by Bruce Walker
A 1977 pipeline treaty between Canada and the United States is being invoked by Canada in order to prevent closure of the Enbridge Line 5 pipeline, which has been in operation under the Straits of Mackinac for the past 68 years.
On Monday, Gordon Giffin, legal counsel for the Canadian government, issued a letter to the U.S. Western District of Michigan Federal Court on Monday, according to a news report by Reuters. In the letter, Giffin noted the 1977 treaty prohibits Michigan and/or the U.S. government from disrupting the operation of Line 5, and asked U.S. District Judge Janet Neff to delay issuing an opinion to allow treaty negotiations between the Canada and the United States to proceed.
Article II of the treaty reads: “No public authority in the territory of either Party shall institute any measures, other than those provided for in Article V, which are intended to, or which would have the effect of, impeding, diverting, redirecting or interfering with in any way the transmission of hydrocarbon in transit.” Article V specifies “an actual or threatened disaster, operating emergency or other demonstrable need” as reasons to shut down the internationally operated pipelines.
The treaty defines hydrocarbons as “chemical compounds composed primarily of carbon and hydrogen which are recovered from a natural reservoir in a solid, semi-solid, liquid or gaseous state, including crude oil, natural gas, natural gas liquids and bitumen, and their derivative products resulting from their production, processing or refining. In addition, ‘hydrocarbons’ includes coal and feedstocks derived from crude oil, natural gas liquids or coal used for the production of petro-chemicals.”
Giffin had previously filed an amicus brief with Federal Judge Janet Neff last May in which he stated: “The public and foreign policy interests that would be harmed by a premature shutdown in this case are extraordinarily substantial. Unless and until it is determined that Michigan’s shutdown order is consistent with the Parties’ rights and obligations established by the United States and Canada in the 1977 Treaty, this Court should take appropriate measures to ensure that Enbridge is not compelled to shut down Line 5.”
Last November, Michigan Gov. Gretchen Whitmer ordered the closure of Line 5 by May 12, 2021. Michigan Attorney General Dana Nessel subsequently filed suit to move the case filed by Enbridge from federal court to state court. Court-ordered mediation talks between Michigan and Enbridge stalled in September.
“We have spoken with government officials on both sides of the border as the State of Michigan has let parties know it is not committed to further mediation,” Enbridge said in a statement issued Monday. “Enbridge has continued to participate in the mediation process in good faith and still is hopeful that a negotiated resolution will continue to provide consumers and industry in the region with safe, reliable energy and advance the quick construction of the tunnel at the Straits of Mackinac.”
The pipeline transports 540,000 barrels of light crude each day from Canada’s western provinces through Wisconsin and Michigan’s two peninsulas and into Sarnia, Ontario. An American Petroleum Institute study authored by PriceWaterhouseCoopers released last July concluded the natural gas and oil industry supports 250,800 jobs in Michigan, and generates $28.5 billion annually for the Michigan economy. A $345 million portion of that total contributes to the state’s conservation funding.
Enbridge has proposed building a $500 million Great Lakes Tunnel Project beneath the lakebed of the Straits of Mackinac to house the pipeline, which would replace the existing dual pipelines.
In the meantime, Enbridge noted it has invested $100 million of safety enhancements for the current pipeline.
“The Straits safety measures include Enbridge’s Straits Maritime Operations Center, electronic messaging to large vessels, and fixed cameras monitoring vessel traffic,” according to the company’s news release.
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Bruce Walker is a regional editor at The Center Square. He previously worked as editor at the Mackinac Center for Public Policy’s MichiganScience magazine and The Heartland Institute’s InfoTech & Telecom News.
Photo “Replacement Project” by Enbridge.
