Oil & Water: What Could Go Wrong?

Blaise Ryan

WMU Cooley Law School

1
 Table of Contents

I. Introduction……………………………………………………………………………………3

II. History…………………………………………………………………………………………4

III. Previous Pipeline Spills……………………………………………………………………...5

IV. What’s Wrong with Line 5?...................................................................................................8

V. Impact on Michigan…………………………………………………………………………10

A. Environmental Impact……………………………………………………………10

B. Economic Impact…….………………….………………………………………….12

VI. Legal Issues and Analyses………………………………………………………………….14

VII. Moving Forward…………………………………………………………………………..16

VIII. Conclusion………………………………………………………………………………...18

2
I. Introduction

Michigan is an environmental masterpiece. Commonly known as the “Great Lakes

State,” Michigan is shaped like a mitten because it is surrounded by 32,000 feet of freshwater

coastline. In fact, the Great Lakes effect Michigan’s economy, tourism, and recreation on a

tremendous scale.

The Straits of Mackinac are a series of waterways that flow between Michigan’s Upper

and Lower Peninsulas. This area is home to some of Michigan’s iconic landmarks, such as the

Mackinac Bridge, Mackinac Island, and the area where Lake Michigan and Lake Huron connect.

However, there is a surprising threat to Michigan laying at the bottom of the Straits.

Every day nearly 23 million gallons of oil are pumped along the bottom of the Straits of

Mackinac. A Canadian company sends the oil through two 65-year-old pipelines: the Enbridge

Line 5 Pipelines. The pipeline has leaked oil before, and activists from both political parties have

advocated for shutting down Line 5 or finding a suitable alternative. This unity comes from the

connection that all Michiganders have with the Great Lakes, and the potential environmental and

economic impact that an oil spill could bring. That presents a pressing question: how could

Michigan shut down Line 5 and keep oil out of the Straits of Mackinac?

Initially, this article will discuss an overview of Enbridge Line 5. Next, this article will

discuss the safety issues involving Enbridge Line 5. The article will then discuss the potential

environmental and economic impact that a spill from Enbridge Line 5 could have. Additionally,

this article will discuss the legal issues involving Enbridge Line 5. Finally, this article will

conclude by talking about the changes that a newly elected administration could bring.

3
II. History

Enbridge is North America’s largest infrastructure company.1 Enbridge is involved in

wind, solar, and geothermal energy.2 However, this article will focus on Enbridge’s pipeline

infrastructure, specifically Line 5. Enbridge operates the world’s longest and most sophisticated

series of oil pipelines.3 This pipeline system is so large that it extends across North America and

the Gulf of Mexico.4 In fact, they operate 17,018 miles of active crude oil pipeline, and they

transport approximately 28 percent of the crude oil produced in North America.5 Many people

believe that Enbridge is “too big to fail,” and that none of its pipelines can be shut down.

There are many Enbridge pipelines that run through Michigan. Enbridge runs pipelines

through Michigan’s upper peninsula and all the way through and across southern Michigan.6 The

Pipeline that runs through Michigan’s upper peninsula, Line 5, runs from Superior, Wisconsin, to

eastern Canada.7 Line 5 was put in place in 1953, and it has outlived its original operating

expectancy.8

The upper peninsula is a short cut for Enbridge, so that they don’t have to build a pipeline

all the way around Michigan and the Great Lakes. And they can connect with other refineries

1
ENBRIDGE, INC., Who We Are, https://www.enbridge.com/about-us/our-company (last visited Nov. 30, 2018).
2
Id.
3
Id.
4
Id.
5
Id.
6
ENBRIDGE, INC., Infrastructure Map, https://www.enbridge.com/map#map:infrastructure (last visited Nov. 30,
2018) (visual representation of Enbridge’s infrastructure in North America).
7
Id.
8
ENBRIDGE, INC., About Line 5, http://www.enbridge.com/projects-and-infrastructure/public-awareness/line-5-
michigan/about-line-5 (last visited Nov. 30, 2018).

4
and flow different types of oil to the eastern and western parts of Canada and the United States

more efficiently.

Michigan’s peninsulas and Canada are all separated by the Great Lakes. This means that

the only way for Line 5 to get to its destination is to cross the Great Lakes. Line 5 splits into two

twin pipelines, and it makes its connection from upper to lower peninsula through the Straits of

Mackinac.9 The Straits of Mackinac is the waterway that connects Lake Huron and Lake

Michigan.10 Other than a place for thriving tourism and a thriving ecological habitat, it is the

closest point for the two peninsulas.11 And logically the Mackinac Bridge was built there because

it is the shortest place to cross. This was also the reasonable logic for placing Line 5 in the

Straits. Enbridge could already use the well-established highways to get there and cross at the

shortest point. Line 5 makes absolute sense for Enbridge, and replacing it or rerouting the

pipeline would result in a major economic overhaul.

III. Previous Pipeline Spills

Enbridge is no stranger to pipeline spills, and they are responsible for the biggest and

most expensive inland oil spill in United States history. Their previous pipeline mishaps have

activists extremely worried about more oil spills in the future. In fact, Enbridge has had to testify

in front of Congress because of their low safety record and mismanagement of pipeline safety.12

Enbridge does record spills, but their records only date back to 1988.13 And since 1988, Enbridge

has recorded approximately 15 spills from Line 5 that have leaked a whopping 260,000 gallons

into the environment.14

9
Id.
10
GREAT LAKES ENVTL. RESEARCH LAB., PREDICTING CURRENTS IN THE STRAITS OF MACKINAC 1-2 (2018).
11
Id.
12
OIL & WATER DON’T MIX, Enbridge Safety Record, https://www.oilandwaterdontmix.org/enbridge_safety_record
(last visited Nov. 20, 2018).
13
Id.
14
Id.

5
 The largest and most expensive spill that Enbridge was responsible for happened right

here in Michigan. In July of 2010, Line 6B ruptured in the Kalamazoo River, and Enbridge

displayed poor management of the initial spill.15 The spill was caused by a six-foot crack in Line

6B.16 What is even more alarming is that Enbridge was alerted that there might have been a

possible leak.17 Pipelines are monitored by pressure, and low pressure can indicate a break in the

line because it is not flowing as hard. Enbridge was aware that Line 6B had low pressure, but

they mishandled the situation. Enbridge thought the low pressure was simply due to an air

bubble.18 But the pressure was actually low from a six-foot crack in the line.19 To combat the low

pressure, Enbridge employees pumped more oil through the pipeline.20 The whole time they

were just pumping more oil through the break in the line, and they were completely unaware. 21

The leak lasted for approximately 17 hours until a local company notified Enbridge of the

break.22

The Line 6B break allowed more than 840,000 gallons of oil to seep into the Kalamazoo

River, which damaged over 40 miles of shoreline.23 And the spill cost approximately 1.3 billion

dollars to clean up.24 This spill outraged many and called for investigations into Enbridge, which

triggered activists to try and get Enbridge out of the Straits of Mackinac. And although Line 5

and Line 6B are distinguishable in many ways, they are also similar in many ways.

15
Paul Leahy, The End of the Line: Shutting Down Line 5, Still a Pipedream?, 29 GEO. ENVTL. L. REV. 799, 806
(2017).
16
Id. at 807.
17
Id. at 806.
18
Id. at 807.
19
Id.
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.

6
 Enbridge is responsible for even more colossal spills that could be used as examples. For

instance, in March 1991, Line 3 ruptured near Grand Rapids, Minnesota, and spilled more than

1.7 million gallons of oil.25 These spills show that not just an oil spill is possible, but that a

catastrophic oil spill is possible. As mentioned before, Line 5 has leaked approximately 15

recorded times.26 The following chart illustrates the areas and amounts effected by the leaks.

YEAR CITY, STATE GALLONS*

1988 Mackinac, MI 1,680

1990 Mackinac, MI 630

1992 Superior, WI 294

1993 Lapeer, MI 210

1993 Gogebic, MI 4,200

1994 St. Clair, MI 42

1999 Crystal Falls, MI 222,600

2002 Superior, WI 420

2003 Bay City, MI 21,000

2004 Superior, WI 1,680

2005 Bay City, MI 4,200

2006 Sterling, MI 42

2006 Marysville, MI 840

2010 Lapeer, MI 42

2012 Sterling, MI 840

25
David Shaffer, Enbridge Files to Replace Problem Pipeline in Minn., STAR TRIBUNE, (Oct. 28, 2014),
http://www.startribune.com/enbridge-files-to-replace-problem-pipeline-in-minnesota/280528652/.
26
OIL & WATER DON’T MIX, supra note 12.

7
27

This chart is unsettling to many as it shows the real risks involved with Line 5. At the top

of the list it is shown that Line 5 has already leaked near the Straits of Mackinac in the past. And

towards the middle it is shown that Line 5 leaked a disturbing 222,600 gallons of oil in Crystal

Falls, Michigan.

IV. What’s Wrong with Line 5?

There are many arguments from both sides about Line 5. One side says that it is safely

engineered, and it is doing its job better than expected. And the other side says the complete

opposite: that Line 5 is about to burst in the Straits at any minute. Therefore, it is appropriate to

find the real facts.

One main argument is that Line 5 is old. This is true, and it was actually put in place back

in 1953.28 A lot has changed since then, including regulations, geography, and technology.

Line 5 was meant to sit on the lakebed of the straits.29 But the strong current in that area

has caused a lot of geographical changes.30 Because the Straits are so unique, as two Great Lakes

are connecting, the current is strong.31 In fact, the current can be as strong as the current in the

Detroit River, and it can flow both ways.32 The strong current continuously sweeps up the lake

bed and has swept the bed out from underneath Line 5.33 Originally, Enbridge combatted the

geographical changes by putting bags of grout underneath Line 5 for support.34 But as more and

27
Id. (barrels were converted to gallons from original chart).
28
ENBRIDGE, INC., supra note 8.
29
Letter from For the Love of Water, to Heidi Grether, Dir., Mich. Dep’t of Env’t Quality (May 11, 2018) (on file
with For the Love of Water).
30
Press Release, Univ. of Mich., Straits of Mackinac ‘Worst Possible Place’ for a Great Lakes Oil Spill, U-M
Researcher Concludes (July 10, 2014) (on file with author).
31
Id.
32
Id.
33
See Letter from For the Love of Water to Heidi Grether, supra note 29.
34
Id.

8
more of the lakebed has been washed out from underneath Line 5, Enbridge has begun installing

anchors to support the pipeline where it has been washed out.35 Not only does the current move

the geography of the straits, but it causes a lot of wear and tear to Line 5.36 The strong current

that continuously rushes in multiple directions will do damage and continuously bend and move

the old pipeline.37 Every time an area is washed out, or the current moves line 5, the danger that

the pipeline could break gets higher. It is important to keep Line 5 as stationary as possible to

prevent a rupture.

Enbridge maintains that although Line 5 was built 65 years ago, the builders knew the

significance of the Straits area, and engineered the pipeline well above any standard.38 The

pipeline meets the thickness standards put in place today, and Enbridge engineers claim that it is

running fine.39 But it is undisputed that Line 5 has significant surface cracks.40 Line 5 is 0.812

inches thick, and it has known cracks as deep as 0.3 and 0.333 inches, these cracks are

significant because 0.333 inches is 41 percent of the total thickness.41 Yes, that is correct, Line 5

is cracked almost half way through. And Line 5 has significant metal loss in areas, due to the

everyday wear and tear. An Enbridge test determined that the wear and tear had caused the

pipeline to lose up to 41 percent of its original thickness.42 These numbers are outstanding, but

Enbridge maintains that Line 5 is structurally sound.

35
Id.
36
See Press Release, Univ. of Mich., supra note 30.
37
Id.
38
ENBRIDGE ENERGY, P’SHIP, OPERATION RELIABILITY PLAN LINE 5 AND LINE 5 STRAITS OF MACKINAC CROSSING,
3 (2014),
https://www.enbridge.com/~/media/Enb/Documents/Public%20Awareness/Enbridge_Line_5_Operational_Reliabilit
y_Plan.pdf.
39
Id.
40
Leahy, supra note 15 at 810 (a table comparing Line 6B and Line 5).
41
Id.
42
ENBRIDGE, INC., LINE 5 INSPECTIONS 5-6 (2013),
https://www.enbridge.com/~/media/Enb/Documents/Public%20Awareness/Straits%20of%20Mackinac%20Integrity
%20Data%20printed%20version.pdf?la=en.

9
 Additionally, Enbridge is pumping more oil through line 5 than they ever have before.

And they plan on expanding and increasing oil flow as much as possible to meet oil demands.

Enbridge is investing in a 2.6 million dollar expansion project, the “Enbridge Eastern Access

Capacity Expansion,” to expand its infrastructure.43 This expansion will increase the oil flow

even more through Line 5.44 With that much money being put towards expansion projects,

Enbridge will likely put up any kind of fight that they can to ensure the life of Line 5.

Line 5 is in a heavily trafficked area. Freighters, fishermen, tourists, and ferries are often

using the Straits. Freighters have put three significant dents in Line 5 with anchors.45 The risk of

an anchor rupturing Line 5 was increased even more when one vessel’s anchor struck a utility

line located next to Line 5.46 The anchor broke open the utility line, and it leaked more than 600

gallons of petroleum-based dielectric fluid into the Straits.47 The dents have increased Line 5’s

brittleness and have increased the risk of a spill caused by human error.

These factors such as age, cracks, geographical changes, human error, and increased oil

flow all increase the risk that a break in Line 5 could happen.

V. Impact on Michigan

A. Environmental Impact

It truly would be a shame and a devastation to the environment if Line 5 were to rupture.

Researchers have concluded that “[i]f you were to pick the worst possible place for an oil spill in

the Great Lakes, this would be it.”48

43
Press Release, Enbridge, Inc., Enbridge Proceeding With $2.6 Billion of Additional E. Access Projects (May 16,
2016) (on file with author).
44
Id.
45
Lee DeVito, Snyder Calls for Legal Action after Vessel Anchor Damages Line 5, DETROIT METRO TIMES, (Apr.
11, 2018), https://www.metrotimes.com/news-hits/archives/2018/04/11/snyder-calls-for-legal-action-after-vessel-
anchor-damages-line-5.
46
Id.
47
Id.
48
See Press Release, Univ. of Mich., supra note 30.

10
 The University of Michigan Water Center performed a research study that was backed by

the National Wildlife Federation.49 The research compiled approximately 840 simulations of a

spill from Line 5 in the Straits of Mackinac.50 Because this is Michigan, the simulations had to

account for different seasons and weather potentials.51 The study concluded that “[m]ore than

700 miles of shoreline in lakes Huron and Michigan are potentially vulnerable,” if Line 5 were to

erupt in the Straits of Mackinac.52

Not only does the strong and unique current of the Straits cause pipeline damage, but the

strong current also would make an oil spill even worse.53 The intense current switches direction

and flows back and forth from Lake Huron to Lake Michigan.54 This would cause a pipeline spill

in the Straits to effect both sides of Michigan.55 The direct Straits area would be affected the

most, followed by the Lake Huron shoreline and then the Lake Michigan shoreline.56

Nevertheless, it would be a total environmental disaster for Michigan and the Great Lakes.

