Line 5 D-Day: May 12—Will Enbridge shut it down or will the public do it for them?

By Barbara With
May 9, 2021

In three days, Canadian oil corporation Enbridge Energy Ltd. faces a deadline to shut down a four-mile segment of pipeline that runs under the Straits of Mackinac in northern Michigan. In November 2020, Michigan Governor Gretchen Whitmer and the Michigan Department of Natural Resources (DNR) terminated the 1953 easement that allowed Enbridge to build and operate Line 5 in the Straits. Enbridge has until May 12 to shut the line down. Michigan Attorney General Dana Nessel filed an action in Ingham County Circuit Court supporting the revocation.

Whitmer revoked the easement, saying the pipelines did not comply with easement requirements and are too big a risk to the Great Lakes. “Transporting millions of gallons of petroleum products each day through two 67-year old pipelines that lie exposed along the entire span of a busy shipping channel presents an extraordinary and unacceptable risk. The dual pipelines are vulnerable to anchor strikes, similar dangerous impacts, and the inherent risks of pipeline operations.”

In return, Enbridge filed a Federal lawsuit, claiming only the federal government has the power to shut down Line 5. According to Enbridge Executive Vice President Vern Yu, Enbridge has no intention of complying with the order.

What recourse does the public have when a foreign corporation refuses to obey the law and could potentially devastate the waters and economy of the Great Lakes, as well as contribute to the acceleration of climate chaos? Some believe concerned citizens could and should take matters into their own hands and shut the line down themselves.

As a precedent, activists in October 2016 successfully shut down five pipelines across the United States that were delivering tar sands oil from Alberta, Canada. They cut wire fences and manually turned emergency shutdown valves on pipelines in Minnesota, Montana, North Dakota and Washington. Nine people were arrested and removed from the sites.

Even though the activists faced felony charges and could have been given jail time, several court cases actually set legal precedent in favor of the valve turners.

The Minnesota Supreme Court affirmed the rights of Annette Klapstein, Emily Johnston, and Ben Joldersma to use the climate necessity defense. Klapstein and Johnston cut through barriers at a valve site for two Clearwater County oil pipelines. Joldersma then live streamed his call to Enbridge, warning the company to shut down the pipelines, or they would. They were acquitted of multiple felonies by the judge, despite Enbridge’s efforts to use critical infrastructure laws to criminalize nonviolent civil disobedience targeting pipelines.

Despite a Montana judge’s denial of his climate change defense, Leonard Higgins did no jail time. Higgins entered a fenced site near Big Sandy, Oregon and closed a valve on a pipeline operated by Spectra Energy, now part of Enbridge. Originally facing 10 years in prison and a $25,000 fine, he was given a three-year deferred sentence and ordered to pay $3,755 in restitution. An 8th circuit federal appellate judge eloquently ruled:

“We must recognize that civil disobedience in various forms, used without violent acts against others, is engrained in our society and the moral correctness of political protestors’ views has on occasion served to change and better our society. Civil disobedience has been prevalent throughout this nation’s history extending from the Boston Tea Party and the signing of the Declaration of Independence, to the freeing of the slaves by operation of the underground railroad in the mid-1800’s … In these circumstances, the courts … recognizing that, although legally wrong, the offender may carry some moral justification for the disobedient acts.” U.S. v. Kabat, 797 F.2d 580, 601 (8th Cir. 1986) (Bright, J., dissenting).

Ken Ward’s case set a Washington State precedent recognizing the necessity defense for direct action for the sake of preventing catastrophic climate change. Ward shut off the Trans Mountain pipeline’s safety valve at a Kinder Morgan pipeline facility near Anacortes, Washington. Ward’s conviction for burglary was reversed and he was granted a new trial when the previous trial judge was found to have violated his Sixth Amendment rights by refusing to allow him to present evidence of the necessity of his actions to a jury of his peers.

Along with the Michigan shut-down order, Enbridge faces dwindling public support. In 2010, their oil spill on the Kalamazoo River was the largest inland oil spill in U.S. history, sending more than 843,000 gallons of crude oil spewing into Talmadge Creek and nearly 40 miles down the river. Clean up cost $1.2 billion and took four years.

In a 2018 Michigan poll, over 54% of voters said they want Line 5 in the Straits of Mackinac to be shut down, while 87% said they are concerned that the 67-year-old pipeline could spill there, with 64% “very concerned.”

Despite national efforts by Enbridge and other oil corporations to introduce bills into state houses to make protesting an oil pipeline a felony, Michigan’s versions have died in session.

And on April 23, 16 states and the District of Columbia submitted an amicus brief supporting Michigan’s right as a State to shut down Line 5, arguing that federal courts don’t have the jurisdiction to rule on disputes over state property rights even if the pipeline alleged to be in violation of those property rights is federally regulated.

Along with that, the Straits are located in ceded territory, created by the 1836 Treaty. The 12 Federally recognized tribal governments of Michigan have long been concerned about Line 5, with four adding their support to the governor’s order as part of a friend of the court brief dated March 30, 2021.

In Wisconsin, the Bad River Bad of Lake Superior Chippewa is suing Enbridge to remove the part of Line 5 that runs through their reservation. Also part of the ceded territory, the Tribe has the full support of the Chippewa Federation, the Six Bands of the Anishinaabeg Territory Watersheds and Waters of Western Lake Superior.

At the 2021 Wisconsin Conservation Congress, 49% responded yes to “support opposition to construction of a new Enbridge Line 5 crude oil pipeline,” with only 34% opposed.

On May 12-13, the public will be gathering at the base of the Mackinac Bridge in support of Governor Whitmer’s order. If Enbridge refuses to shut it down, some speculate that concerned citizens could follow in the footsteps of other valve turners who have successfully defended the planet against climate change and oil corporations. Unlike the valve turners of 2016, these water protectors have the Michigan Governor’s shut-down ruling, 16 other states, the tribal governments of the Anishinaabe, and public sentiment also supporting the shut down, and even less time to take bold action to protect humanity from climate chaos.