Until 2010, Michigan was rarely one of the first states that came to mind when considering petroleum production and transportation. But on July 25 of that year, Enbridge pipeline 6B ruptured in Marshall, Michigan, spilling over one million gallons of crude tar-sands oil from Alberta into a tributary of the Kalamazoo River. The spill then flowed to the river itself, one of the largest in Michigan. This was and remains the largest inland oil spill in United States history, and cleanup has cost almost US$1 billion to date. This catastrophe, coupled with the well-publicized Deepwater Horizon spill in the Gulf of Mexico the same year and the high-profile controversy surrounding the proposed Keystone XL Pipeline, drew Michiganders’ attention to the existing pipelines in the Wolverine State, along with heightened scrutiny from legislators, regulators, and NGOs.
Unfortunately for Enbridge, another Michigan pipeline that is now in the limelight is Enbridge Line 5, which lies beneath the Straits of Mackinac, the narrow channel between the Upper and Lower Peninsulas of Michigan that connects Lake Michigan with Lake Huron. Line 5 transports oil and other petroleum products to the Straits, and then it splits into two lakebed pipelines that rest on an underwater state easement. Line 5 was constructed in 1953 when it was considered a safer alternative to transporting oil on tankers. This may be true; in 62 years, the pipeline has never had a major leak. Nevertheless, in the wake of the Kalamazoo River spill, groups such as For the Love of Water (FLOW) have launched campaigns to shut down the pipeline. These campaigns rely heavily on the concept of the public-trust doctrine.
The public-trust doctrine, which dates back to ancient Roman times, is premised on the idea that certain public spaces and natural resources belong to the people. The state serves as a “trustee” of these resources and must maintain these communal assets in trust for the benefit of current and future generations. The public-trust doctrine is typically applied to protect public uses such as navigation, commerce, and fishing. Michigan’s water-law jurisprudence is permeated by the doctrine. For example, in 2005, the Michigan Supreme Court held that the state’s public-trust rights permit the public to walk along the shoreline of privately owned beaches below the high-water mark. Although citizens’ rights to public-trust resources have not traditionally extended to preserving environmental quality, numerous public-interest groups have attempted to use the doctrine in recent years to do just that. Proposed local ordinances that would prohibit fracking and climate-change lawsuits are just two examples.
Those familiar with Michigan should not be surprised that the theory would be tested there as well. Although known primarily for its heavy industries at the time Line 5 was constructed, the state has rebranded itself in recent decades through its “Pure Michigan” tourism campaign, a campaign that relies heavily on wild-lands recreation, vibrant resort communities, and the concept of five pristine Great Lakes. With 3,288 miles of freshwater coastline (the second-longest coastline in the United States after Alaska), Michigan is particularly vulnerable to a major oil spill. No one doubts that—particularly at the Straits, which connects two Great Lakes—a leaking pipeline would dramatically affect the state’s ecosystems, recreation opportunities, and tourism economy.
FLOW has not yet translated its efforts into legal action, and it’s not clear what a lawsuit to close Line 5 premised on the public-trust doctrine would look like or whether it would be successful. But oil-and-gas and resources lawyers should keep their heads up as use of the doctrine evolves, especially when petroleum-transportation issues—whether involving pipelines, crude-by-rail, truck, or tanker—grab national attention.