The oil would be nearly impossible to contain in its entirety, as the affected area is so

large. This would cause residual effects, and oil would continuously be washing up on the

Michigan and Canadian shorelines. Everywhere the oil would spread would have effects on the

environment. The fish and animals would suffer greatly along with plants that would be affected

by oil. And the water would be contaminated and unsafe for many to drink. The costs to clean a

serious oil spill in the Straits would be astronomical and not completely effective.

B. Economic Impact

49
DAVID J. SCHWAB, STATISTICAL ANALYSIS OF MACKINAC LINE 5: WORST CASE SPILL SCENARIOS 1-2 (2016)
(discussing the simulation results of an oil spill in the Straits of Mackinac).
50
Id.
51
Id.
52
Id.
53
Id. at 19.
54
Id.
55
Id.
56
Id.

11
 Almost hand-in-hand with the environmental impact, the economic impact of an oil spill

in the Straits would be huge. The economic impact would surely cost Michigan a lot of money,

but it also has the potential to cost the United States even more money.

Michigan’s direct economic impact would be real estate, tourism, fishing, and municipal

water and natural resources.57 A Michigan State University report estimated the impact at

approximately $6.3 billion:58

• $4.8 billion in economic impact to the tourism economy,59

• $697.5 million in natural resource damage and restoration,60

• $61 million in economic impact to commercial fishing,61

• $233 million in economic impact to municipal water systems,62 and

• $485 million in economic impact to coastal property values,63

This breakdown emphasizes where the major impacts would be. Broken down further,

$4.8 billion in economic impact on the tourism economy would be terrible for Michigan. That

number would destroy Michigan’s budget and virtually eliminate smaller Michigan communities

that rely on tourism to survive. It would destroy jobs, families, and communities. Further, those

communities would not be able to sell their homes with the huge impact on property values, and

the citizens would not be able to afford to move and find opportunity elsewhere. To top it off,

these numbers show that these communities would not be able to drink their own water, or even

57
ROBERT B. RICHARDSON & NATHAN BRUGNONE, SPILL ECON.: ESTIMATES OF THE ECON. DAMAGES OF AN OIL
SPILL IN THE STRAITS OF MACKINAC IN MICHIGAN 1 (2018).
58
Id. at 2.
59
Id.
60
Id.
61
Id.
62
Id.
63
Id.

12
fish for sustenance. An oil spill with this economic impact would devastate Michigan, and it

would turn the northern part of Michigan into a dependent welfare state.

The economic effects could potentially be felt long past Michigan.64 The U.S. Coast

Guard would shut down the Soo Locks in Saulte Ste. Marie, Michigan, if contamination spread

to the St. Mary’s River.65 The Soo Locks allow for water vessels to travel from Lake Superior to

Lake Huron.66 Merchant Marine boats often use the Soo Locks to transport iron ore and other

materials to other parts of the United States and the world.67 These materials are essential in the

steel making industry.68

If the Soo Locks are shut down for two weeks, it would cost the United States

approximately $45 billion in gross domestic product.69 And a study by the Department of

Homeland Security shows that if the Soo Locks were shut down for 180 days, the United States

would lose roughly $1.1 trillion in gross domestic product.70 These numbers are only focused on

the steel industry and actually don’t even reflect other things that are transported across the Soo

Locks, such as agriculture, coal, or limestone.71

These studies are typically done on a worst-case scenario basis. Enbridge disputes these

numbers, and often estimates substantially lower costs such as clean-up costs of $450 million to

$1 billion, which can be expected from any company trying to appeal to the public.72

64
Michael Kransz, Economic Loss From Line 5 Oil Spill Could Reach $45 Billion, Study Says, MLIVE (Nov. 21,
2018), https://www.mlive.com/news/grand-rapids/index.ssf/2018/11/economic_loss_from_line_5_oil.html.
65
Id.
66
Id.
67
Id.
68
Id.
69
Id.
70
Id.
71
Id.
72
Id.

13
Nevertheless, that is a lot of money, and a spill would have a huge impact on Michigan’s

economy.

VI. Legal Issues and Analyses

The issue of whether the government is allowed to control the water was settled a long

time ago. States do not have the right to prevent citizens from using the navigable waters, and

they should essentially be treated as public highways.73 But the “shores of navigable waters, and

the soils under them, were not granted by the Constitution to the United States, but were reserved

to the states respectively.”74 In sum, the State is allowed to regulate a pipeline at the bottom of

the lakebed or on its shoreline. And the public trust doctrine, environmental law, and Michigan’s

Constitution allow for Michigan to regulate the lakebed of the Great Lakes.

Enbridge essentially has permission from the Michigan government to use Line 5. In

1953 Lakehead and Michigan came into an arrangement to for two easements along the lakebed

to accommodate Line 5.75 The easement specifies that the company “shall exercise the due care

of a reasonably prudent person for the safety and welfare of all persons and of all public and

private property, shall comply with all laws of the State of Michigan and Federal Government.”76

And it provides certain safety regulations such as the shut of valves, along the pipeline.77 One of

the most shocking terms of the lease is that it requires the leaseholder to have a one million

dollar insurance policy.78 As shown in the damages section of this article, one million dollars

will have little to no effect on any oil spill that could happen.

73
Pollard v. Hagan, 44 U.S. (3 How.) 212, 214 (1845).
74
Id. at 19.
75
STATE OF MICH. CONSERVATION COMM’N, STRAITS OF MACKINAC PIPELINE EASEMENT CONSERVATION COMM’N
OF THE STATE OF MICH. TO LAKEHEAD PIPELINE COMPANY, INC. (1953),
http://mediad.publicbroadcasting.net/p/michigan/files/201409/1953-04-
23_Lakehead_Pipe_Line_Company_Easement_through_the_Straits_of_Mackinac.pdf.
76
Id.
77
Id.
78
Id.

14
 There are a few important parts about this lease. First, it was signed over 60 years ago; it

is outdated, and it could be revised. Second, it states that it shall comply with all laws of the State

of Michigan and the Federal Government. This section, along with the precedent that allows the

State to regulate the lakebeds, provides a legal solution for Michigan: executive or legislative

action.

The main relief requested is for executive action to enforce the Great Lakes Submerged

Lands Act (the Act).79 The Governor is the State’s primary trustee of the Great Lakes public trust

waters and bottomlands.80 The trustee has to ensure that both private and public parties do not

harm the shared resource.81 The State has to provide “uninterrupted use for fishing, commerce,

navigation, recreation, and drinking water supplies for future generations.”82 Thus, the executive

powers have a duty as the trustee to weigh the risk and harm evaluation.

The Act requires users to apply for a permit if they want to use the Great Lakes

bottomlands.83 The State can give or withhold a permit if the State ensures that the proposed

private use of the lands and waters will not substantially affect the public use nor public trust

interests of the State.84

Because Line 5 was put in place before the Act was established, Line 5 was never given a

permit. And the State could require Enbridge to apply for a permit. Under the Act, the State

would have to analyze the pipeline and protect the public trust. If Line 5 was not in the interest of

the public trust, then the State could deny the permit.

79
Mich. Comp. Laws § 325 (1994).
80
Barton Bund, Line 5 Part Two: In Violation of Public Trust, YOUTUBE (Jul. 29, 2018),
https://www.youtube.com/watch?v=Esr2rCsl3hw.
80
Id.
81
Id.
82
Id.
83
Id.
84
Id.

15
VII. Moving Forward

Line 5 was a hot political issue in 2018. Polls showed that more than half of Michigan

voters wanted Line 5 shut down, and 87 percent of voters were concerned that Line 5 could spill

in the Straits.85 Democratic candidates ran on campaign promises of shutting down line 5. In fact,

Gretchen Whitmer and Dana Nessel, Michigan’s newly elected Governor and Attorney General,

vowed to shut down Line 5 on their first day in office.86 In contrast, former Attorney General and

Republican Gubernatorial Candidate, Bill Schuette, was seen as being friendly with Enbridge

and was more interested in finding a solution to allow Enbridge to safely replace Line 5.87

Governor Rick Snyder made a deal with Enbridge on his way out to allow the energy

company to build a tunnel through the Straits of Mackinac that would replace Line 5.88 The

tunnel would cost between $350 and $500 million dollars, and it would take approximately 10

years to build.89 Enbridge is supposed to be completely responsible for the costs, and the

Mackinac Bridge Authority is supposed to manage and oversee the tunnel.90

Some see this as a victory as it will eventually replace the existing Line 5. However, the

project will take years to build, and it does not completely eliminate the risk of a spill.

85
Drew YoungeDyke, New Poll: Michigan Voters Overwhelmingly Support Shutting Down Line 5, NAT’L WILDLIFE
FED’N, (May 24, 2018), https://nwf.org/Home/Latest-News/Press-Releases/2018/05-24-18-Michigan-Voters-Line-5.
86
Beth LeBlanc, Mackinac Tunnel Moves Despite Opposition From Whitmer, Nessel, DETROIT NEWS, (Nov. 10,
2018), https://www.detroitnews.com/story/news/local/michigan/2018/11/11/line-5-tunnel-proposal-turbulent-
waters/1942890002/.
87
Id.
88
Pat Devlin, Tunnel Under the Straits Best Way to Handle Line 5, DETROIT FREE PRESS, (Nov. 23, 2018),
https://www.freep.com/story/opinion/contributors/2018/11/23/line-5-tunnel-enbridge-mackinac-straits/2068475002/.
89
Id.
90
Id.

16
 In the 2018 Michigan elections, the democrat candidates were elected as the next

Governor and Attorney General.91 However, the Republicans kept control of the House and

Senate.92 It will be very interesting to see how the newly elected officials take action.

Now that Governor Snyder has taken action, the Democrats will be left with the option of

repealing that action or seeing it through. Either way, it will have tremendous effects on

Enbridge and Michigan. Reports show that approximately 60 percent of Michigan’s upper

peninsula and 45 percent of Michigan’s lower peninsula heat their homes with propane from

Line 5.93 Shutting down Line 5 may result in a propane shortage, but there are other alternatives

to providing fuel to Michigan’s Upper Peninsula.94 Inevitably the shutdown would cost Enbridge

a ton of money. It would seize oil flow through that line and render miles and miles of pipelines

useless.

On the contrary, the effects of rolling the dice on an aging oil pipeline could be huge. As

shown throughout this article, the risk of an oil spill is real, and the effects would be devastating.

Newly elected officials will have to weigh all the options.

VIII. Conclusion

In conclusion, this article aimed to point out the reasonable risks associated with

Enbridge Line 5. The pipeline’s major area of concern is where it crosses the Great Lakes in the

Straits of Mackinac. There are many safety flaws and risks involved with the existing pipeline. A

91
The Editors of The Wash. Post, Michigan Election Results, WASH. POST, (Nov. 8, 2018),
https://www.washingtonpost.com/election-results/michigan/?utm_term=.529a60c838d3.
92
Id.
93
Bud Sargent, Much of the Propane Used in the U.P Comes From Line 5, MINING J., (Apr. 28, 2018),
http://www.miningjournal.net/news/front-page-news/2018/04/propane-problem/.
94
FOR LOVE OF WATER, THE UPPER PENINSULA HAS VIABLE OPTIONS TO LINE 5 FOR ITS PROPANE SUPPLY AND
ECON. 1-2 (2015), http://flowforwater.org/wp-content/uploads/2016/04/Final-Line-5-Propane-Fact-Sheet-2017-02-
06.pdf.

17
spill could cause devastating environmental and economic impacts. Legal options are available

for the government to remove the pipeline. A newly elected administration will be closely

watched, as they ran on promises of shutting down Line 5 and keeping oil out of the Great Lakes.

18
 Dykema Gossett PLLC
Capitol View
201 Townsend Street, Suite 900
Lansing, MI 48933
Tel: (517) 374-9100
Fax: (517) 374-9191
www.dykema.com
MEMORANDUM

TO: Michigan Attorney General Dana Nessel

FROM: Gary P. Gordon

RE: Comments on Governor Whitmer’s January 1, 2019 Opinion Request Regarding

Public Act 359 of 2018 - Submitted on behalf of the Michigan Chamber of
Commerce

DATE: February 4, 2019

On January 1, 2019, Governor Whitmer sought an opinion from the Attorney General on
six questions relating to Public Act 359 of 2018 (“2018 PA 359” or “Act 359”), which provided
for the creation and operation of a utility tunnel in the Straits of Mackinac, as well as the creation
of the Mackinac Straits Corridor Authority (the “Corridor Authority”). Attorney General Nessel
responded that she would review the questions and also invited comments on the issues
presented by the Governor’s letter. The Michigan Chamber of Commerce (the “Chamber”)
respectfully submits for the Attorney General’s consideration these comments on the six
questions asked by the Governor.

Before addressing each of the six questions asked by the Governor, the Chamber first
wants to express its support of Act 359, along with the agreements that were entered into
between the Corridor Authority, the State of Michigan (“State”), and Enbridge to achieve a
replacement to the Line 5 Dual Pipelines’ crossing of the Straits of Mackinac (“Straits”). The
continued operation of Line 5 through the State of Michigan serves important public needs by
providing substantial volumes of propane to Michigan citizens, particularly during cold winters
like that which we all are now enduring. Line 5 also transports essential products, including
Michigan-produced oil to refineries, thereby supporting not only our State’s energy needs, but
also our businesses and economy.

The agreements entered into by the Corridor Authority, the State, and Enbridge recognize
the paramount public interest in the continued operation of the existing Line 5 Dual Pipelines
under new and expansive safety monitoring conditions provided in those agreements, while
fostering the replacement of the Dual Pipelines in a tunnel beneath the Straits as expeditiously as
possible. The construction of a utility tunnel connecting the upper and lower peninsulas of
Michigan, and the placement in that tunnel of a new replacement pipeline, is in the interest of the
State’s residents, as it substantially reduces any risk of adverse impacts from a potential oil spill
reaching the Straits. The agreements also establish a procedure, under the Corridor Authority’s
oversight, to ensure that a tunnel is constructed at Enbridge’s sole expense in a safe and reliable
manner, which can then be utilized by multiple utilities that provide communications and other
utility services to Michiganders. Further, once the tunnel is constructed and the replacement
pipeline is operational, the agreements require Enbridge to deactivate the Dual Pipelines, thereby
permanently removing them from use.

For the reasons set forth below, the Chamber submits that the Attorney General should
conclude that Act 359 is constitutional and that the Corridor Authority and its Board of Directors
may take actions to implement the statute consistent with their duties and powers under it. The
agreements between the Corridor Authority and Enbridge providing for the Authority to acquire
the tunnel that Enbridge will construct, and to operate that utility tunnel across the Straits in
furtherance of the public interest in the safe and continued transportation of energy products and
utility services, should not be undermined. Nor should the special safeguards to which Enbridge
has agreed with the State in connection with the operation of the existing Line 5 during the
period until the tunnel is constructed be sacrificed.

