Michigan Landowners Quietly Rack Up Court Victories in Pipeline Fight With Enbridge

The fierce resistance and legal delays Enbridge is encountering over Line 6B are extraordinary, says expert. But landowners still face an uphill battle.

Trees on Debbie Hense's land cut down by Enbridge.
Enbridge Inc. cut down these trees on Debbie Hense's land during construction of the 6B pipeline. The mother of three from Fenton, Mich. ended up forcing Enbridge to shut down work on her property, however, and then sat in a folding chair to make sure the company didn’t resume, turning her into a local celebrity. Photo courtesy of the Hense family.

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Ken Weathers doesn’t see himself in the role of David versus the giant Enbridge Inc.

Yet he is.

The 66-year-old Detroit Edison retiree is among a handful of Michigan residents who have won court victories in the last few weeks against Canada’s biggest pipeline company over attempts to condemn their land for an oil pipeline, called Line 6B. 

Enbridge is beginning to replace the aging pipeline and has filed condemnation cases against nearly 80 landowners along the pipe’s first 50 miles. The legal action is a last resort for Enbridge and follows months of often contentious and unsuccessful negotiations with landowners to reach an agreement for the land.

The company also is the target of a pair lawsuits by groups determined to shut down the entire 210-mile 6B replacement project.

The fierce resistance and legal delays Enbridge is encountering over Line 6B are extraordinary, said Carl Weimer, executive director of the Pipeline Safety Trust, a nonprofit watchdog organization based in Bellingham, Wash.

“Historically pipeline companies have had a much easier time getting what they wanted,” he said.

Weimer attributes the unprecedented opposition to landowners becoming more savvy and more aware of the potential consequences in the wake of the 2010 spill on Line 6B, one of the biggest oil disasters in U.S. history.

“People are starting to say, ‘Wait a minute what does this mean?'” Weimer said. “They are reading the fine print more closely. They are more attuned to what it means to have a pipeline in their backyard.”

Line 6B, which was opened in 1969, ruptured in July 2010 near the town of Marshall, Mich. and gushed more than 1 million gallons of diluted bitumen, or dilbit, into the Kalamazoo River. The spilled resulted in a two-year long closure of a 34-mile stretch of the river; a $809 million cleanup bill; and a $3.7 million fine.

The $1.3 billion replacement project, which was expected to go online in September 2013, will nearly double the capacity of Line 6B that begins in Griffith, Ind., crosses northwestern Indiana, bisects southern Michigan and ends in Ontario, Canada.

Enbridge officials did not provide a representative to respond to specific questions, but instead issued a general statement via email.

“We do not take this legal route lightly, but believe it is in the public interest to expediently move forward with improving our existing Line 6B,” according to an excerpt of the statement from company spokeswoman Terri Larson.

Larson said Enbridge has reached agreements with most property owners without the need for litigation, though she did not provide those specific numbers.

Landowner Challenges About Getting Answers

With the landowner awakening, Enbridge has encountered resistance from people like Weathers and Debbie Hense, who became a local celebrity after she plunked down a folding chair on her property to stop Enbridge from cutting down a swath of her trees in the path of Line 6B before it had legal permission.

Kim Savage, one of the attorneys representing Weathers and more than a dozen other landowners, said people understand the need for a new pipeline but object to the unsympathetic way Enbridge has gone about dealing with them and the evasive answers the company has given to questions.

“Enbridge simply needs to be more honest and forthcoming,” she said.

The legal challenges are about getting answers and holding Enbridge to ethical standards, Savage said.

Landowners want to know what Enbridge will send though Line 6B, they want to know if the old pipeline will be reopened and they want to know how the new pipeline will be safer.

Unanswered questions weigh on Ken Weathers, the retired Ortonville resident who became the first landowner to beat Enbridge in court on Sept. 19.

He’s afraid that he might lose his house under a provision of Michigan law that gives lenders the right to demand a mortgage be immediately paid in full if changes are made to the property that lessen its value.

A second pipeline, he fears, could trigger that clause. He doesn’t know the answer to that question and it worries him.

“They might just say this pipeline makes your house worthless and we want our money,” he said.

Although Weathers won, he said he understands Enbridge will probably get what it wants in the end. But if nothing else it was a moral victory for Weathers and others facing the loss of land they treasure.

“I sure hope now Enbridge has a better understanding of the personal anxiety they have been causing people,” Weathers said. “It’s the principle of the thing.”

Weathers, who says he is pro-business—and without being asked said he doesn’t believe in global warming—has lived on the five acres in since 1988. It’s where he raised his family and where he dotes on a collection of restored cars.

Weathers and the two other landowners won courtroom victories on a very subtle point about what can and cannot be transported in Line 6B. It will likely represent only a temporary setback for Enbridge.

