It started with a flood. A great turtle rose out of the untamable waters. Thus, in Ojibwe tradition, the world was born. The Great Lakes of Michigan are the most sacred of places for Ojibwe peoples; five bodies of interconnected freshwater lakes are the origin of all life and the connection point to time, purpose, and place. The word “Michigan” is an adaptation of the translation of the Ojibwe words for “large lake.” Altogether, these lakes are home to 84% of the continent’s surface freshwater.
“If I were to align it with other religions or spiritual teachings, it’s kinda like the Garden of Eden to us,” said Whitney Gravelle, president of the Bay Mills Indian Community, a federally recognized tribe located in northern Michigan.
But pipelines don’t run through the Garden of Eden.
Since 1953, a Canadian oil company has run its pipelines across Native lands, including through the Straits of Mackinac, a waterway that connects Lake Michigan and Lake Huron. Constructed without approval from any of the Ojibwe tribes that have stewarded the Great Lakes region since time immemorial, Line 5’s aging section of dual pipelines runs for 4.5 miles on the bed of the straits. The full Line 5 pipeline runs from Superior, Wisconsin, to Sarnia, Ontario.
For the first time since Enbridge, the parent company that owns the pipeline, negotiated its easement in 1953 to use ceded waters to transport crude oil, it no longer has the legal standing to operate in the straits.
On May 10, 2021, the Bay Mills Indian Community took an unprecedented step and banished Line 5 from its territories and ceded waters, effective immediately. A “customary form of tribal law,” according to Indian Country Today, it’s the first time the tribe has ever used banishment against a corporation. A day later, Michigan Gov. Gretchen Whitmer revoked Enbridge’s easement, ordering that the company cease pumping oil through the pipeline by midnight. The revocation came after the governor gave the company a sixth-month deadline to adhere to her 2020 executive order stopping the pipeline from operating in the straits.
Nearly four years later, oil still makes its way through Line 5. It’s an extraordinary violation of treaty rights, and experts say the violation is complicated by a parallel ongoing permitting fight that could greenlight construction for a new version of the Line 5 pipeline.
State permitting agencies have given Enbridge what it needs to proceed with the construction. Now, the company is just awaiting word from the Army Corps of Engineers, the federal agency in charge of evaluating whether proposals adhere to federal environmental laws.
The Bay Mills Indian Community wants Enbridge out of the water and off of its ancestral lands for good, but the company’s proposed alternative has its own risks. Of particular concern is an oil spill in the Great Lakes, the devastation of which is difficult to overstate, and the fact that the never-before-tested tunnel would enable further consumption of atmosphere-warming carbon. And as these risks mount, advocates say that if Enbridge isn’t willing to follow state law, then it’s time for the Biden administration to intervene.
“A ticking time bomb in the heart of the Great Lakes”
In 1836, the federal government signed a treaty with the Bay Mills Indian Community. The contract ceded about half of the landmass that would create the state of Michigan, while retaining hunting, fishing, and gathering rights in perpetuity. The Straits of Mackinac fall under this treaty—the body of water is the territory of the federal and Michigan state governments, but the right to fish, gather wild rice, or hunt along the water’s shores remains.
Due to climate change, these treaty rights are under threat because of the shifting landscape of Michigan’s waters. Less ice cover in the winter months means fish eggs have a harder time developing, and warmer weather not only breeds fungus on wild rice, but leads to warmer water temperatures that threaten the cold-water fish that tribes depend on. Climate change, of course, is the result of fossil fuel emissions from pipelines like Line 5 that release the equivalent of 87 million metric tons of carbon dioxide per year, the equivalent emissions of 7% of the country’s cars.
But a more immediate threat looms: oil spills. As most water protectors and activists will say, it’s not a matter of if there’s an oil spill, but when. Michigan’s own Attorney General Dana Nessel has referred to Line 5 as “a ticking time bomb in the heart of the Great Lakes.”
Part of the problem is that the pipeline was never supposed to last this long without adjustment. Line 5 was built to withstand 50 years of operation. At the time of Whitmer’s easement revocation in 2021, the pipeline was nearly two decades past this expiration date. Reports from environmental organizations claim that the pipeline’s protective coating has deteriorated in many places. In some areas, erosion of the lakebed had disturbed the surface where the pipeline was once held down and now simply floats in place. The pipeline is also susceptible to “anchor strikes” where tugboats floating along the lake may mistakenly drop anchors into the pipe itself, as was the case in 2018.
These conditions are fodder for what the company proposes as a solution: to build a 21-foot-wide tunnel hundreds of feet below the lakebed to house a new pipeline. If all goes to Enbridge’s plan, the Mackinac Bridge Authority and state of Michigan will grant the company a lease for 99 years. Once constructed, the tunnel itself would transfer to the ownership of the Mackinac Bridge Authority while the pipeline would remain Enbridge’s property.