DISCUSSION

Several of the issues raised in the Governor’s letter relate to the constitutionality of Act
359. As the Attorney General is aware, under Michigan law, “[s]tatutes are presumed to be
constitutional, and courts have a duty to construe a statute as constitutional unless its
unconstitutionality is clearly apparent.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 6; 658
NW2d 127 (2003). Indeed, Michigan courts have held that:

Every reasonable presumption or intendment must be indulged in

favor of the validity of an act, and it is only when invalidity
appears so clearly as to leave no room for reasonable doubt that it
violates some provision of the Constitution that a court will refuse
to sustain its validity.

Cady v Detroit, 289 Mich 499, 505; 286 NW2d 805 (1939). Thus, 2018 PA 359 is presumed to
be constitutional, and this principle guides the following analysis addressing each of the
Governor’s questions.

I. Does Act 359 violate the Title-Object Clause (Const 1963, art 4, § 24) because it
embraces more than one object, the object embraced is not stated in the law’s title,
or because SB 1197 was altered or amended on its passage through the legislature so
as to change its original purpose?

No, the Legislature did not violate the Title-Object Clause of the Michigan Constitution
when it passed Act 359.

Article 4, § 24 of the Michigan Constitution provides:

2
 No law shall embrace more than one object, which shall be
expressed in its title. No bill shall be altered or amended on its
passage through either house so as to change its original purpose as
determined by its total content and not alone by its title. Const
1963, art 4, § 24.

A statute that is challenged as a violation of the Title-Object Clause is presumed to be

constitutional. Pohutski v Allen Park, 465 Mich 675, 690; 641 NW2d 219 (2002). Such a statute
will not be declared unconstitutional as a title-object violation “unless clearly so, or so beyond a
reasonable doubt.” Hildebrand v Revco Discount Drug Ctrs, 137 Mich App 1, 6; 357 NW2d 778
(1984) (quoting Rohan v Detroit Racing Ass’n, 314 Mich 326, 342; 22 NW2d 433 (1946)).

The Title-Object Clause is intended to “prevent the Legislature from passing laws not
fully understood, to ensure that both the legislators and the public have proper notice of
legislative content, and to prevent deceit and subterfuge.” Wayne Co Bd of Comm’rs v Wayne
Co Airport Auth, 253 Mich App 144, 184; 658 NW2d 804 (2002); Phinney v Perlmutter, 222
Mich App 513, 552; 564 NW2d 532 (1997); see also People v Bosca, 310 Mich App 1, 82; 871
NW2d 307, 356 (2015); Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 388; 803
NW2d 698 (2010). Through the Title-Object Clause, the “framers of the constitution meant to
put an end to legislation” the passage of which was “secured through legislative bodies whose
members were not generally aware of their intention and effect . . . which was little less than a
fraud upon the public.” People v Kevorkian, 447 Mich 436, 454-455; 527 NW2d 714 (1994)
(quoting People ex rel Drake v Mahaney, 13 Mich 481, 494-495 (1865)). Generally speaking,
the “goal of the clause is notice, not restriction of legislation.” Pohutski, 465 Mich at 691.
Because the purpose is to prevent members of the Legislature and the public from being
deceived by those who would slip an unknown and unrelated provision into a bill for passage—
but not to unnecessarily restrict or invalidate legislation that was passed with full transparency—
“[t]he constitutional requirement should be construed reasonably and [should] permit[] a bill
enacted into law to include all matters germane to its object, as well as all provisions that directly
relate to, carry out, and implement the principal object.” Gen Motors Corp, 290 Mich App at
388. This purpose underlying the Title-Object Clause should also inform and shape the contours
of any title-object analysis.

The Governor asked Attorney General Nessel to analyze each of the following three
potential challenges available under article 4, § 24: (1) a title-body challenge; (2) a multiple-
object challenge; and (3) a change of purpose challenge. See Kevorkian, 447 Mich at 453.1
Under each potential challenge, the answer is clear—the Legislature did not violate article 4,
§ 24 when it passed Act 359. Here, the legislators – both those in favor of Act 359 and those
opposed – were not misled into believing that Act 359 was anything other than an enactment

1
See also People v Cynar, 252 Mich App 82, 84; 651 NW2d 136 (2002) (holding that the Revised Judicature Act’s
title was broad enough to include the proscribed conduct); Wayne Co Bd, 253 Mich App at 185 (holding that
bonding provisions were appropriately placed in legislation related to operation and management of airports); HJ
Tucker & Assocs, Inc v Allied Chucker & Engineering Co, 234 Mich App 550, 556; 595 NW2d 176 (1999) (holding
that the Revised Judicature Act properly included provisions for attorney fees, court costs and treble damages); Ray
Twp v B&BS Gun Club, 226 Mich App 724, 728; 575 NW2d 63 (1997) (holding that inclusion of a provision related
to local ordinances in a statute regarding shooting ranges did not violate art 4, § 24).

3
designed to support the development of a utility tunnel under the Straits that would house
(among other utilities) a replacement Line 5. The broad and singular purpose of the statute to
promote the operation of a tunnel connecting the two Michigan peninsulas is clearly stated in its
title.

A. There is no title-body violation.

With respect to a title-body challenge, there is no violation. This challenge requires that
the “title of an act must express the general purpose or object of the act.” Wayne Co Bd, 253
Mich App at 185; Cynar, 252 Mich App at 84; HJ Tucker, 234 Mich App at 559. However, an
act’s title does not need to serve as an index to all of the provisions within the act. See Cynar,
252 Mich App at 84; HJ Tucker, 234 Mich App at 559; Ray Twp, 226 Mich App at 728. Courts
must therefore ask whether the title provides the Legislature and the public with fair notice of the
provision being challenged. Cynar, 252 Mich App at 84-85; HJ Tucker, 234 Mich App at 559;
Ray Twp, 226 Mich App at 728. Courts find that the notice provision has been violated only
when “the subjects are so diverse in nature that they have no necessary connection.” Cynar, 252
Mich App at 85 (quoting Mooahesh v Dep’t of Treasury, 195 Mich App 551, 559; 492 NW2d
246 (1992)).

The title of Public Act 359 of 2018 included a purpose “to acquire a bridge and a utility
tunnel connecting the Upper and Lower Peninsulas of Michigan,” as well as “authorizing the
operation of a utility tunnel by the authority or the Mackinac Straits corridor authority.”2
Although this title does not specifically address every amendment related to the authority and
utility tunnels (nor need it do so under the Title-Object Clause), it does generally inform the
Legislature and the public that the act provides for the acquisition of a utility tunnel by the
Bridge Authority as well as the operation of a utility tunnel by the Bridge Authority or the
Corridor Authority. Any specific duties or powers granted by the act are covered by the stated
general purpose and object of the act. The title certainly gives fair notice of the provisions in
2018 PA 359, which is sufficient to pass constitutional muster.

B. There is no multiple-object violation.

With respect to a multiple-object challenge, again, there is no violation. A multiple-

object challenge asserts that the body of the subject legislation embraces more than one object.
Gillette Commercial Operations N Am & Subsidiaries v Dep’t of Treasury, 312 Mich App 394,
439; 878 NW2d 891 (2015). Yet “[t]he ‘one object’ provision must be construed reasonably, not
in so narrow or technical a manner that the legislative intent is frustrated.” Pohutski, 465 Mich
at 691 (citing Kuhn v Dep't of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971)). A
court should not invalidate an act simply because it contains more than one means of achieving
its primary purpose. Id.; Mayor of Detroit v Arms Tech, Inc, 258 Mich App 48, 68; 669 NW2d
845 (2003); Kevorkian, 447 Mich at 455. An act can therefore address all issues related to its

2
A title authorizing the “operation” of a tunnel includes all things incidental to that operation; since the Authority
cannot “operate” a tunnel that does not exist, the acquisition and/or construction of the tunnel by the Authority are
plainly contemplated by the Act’s title as well. See also Midland Township v State Boundary Commission, 401
Mich 641, 654; 259 NW2d 326 (1977) (“Whether a provision is germane depends on its relationship to the object of
the act, not who is charged with implementing the provision.”), discussed below.

4
object as well as those matters that directly relate to, implement, and/or are necessary to carry out
its general purpose, even if incidental. See Pohutski, 465 Mich at 691-692. Accordingly,
“[l]egislation, if it has a primary object, is not invalid because it embraces more than 1 means of
attaining its primary object.” Kevorkian, 447 Mich at 454-455. A multiple-object violation will
therefore be found only if the provisions of an act are so diverse that there is no necessary
connection among them. See Pohutski, 465 Mich at 691.

Here, the object of 2018 PA 359—its general purpose or aim as embraced in the body of
the act—was to provide for the acquisition and operation of a utility tunnel connecting the Upper
and Lower Peninsulas of Michigan at the Straits of Mackinac. Kevorkian, 477 Mich 459 (“[On]e
looks to the body of the act, not the title, to determine whether it has a single object: While the
object must be expressed in the title, the body of the law must be examined to determine whether
it embraces more than one object.”). The provisions of Act 359 all directly relate to this general
purpose. For example, (1) Section 14a authorizes the Mackinac Bridge Authority (“Bridge
Authority”) to “acquire, construct, operate, maintain, improve, repair, and manage a utility
tunnel” and gives it additional incidental authority, such as authority to acquire property in
connection with building a utility tunnel; (2) Section 14b creates the Mackinac Straits Corridor
Authority within the Department of Transportation; (3) Section 14c establishes the Straits
Protection Fund; and (4) Section 14d transfers all responsibilities and authority given to the
Mackinac Bridge Authority and all funds in the Straits Protection Fund to the Mackinac Straits
Corridor Authority “upon the appointment of the members of the Corridor Authority Board . . . .”
2018 PA 359, §14d(1).

Although Act 359 creates the Corridor Authority as a state entity separate from the
Bridge Authority, the functions served by the two authorities are not directed toward multiple
objects. Rather, Act 359 empowers both authorities to work toward the same goal: constructing,
managing, and operating the utility tunnel in the Straits of Mackinac. The Bridge Authority was
to exercise utility tunnel authority until the Corridor Authority had an established board that was
able to take over those responsibilities. The two authorities are necessarily connected because
they are both tied to authorizing and operating infrastructure connecting the two peninsulas
across the Straits of Mackinac.

Michigan case law shows that separate provisions that are equally incidental to achieving
an act’s object are not violations of article 4, § 24. For example, in Kevorkian, the Michigan
Supreme Court held that a statute that both created a commission to study death and dying and
amended the Penal Code to create the crime of assisted suicide “clearly . . . embrace[d] only one
object”: to address assisted suicide. 447 Mich at 456. The Court of Appeals recently held that a
provision appropriating $1 million to respond to the threat of invasive species did not introduce a
second object when the general purpose of the statute was to ensure that decisions affecting the
management of fish, wildlife, and their habitats are governed by sound scientific principles.
Keep Mich Wolves Protected v State, unpublished per curiam opinion of the Court of Appeals,
issued November 22, 2016 (Docket No. 328604), pp 14-15. In the same case, however, the court
found that a provision providing free hunting, trapping, and fishing licenses to qualified active
members of the military introduced a second object that had no necessary connection to the
scientific management of fish, wildlife, and their habitats. Id. As another example, the Court of
Appeals also held that an act that created public airport authorities and authorized the issuance of

5
bonds to raise revenue did not violate the multiple object principle because both provisions
directly related to the statute’s principle object: providing for the acquisition, development, and
operation of airports. Wayne Co Bd, 253 Mich App at 190-191. See also Gillette, 312 Mich App
at 442-443 (holding that repeal of a statutory interstate tax agreement and amendment of a
separate tax statute were sufficiently related because both carried out the principle object of
clarifying the appropriate method of income apportionment for business taxes).

In each of these cases, the reason that the diverse provisions contained in a single act did
not violate the multiple-object principle was that the provisions directly related to, carried out, or
implemented the single, principal object of the act. The same is true of Act 359. Although Act
359 amended the Bridge Authority’s powers and established a new Corridor Authority, the single
object furthered by both is the creation and operation of a utility tunnel across the Straits. (The
Title-Object Clause is applied to the Act itself, and not with respect to how an existing statute
may be changed).

Any assertion that the Title-Object Clause prohibits the Legislature from providing for a
utility tunnel through an amendment to 1952 PA 214, which addressed the building of the
Mackinac Bridge, places a greater onus on the Legislature than the Title-Object Clause requires.
As the Michigan Court of Appeals has explained:

There is . . . no constitutional requirement that the legislature do a

tidy job in legislating. It is perfectly free to enact bits and pieces
of legislation in separate acts or to tack them on to existing statutes
even though some persons might think that the bits and pieces
belong in a particular general statute covering the matter. The
constitutional requirement is satisfied if the bits and pieces so
enacted are embraced in the object expressed in the title of the
amendatory act and the act being amended.

Gillette, 312 Mich App at 441 (citations and internal quotation marks omitted). Here, the
Legislature reasonably determined that creation of the Corridor Authority for the purpose of
constructing and operating a utility tunnel under the Straits of Mackinac is, like the bridge,
germane to Act 359’s stated objective of “providing an option to better connect the Upper and
Lower Peninsulas of this state.”

Nor should it matter that the utility tunnel is subject largely to the powers of the new
Corridor Authority rather than the original Bridge Authority. In Midland Township v State
Boundary Commission, the Michigan Supreme Court held that “[w]hether a provision is germane
depends on its relationship to the object of the act, not who is charged with implementing the
provision.” 401 Mich at 654. Thus, whether Act 359 charges the Bridge Authority or the
Corridor Authority with carrying out its provisions relating to the construction and operation of a
utility tunnel should be of no consequence to the one-object requirement.

Additionally, it is important to note that neither the Legislature nor the public was
deceived as to the intent or effect of Act 359 when it was proposed and enacted. Each legislative
analysis by the House Fiscal Agency and Senate Fiscal Agency clearly stated that the purpose of

6
the bill was to establish a utility tunnel under the Straits of Mackinac connecting the Upper and
Lower Peninsulas.3 Media reports, too, captured the purpose of the bill.4 Act 359 was not
“legislation of the vicious character referred to” by Justice Cooley that “was little less than a
fraud upon the public” because “the proposed measure [stood] upon its own merits, and . . . the
legislature [was] fairly notified of its design when required to pass upon it.” Kevorkian, 447
Mich at 454-455 (quoting People ex rel Drake v Mahaney, 13 Mich 481, 494-495 (1865)). The
purpose of the Title-Object Clause—preventing fraud, deceit, and subterfuge—would not be
fulfilled, therefore, if Act 359 was found to violate it. Act 359 does not present a violation of the
multiple-object principle, or any other title-object principle.

