White House Deputy Press Secretary Karine Jean-Pierre said Nov. 8 that the U.S. Army Corps of Engineers is preparing “an environmental impact statement on Line 5 and the construction of that replacement line,” which she said “will help inform any additional action or position the U.S. will be taking on the replacement of Line 5.”

A day later, Jean-Pierre clarified that the administration is not contemplating shutting down the existing Line 5. The EIS will cover the construction of a proposed replacement tunnel approved in the final days of former Michigan Gov. Rick Snyder’s (R) administration. Recent threats by the state of Michigan to close down the existing line prompted Canada to invoke a 1977 treaty provision with the U.S. to trigger bilateral negotiations over the line.

Jean-Pierre said the Biden administration looks to “engage constructively” in discussions about Line 5 with the Canadian government. "In addition to being one of the closest allies, Canada remains a key U.S. partner in energy trade, as well as efforts to address climate change and protect the environment.”

The Corps confirmed the environmental impact statement is for the new Line 5 tunnel. “That’s what it’s looking at, but that does not mean it may not find anything else,” said William Dowell, chief of public affairs with the USACE Detroit district.

Canada Invokes Treaty, So do Tribes

The ongoing Line 5 dispute between Enbridge and Canada and environmental groups heated up again Nov. 4 after Michigan’s 12 federally recognized Tribal Nations wrote a letter to the Biden administration in support of efforts to shut down Line 5.

The letter from the tribes of the Three Fires Confederacy of Ojibwe, Odawa and Potawatomi, said shutting down the pipeline and opposing the approved replacement tunnel is essential to preserving their fishing, hunting and gathering rights in the straits under the 1836 Treaty of Washington. The portion of the Line 5 pipeline in dispute goes through both U.S. and Canadian waters in Lake Huron.

“These were among the most precious of the rights our ancestors insisted upon when forced to make massive land cessions to the United States. The ability to take fish, game, and plants was and remains central to our people’s way of life and very survival,” the letter states.

Whitney Gravelle, president of the executive council of the Bay Mills Indian Community said the rights outlined in the treaty remain important.

“Many view those treaties as things of the past, as an historic document to be learned about (when studying) the creation and formation of the United States,” she said. “But those documents are living promises. Our ancestors understood when they signed that treaty that they were making a sacred promise for the future of their people.”  

The tribes are joining Michigan Gov. Gretchen Whitmer (D) who cited safety, environmental concerns and the treaty rights of indigenous peoples as some of the reasons behind her attempt in November 2020 to revoke a permit that allows Calgary-based Enbridge, a multinational energy company, to operate the pipeline.

She ordered Enbridge to shut the pipeline down by May 12, but the energy company has so far defied that order, saying that it will only shut down the line if ordered to do so by a court or its regulator. So far, the courts and the two regulators that could order a shutdown, the Michigan Department of Environment Great Lakes and Energy and the Michigan Public Service Commission, have not done so.

See You in Court

Whitmer and Michigan Attorney General Dana Nessel (D) and Enbridge are engaged in several ongoing court battles.

Lynsey Mukomel, press secretary for the Attorney General Nessel said “we welcome the Tribal Nations support of our efforts to shut down Line 5 and their request for the Biden Administration to do the same.” 

U.S. District Judge Janet Neff is weighing whether myriad pipeline cases should be heard in state or federal court.

Enbridge spokesperson Ryan Duffy said the company wants the cases to be heard in federal court. Gravelle said the Tribal Nations want the cases to be heard in state court.

The letter from the Tribal Nations makes several requests of the Biden Administration, including asking that Tribal Nations have a seat at the negotiating table to participate, in particular, in any negotiations with Canada regarding Line 5.

Energy Impact

Canada maintains the pipeline is safe. It transports 540,000 barrels of oil a day.

“Line 5 has operated safely for 65 years and is helping to provide essential energy to heat homes and power the economy for Michigan, Ohio and Pennsylvania, and Ontario and Quebec,” said Diana Tan, spokesperson for the Embassy of Canada. 

Duffy agreed.

“There are millions of people and thousands of businesses on both sides of the border who are dependent on Line 5 to provide the fuel they need for heating, manufacturing, airplanes, roads and automobiles,” he said. “Line 5 is vital energy infrastructure on a daily basis to Michigan, other states in the region, and Canada’s two largest provinces.

Duffy said his company respects the treaty rights of the Tribal Nations. He added that Enbridge spends millions of dollars a year to ensure the pipeline’s safety. He said construction of a new tunnel is critical to that effort.

“Three years ago both houses of the Michigan legislature voted overwhelming to establish the Mackinac Straits Corridor Authority to oversee our construction of a Great Lakes Tunnel in which Line 5 would be contained well below the waters at the straits. This makes a safe pipeline safer and virtually eliminates the chance of an anchor strike or spill,” he said.