US Army Corps approves a pipeline project it knows harms Indigenous lands

The U.S. Army Corps of Engineers has provided a permit for a plan to modify a segment of the Line 5 pipeline, which traverses the ecologically sensitive Straits of Mackinac in Michigan. This development is a strategic victory for Enbridge Energy, the company that owns the pipeline, but it also comes amid ongoing legal and regulatory challenges at the state level which currently prohibit commencement of construction.

The pipeline carries crude oil and natural gas liquids for a distance of 645 miles from Superior, Wisconsin to Sarnia, Ontario. Enbridge proposes to replace a 4-mile portion of the pipeline that lies on the lakebed with a new, underground tunnel. The Army Corps stated that the project aligns with the public interest, adheres to Clean Water Act regulations, and does not violate or impermissibly impair tribal treaty rights.

The decision was expedited under a 2020 executive order that declared a "national energy emergency." Tribal nations, however, view the approval as disrespectful and dismissive of their concerns. Austin Lowes, the chairman of the Sault Ste. Marie Tribe of Chippewa Indians, expressed deep disappointment, saying that the Army Corps ignored the potential impacts on their communities.

The Army Corps warned of possible negative impacts on wetlands, vegetation, land use, and cultural resources despite the tunnel project's benefits. Tribal nations hold treaty rights to fish and hunt in the waters surrounding the Straits of Mackinac, rights that were acknowledged and protected when Michigan became a state. The Army Corps' assessment concentrated on construction impacts, not the risks of oil spills or future greenhouse gas emissions, which fall under the purview of the Pipeline and Hazardous Materials Safety Administration.

Seven Michigan tribes have withdrawn from discussions with the Army Corps over the permit, alleging that the review process overlooked their input and treaty rights. The Army Corps' flawed review could have broader implications for all tribal nations, according to David Gover, a managing attorney at the Native American Rights Fund.

Enbridge spokesperson Ryan Duffy hailed the permit approval as a "significant step forward" for the project, emphasizing their commitment to safeguarding the Great Lakes, natural resources, and local communities. However, without securing all necessary state permits, Enbridge cannot initiate tunnel construction. The Michigan Department of Environment, Great Lakes, and Energy is still deliberating a wastewater discharge permit with a decision expected before the end of September.

In a separate matter, a nearly unanimous Michigan Supreme Court has sent an approved state permit back to regulators for a more comprehensive review, questioning the public service commission's consideration of the full range of environmental impacts. Even with a federal permit, the pipeline could face legal challenges, including those brought by Michigan Governor Gretchen Whitmer's administration and ongoing litigation from various environmental groups.