Canada invokes 1977 treaty with US as dispute over pipeline intensifies
Michigan governor Gretchen Whitmer says Line 5 of pipeline is a ‘ticking time bomb’ and has ordered it shut down
Leyland Cecco in TorontoWed 6 Oct 2021 10.56 EDT
The Canadian government has invoked a decades-old treaty with the United States in its latest bid to save a pipeline that critics warn could be environmentally catastrophic if it were to fail.
For nearly 67 years, Calgary-based Enbridge has moved oil and natural gas from western Canada through Michigan and the Great Lakes to refineries in the province of Ontario.
But Michigan’s governor, Gretchen Whitmer, says that one section of the company’s pipeline – Line 5, which crosses the Great Lakes beneath the environmentally sensitive Straits of Mackinac – is a “ticking time bomb” and has ordered it shut down.
Court-ordered mediation talks between Enbridge and the government of Michigan have broken down, and as tensions mount, Canada this week invoked a 1977 treaty obliging both countries to allow oil to flow uninterrupted.
By invoking the treaty – which would bring the dispute to binding arbitration – Canada has shown a rare frustration with president Joe Biden’s administration and its refusal to wade into the feud.
“While Biden may want to duck the issue to please [Whitmer] and keep the environmentalists in the Democratic caucus on side, the fact is that the treaty guarantees uninterrupted pipeline transit, except in exceptionally grave emergencies,” said Lawrence Herman, an international trade lawyer and senior fellow at the CD Howe Institute. “And even in those emergency cases, any interruption is only allowed for temporary periods.”
Line 5 delivers nearly half the oil needs of both Ontario and Quebec, as well as propane for the state of Michigan, and the treaty was initially pushed by the US to ensure oil could flow from Alaska, through Canada. Senators made the point that it ensured Canadian provinces couldn’t interfere with the movement of oil.
“Now the situation is reversed and the Americans aren’t respecting legal obligations they steadfastly endorsed at the time.”
Canada’s foreign minister, Marc Garneau, said in a statement his department had raised the pipeline’s significance “at the highest levels” of the US federal government.
“We have also stressed the importance of fully respecting and implementing the international agreements that are in place between our two countries,” he wrote.
On Monday, a statement from Whitmer’s office called Ottawa’s move “profoundly disappointing”– but said she was “confident” that the state’s legal efforts will be successful, criticizing Justin Trudeau for siding with energy companies as his government looks to tackle climate change.
A recent oil spill in California, however, has renewed scrutiny on energy infrastructure projects and the devastating cost to ecosystems when they fail.
Enbridge says it has never experienced a leak in the underwater section of Line 5. But in the last two years, the pipeline has been struck by boat anchors and cables. And in 2010, a separate Enbridge pipeline spilled 3.2m litres of oil into Michigan’s Kalamazoo River. The company is working to tunnel beneath the lake bed to further improve the safety of the pipeline – at a cost of C$500m ($395m).