October 03, 2012 - Brandon postpones Enbridge settlement, awaits federal court hearing
By Susan Bromley
Brandon Twp.- The township board has postponed a settlement from Enbridge regarding the replacement of thousands of trees here that the company plans to level as they install an oil replacement pipeline.
A sub-contractor for Enbridge began clearing trees in the township early last month, but was ordered to stop work as Enbridge was in violation of the township's woodlands ordinance.
During their Oct. 1 meeting, the township board discussed an agreement with Enbridge in which the multi-billion dollar company based in Alberta, Canada has offered to give the township 70 trees of various species in sizes ranging from 6-12 feet for each acre of land in the township that is cleared for the Line 6B replacement pipeline. This is considered an improvement from the seedlings the company previously planned to give in exchange for cutting down mature trees, some of which are more than a century-old.
"If the landowners (whom the pipeline affects) don't want the trees, we can put them in other areas of the township, they have agreed," said Supervisor Kathy Thurman.
"It's all well and good they are (now) complying with the woodlands ordinance," said Trustee Cheryl Gault, "but they have not responded to various things. This little agreement is nothing to them... We've given them time to answer other questions. It's simple— do you have permits? There are no answers. They've submitted nothing. They are totally ignoring us and I take offense to that."
Enbridge plans to replace approximately a total of 210 miles of its existing Line 6B crude oil pipeline from Griffith, Ind. to Sarnia, Ont. The project is scheduled to occur in two phases, with the first phase replacing 75 miles this year, including a 50 mile stretch from Stockbridge to Ortonville. The first phase includes 3 miles of pipeline in Groveland Township and 3 miles in Brandon Township, ending at a pump station near Cook's Trail. The second phase, not yet approved by the Michigan Public Service Commission, will begin on the east side of the pump station and will include another 3 miles in Brandon Township.
The project, in which an existing pipeline will be capped and deactivated and an entirely new 30-inch in diameter pipeline installed alonside it, has drawn widespread environmental concerns since the first phase was announced late last year. Critics have cited Enbridge's poor record with spills resulting in environmental catastrophes, including the 2010 Marshall disaster in which a portion of the Enbridge Line 6B pipeline ruptured and spilled approximately 1 million gallons of crude oil into Talmadge Creek and ultimately the Kalamazoo River.
In August, Brandon Township officials passed a resolution demanding that Enbridge comply with higher safety standards used in a proposed Canadian oil pipeline project, but the company failed to respond to the resolution directly, instead sending a letter to officials explaining that they were already exceeding U.S. safety standards.
Brandon Township appeared to be the only municipal entity that was requesting that Enbridge seek permission for the work being performed. Enbridge has maintained that they have the approval for the first phase from the Michigan Public Service Commission and have obtained easement agreements from private landowners. When questioned on whether they are a public utility at a township board meeting this summer, Enbridge representatives, including an attorney, did not answer.
Jeff Axt, a Brandon Township resident, has formed POLAR (Protecting Our Land and Rights), a legal defense fund that has filed court actions in an effort to get Enbridge to answer questions and obtain the proper permits from all communities that the pipeline travels through.
Axt urged the board during their Oct. 1 meeting to postpone settling with Enbridge, as POLAR has been granted an opportunity to be heard at an evidentiary hearing on Oct. 22 before Judge Robert H. Cleland of the Eastern Federal District Court.
"We want (Enbridge) to follow all permits, ordinances and processes," said Axt. "You've been ignored, we've been ignored. They need to follow every law, it's different everywhere. They have two dozen permits they haven't obtained. It shouldn't be easy to put a pipeline in the ground... The woodlands ordinance is the only thing that stopped them in their tracks."
Thurman said she has been receiving calls from residents worried about the delay in the pipeline installation and the potential for home foundations to be affected if the pipeline is installed when the ground is frozen, as well as their property's landscaping not being restored until next spring.
"The only one to blame is Enbridge," responded Axt. "Enbridge is responsible for the construction delay and we are responsible for holding them to the law... This is not complicated— show us your permits and approvals. Prior to construction, permits need to be shown. The landowners have easement agreements, but (Enbridge) doesn't have the proper permits to go through wetlands."
The board approved postponing the agreement by a 6-0 vote. Trustee Tom Stowell was absent.
Gary Field, an attorney with Field Law Group representing POLAR, said his hope is that during the Oct. 22 hearing, the judge will order construction activity on the new pipeline halted until Enbridge obtains the necessary permits and authorizations.
"It's not a formality, there are significant municipal interests which townships can protect through the consent process," he said. "If Enbridge proceeds without seeking township consent or understanding what they need to do to receive consent, there are signifiant public interests that are just being ignored. There are significant environmental permits that have not been obtained."
Field said Enbridge has obtained MPSC approval for only 25 percent of the pipeline, and that approval is under appeal by four landowners who want a legal determination on whether Enbridge is the proper type of legal entity able to exercise power of eminent domain.
Field notes that MPSC approval of phase 2 of the project will not be decided until at least January.
"One of our arguments is that Enbridge shouldn't be permitted to assume they will get approval in phase 2," he said. "If they are allowed to build the 50-mile segment in phase 1 (from Stockbridge to Ortonville) and then don't get approval for phase 2, then you have a 50-mile pipeline from nowhere and to nowhere."
Susan covers Brandon Township and Ortonville