C. There is no change-of-purpose violation.

Finally, with respect to the third and final potential challenge, article 4, § 24 is not
offended if a substitute bill or amendment is for the same purpose as the original bill or if the
substitute or amendment is in harmony with the objects and purposes of the original bill and
germane thereto. United States Gypsum Co v Dep't of Revenue, 363 Mich 548; 110 NW2d 698
(1961), Moeller v Wayne Co Bd of Supervisors, 279 Mich 505; 272 NW 886 (1937). This
question thus requires consideration of whether “the subject matter of the amendment or
substitute is germane to [the bill’s] original purpose.” Kevorkian, 447 Mich at 461 (emphasis
added). Courts will ask whether the provisions are so diverse in nature that they do not
appropriately belong in the same bill. See Kevorkian, 447 Mich at 454, 461; Cynar, 252 Mich
App at 85, 86.

SB 1197 was introduced on November 8, 2018, with the stated purpose of authorizing the
acquisition, construction, operation, maintenance, improvement, repair, and management of a
utility tunnel between the Straits of Mackinac. The initial bill gave all of the powers and
authority for the utility tunnel to the Bridge Authority. Shortly after the initial bill was
introduced, the Senate adopted Substitute S-2, which introduced several new provisions,
including: (1) the creation of the Corridor Authority and definitions of its rights, powers, and
duties (see Act 359, §§ 14b and 14d); and (2) the creation of the straits protection fund (Act 359,
§ 14c). SB 1197, including Substitute S-2, passed the Senate on December 5, 2018, and was
introduced in the House of Representatives that same day. The House of Representatives passed
SB 1197 six days later on December 11, 2018, and the bill was ultimately approved by the
Governor (and given immediate effect) on December 13, 2018.

Similar to the analysis described above with respect to the multiple-object challenge, SB
1197’s purpose did not materially change in violation of article 4, § 24 as it passed through the
3
House Fiscal Agency and Senate Fiscal Agency analyses of Senate Bill 1197 (2018), which became Act 359, can
be found here:
http://legislature.mi.gov/(S(zs5hg1m2oswumw40g305mtft))/mileg.aspx?page=getObject&objectName=2018-SB-
1197.
4
The Detroit News, State aims to finalize Line 5 tunnel agreement in under 3 weeks (Published Dec. 10, 2018 at
4:26 pm), https://www.detroitnews.com/story/news/politics/michigan/2018/12/10/michigan-line-5-agreement-under-
3-weeks/2270013002/
Detroit Free Press, New ‘straits corridor authority’ to oversee proposed Line 5 tunnel, (Published Dec. 5, 2018 at
1:24 pm) https://www.freep.com/story/news/local/michigan/2018/12/05/new-authority-enbridge-line-5-
tunnel/2215113002/

7
Legislature. The addition of the Corridor Authority and the delineation of its powers, rights, and
duties were certainly germane to SB 1197’s original purpose—to acquire and operate a utility
tunnel under the Straits of Mackinac. The fact that the original bill had all powers and authority
related to the utility tunnel vested in the Bridge Authority and that the substitute bill transferred
many of those duties, powers, and responsibilities to the Corridor Authority are immaterial. As
the Michigan Supreme Court held in Midland Township, “[w]hether a provision is germane
depends on its relationship to the object of the act, not who is charged with implementing the
provision.” 401 Mich at 654. That same analysis applies here. Moreover, a similar conclusion
may be drawn with respect to the newly-created straits protection fund, which is intended to
further the bill’s original purpose by providing a fund from which money can be used to cover
the “cost of independent oversight of the utility tunnel or the leasing of space in the utility tunnel
to publicly-owned utilities.” 2018 PA 359 § 14d(4)(e). See Kuhn v Dep’t of Treasury, 384 Mich
378, 388; 183 NW 2d 796 (1971) (“The appropriation in the Act was utterly germane to that
object.”). In short, there was no material change to SB 1197 as it passed through the Legislature
and there certainly was no violation of article 4, § 24. Indeed, Substitute S-2 furthered the
general purpose of SB 1197, as introduced, to construct and operate a utility tunnel under the
Straits of Mackinac.

II. Does the requirement that members of the board of the Corridor Authority serve
for six years or more violate the constitutional mandate under section 3 of article 5
of the Michigan Constitution of 1963 that the terms of office of any board or
commission created or enlarged after January 1, 1964 must not exceed four years?

Section 14b(2) likely violates article 5, § 3 of the Michigan Constitution, but it may be
severed from the remainder of the act, which may be given effect. The Michigan Constitution
prohibits terms of office for any board or commission created after January 1, 1964 from
exceeding four years. Thus, the first four years of a board member’s term are consistent with
this constitutional restriction. To the extent that 2018 PA 359 provides for an additional two
years and is inconsistent with article 5, § 3, that portion of the statute may be severed and should
not affect the remainder of 2018 PA 359.

If any portion of an act or the application thereof to any person or

circumstances shall be found to be invalid by a court, such
invalidity shall not affect the remaining portions or applications of
the act which can be given effect without the invalid portion or
application, provided such remaining portions are not determined
by the court to be inoperable, and to this end acts are declared to be
severable.

MCL 8.5.

The test for severability used by Michigan courts is whether it can be presumed that the
Legislature “would have passed the one [provision] without the other.” People v McMurchy, 249
Mich 147, 158; 228 NW 723 (1930). Stated another way, “[t]o determine whether severance is
appropriate, [the courts] must consider whether the portion of [the statute] remaining after its last

8
sentence has been severed is capable of functioning alone.” Midland Cogeneration Venture Ltd
Partnership v Naftaly, 489 Mich 83, 96; 803 NW2d 674 (2011).

With respect to 2018 PA 359, the Legislature’s intent was clear—to provide for the
creation of a utility tunnel under the Straits of Mackinac that could be operated by the Corridor
Authority. In creating the Corridor Authority, the Legislature also provided for the appointment
of the Corridor Authority’s board members, their respective duties, and filling board vacancies.
Each of these provisions can function alone and be given effect without regard to the length of
the board member’s term of office.

Although severing the length of term provision would leave 2018 PA 359 silent with
respect to how long board members are to serve, the Michigan Supreme Court has recognized
that such a gap may be filled by other constitutional or statutory provisions. See Midland
Cogeneration, 489 Mich at 96. In Midland Cogeneration, for example, the Michigan Supreme
Court struck a provision of the General Property Tax Act as unconstitutional, which left the act
silent with respect to a plaintiff’s right to appeal an adverse classification decision. The court
held that the Constitution, under article 6, § 28, provided for direct judicial review of quasi-
judicial decision affecting private rights. 489 Mich at 96-97. Because the Michigan Revised
Judicature Act (“RJA”) specifically allowed for appeals of decisions by state agencies when
judicial review was not otherwise provided by law, the Legislature had already filled the gap
created by striking the unconstitutional provision—the RJA provision applied and a plaintiff
could appeal the subject decision under the RJA. Id. at 97.5

Indeed, in an Opinion nearly directly on point, the Attorney General used similar logic
when examining Const 1963, art 5, § 3 and the constitutionality of a public act that enlarged the
Michigan Historical Commission. OAG, 2005, No. 7178 (Aug 2, 2005). In that opinion, the
Attorney General found that although the Legislature exceeded its authority by granting six-year
terms to some members of the then-newly enlarged commission, article 5, § 3 only invalidated
“those provisions of [the act] that specify a term of office in excess of four years and does not
affect the remaining provisions.”

The Attorney General explained that the four-year limit established in article 5, § 3
operated “by its own force to set the terms of the gubernatorial appointees” until such time as the
Legislature decided “to revisit the issue.” In fact, as recently as December 28, 2018 the Attorney
General stated that this provision of 2018 PA 359 is severable and does not affect the remainder
of the Act. A Felon’s Crusade for Equality, Honesty and Truth v Mackinac Straits Corridor
Authority, et al, Court of Claims No. 18-000269-MM.

The first four years of each Board member’s term on the Board is consistent
with the four-year limitation in Const 1963, art V, section 3, and the

5
See also Hunt v Buhrer, 133 Mich 107; 94 NW 589 (1903), which held that an act that purported to extend the term
of the then-current Wayne County Treasurer by six months was impermissible. Despite so finding, the Supreme
Court held that it did not render the whole act unconstitutional. The Court found that extending the existing
treasurer’s term was an “incidental feature” of the act when the legislative intent behind the whole was to change the
treasurer’s term of office. Id. at 115. The court held that a vacancy between the terms created by striking the
impermissible language could be filled by the county’s board supervisors under a separate statute. Id. at 115-116.

9
 manifest intent of the Legislature in enacting 2018 PA 359. To the extent
that Section 14(b)(2) of 2018 PA 359 provides for a fifth and sixth year of a
Board member’s term, pursuant to MCL 8.5 that portion of the statute and
its application to the Defendant Board members is severable from and does
not affect the validity of the remainder of 2018 PA 359.

(Attorney General’s Answer for Defendants, ¶32).

The same analysis applies to 2018 PA 359. Although the Legislature exceeded its
authority in providing for six-year terms for Corridor Authority board members, the
Legislature’s intent in enacting 2018 PA 349—to provide a means for a utility tunnel to connect
the two peninsulas under the Straits of Mackinac and allow board members to have a term of at
least four years permitted by the Constitution—would not be furthered by declaring the entire act
void. Instead, since article 5, § 3 expressly limits the board members to terms not to exceed four
years,6 and future appointments are made by the governor, it would be appropriate and consistent
with the Legislature’s intent to simply recognize the limitation that the Michigan Constitution
automatically places on the length of the board members’ terms unless or until the Legislature
decides to revisit the issue.

III. Does Act 359 revise, alter, or amend other sections of law, including any restrictions
on the construction or operation of a tunnel included in section 18 of Public Act 214
of 1952, in a manner that violates section 25 of article 4 of the Michigan Constitution
of 1963?

No, the Legislature did not violate Const 1963, art 4, § 25 when it passed Act 359.
Article 4, § 25 provides that:

No law shall be revised, altered or amended by reference to its title

only. The section or sections of the act altered or amended shall be
re-enacted and published at length.

Const 1963, art 4, § 25. “Amend” is defined in Black’s Law Dictionary as “to change the
wording of, to formally alter by striking out, inserting, or substituting words.” An alteration is
“an act done to an instrument whereby its meaning or language is changed[.]” A revision is a
“reexamination or careful analysis for correction or improvement . . . [a]n altered version of a
work.” Black’s Law Dictionary (9th ed). As explained by the Michigan Supreme Court, this
provision prevents “the revising, altering or amending of an act by merely referring to the title of
the act and printing the amendatory language then under consideration.” In re Constitutionality
of 1972 PA 294, 389 Mich 441, 470; 208 NW2d 469 (1973). In short, the Legislature may not

6
Under MCL 10.61, “the term of office of officers and commissioners appointed by the governor, in cases not
otherwise provided, or where no term is specified in the act creating such office or commission, shall expire 2 years
from the first day of January of the year when the appointment is made, unless the appointment shall be by the
commission limited to a shorter term, in which case it shall cease as limited, or unless the appointment be to fill a
vacancy, in which case it shall continue for the remainder of the term: Provided, That in cases where by law the
office does not expire with the term, such officers shall hold the office and continue to act until their successors are
appointed and have qualified.”

10
revise, alter or amend a law by reference to its title only without republishing the affected
section(s). That is the full extent of the constitutional prohibition.7

2018 PA 359’s enactment did not revise, alter, or amend any section of the original
statute that was not republished. And 2018 PA 359 certainly did not amend, alter, or revise
section 18 of 1952 PA 214, as implied by the Governor’s letter. Section 18 of 1952 PA 214
states, in relevant part:

The state of Michigan further covenants and agrees with the

holders of the bonds that it will not construct or operate any
tunnel, bridge or ferry service which will be competitive with
the bridge herein authorized, and so far as legally possible it will
prohibit the construction or operation of any other tunnel,
bridge or ferry service which will afford facilities for vehicular
traffic to cross the straits of Mackinac: Provided, That nothing
herein contained shall be construed to prevent the operation of
ferries by the state highway department between the upper and
lower peninsulas until such time as the bridge shall have been
placed in operation.

MCL 254.328 (emphasis added).

This provision—which is structured as a covenant with bondholders as opposed to a

statutory restriction8—states that the State will not construct a tunnel that will either be
competitive with the authorized bridge or which will allow vehicular traffic to cross the Straits of
Mackinac. The construction and operation of a utility tunnel is not prohibited under this section.
1952 PA 214 does not define what it means to “compete” with the bridge, but from both the
context of section 18 and the Act’s title (which refers only to “prohibiting competing traffic
facilities” and not to prohibiting utility tunnels), interpreting section 18’s non-competition
restriction to actual vehicular traffic is a reasonable construction that should be applied in
furtherance of the requirement that statutes are presumed constitutional, as noted above. Indeed,
the utility tunnel falls under neither of the prohibited categories. Section 18 did not need to be
amended or republished under the requirements of article 4, § 25.

The Governor’s question is not limited to only section 18, as it also asks whether there
has been a revision, alteration or amendment of “other sections of law” in a manner that violates
article 4, § 25. The only other law that would appear to be potentially implicated by the
enactment of Act 359 is 1950 PA 21, which created the Mackinac Bridge Authority and
governed feasibility studies. But Act 359 did not revise, alter, or amend any part of 1950 PA 21,
or even attempt to revise, alter, or amend 1950 PA 21.

7
Although Article 4, § 25 prohibits amendments “by reference to its title only,” the Michigan Supreme Court in
Alan v County of Wayne, 388 Mich 210, 281; 200 NW2d 628 (1972), overturned Burton v Lindsay, 184 Mich 250;
151 NW 48 (1915), which had held that a violation of article 4, § 25 could not occur without a specific reference to
an amendment of another act because such a holding led to an “absurd” rule. Alan, 388 Mich at 281-82.
8
As we understand, there are no current bondholders with standing or interest to enforce this obligation.

11
 MCL 254.302, which is section 2 of 1950 PA 21, states:

The Mackinac bridge authority is created within the department of

transportation as a nonsalaried entity, a public benefit corporation,
and an agency and instrumentality of the state of Michigan. . . . In
addition to the powers expressly granted to it under Michigan law,
the authority shall have all powers necessary or convenient to carry
out the things authorized and to effect the purposes of this act.
[(Emphasis added.)]

This provision of 1950 PA 21 contemplates that the Mackinac Bridge Authority may be
granted powers under separately enacted statutes. Act 21 does not, therefore, restrict the Bridge
Authority’s powers to those granted in that act, and the Legislature did not need to amend Act 21
when it granted the Bridge Authority power to acquire a utility tunnel through Act 359.

