Source: Sherman Publications

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New Enbridge hearing set for November

by Susan Bromley

October 24, 2012

Do private landowners have the right to challenge whether a company has obtained proper permits to move forward with a project, or must the government entity that grants the permits be the one to file court action?

That is what Judge Robert Cleland of Eastern Federal District Court must determine before deciding whether to continue investigating legal claims brought against Enbridge, a multi-billion dollar company accused of failing to obtain the proper authorizations to install a replacement oil pipeline, by POLAR (Protecting Our Land and Rights) an association of private property owners directly affected by the pipeline.

Two attorneys from Field Law Group, representing POLAR, had prepared to introduce evidence for a preliminary injunction at an Oct. 22 hearing before Cleland.

"The judge decided that he ought to address the standing issue first—whether POLAR can bring the claims that it was bringing, namely that Enbridge has not complied with numerous local permitting requirements," said Gary Field, attorney with Field Law Group. "Unfortunately, the standing issue was scheduled for a Nov. 7 hearing, for the parties to discuss and the judge to decide whether POLAR has legal standing to raise the legal issues it wants to raise."

POLAR's stated goal is to have Enbridge obtain all necessary authorizations and permits and otherwise follow all legal processes in their 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.

While Enbridge has received approval from the Michigan Public Service Commission, Field notes they have not obtained, nor even sought, the proper permits from all the counties and townships the pipeline traverses.

Jason Manshum, a spokesman for Enbridge, responded to questions about whether Enbridge had obtained all necessary permits/authorizations from each community along the pipeline route in an e-mail, saying, "Construction activities are not commenced until we have obtained all permits required to complete that work. We fully understand that local governments and communities have questions about these activities, and Enbridge is prepared to meet with any community that desires to address their questions."

In Brandon Township, a subcontractor began clearing trees in early September, but work was ordered stopped after township officials objected that Enbridge was in violation of the woodlands ordinance. Subsequently, Enbridge offered a settlement to the township in which the Alberta, Canada-based company would 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. Previously the company planned to give seedlings in exchange for cutting down mature trees, some of which are more than a century-old. Township officials have postponed agreement to this offer pending results of the court hearing with POLAR.

During that hearing, Judge Cleland may decide that Oakland County or each individual municipality may be the ones who have to bring a lawsuit against Enbridge for permit compliance, said Field.

"It's kind of a catch-22 situation," he noted. "Oakland County isn't requiring compliance, so it doesn't seem like they would file a lawsuit to make Enbridge comply with their permitting requirements. It's really strange why they're not doing it, because Enbridge is getting permits from those municipalities that are telling them they have to and with those who are not demanding it, they are just proceeding."

Field said Ingham County has required Enbridge to comply with all the drain permits while Oakland County has not.

A representative from the Oakland County Water Resources Commissioner's Office did not immediately return a call for comment.

"A drain system is a very complex system," Field said. "If you mess up the flow in one part, it could have significant consequences, not only in nearby properties, but way down the line where the water flows or doesn't flow. It's strange, too, because this would be a significant revenue source for Oakland County, enforcing the regulations they should be enforcing, because there are permit fees for all this. (Enbridge) hasn't gotten the soil erosion and sedimentation control permit, which they are required to get whenever they clear more than an acre of land, which they are obviously doing, and that is a state law… They are just proceeding until they get resistance… All that has to be done is for the municipalities to say, 'You have to get your permits. Stop.' And they will get their permits and abide by the rules. That is all we are asking."