Background
Enbridge Energy Limited Partnership sought approval from the Michigan Public Service Commission to replace the portion of its Line 5 pipeline crossing the Straits of Mackinac. The proposed project would decommission the existing dual pipelines and place a new 30-inch pipeline inside a concrete-lined tunnel beneath the lakebed.
Several Indian Tribes and environmental organizations opposed the project, arguing that the Commission’s review under the Michigan environmental protection act, or MEPA, was too narrow. The Commission approved the project after limiting much of its analysis to the replacement segment and tunnel, and the Michigan Court of Appeals affirmed under a deferential standard of review.
The Court’s Holding
The Michigan Supreme Court held that courts must review an agency’s application of MEPA de novo. It further held that MEPA requires consideration of environmental harms factually and proximately caused by the proposed conduct, a fair comparison between the environmental effects of that conduct and its alternatives, and separate consideration of potential harm to public-trust resources.
The Court concluded that the Commission failed to determine whether the tunnel project would factually and proximately extend Line 5’s operational life and thereby cause additional environmental harm. It also held that the Commission used inconsistent scopes when comparing the project with alternatives and failed to assess effects on public-trust resources, including the protected uses of the Great Lakes and their submerged lands. The Court reversed the Court of Appeals, vacated the Commission’s approval order, and remanded for further proceedings.
Justice Brian K. Zahra concurred only in remanding for express findings concerning the public trust. He dissented from the majority’s conclusions concerning de novo review, the scope of environmental effects attributable to the replacement project, and the alternatives analysis.
Key Takeaways
- An agency’s application of MEPA receives de novo judicial review, even when the matter began as an administrative proceeding.
- MEPA reaches environmental harms that are both factually and proximately caused by the proposed conduct; speculation or mere possibility is insufficient.
- An agency must compare the environmental impacts of a proposal and its alternatives on a consistent basis and must separately evaluate harm to public-trust resources.
Why It Matters
The decision requires the Commission to conduct a broader and more internally consistent environmental review before the Line 5 tunnel project may proceed under its vacated approval. On remand, the Commission must determine whether the project is likely to prolong Line 5’s operation and cause attendant environmental harms, then use that determination as the benchmark for evaluating alternatives.
More broadly, the ruling establishes nondeferential judicial review of agency MEPA determinations and confirms that Michigan agencies must account for the public’s protected interests in Great Lakes waters and submerged lands when approving conduct that may affect those resources.