 1836 Ceded Territory Map 5 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). 18 People v. LeBlanc, 399 Mich. 31, 58 (1976) (citing Menominee Tribe v. United States, 391 US 404, 413 (1968)). 19 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 16 17 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). 22 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. 20 21 6 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. D. 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). 25 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). 26 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”). 23 24 7 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. 28 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). 29 Id at 18-19. 27 8 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. A. 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). 32 40 C.F.R. § 1500.2(f) (1978). 33 42 U.S.C. § 4332 (C). 34 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 30 31 9 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 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. 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). 35 40 C.F.R. § 1508.25(a)-(c) (1978). 36 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). 37 Scientists’ Inst. For Pub. Info., Inc., v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 1973). 38 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.’”). 39 40 C.F.R. § 1506.5 (1978); 33 C.F.R. Part 325, App. B § 8(f)(2). 40 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 10 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”). 42 Exec. Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations (Feb. 11, 1994). 43 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. 44 See 59 Fed. Reg. 7629 (1994). 45 Exec. Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations (Feb. 11, 1994). 46 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”) 47 The CEQ has oversight of the Federal government’s compliance with Executive Order 12898 and NEPA. See CEQ Environmental Justice Guidance. 41 11 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. C. 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. 49 Exec. Order No. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Jan. 20, 2021). 50 See CEQ Environmental Justice Guidance. 48 12 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). 52 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.”). 53 36 C.F.R. § 800.6(a). 54 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.”). 51 13 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). 56 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. 55 14 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) 58 Army Corps of Engineers, Public Notice Re Enbridge Energy, LP No. LRE-2010-00463-56-A19, at 2 (“Public Notice”) (May 15, 2020) 59 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). 60 See July 2020 Comments of Bay Mills Indian Community at 2. 61 33 C.F.R. § 325.1(d). 62 33 C.F.R. § 325.1(d) and 325.3(a) 57 15 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. 65 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. 66 33 CFR § 325.1(d)(7); see also Section VII.D, infra. 67 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) 63 64 16 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. A. 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.”) 69 40 C.F.R. § 1500.1(b) (1978). 70 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)). 71 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. 72 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)). 73 See 40 C.F.R. § 1502.13 (1978); see also 33 C.F.R. § 325.1(d)(1). 68 17 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). 76 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). 77 40 C.F.R. §§ 1500.2(e), 1506.1(b) (1978); 40 C.F.R. §1508.1(z) (2022). 78 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). 74 75 18 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. 80 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/. 81 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. 82 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. 83 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. . 79 19 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 B. 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). 86 40 C.F.R. § 230.3(m); id. § 230.41. 87 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). 88 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. 84 85 20 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). 91 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). 92 State of Michigan, Notice of Revocation and Termination of Easement (Nov. 13, 2020). 93 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. 94 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. 95 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). 89 90 21 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 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. 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)). 97 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.”). 98 36 C.F.R. § 800.6(a). 99 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 96 22 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 23 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 A. 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 24 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. B. 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 25 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 26 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. C. 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 27 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 A. 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 28 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 29 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 B. 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 30 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 C. 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. 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 31 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 32 Figure 4: Crude oil spill pathways from Line 5 to Lakes Michigan and Huron, prepared by GLIFWC 33 D. 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 34 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. A. 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. 1. 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 35 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 36 tribal communities. These same weather patterns cause more frequent power outages, which last longer in rural areas. 2. 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 calcul [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A89ea146591d2178c. Public record. Not legal advice.