TRAVERSE CITY — On Jan. 23, Traverse City-based Flow Water Advocates filed its reply to the arguments raised by Enbridge Limited Energy LLC, the Michigan Public Service Commission and other respondents in Flow’s Michigan Supreme Court case challenging the Michigan Public Service Commission’s issuance of a permit to Canadian energy company Enbridge for its proposed Line 5 pipeline tunnel under the Straits of Mackinac.

Flow Water Advocates is a 501(c)(3) nonprofit organization, and describes their mission as “to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all.”

The nonprofit joined Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, Nottawaseppi Huron Band of the Potawatomi, Environmental Law and Policy Center and Michigan Climate Action Network in submitting an application for leave to appeal the Michigan Public Service Commissions’ Line 5 Tunnel permit. Their application was granted by the Michigan Supreme Court on Sept. 19.

According to a Jan. 26 press release by Flow Water Advocates, “The court specifically directed the parties [Flow, Bay Mills Indian Community, etc.] to address whether the Michigan Public Service Commission is required to comply with the common law public trust doctrine in its permitting decisions.”

The legal brief, which was received by the Michigan Supreme Court on Jan. 23, states that “At each end of the tunnel, construction will transform the banks into industrial sites, with attendant air, light, and sound pollution (and noise exceeding human health standards), impairing the waters and aquatic resources and threatening the public’s ability to access and use the waters for fishing, hunting and boating as humans have done since time immemorial.

“In authorizing the project, the Commission disregarded the long-established legal framework for making decisions affecting the rights of the public in Michigan’s cherished public trust resources. As this Court announced over sixty years ago, in furtherance of a common law doctrine tracing back to Roman law, Great Lakes bottomlands cannot be devoted to private use unless the Department of Environment, Great Lakes and Energy determines that the devotion will not impair the public trust under the standards established by the Great Lakes Submerged Lands Act.”

“Under that standard, bottomlands cannot be devoted to private or public use unless the Department of Environment, Great Lakes and Energy first determines that the adverse effects to the environment and the public trust will be “minimal” and “mitigated to the extent possible” and that no feasible and prudent alternative to the proposed conduct exists.”

The brief was made in response to initial arguments made by Enbridge, which argues in a brief received by the Michigan Supreme Court on Dec. 22 that the tunnel would “[serve] the public interest by providing the best protection to the environmental resources at the Straits.”

The Office of the Michigan Attorney General and the Great Lakes Business Network have filed amicus briefs in support of Flow Water Advocates. Enbridge has received support in the form of an amicus brief from International Transmission Company, Michigan Electric Transmission Company, LLC and Consumers Energy Company, as well as the Michigan Chamber of Commerce and the Small Business Association of Michigan.

The Michigan Supreme Court is set to hear oral arguments in March.

Annie Lippert can be reached at 906-228-2500, ext.. Her email address is alippert@miningjournal.net.