The project was part of a deal struck in 2018 by outgoing Republican Gov. Rick Snyder and Enbridge. A law approved by Snyder just before his departure enshrined the public-private partnership between Enbridge and Mackinac Bridge Authority. At the time, the tunnel project was slated to cost $650 million. Originally, the company claimed that it would finish construction by 2024.
Permitting agencies are “going through the motions”
In January 2021, the Michigan Department of Environment, Great Lakes, and Energy granted the first of three permits needed by Enbridge for its tunnel construction project. In December 2023, the Michigan Public Service Commission handed Enbridge the second.
Gravelle said the permitting process seemed like lip service paid to the Bay Mills Indian Community and other tribes that participated in the consultation process. In many ways, tribal voices were undermined, and some tribes were omitted entirely from the construction plans, as was the case when Enbridge first began discussions with the state in 2017. For instance, the presiding judge sided with Enbridge in its request to strike some public comments from the record that underscored financial and cultural implications of a potential spill, such as one from then-Bay Mills Vice President Jacques Leblanc.
“If the Great Lakes ecosystem is harmed, I will have no means to continue supporting my family through treaty subsistence and commercial fishing or harvesting of medicines and animals,” Leblanc said in a struck comment. “Any disruption of the fishery for an extended period would stifle the transfer of fishing knowledge to younger generations.”
Consultation is guaranteed by treaties, Gravelle said, which means that permitting agencies have an obligation to hear testimony from tribes and tribal members and to incorporate their feedback into permit decisions.
“I don’t feel that that underlying premise is understood or respected,” Gravelle said. “At the agency level, sometimes they can be really caught in just going through the motions.”
There’s also a “trust responsibility,” said Esteban Chiriboga, an environmental specialist with the Great Lakes Indian Fish and Wildlife Commission. This means the federal government has an obligation to help promote and protect ceded lands and territories and, ideally, it “should listen to tribes before making these decisions about these lands,” Chiriboga said.
Native American Rights Fund (NARF) staff attorney David Gover said he believes the commission thinks it’s addressing concerns of a pipeline spill by greenlighting the tunnel construction project. NARF currently represents the Bay Mills Indian Community and is in the process this month of appealing the decision by the commission in the Michigan Court of Appeals.
“It is a frustration, of course, [because] the governor has issued these policies and proposals and guidance on the transition away from fossil fuels,” Gover said. “But [with] this decision, it seems like they glossed over it … it’s hard to understand.”
The Army Corps of Engineers is now preparing its Environmental Impact Statement (EIS) that will be open for public comment to be considered as part of the permitting process. The EIS is expected in 2025, and a final decision will come in spring 2026.
But advocates say that the tunnel project isn’t the solution the commission believes it to be because while the company goes through the permitting process for a new pipeline and tunnel project, the existing pipeline continues to transport oil, and more fossil fuel infrastructure begets more fossil fuel production and consumption. As the earth warms and rapidly approaches a 1.5 degree Celsius limit before consequences of climate change are irreversible, state and federal governments should support the construction of renewable energy sources.
If the past is prologue, then Enbridge’s history of spills, challenges with spill detection, and ability to mitigate spills in a timely manner continue to be cause for concern. Since 1968, Enbridge pipelines have leaked more than 1 million gallons of oil. In 2010, the worst inland oil spill in U.S. history took place in and along Michigan’s Kalamazoo River, releasing more than 20,000 barrels, or about 1 million gallons, of oil. Despite the leak detection system that activated multiple alarms, operators mistook them for false alarms. The spill wasn’t addressed for days, and overall, it took several years and three-quarters of a billion dollars to mitigate the harm.
A spill in the straits would be exponentially worse. “Catastrophic” is the word advocates most often use. In 2016, a University of Michigan study modeled what a Line 5 spill would look like under 840 spill scenarios. The water flow in the lakes Michigan and Huron can be up to 10 times that of Niagara Falls—fast-moving and forceful water could transport crude oil far and wide. Researchers found that more than 700 miles of shoreline are vulnerable to inundation from a spill, and nearly 60% of Lake Huron’s open water would have visible oil contamination.
The tunnel project is Enbridge’s solution to the threat of a spill, though it doesn’t account for the chances of a spill while the tunnel project goes through the permitting or construction process. The design has never been implemented before, which carries its own set of risks, Gover said.
There are other ways around Enbridge’s ongoing violation of its easement, one of which is taking place in the courtroom. On March 21, the attorney general presented arguments in the Sixth Circuit Court of Appeals to keep the case in state court after it was removed to federal court. The attorney general’s lawsuit continues to seek an order from the court to shut down and decommission the Line 5 sections of pipeline in the Straits.
A 2018 study by the global consulting firm London Economics International found that alternatives to Line 5 would have a negligible impact on consumer prices.
Another approach is to take the permitting question to the federal arm that has the power to shut down the whole operation. According to Sean McBrearty, a coordinator with Oil and Water Don’t Mix, a statewide campaign working to shut down Line 5, this means pushing the president to act.
“We have everything we need right now for President Biden to step in and … take the appropriate action here and shut down Line 5 before a rupture,” McBrearty said.
