An Oily Test for the Public Trust Doctrine

Posted on November 17, 2020 by Jeffrey Haynes

On November 13, Michigan Governor Gretchen Whitmer (“That woman from Michigan!”) issued a notice to Enbridge Energy that by May 2021 it must cease transport of oil through twin pipelines that traverse the Straits of Mackinac. On the same day, Michigan’s Attorney General filed a complaint in state court for injunctive relief against Enbridge. (For those who do not speak Michigander, “Mackinac” is pronounced “Mackinaw.” Here’s a handy guide.) The notice terminates Enbridge’s 1953 easement in the Straits because of violations of the public trust doctrine and “longstanding, persistent, and incurable violations” of the easement’s standard of care. Background of the controversy is here.

Although the pipelines have not leaked in nearly 70 years, a major leak or spill would cause harm rivaling Santa Barbara, the Exxon Valdez, and Deepwater Horizon, but in fresh water. Lakes Michigan and Huron form the largest lake (by surface area) in the world. The pipelines transport 23 million gallons per day of oil and natural gas liquids for four miles underwater between Michigan’s upper and lower peninsulas. Hazards to the pipelines abound. Vessel anchors have dinged them, strong water currents have shifted pipeline supports, and protective coatings have flaked away.

The state argues that the easement was void from its inception or revocable, or both, because the state in 1953 did not find that the easement would improve the public trust or not impair the remainder of Michigan’s public trust bottomlands. The state argues that Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), and several Michigan public trust cases require these findings. Citing recent anchor strikes, the state argues that continued operation of the pipelines poses “inherent risks” of environmental harm.

In addition to the public trust argument, the state asserts that recent operational incidents violate the easement’s standard of “due care of a reasonably prudent person” for the safety and welfare of public and private property. Labelling violations as “incurable,” the state cites many places where the distance between pipeline supports exceeds the required 75 feet, invasive zebra mussels prevent repairing the protective coating, and the pipelines bend more than allowed.

The capacious standards of the public trust doctrine and “due care” give judges plenty of legal room to rule for the state. But Enbridge will argue that it should be allowed to operate the pipeline until it can place the pipeline in a tunnel it proposes to drill beneath the Straits. It is perhaps fitting that this controversy occurs 50 years after Michigan law professor Joseph Sax reinvigorated the public trust doctrine. But the state’s timing is likely less about celebrating that anniversary than the fact that Governor Whitmer will have a favorable Democratic majority on the Michigan Supreme Court starting January 1.