The Michigan Court of Appeals recently considered a similar challenge under article 4,
§ 25 to a statutory FOIA exemption that was enacted as part of a law separate from the Freedom
of Information Act. See Coal Protecting Auto No-Fault v Mich Catastrophic Claims Ass’n, 317
Mich App 1; 894 NW2d 758 (2016). In that case, plaintiffs challenged MCL 500.134, a
provision of the Insurance Code, which specifically describes and exempts the Michigan
Catastrophic Claims Association’s (“MCCA”) records from FOIA disclosure. Id. at 6-8. The
plaintiffs claimed that the provision “violated Const 1963, art 4, § 25, because the statute
amended FOIA by exempting the MCCA from FOIA without reenacting and republishing
FOIA.” Id. at 6. However, section 13(1)(d) of FOIA “provides in pertinent part that ‘[a] public
body may exempt from disclosure as a public record under this act . . . [r]ecords or information
specifically described and exempted from disclosure by statute.’” Id. at 32. The Court of
Appeals held that the challenged provision exempting MCCA records from FOIA did not violate
article 4, § 25 because: (1) “FOIA was drafted in a manner that permits other statutes to exempt
public bodies from FOIA’s disclosure requirements”; and (2) “the Legislature did not ‘dispense
with’ or ‘change’ any provision of FOIA when it revised the Insurance Code and enacted MCL
500.134(4).” Id.

Here, too, Act 21 was drafted in a manner that permits other statutes to grant powers to
the Michigan Bridge Authority. See MCL 254.302. And, the Legislature did not dispense with
or change any provision of Act 21 when it enacted Act 359 and granted the Bridge Authority
power over the acquisition of a utility tunnel. See Coal Protecting Auto No-Fault, 317 Mich
App at 32. When an act, such as Act 359, is an “act complete in itself” such that it does not
purport to amend an act or section that was only referred to but not republished, then the act does
not violate article 4, § 25. See People ex rel Drake v Mahaney, 13 Mich. 481, 497 (1865) (“But
an act complete in itself is not within the mischief designed to be remedied by [article 4, § 25],
and cannot be held to be prohibited by it without violating its plain intent.”); Coal Protecting
Auto No-Fault, 317 Mich App at 26. Cf Nalbandian v Progressive Michigan Ins Co, 267 Mich
App 7, 15-16; 703 NW2d 474 (2005) (“[The amendment] is a piecemeal amendment to an
existing comprehensive statutory scheme . . . . [The amendment] attempt[ed] to amend the old
law by intermingling new and different provisions with the old ones found in the Insurance

12
Code. Thus, [the amending statute] was not an act complete in itself, and Const. 1963, art. 4, §
25 applied to its enactment.”).

Because Act 359 did not alter, amend, change, or dispense with any provisions of Act 21,
and because Act 21 contemplates that other statutes will grant additional powers to the Bridge
Authority, Act 359 was complete in itself and the Legislature was not required to reenact and
republish Act 21 under Const 1963, art 4 § 25. Coal Protecting Auto No-Fault, 317 Mich App at
33. Act 359 only amended 1952 PA 214, and all amended sections were reenacted and
republished in full. And, Act 359 does not conflict with or amend section 18 of 1952 PA 214, so
any statutory provision that was amended, revised, or altered by Act 359 was properly
republished and there is not a violation of article 4, § 25.

IV. In contrast to general acts providing for the creation of authorities (see, for
example, the Regional Transit Authority Act of 2012, the Regional Convention
Facility Authority Act, and Chapter 6A of the Aeronautics Code of the State of
Michigan), is Act 359 a special or local act prohibited by the Michigan Constitution
of 1963 because a general act could have been made applicable instead?

No, Act 359 is not a special or local act prohibited under the Michigan Constitution.
Const 1963 art 4, § 29 provides:

The legislature shall pass no local or special act in any case where
a general act can be made applicable, and whether a general act
can be made applicable shall be a judicial question. No local or
special act shall take effect until approved by two-thirds of the
members elected to and serving in each house and by a majority of
the electors voting thereon in the district affected. Any act
repealing local or special acts shall require only a majority of the
members elected to and serving in each house and shall not require
submission to the electors of such district.

The Michigan Supreme Court has recounted the “history and rationale” behind this
constitutional provision:

Considering the history of legislation under the Constitution of

1850, it is apparent that there had grown up a pernicious practice
on the part of the legislature in passing local acts. The practice was
bad in two very important particulars. In the first place, much of
the legislation thus enacted constituted a direct and unwarranted
interference in purely local affairs and an invasion of the principles
of local self-government. In the second place, such legislation
affecting as it did certain limited localities in the State, the senators
and representatives from unaffected districts were usually
complaisant, and agreed to its enactment without the exercise of
that intelligence and judgment which all legislation is entitled to
receive from all the members of the legislature. This course led to

13
 many abuses (principally in amendments to city charters), some of
which found their way into the courts, and were there redressed so
far as the Constitution then in force would permit.

In re Advisory Opinion Re Constitutionality of 1975 PA 301, 400 Mich 270, 286; 254 NW2d 528
(1977) (quoting Attorney General ex rel Dingeman v Lacy, 180 Mich 329, 337-338; 146 NW 871
(1914)). Const 1963, art 4, § 29 thus prohibits the Legislature from passing local or special acts
that “constitute[] a direct and unwarranted interference in purely local affairs and an invasion of
the principles of local self-government” or that affect only “limited localities in the State.” Id.
The Michigan Supreme Court has further clarified that Article 4, Section 29 “properly has
application only to legislative action which is limited to some geographical area.” Id. at 287.

Not all acts that affect only a limited geographical area or only a few people are local or
special acts, however. Michigan courts have held:

The mere fact that a law only applies . . . to a limited number does
not make it special instead of general. It may be general within the
constitutional sense and yet, in its application, only affect one
person or one place. If a law is general and uniform in its
operation upon all persons in like circumstances, it is general in the
constitutional sense.

GMC v Dep't of Treasury, 290 Mich App 355, 378-379; 803 NW2d 698 (2010) (quoting Rohan v
Detroit Racing Ass’n, 314 Mich 326, 349; 22 NW2d 433 (1946)) (internal quotation marks and
citations omitted). Although Act 359 is geographically local in that it provides for a utility
tunnel in the Straits of Mackinac and creates the Corridor Authority to carry out the tunnel’s
creation in that location, the problems that the utility tunnel seeks to address are state- and
region-wide concerns: First, the utility tunnel will provide an improved energy infrastructure
connection between the Upper and Lower Peninsulas, which will benefit all Michigan citizens.
Second, the utility tunnel seeks to protect the Great Lakes and Michigan’s natural resources by
insulating Enbridge’s Line 5 pipeline. Thus, although the tunnel will be physically located in the
Straits, Act 359 was enacted to benefit Michigan generally and is “general in the constitutional
sense.” Id.

The Michigan Supreme Court’s decision in W A Foote Memorial Hospital, Inc v City of
Jackson Hospital Authority reinforces this idea. Analyzing a constitutional challenge under
article 4, § 29, the Court stated:

We must consider the purposes sought to be accomplished by the

law. If we find [that] those purposes are public purposes, if the
work of the entity is a public work[,] then we should find [the
statute] to be a constitutional exercise of legislative power insofar
as art 4, § 29 applies.

390 Mich 193, 212; 211 NW2d 649 (1973) (quoting Advisory Opinion re Constitutionality of PA
1966, No 346, 380 Mich 554, 571; 158 NW2d 416 (1968)) (internal quotation marks and

14
citations omitted). In addition to finding that the statute’s purposes were public purposes and
that the work of the entity was a public work, the Court found that the statute was “designed to
meet and remedy a statewide problem” and that it “[did] not speak to the problem dealt with by
art 4, § 29.” Id.

Const 1963 art 4 § 29 is not implicated, therefore, when an act provides for a public
works project in a particular locality if the act has a public purpose, the entity’s work is a public
work, and the project addresses a statewide concern. For instance, in Attorney General ex rel
Eaves v State Bridge Commission, 277 Mich 373; 269 NW 388 (1936), the Michigan Supreme
Court upheld the constitutionality of an act creating a “state bridge commission” and authorizing
it to “acquire, improve, construct, operate, and maintain” the Blue Water Bridge, which connects
Michigan and Canada across the Saint Clair River in Port Huron. Id. at 376. The Court reasoned
that “[s]o far as the state of Michigan is concerned, practically all of its citizens are affected
directly or indirectly by the means of ingress and egress at Port Huron,” which belied any
characterization of the bridge as “local or special.” Id. at 378-379.

Similarly, the utility tunnel authorized in Act 359 has a public purpose, the work of the
Bridge Authority and Corridor Authority is a public work, both authorities are state agencies, and
the tunnel was designed to meet and remedy a statewide problem. Act 359 is not, therefore, a
local or special act in the constitutional sense, but a general act. See also Advisory Opinion Re
Constitutionality of Pa 1966, No 346, 380 Mich 554, 570; 158 NW2d 416 (1967) (“It is said that
the conferring of corporate powers by the legislature upon agencies of the State, appointed to
perform some public work, in the course of the administration of civil government, the more
efficiently to perform the duties imposed, is not such an act as is prohibited by the
Constitution.”).

V. Does the Corridor Authority possess any power not constitutionally and explicitly
granted to it by Act 359?

The Corridor Authority is a creature of statute and therefore possesses only those powers
granted by the constitution or by statute. Indeed, 2018 PA 359 explicitly states as much.

The Mackinac Straits corridor authority does not possess any

powers not explicitly granted to it under this act, including, but not
limited to, the power of eminent domain.

MCL 254.324b(11).

Because the Corridor Authority is a creature of statute, “it possesses only that authority
granted by the Legislature.” See, e.g., Consumers Power Co v Mich Pub Serv Comm, 460 Mich
148, 155; 596 NW2d 126 (1999). Indeed, “the power and authority of an agency must be
conferred by clear and unmistakable statutory language. And if a statute does explicitly grant an
agency a power, that power is subject to ‘strict interpretation.’” Herrick Dist Library v Library
of Mich, 293 Mich App 571, 583; 810 NW2d 110 (2011). In short, Michigan courts have held
that statutorily created entities are not imbued with any inherent power. Rather, any authority
possessed by such an entity must be plainly granted by the Legislature or by the Constitution.

15
Citizens for Protection of Marriage v Bd of State Canvassers, 263 Mich App 487, 492; 688
NW2d 538 (2004); see also In re Procedure and Format for Filing Tariffs under the Mich
Telecom Act, 210 Mich App 533, 539; 534 NW2d 194 (1995); Sebewaing Indus, Inc v
Sebewaing, 337 Mich 530; 60 NW2d 444 (1953); Advisory Opinion Re Constitutionality of 1966
PA 346, 380 Mich 554; 158 NW2d 416 (1967); Continental Cas Co v Mich Catastrophic Claims
Ass'n, 874 F Supp 2d 678 (ED Mich, 2012).

VI. If the Corridor Authority was not created in a manner that conforms with the
Michigan Constitution of 1963, is the Authority, its board, and action taken by the
board void?

To begin, as set forth above, the Chamber believes that there is no valid argument that
2018 PA 359 should be struck in its entirety as unconstitutional under the questions posed by the
Governor’s letter. The only potentially plausible argument against any provision of 2018 PA
359 raised in the Governor’s letter is that section 14b(2) should be severed to the extent it
conflicts with article 5, § 3, consistent with the Attorney General’s stated position regarding this
provision. See footnote 4 above. And as discussed above, Act 359’s apparent violation of Const
1963, art 5, § 3’s limitation on the length of the Corridor Authority board members’ terms does
not impact the validity of the entire act.

With respect to the other questions raised about 2018 PA 359, none of the constitutional
challenges overcome the strong presumption of the act’s constitutionality, let alone provide the
requisite “clearly apparent” reasons. Cady v Detroit, 289 Mich 499, 505; 286 NW2d 805 (1939).
If, however, Act 359 is fatally flawed and, as the question presupposes, the creation of the
Corridor Authority was unconstitutional (which as discussed above is not the case), then the
Corridor Authority, its board, and actions already taken by the board would almost certainly be
void.

“As a general rule, an unconstitutional statute is void ab initio; it is void for any purpose
and is as ineffective as if it had never been enacted. Pursuant to this rule, decisions declaring
statutes unconstitutional have been given full retroactive application.” Johnson v White, 261
Mich App 332, 336; 682 NW2d 505 (2004) (citations omitted); see also Norton v Shelby Co, 118
US 425, 442 (1886) (“An unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as
though it had never been passed.”). Nevertheless, the Michigan Supreme Court has recognized
that, under certain extraordinary factual circumstances, fairness and/or “the necessities of
governmental administration” may counsel against retroactive application of a decision holding a
legislative act unconstitutional. See Stanton v Lloyd Hammond Produce Farms, 400 Mich 135,
147; 253 NW2d 114 (1977).

CONCLUSION

For the reasons set forth above, Act 359 is constitutional: the record makes clear that
there is no serious question that the Legislature understood exactly what it was doing and,
consistent with the Title-Object Clause, more than adequately described in the Act’s title its goal
to establish a utility tunnel connecting the upper and lower peninsulas. In addition, the

16
Legislature did not unconstitutionally amend or revise any other statute that was not republished,
and Act 359 is far from a special or local act given its broad purpose to ensure that the State’s
energy needs are met in as safe a manner as possible. Further, the Corridor Authority possesses
only those powers vested in it by Act 359, and to the extent that the members of that Authority’s
Board were given terms longer than 4 years the portion of the Act providing for longer terms can
readily be severed without voiding the rest of the law, as the Attorney General’s office itself has
recognized in its response to a pending lawsuit challenging Act 359 on these very grounds.

The Chamber therefore respectfully submits that the Attorney General should conclude
that Act 359 is constitutional and that the Corridor Authority and its Board of Directors have
taken, and may continue to take, actions to implement the statute consistent with their duties and
powers under it.

17
 Protecting the Common Waters of the Great Lakes Basin
Through Public Trust Solutions

MEMORANDUM

To: Attorney General Dana Nessel

From: James Olson, President and Legal Advisor
Elizabeth Kirkwood, Executive Director
For Love of Water (FLOW)
Date: February 8, 2018
Re: Constitutionality of Act 359 and Referenced Tunnel or Related Agreements

On January 1, 2019, Governor Gretchen Whitmer submitted a request for a formal Opinion of the
Attorney General (“OAG”) to Attorney General Dana Nessel, dated January 1, 2019, on the
constitutionality of Act 359 of the Public Acts of 2018 (“Act 359”), together with the validity or legal
effect on a tunnel and other agreements referenced in the Act.1

Governor Whitmer’s Request for OAG seeks a legal opinion on six questions.2 Attorney General Nessel
announced on January 2, 2019 that she would form an opinion panel from her staff of lawyers, Assistant
Attorney Generals, to research and advise her on the questions. Attorney General Nessel also invited
interested persons or entities to submit a legal brief or legal memorandum on all or any of the six
questions or questions implicitly included in or related to the six questions.