The new Enbridge Line 6B will carry dilbit—heavy Canadian tar sands oil diluted with some toxic chemicals. Concerns have been raised that dilbit is more corrosive than conventional oil and consequently erodes pipes. A seven-month investigation by InsideClimate News into the Marshall spill also revealed that dilbit made traditional oil cleanup methods almost useless.

When Enbridge successfully applied to the Michigan Public Service Commission to install and operate the new Line 6B, the company said the pipeline would be used to transport crude oil and petroleum. However, in its letter to Weathers and others along the pipeline’s route, Enbridge said it needed the property to build and operate a pipeline “for the transportation of crude petroleum, and any product, by-product and derivatives thereof, whether liquid or gaseous, or any material or substance that could be conveyed through a pipeline.”

The subtlety is that the commission didn’t approve an application for Enbridge to ship anything beyond crude oil and petroleum products, despite letters to landowners claiming Line 6B could be used for any and all substances.

Lawyers seized on that fine point, and the judges agreed. 

Oakland County Judge James M. Alexander wrote in his opinion dismissing the condemnation case against Weathers that by including the broad phrase, “[Enbridge] seeks to impermissibly expand the right granted by the MPSC– which limited [Enbridge’s] approval to operation of a crude oil and petroleum pipeline.” Enbridge declined to comment on what other materials the pipeline might carry.

Two other condemnation cases subsequently were tossed out by another Oakland County judge who also ruled Enbridge exceeded the parameters set by the public service commission.

But the satisfaction opponents found in the Oakland County rulings has been tempered in nearby Livingston County where a judge heard the same arguments but sided with Enbridge.

Enbridge successfully convinced a judge that its condemnation cases against 27 landowners should go forward by simply removing the problematic language.

Legal appeals are expected, according to Charles Ten Brink, a law professor at Michigan State University specializing in zoning and planning issues. “This is a knot that has to be undone,” he said.

Landowner attorney Savage said she is considering whether to appeal in light of the conflicting ruling from neighboring judges; Enbridge could appeal the cases it lost.

Ten Brink said that Enbridge faces a difficult choice.

The company can either rewrite its offer to the landowners to mirror the language approved by the public service commission, or it can seek a new hearing before the commission to broaden the language. It may also force the company to rethink its pending application with the public service commission for the larger, second phase of the replacement project, which is expected to go before the commission early next year.

Those decisions will forever define the new Line 6B, Ten Brink said.

“If they choose to restrict the language to crude oil and petroleum, then that is what the pipeline is good for in perpetuity,” he said. “But if, as they seem to suggest in the language used in the good faith offers, they want the option of doing more with the pipeline in the future then they will have to change the language and get it approved.”

Landowners Still Face a High Hurdle in Court

Once Enbridge settles on a strategy, landowners will still face an uphill battle fighting condemnation in court, said Benjamin Caldwell, an attorney at the Boston-based law firm of Burns & Levinson whose practice includes eminent domain cases.

It’s an especially high hurdle because the Michigan Public Services Commission, the final authority on land matters involving pipeline construction, has given Enbridge approval, saying the there is a public necessity for the pipeline to go across private property, he said.

To win, property owners have to successfully challenge the necessity of Enbridge taking their land, essentially convincing a judge Enbridge doesn’t need the property, Caldwell said.

“At the end of the day it’s a big barrier to get over to say there isn’t a public necessity for a pipeline that supports the economy of the state, region or the country,” he said.

Debbie Hense knows that, but she wishes Enbridge would be more respectful of not only the trees she loves but of every landowner who faces the uninvited demolition and construction.

Hense is the mother of three from Fenton who forced Enbridge to shut down work on her property and then sat in a folding chair to make sure the company didn’t resume.

She, too, is one of those people who has had her day in court.

A judge issued a restating order preventing Enbridge from working on her property. And at a subsequent hearing last week denied Enbridge’s request to proceed with work until after a Nov. 16  hearing to allow Hense to bring in an expert witness to testify on her behalf that the trees she loves so much are worth more than lumber or fire wood.

“They are so use to being able to do whatever they want they don’t bother with the law,” Hense said. “They are being told they are not above the law and must follow the law.”

Two More Lawsuits Seek to Halt Pipeline Completely

That’s also the message two groups of landowners hope to drive home in separate lawsuits filed against Enbridge.

One of the groups wants a court to order a halt to project and direct the public service commission to reopen hearings on the project. They argue landowners along the pipeline’s route were not give enough information about Enbridge’s intentions and consequently did not know enough to officially protest the project before commission approval.

In the meantime the non-profit organization Protect Our Land and Rights (POLAR) that was formed to fight Enbridge, has filed a lawsuit, claiming Enbridge started construction without first obtaining all of the necessary permits from the Michigan Department of Environmental Quality and  has not has obtained the consents from local government.

In responding to that lawsuit, Enbridge continues to maintain the state’s public service commission approval gives them wide latitude to proceed, and that pipelines are subject to federal oversight and not to state or local review.