This legal memorandum addresses the following: (1) summarizes the stark differences between the
amended 2018 Public Act 359, the original 1950 Public Act 21, and 1952 Public Act 214 Mackinac
Bridge Authority laws, together with the multiple and related agreements signed by Governor Snyder,
MDEQ, MDNR, Mackinac Straits Corridor Authority (“MSCA” or “corridor authority”) and Enbridge
that are referenced as part of Act 359; (2) submits a legal analysis for your review and opinion on
Questions 1, 2, 5, and 6 as set forth in Governor Whitmer’s Request for OAG; and (3) submits a legal
analysis of a directly related question of the constitutionality or validity of Act 359, and referenced
agreements, under Article 4, Section 30 of the State Constitution and the Great Lakes Submerged Lands

1
Letter from Governor Gretchen Whitmer to Attorney General Dana Nessel, dated January 1, 2019, requesting
formal Opinion of Attorney General on several questions related to constitutionality or validity of Act 359 and
certain related agreements (hereafter “Request for OAG”).
2
Id., p. 3.

153 ½ EAST FRONT STREET, STE 203C 231.944.1568

TRAVERSE CITY, MI 49684 FLOWFORWATER.ORG
Act (“GLSLA”), MCL 234.3201 et seq., which incorporate inherent limitations to protect the waters and
soils of the Great Lakes under the “equal footing” and public trust doctrines.3

A. SUMMARY OF LAWS, AGREEMENTS, AND PROCEEDINGS SURROUNDING ACT 359 AND GOVERNOR
WHITMER’S REQUEST FOR THE OAG

In 1950, the legislature established the independent state institution, the Mackinac Bridge Authority
(“MBA”), to conduct a feasibility study for the construction of a bridge over the Straits of Mackinac to
connect the state and federal highway system and to replace the ferry service between the upper and lower
peninsulas.4 In 1952, the legislature enacted the Mackinac Bridge Authority Act that established the MBA
and authorized it to acquire, construct, and operate a highway bridge connecting the upper and lower
peninsulas for the motoring general public.5 There was and is no private entity involved in the ownership,
construction, operation and maintenance of the Mackinac Bridge. The legislature established and
authorized the MBA for one purpose and one purpose only: the acquisition and operation of the public
highway bridge through transfer of lands, power to acquire private lands, including eminent domain,
revenue bond financing, and contracts. Notably, the law exempted the bridge authority from consent or
approval from any state agency or department.6 The bridge opened on November 1, 1957.

From the introduction of proposed Senate Bill 1197 on November 8, 2018, through the hasty
consideration of the substitute bill (S-1197) on December 5, to the passage of the enrolled SB 1197 and
enactment of Act 359 on December 12, 2018, the legislature shoehorned a completely different and
unfitting public-private project on to an existing public bridge authority by establishing a new corridor
authority to build a mostly privately controlled tunnel and pipeline for the next 99 years. Act 359 vests the
MBA with the power to build a utility tunnel, with no notice in the title that the authority is authorized to
build and enter into a public-private venture for a tunnel and privately-owned crude oil pipeline under the
Great Lakes. Moreover, Act 359 automatically transfers this utility tunnel authority over to the corridor
authority upon the appointment of the members of the MSCA.7 Governor Snyder appointed the members
on the same day of Act 359’s enactment on December 12, 2019. The primary scheme of Act 359 was and
is to provide legislative cover for a unilateral public-private agreement between the State of Michigan and
Enbridge, public trust easements and assignments, and a 99-year-lease for Enbridge to build a tunnel and
operate a new oil pipeline under the Great Lakes.

The original 1950 and 1952 MBA laws established an independent authority empowered to do only one
thing—build the Mackinac Bridge, maintain it, keep it safe, and pay off the bond debt.8 It is important to
understand that the MBA Act established a public authority, with public bonds, to acquire, build and
maintain a public bridge as part of the federal and Michigan highway system for the general motoring
public. It is a public project for a wholly public purpose for use by the general public. As discussed
below, the enactment of Act 359 and the authorization of the MBA to acquire, construct, operate a utility
tunnel, with easement, 99-year-lease, tunnel agreement and other agreements with and for Enbridge
Energy to locate and operate a replacement segment in the Straits of Mackinac as part of its privately-
owned Line 5 pipeline. The amended title of Act 359 grafts a utility tunnel onto the state’s bridge

3
The fact that this legal memo does not address Questions 3 and 4 should not be construed as any indication
regarding the answers to those questions; it was determined that given the extensive case law on republication in
Question 3, and “special” or “local” acts in Question 4, there is nothing new to add.
4
1950 PA 21.
5
1952 PA 214, section 1(c).
6
1952 PA 214, section 11.
7
Act 359, section 14d(1).
8
The bond debt was paid off by the State, so the bridge authority owes and pays down the remaining approximately
$200 million debt to the State through the Department of Transportation.

2|FLOW
authority and provides for a transfer of the bridge authority’s powers to a newly created state corridor
authority. Based on the amended title’s authorization of a utility authority, there is absolutely no mention
of a legislative scheme in the body of the bill through the addition of Section 14 and Sections 14a through
Section 14e in the enrolled SB 1197 or Act 359. The title adds a new state corridor authority along with
the bridge authority to build a public tunnel in the same way it acquired and built the Mackinac Bridge.
But the body or amendments to the Mackinac Bridge Authority established under Public Act 21 of 1950
and Public Act 214 does almost the opposite: Sections 14 and 14a through 14e established a corridor
authority to oversee a predominantly privately financed, mixed private and public project, that transfers
rights and leases to Enbridge soils and waters of Lake Michigan and the tunnel for 99 years so the
company can locate and operate a new segment of Line 5 in the Straits to Enbridge.

The purpose of Acts 21 and 214 is to build a public infrastructure to transport vehicles over the Great
Lakes and unite Michigan’s two peninsulas, while the purpose of Act 359 is to build a primarily private
tunnel and pipeline to transport oil for the next century. The new title of Act 359 adds the term “utility
tunnel” but fails to mention that this infrastructure is achieved by a wholly different scheme between a
public authority and a private corporation that grants land, possession, and substantial control over is
assured use and any use by other privately-owned utilities. Act 359 corrupts the “Public-Public Project”
title-object as envisioned by the 1950 legislature by grafting a new “Public-Private Partnership” between
the state and Enbridge. As seen below, in comparing the titles of the original acts and Act 359 with the
provisions of the laws to achieve the object of the laws, the two are not the same; they involve
substantially different legal and constitutional implications, questions, and complexities for a
fundamentally different objective or purpose.

1950 PA 21:

1. Established the Mackinac Bridge Authority as an independent state institution;

2. Authorized and funded the bridge authority to undertake a feasibility study for the state to
build a federal and state highway bridge connecting the upper and lower peninsulas to replace
the state’s car ferry service.

1952 PA 214:

1. Authorized the Mackinac Bridge Authority to acquire, construct and operate a public bridge
as part of the state and federal public highway system for the general public;9
2. Authorized the bridge to finance the bridge with state or public bonds.10
3. Authorized the authority to acquire property rights, easements, and land necessary for the
bridge, including the public trust bottomlands of the Lake Michigan.11

9
1952 PA 214, Title: “An Act authorizing the Mackinac bridge authority to acquire a bridge connecting the upper
and lower peninsula of Michigan…;” Section 4 of 1952 PA 214: “… authorized and empowered to construct a
bridge joining and linking the upper peninsula and lower peninsula… to operate, maintain, improve, and repair such
bridge.”
10
Id., Section 4, 1952 PA 214, MCL 254.314; Section 5(1), MCL 254.315(1).
11
Id. Illinois Central Railroad, 146 US 387 (1892). Under the public trust doctrine, there can be no transfer or
disposition of control, use, occupancy, easements or other agreements for state public trust waters and soils without
express legislative authorization based on application and findings that comply with the standards (public trust
improvement or purpose and non-impairment) of the public trust doctrine. Obrecht v National Gypsum Co., 361
Mich 399 (1960); State v Venice of America Land Co., 160 Mich 680, 125 NW 70 (1910); State v St. Clair Fishing
Club, 127 Mich 580, 87 NW 117 (1901); Great Lakes Submerged Lands Act, MCL 324.32501 et seq.; see infra,
Section B, these comments.

3|FLOW
 4. Granted the authority the power of condemnation for the bridge.12
5. Granted the authority the full easements and rights-of-way of any state lands necessary for
the Bridge.13
6. Granted the right to charge tolls and rents from use and leases for utility lines and equipment
not inconsistent with the use of the bridge, collected as public funds for the use of the bridge
and highway purposes, and no other purpose.14
7. Granted authority to obtain federal or state aid or grants for construction of the bridge.15
8. Exempted from securing required consent from any state board, department, or agency.16
9. Declared the public bridge a public purpose and exempted it from real property and other
taxes.17
10. Assured bondholders that the public bridge is insulated from competing ferries or other
vehicle bridges or tunnels.18

2018 PA 359:

1. Enlarged and changed the title of the MBA act from bridge to bridge and utility tunnel and from
bridge authority to bridge authority and corridor authority;
2. Added a tunnel corridor authority to acquire a corridor tunnel;19
3. Authorized private ownership of tunnel during construction and private financing; specifically
prohibits public or state bond financing that was used for the bridge;20
4. Authorized control and use of tunnel for new oil pipeline by Enbridge by lease and easements for
99 years; essentially, authorized tunnel and other agreements to implement the purpose of the act
through a “public-private partnership,”21 fundamentally different from the purely public bridge
and highway owned and controlled by the bridge authority because it provides for long-term
private control, use, and private purpose.22
5. The tunnel corridor will be used specific purpose of locating a crude oil and petroleum pipeline
pursuant to a “tunnel agreement,” which grants easement and long-term lease of state public trust
bottomlands for such purpose.23
6. The tunnel agreement is a specific agreement called for by paragraph G. in the “Second
Agreement” between Governor, MDEQ, MDNR and Enbridge, dated October 3, 2018, as

12
Id.
13
Id.
14
Section 7, 1952 PA 214, MCL 254.317.
15
Id., Section 8, MCL 254.318.
16
Id., Section 11, MCL 254.321.
17
Id., Section 17, MCL 254.327.
18
Id., Section 18, MCL 254.328. See OAG 1957-58m Bi, 3167, p. 524, confirming that a ferry service from
Frankfort to Menominee would violate this section, except for ferries placed in service by the MBA if the bridge is
out of service.
19
2018 PA 359, Title: “… an act to acquire a bridge and a utility tunnel connecting the Upper and Lower
Peninsulas...” and “authorizing the creation of the Mackinac Straits corridor authority; authorizing the operation of a
utility tunnel by the authority [the MBA] or the Mackinac Straits corridor authority….”
20
Id., Section 5(4).
21
See “Second Agreement,” Oct. 3, 2018, paragraph G, p. 6.
22
Id., Section 14(e).
23
Id., Section 14(d).

4|FLOW
 required by Section 14d of 2018 PA 359, and as described in the “Third Agreement” between the
State and Enbridge, dated December 19, 2018.24
7. Specifically, dictated that the tunnel agreement or a series of agreements must be submitted by
Governor on or before December 21, 2018, and signed by the corridor authority by December 31,
2018, or within 45 days of the date the agreement was submitted to the authority.25
8. The cost and financing of construction of the tunnel and pipeline are borne by Enbridge;26
9. Because of the private party, initial ownership of lands, including bottomlands for construction,
will transfer to corridor authority on completion; because the tunnel is to be used by Enbridge for
a new Line 5 segment, the power of eminent domain is prohibited.27
10. Enbridge’s long-term lease and pipeline are subject to real property taxes.28
11. The tunnel agreement provides Enbridge a 99-year-lease whereby Enbridge is authorized to
receive revenues from subleasing space in the tunnel to other utilities who may want to relocate,
except for reimbursement to the bridge authority for loss of revenues, if any, in the event of such
relocation.29
12. The tunnel agreement, signed by the state and Enbridge, December 19, 2018, references the
Second and Third Agreements, and Act 359;30 the Second and Third agreements, along with
tunnel agreement, easement, and lease, transfer control to Enbridge over the use of tunnel and the
public trust soils under of the Straits in Lake Michigan;31
13. The corridor authority and/or Enbridge must secure and obtain all permits and approvals required
by law for the construction and operation of the tunnel and pipeline;32 on appointment of the
corridor authority board, the powers related to the utility tunnel have transferred by law from the
MBA to the corridor authority.33

The Act and the referenced agreements purport to direct and commit the State of Michigan to authorize
and participate in the location, use, and occupancy of the state-owned bottomlands of Lake Michigan in
the Straits of Mackinac for the construction, ownership, use, operation and maintenance of a corridor
tunnel to be leased to Enbridge Energy Partners, a private foreign corporation, for 99 years. Under the
terms of Act 359 and the referenced agreements, the State of Michigan transfers and commits or will
transfer and commit ownership, easements, use and occupancy, and appropriation of state-owned lands,
including the public trust bottomlands of the Great Lakes, for the Enbridge tunnel corridor and pipeline.
Further, under the Act and referenced agreements, Enbridge is authorized to sublease the tunnel to other
utilities who may wish to relocate existing pipelines or cables in the tunnel; the proceeds of these leases
are paid to Enbridge and can be applied to help Enbridge recoup its costs of construction of the tunnel; the

24
Id., Section 14d(4). Section 14d refers to a “tunnel agreement or a series of agreements,” which by reference was
known or assumed to be known by the legislature in passing and changing the purpose of the MBA 1952 PA 214.
25
Id., Section 14d(1)(a).
26
Id., Section 14d(e).
27
Id., Section 14d(f).
28
Id., Section 14d(h).
29
Id., Section 14d(j); Tunnel Agreement, Dec. 19, 2018, 3.3, p. 7.
30
Id., Section 14(2) authorizes the MBA Authority to acquire lands under water (bottomlands and soils of the
Straits); Section 14(3) authorizes the MBA Authority to enter on any public land for certain activities, and grants full
use, rights of way, easements to MBA through, across, over, under public lands, including bottomlands and soils of
the Straits, for the utility tunnel.
31
Tunnel Agreement, 3.1, 3.2, pp. 6-7 and attached DNR Utility Tunnel Easement and Assignment of Easement, 99-
year Utility Tunnel Lease; Second Agreement, paragraphs F and G, pp. 5-6, Third Agreement, paragraph 4.2.
32
Id., Section 14d(g).
33
Id., Section 14d(1).

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authority cannot sell the tunnel without Enbridge’s consent, and in such event, Enbridge has the right to
the assigned easement and to purchase the tunnel.34

In sum, the historic building and operation of the Mackinac Bridge federal and state highway project
through the MBA under 1950 PA 21 and 1952 PA 214 was and is a wholly public project, with public
ownership, and public control, public financing, public management, and public accountability. The
tunnel corridor, tunnel and other agreements, 99-year-easement and lease of the public trust soils and
waters of the Great Lakes are a completely different end with wholly different mechanisms and means to
achieve a “public-private partnership”—a complex mix of public-private ownership, public-private
purposes, public-private control, private-financing, joint public-private management, public and private
contractual accountability—to allow Enbridge to keep operating the existing Line 5 in the Straits for at
least another seven to 10 years until a tunnel and new Line 5 are built.35

B. QUESTIONS AND LEGAL ANALYSIS

Question No. 1:

Does Act 359 violate the Title-Object Clause (Const 1963, art 4, § 24) because it embraces more
than one object, the object embraced is not stated in the law's title, or because SB 1197 was altered
or amended on its passage through the legislature so as to change its original purpose?

No law shall embrace more than one object, which shall be expressed in its title. No bill shall be
altered or amended on its passage through either house so as to change its original purpose as
determined by its total content and not alone by its title.

This constitutional provision requires that 1) a law shall not embrace more than one object, and 2) the
object of a law must be expressed in its title. Advisory Opinion re Constitutionality of 1975 PA 227, 396
Mich 123, 128; 240 NW2d 193 (1976). There are three kinds of challenges that may be brought against
statutes on the basis of the Title-Object Clause: “(1) a 'title-body' challenge, (2) a multiple-object
challenge, and (3) a change of purpose challenge.” People v Kevorkian, 447 Mich 436, 453; 527 NW2d
714 (1994), cert den sub nom Hobbins v Kelley, 514 U.S. 1083; 115 S Ct 1795; 131 L Ed 2d 723 (1995).

(1) The test for a “title-body” challenge or “one object” constitutional limitation is to insure that both the
legislators and the public have proper notice of legislative content and to prevent deceit and subterfuge.
Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). The
“one object” provision is to be construed reasonably and not in so narrow or technical a manner as to
frustrate the legislative intent. Kuhn v Dep't of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971).

34
Lease Agreement, sections 19.1 and 19.2, p. 15.
35
As stated in Paragraph G, the Second Agreement, p. 6, and now carried through with Act 359, the tunnel
agreement, and the Third Agreement, “The State and Enbridge agree to negotiate a public-private partnership
agreement with the Mackinac Bridge Authority (“Authority”) with respect to the Straits tunnel for the purpose of
locating the Line 5 Straits Replacement segment, and to the extent practicable, Utilities in that Tunnel.” It provided
that the parties would grant Enbridge control of the tunnel for its replacement segment of Line 5, and the right to
operate the existing line until the tunnel was completed, and assured that Enbridge’s existing rights under the 1953
Easement for the existing line would not be altered. This the parties agreed to, as they did in the tunnel agreement
and Third Agreement, and as called for by Act 359, without compliance with the conveyance, occupancy and use
agreements required for the Great Lakes and soils under them under the “equal footing” and public trust doctrines,
that vests absolute and irrevocable title in these waters and soils in the State of Michigan. Illinois Central Railroad,
146 US 387 (1892); fn 11, supra, Obrecht v National Gypsum Co., State v Venice of America Land Co., State v St.
Clair Fishing Club.

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An act may contain all matters germane to its object and any provisions which “directly relate to, carry
out and implement the principal object.” Advisory Opinion, supra, pp 465-467; People v Kevorkian, 447
Mich 436, 454-455, 527 NW2d 714 (1994).

The central question under the “title-body” test for constitutionality is whether the new title and
provisions in the body of the amendment or law are whether the object and provisions are “germane” and
“directly relate to, carry out, and implement the principal object.” Advisory Opinion re Constitutionality
of 1972, supra.; Pohuski v City of Allen Park, 465 Mich 675, 691, 641 NW2d 291 (2002); Loomis v
Rogers, 197 Mich 265, 267, 163 NW 1018 (1917); The plain meaning of “germane” is “closely akin” or
“fitting,” “relevant” and “important.” 36 While there is a presumption of constitutionality of enactments of
the legislature, Pohuski, supra, 465 Mich at 490, the presumption cannot be used to obscure the
underlying requirement that the title-body must be “germane” or “directly related to” the title or object. In
other words, the provisions must be closely connected to the object. Pohuski, Id. For example, in Klinke v
Mitsubishi Motors, 458 Mich 582, 581 NW2d 272 (1998), the Supreme Court ruled that it could not mix
motor vehicle code violations with civil liability in products liability law, holding that the seat-belt statute
did not apply to a product liability action. While both seat-belt code provisions and product liability
provisions may apply to motor vehicle accidents, they are distinct subjects, and the title of one code could
not be enlarged to include the other, quoting Justice Cooley, In re Hauck, 70 Mich 396, 403, 38 NW 289
(1888).

Here, there is nothing in 1950 PA 21 or 1952 PA 214 that is “closely akin” to or “fitting” or “connected”
to the original object and body of the laws establishing the MBA to acquire and operate a public highway
Mackinac Bridge; nothing in the title to acquire a public bridge or “utility tunnel” suggests it would be
acquired, owned, controlled, leased or used for 99 years by a private corporation through a mixed public-
private partnership project to move oil under the Great Lakes. In fact, the provisions in Section 14 and
14a-14e of Act 359 impose an entirely new public-private partnership relationship on to the MBA through
a series of agreements to resolve a completely different object (Enbridge Line 5 pipeline continued
operation in the open waters of the Straits, along with eventual removal of existing line) by means that are
far different than those required to achieve a public project. There is no public financing; Enbridge owns
and controls the public trust soils under the Straits during construction; when the tunnel is finished, the
authority owns the tunnel, but all rights, easements, use of bottomlands are leased back to Enbridge for 99
years.

The title makes the “utility tunnel” sound like it is simply another project like the Mackinac Bridge, when
it is anything but. First, a utility tunnel has nothing to do with serving the traveling motoring citizens of
Michigan. Second, it has nothing to do with operating a bridge. Third, it is for utilities and utility projects
that while they may approve as a public utility in the future, are and will be privately owned. Fourth, the
financing, lease-back, and shared revenues, obligations, liabilities, and even shared legal defense weave a
project with a predominant private purpose into a public project law and title. Mere assertion of a public
purpose does not satisfy the test.

For these reasons, Act 359 is unconstitutional at its core, and the entire Section 14 and Sections 14a
through 14e are invalid in total. The reading of the words “utility tunnel” as stated in the title of Act 359
are reasonably understood to mean acquisition of a public utility tunnel like the Mackinac Bridge; the
provisions in the body of Act 359, Section 14 and Sections 14a through 14e, authorize a public-private
partnership that transfers substantial control, state land, and property rights to Enbridge for 99 years,

36
Merriam-Webster Dictionary, https://www.dicintoary.com/brose/germane; Cambridge English Dictionary,
https://www.dictionary.combridge.org/us/dictionary/english/germane.

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including an option should the state want to terminate the lease or not own the tunnel, for Enbridge to
purchase it.37

(2) The test for constitutionality under “Title-Object” multiple object challenge under Mich Const. 1963,
art. 4, 24, is the "object" of a law or its general purpose or aim. Local No 1644, AFSCME v Oakwood
Hospital Corp, 367 Mich 79, 91; 116 NW2d 314 (1962). Livonia v Department of Social Services, 42
Mich 466, 496-498, 378 NW 2d 402 (1985). To find a general purpose, “One looks to the body of the act,
not the title, to determine whether it has a single object.” Kevorkian, supra, 477 Mich 459; Keep
Michigan Wolves Protected v State (Unpublished opinion, Michigan Court of Appeals, No. 328605). If
the act contains “subjects diverse in their nature, and having no necessary connection,” it violates the
Michigan 1963 Constitution, art 4, § 24. Advisory Opinion, 396 Mich 131, quoting People ex rel Drake v
Mahaney, 13 Mich 481, 494-495 (1865).

In Keep Michigan Wolves, the court of appeals ruled that a provision to provide free hunting and fishing
licenses to veterans, while perhaps worthy, did not fall within the general purpose or aim of a law whose
title was to implement sound scientific principles in the management of wolf populations. See also People
v Milton, 393 Mich 234, 246-247, 224 NW2d 266 (1974). The one-object provision may not be
circumvented by creating a title that includes different objects. Hildebrand v Revco Discount Drug
Centers, 137 Mich App 1, 11, 357 NW2d 778 (1984) (The addition in the title of an act to add a new
section in the body of the act did not cure the constitutional infirmity); Klinke v Mitsubishi Motors, supra.
The “prohibition against the passage of an act relating to different objects expressed in the title makes the
whole act void.” Skinner v Wilhelm, 63 Mich 568, 30 NW 311(1886).

Here the inclusion of a public-private partnership scheme to build a utility tunnel west of the Mackinac
Bridge for location of a privately-owned utility company’s pipeline for 99 years does not fall within the
general purpose of the title or the body of 1950 PA 21 and/or 1952 PA 214. While it could be argued that
both link an activity between the upper and lower peninsulas, the objects or aims of those purposes and
activities or uses are not remotely or even reasonably similar. They are diverse and different in their basic
purpose and nature, with different risks and measures. The sweeping “public-private partnership” or
privatization scheme38 with a public body authorized to build and manage wholly public facilities for a
limited number of privately-owned utilities is diverse and surely not necessary to the purpose and object
of the MBA and the acts in question. Accordingly, Act 359 must be held unconstitutional and invalid.

(3) The test for a “change of purpose challenge” is similar to the analysis regarding whether amendments
or provisions in a bill or substitute provisions are “germane” to the title of a bill, discussed under
Question 1, above. People v Kevorkian, supra, 447 Mich at 461; see discussion regarding the meaning
and application of “germane” or “closely akin” to the title in numbered paragraph (1) above. Moreover,
the purpose of the “change of purpose” provision is to prevent a slight of hand from one law, amendment,

37
Lease Agreement, paragraphs 19.1 and 19.2.
38
Public-private partnership or privatization (“P3 projects”) of public lands, facilities, services involve a distinctly
different range of means and complexities. They are vastly different from purely public funded, designed, bid, built,
owned, and operated facilities and services. Typically, a P3 project involves new legislative authority, consistent
with the state constitution involved, with oversight boards of private involvement and implementation of a project,
different delivery methods (design-build, private financing, design-build ownership and management, long-term
leases, management only, private control subject to oversight; the also involve open-bidding and compliance with
equal opportunity requirements, joint liability and indemnity arrangements, and several other matters. To date, P3s
have been limited to publically owned highways, and not privately owned utility projects. See Jason Tomasulo,
“Pennsylvania Passes Public-Private Partnership (P3) Law,”
https://www.construcionlawnowblog.com/infrastructure/pennsulvania-passes-public-private-partnersship/law;
“Public Private Partnership Laws/Concession Laws,” https://ppp.worldbank.org/public-private-
partnership/legislation-regulation/laws/ppp/.

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bill or substitute bill, to final bill; there is a particular emphasis on scrutiny where legislation, like SB
1197, S-1197, and various changes, are rushed by hasty legislation, where the original bill title is
changed, and provisions are added that would accomplish a different purpose than the purpose of the title.
Id., 447 Mich at 460, citing Anderson v Oakland Co. Clerk, 419 Mich 319, 329, 353 NW2d 448 (1984).

SB 1197 and its summary originally amended the Mackinac Bridge Authority law by adding provisions
that would authorize the authority to build a utility tunnel. Because of the unique purpose, structure,
authority, and powers, the Mackinac Bridge Authority statutes seemingly provided the ideal vehicle for
Enbridge to secure state-owned lands without applying under modern day environmental statutes like the
Great Lakes Submerged Lands Act. The trouble was and remains that the purpose of the Mackinac Bridge
Authority is to finance, acquire, operate, maintain, and improve the Mackinac Bridge as an entirely public
facility operated by an entirely public board.

The addition of the corridor authority to acquire a tunnel to the bill so fundamentally changed the purpose
and threatened the integrity of the bridge authority and bridge, that a substitute bill S-1197 was submitted.
This bill added “acquire utility tunnel” to the title, but did not disclose that it was to be accomplished and
implemented by a public-mostly private partnership, with substantial differences from a purely public
authority. Moreover, the substitute bill authorized the MBA to acquire the tunnel after it was built by
Enbridge, then transfer the tunnel back to Enbridge by a grant of easement and the 99-year lease.
Similarly, the enrolled SB 1197, Act 359, did the same, without disclosure in the title for legislators or the
public during the short 27 days from the introduction of the original bill to the changed substitute bill on
December 5, 2018, and the rushed, hasty consideration of the substitute bill between December 5 and the
day it was passed on December 12, 2018.39

Accordingly, the body of the bill substantially changed the approach and purpose of the original bill, and
for the reasons discussed in (1) above, those changes enacted by the enrolled SB 1197, Act 359, are not
closely related to, akin, or germane to the title or purpose of a public owned, built, operated, utility tunnel.
The entire purpose of Act 359, as described in the last-minute addition of Section 14 and Sections 14a
through 14e implemented a public-private project and partnership with substantial private control, gain,
benefit, and purpose not full disclosed in the title or amended title. This change of overall purpose differs
vastly and is not germane to a public bridge or totally public project.

Question No. 2:

Does the requirement that members of the board of the Corridor Authority serve for six years or
more violate the constitutional mandate under section 3 of article 5 of the Michigan Constitution of
1963 that the terms of office of any board or commission created or enlarged after January 1, 1964
must not exceed four years?

Yes. Act 359’s six-year term for the members of the board of the Corridor Authority violates the
constitutional mandate under Article 5 Section 3 of the Michigan Constitution, which expressly limits all
board terms to no more than four years. The real questions are: What is the effect of this unconstitutional
provision of Act 359. Can an unconstitutional section be severed?

Article 5, Section 3 of the Michigan Constitution of 1963 clearly states in unambiguous language that the
term of office of any board or commission created or enlarged after January 1, 1964 must not exceed four
years. “Terms of office of any board or commission created or enlarged after the effective date of this
constitution shall not exceed four years except as otherwise authorized in this constitution.” Section
39
The rushed atmosphere and confusion surrounding the changes in structure and purpose from the original bill that
barely complied with the 5-day-wait rule for enactment of a substitute bill required by Mich Const., art. 4, sec. 26.

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14b(2) of Act 359 explicitly violates this constitutional requirement as the law states the board members
of the Mackinac Straits Corridor Authority (“MSCA”) serve six-year terms: “Members of the corridor
authority board shall serve for terms of 6 years or until a successor is appointed and qualified, whichever
is later.”

This extended six-year term is not a legislative omission or oversight, nor an appendage of Act 21 of 1950
or Act 214 of 1952. Rather, this six-year term was an intentional end-run attempt to preclude the next
incoming Governor from appointing new board members within her four-year constitutional term, and the
facts support this. Despite strong public opposition at the SB 1197 committee hearings, Governor Snyder
signed Act 359 into law on December 12, 2018, and immediately appointed three members pursuant to
Section 14(b)(2): Geno Alessandrini (D), Tony England (D), Michael Zimmer (R). The following day,
Geno Alessandrini resigns and Snyder names James “J.R.” Richardson (R) as his replacement. Mike
Zimmer was Snyder’s cabinet director and a member of the Mackinac Bridge Authority. Recognizing the
statutory violation of Section 14(b) (8) which prohibits Mackinac Bridge Authority members from
serving on the board of the corridor authority, Governor Snyder then appointed Mike Nystrom (R). The
three current corridor authority board members include Tony England (D), James “J.R.” Richardson (R)
and Mike Nystrom (R) whose appointment to six-year terms clearly contravene and violate the clear and
unambiguous language of the Constitution restricting board terms to four years.

While it is undisputed that statutes cannot contravene the constitution, courts presume the
constitutionality of statutes and, if possible, construe and apply a statute to uphold their validity. Evans
Products v. State Board of Escheats, 307 Mich 506, 533-535 (1943). A facial challenge is “the most
difficult challenge to mount successfully, since the challenger must establish that no set of circumstances
exist under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

In 2005, Attorney General Mike Cox’s opinion no. 7178 addressed a similar constitutional board term
issue raised in Public Act 66 (2001), which amended the Michigan Historical Commission Act, 1913 PA
231, MCL 399.1 et seq. The OAG concluded that Article 5, Section 3 of the Michigan Constitution
invalidates only those provisions of Act 66 that specify a term of office in excess of four years and does
not affect the remaining provisions of the act. In examining the question of what effect the Constitution
has on PA 66, the OAG concluded that Article 5, Section 3 is self-executing by operation of law because
it supplies a sufficient rule by means of which the rights given may be enjoyed and protected and that no
legislation is necessary to give effect to a prohibition. Therefore, according to Cox’s OAG legal
reasoning, the terms of the MSCA are 4 years by operation of law, and the creation of the board itself
remains, along with all other sections of Act 359.

Factually, however, the Michigan Historical Commission and the Mackinac Straits Corridor Authority are
quite different because the unconstitutionally formed corridor authority then took legally binding actions
that committed state public trust resources for 99-years to benefit a private purpose. In the instance of the
Historical Commission, no legally binding agreements were at issue.

As directed by Act 359, the corridor authority immediately committed state public trust resources to an
easement and a lease for 99-years for the primarily private benefit and purpose to transport oil under the
Great Lakes. Because this unconstitutionally formed board took substantia legal action that purported to
transfer lands, including bottom lands of Great Lakes, easement, and long-term lease, turning over nearly
exclusive use and control of these lands and the tunnel to Enbridge, the Michigan Supreme Court should
strike down all legal agreements entered into by the Mackinac Straits Corridor Authority board.

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Question No. 5:

Does the Corridor Authority have any authority or power that is not constitutionally and explicitly
granted by Act 359?

No. The corridor authority does not have any authority not expressly delegated by the legislature under
Act 359. As a matter of law, absent a constitutional grant of power, such as a local government’s control
over streets,40 a board or authority created by the legislature has no more power than that which is
expressly delegated or necessarily implied by the enabling act. Ranke v Corp & Securities Div., 317 Mich
304, 309, 26 NW2 898 (1947).

Question No. 6:

If the Corridor Authority was not created in a manner that conforms to or is in violation of the
Michigan Constitution, is the Authority, its board, and/or any action taken by the Authority’s
board void or invalid?

To the extent that Act 359, including its express reference to the “tunnel agreement” and “series of
agreements,” violates or is not in conformity with Article 4, Section 24 and Article 5, Section 3, discussed
in the answers and legal analysis to Questions 1 and 2, above, the Act, and, therefore, the tunnel
agreement, easement, lease, and any other agreements entered into by the corridor authority or state in
furtherance of the authorization of a tunnel authority are void.

As a general rule, an unconstitutional statute is void ab initio; this means it is void for any purpose, that is,
the unconstitutional statute has no legal effect from the date it is enacted. Stanton v Lloyd Hammond
Produce Farms, 400 Mich 135 (1977); Briggs v Cambpell Wyant & Cannon Foundry, 379 Mich 160
(1967). Where a statute fails based on title-object, multiple purposes, or change in purpose grounds, the
“whole act is void.” Skinner v Wilhelm, 63 Mich 568, 30 NW 311 (1886); Advisory Opinion re
Constitutionality of 1975 PA 227, 396 Mich 123, 130-131, 240 NW3d 193 (1976).

The radical splicing or grafting the MBA Act transformed the bridge authority law into a law that
authorizes a public-private utility tunnel through private and public agreements or “public-private
partnership” is not germane or necessary to a public highway bridge or a public utility tunnel acquired by
the MBA or a corridor authority. Accordingly, the entire Act 359, and any agreements referenced by it,
such as a “tunnel agreement” or “series of agreements” (including the DNR Easement and Assignment of
Easement for the tunnel and new pipeline for Line 5 to Enbridge, a privately-owned corporation) are void.
The additional provisions added in the Substitute 1197 on December 5, 2018 and passed on December 12,
2018 substantially changed the body from the title by authorizing new means and measures not within the
bill or title itself and otherwise not germane, closely akin, or directly and necessarily related to a public
bridge or utility tunnel.

Moreover, as established under Question 2, above, Act 359 established terms of board members for more
than four-years in violation of Article 5, Section 3. The violation was effective on the date of passage of
the amendment on December 12, 2018, seven days before the corridor authority met and signed the tunnel
agreement on December 19, 2018. While the provision may be self-executing, that does not cure the fact
that Act 359 was void ab initio. Skinner, Briggs, Stanton, supra. If it was void ab initio, then the
provision, even if severable, was void before the corridor authority was established and powers
transferred to it from the bridge authority on appointment of its members. If the law authorizing the
appointments was void ab initio, then the Governor’s appointments are void and of no legal effect; as a
40
Mich Const., art.7, sec.29.

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result, the corridor authority’s action in approving and signing the tunnel agreement, including the
attached easement, assignment of easement, and 99-year-lease agreement, would be void. It is submitted
that it is legally impossible for members of a board with terms of more than 4 years in violation of the
constitution, where the statutory provision authorizing them to take action is void on enactment.

C. ADDITIONAL COMMENTS ON VALIDITY OF ACT 359, REFERENCED AGREEMENTS, AND

ATTACHMENTS

1. Article 4, Section 30

The assent of two-thirds of the members elected to and serving in each house of the legislature
shall be required for the appropriation of money or property for a local or private purpose.

The Constitution prohibits an appropriation of money or property of the state for local or private
purposes, unless it is approved by a vote of two-thirds of the members serving in each of the Senate and
House. The courts decline to review an appropriation of property where there is a two-thirds vote because
it is considered constitutionally acceptable.41 Where the two-thirds vote is lacking, the courts exercise
judicial review to assure the appropriation serves a public purpose. The language or nearly identical
language to Article 4, Section 30 has appeared in every constitution adopted in Michigan since 1850.42

While the courts defer to legislative declarations of public purpose, the legislature is not insulated from
the two-thirds requirement; a law passed without two-thirds assent granting access to election form
information at public expense constituted a private purpose in violation of art. 4, sec. 30. Grebner v State,
480 Mich 939, 744 NW2d 123 (2007). Conveyances of state land and money for private entities,
including nonprofit organizations are prohibited unless approved by a two-thirds vote, 43 including
forestry districts to help pay for cost-sharing agreements;44 and appropriation of state land to the Red
Cross for $ 1.00.45 The essential question is whether a conveyance of state land, property, or money is for
fair value or compensation; if there is fair value without a subsidy in the legislative scheme, there is no
violation.46

Under a closely related provision of the Constitution that prohibits conveyance of land or money paid for
by the taxpayers unless for a public purpose,47 the Court struck down a conveyance of public property by
the City of Flint without consideration to the federal government—a conveyance or appropriation for less
than fair value was not a valid public purpose.48 When the city turned around and conveyed the property
based on the appraised fair market value, the Court held it was a proper public purpose.49

In another context, the Supreme Court reinstated a strict public purpose standard in the exercise of
condemnation powers50 in Wayne County v Hathcock, 471 Mich 445, 684 NWA2wd 765 (2004).51 In

41
Advisory Opinion on the Constitutionality of Act 346 of Public Acts of 1966, 380 Mich 554 (1968).
42
It first appeared in Const. 1850, art. 14, sec. 6, growing out of the economic benefits or state land given to friends
under Governor Mason’s administration.
43
OAG 1955, No. 2090.
44
OAG 1983, No. 6123,
45
Footnote, 43, supra.
46
OAG 1994, No. 6804.
47
Mich Const. 1908, art. 10, sec. 12 (Now Mich Const. 1963, art. 9, sec. 18) (“The credit of the state shall not be
granted to, nor in aid of any person, association or corporation, public or private.”).
48
Young lass v City of Flint, 345 Mich 576, 77 NW2d 84 (1956).,
49
Sommers v City of Flint, 355 Mich 655, 96 NW2d 119 (1959).
50
Mich Const. 1963, art. 10, sec. 2.

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doing so, the Court overruled the Poletown, concluding that the exercise of eminent domain to take land
for a public use or purpose, and transfer the land for the creation of a private, technological-park land
development; jobs, economy and other incidental benefits did not constitute a valid public purpose.
Poletown Neighborhood Council v Detroit, 310 Mich 616, 304 NW2d 455 (1981).

Across the constitutional landscape in Michigan, the transfer of state or public land for private purposes is
prohibited, or in the case of an appropriation for private purpose requires a two-thirds vote of each house.
The tests are whether the conveyance is for a public use or private use based on payment of fair market
value; if not, there is an underlying subsidy and it is a private, not a public purpose. Further, an additional
test is whether there is a conveyance, lease, or private use under control of a private corporation—that is,
if the private corporation grantee or lessee has control over the independent decision of a governmental
authority, it constitutes an unconstitutional purpose.

Act 359 did not receive the assent of two-thirds of the members serving the house. As described at length
above, Act 359, the tunnel agreement, the easement and lease for private use of the soils under the Straits
grants Enbridge control for 99 years. Act 359 and the tunnel agreement require the transfer of state lands,
including bottomlands and soils under the Straits, to the corridor authority and, in turn, directly to
Enbridge for its private pipeline. Among other provisions, there is no requirement of compensation for the
conveyance and lease; Enbridge retains dominant control of the tunnel, the easement, the leased property,
controls whether another utility can use the tunnel and state lands, and even has assurances that it can
purchase the tunnel should the authority terminate the lease or not want the tunnel. Moreover, as will be
seen in the next section, neither the corridor authority nor Enbridge are required to obtain authorization
for the conveyance based on findings of public purpose and no impairment that are required for a
conveyance of an easement, lease, or other occupancy and use agreement of the soils and bottomlands of
the Great Lakes under the common law of public trust.52

Act 359, the tunnel agreement and related documents and agreements violate art. 4, sec. 30, because the
law and agreements convey public land and rights in state lands for a primarily private purpose and
control and/or for non-public purpose without sufficient and fair market value. Accordingly, the Act and
related agreements, easement, and 99-year-lease to Enbridge are void.

2. The Public Trust Doctrine and Great Lakes Submerged Lands Act (“GLSLA”)

When Michigan joined the United States in 1837, the State of Michigan took title, absolutely, as
sovereign for its citizens under the “equal footing” doctrine to all of the navigable waters in its territory,
including the Great Lakes, and “all of the soils under them” below the natural ordinary high mark.53 All of
these waters and the soils beneath them are held in and protected by a public trust.54 The public trust
doctrine means that the state holds these waters and soils beneath them in trust for the public for the
protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing,
drinking water, and other recreation.55 As a general rule, there can be no disposition, transfer, conveyance,
occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a
statute or law that expressly authorizes the proposed disposition, occupancy, or action and the statute

51
The Court overruled the broader interpretation of “public purpose” in Poletown Neighborhood Council v Detroit,
310 Mich 616, 304 NW2d 455 (1981).
52
Illinois Central and Obrecht, supra, fn 11.
53
Shively v Bowlby, 14 S. Ct. 548 (1894); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892); State v Venice of
America Land Company 160 Mich 680 (1910); Glass v Gackle, 473 Mich 667 (2005).
54
Id.; see also Obrecht v National Gypsum, 361 Mich 299 (1961).
55
Id., Illinois Central, Obrecht, Glass.

13 | F L O W
contains and requires a consideration that the following standards for the narrow exception to the rule
have been duly satisfied:56

(1) The proposed disposition, occupancy, or action predominantly serves or enhances a public
trust interest or interest (such as navigation, fishing, etc.), not a private one; and
(2) The proposed disposition, occupancy, or action will not interfere with or impair the public
trust waters, soils, habitat, wildlife like fish and waterfowl, or one or more of the public-trust
uses.57

From the foregoing discussion of the original MBA in 1950 PA 21 and 1952 PA 214, and Act 359 and the
provisions that require signing of the tunnel agreement by the MSCA (corridor authority), it is clear that
the legislature authorized the grant or conveyance of rights, easements, and the 99-year-lease in the Great
Lakes and the soils beneath them. It is also clear that pursuant to Act 359, the MSCA obtained an
easement from MDNR in the soils and bottomlands of the Great Lakes (the Straits) for the utility tunnel,
and reassigned the easement to Enbridge as required by the tunnel agreement. This scheme was set up by
paragraph G of the Second Agreement between the Governor, MDEQ, MDNR an Enbridge, which called
for the State of Michigan to transfer necessary public property for the tunnel and the long-term lease back
of the property to Enbridge to control the tunnel and locate its pipeline in the tunnel within the soils and
bottomlands of the Great Lakes. In addition, the Third Agreement between the State of Michigan and
Enbridge, signed the same day as the tunnel agreement between the MSCA and Enbridge, authorizes
Enbridge to continuing using and occupying the bottomlands and waters of the Straits for the existing
dual pipelines “until such time that the Straits Line 5 Replacement Segment is placed into service with the
Tunnel.”58

Section 3.1(a) of the tunnel agreement provides that the MSCA will acquire from the MDNR a “tunnel
easement” to grant lawful right to enter, occupy, and use lands beneath the lakebed of the Straits…
necessary for the construction, use, operation, and maintenance of the Tunnel.” Under Section 3.1(b) on
the signing of the tunnel agreement, the corridor authority was required to assign the easement or
“subsurface right of way” to Enbridge to occupy, use, construct, operate, and maintain the tunnel. At the
same time, Section 3.2(a) of the tunnel agreement provides for acceptance of title of the tunnel after
Enbridge completes construction, coupled with a simultaneous lease-back to Enbridge for 99 years for
exclusive use of the easement or subsurface right-of-way for its new or replacement Line 5 segment.
Section 3.2(b) provides that other utilities may request permission from the MSCA, subject to consent or
non-interference with Enbridge’s rights and use, for other utilities in their discretion to locate electrical,
cable, or other pipelines in the tunnel.59 Section 17.4(c) grants Enbridge the right to the continued use of
the tunnel easement for 99 years if the tunnel agreement is terminated.60

The MDNR’s easement to the corridor authority issued on December 17, 2018 only cites the authority of
MCL 254.324a(3) and MCL 254.324d(1) for the purpose of granting the authority to place, construct,
operate, maintain… and use” the subsurface soils beneath the lakebed of the Straits and Lake Michigan.
The easement authorizes the corridor authority to assign the easement to Enbridge upon signing the tunnel
agreement with the corridor authority. Under the assignment of the easement, the MDNR is prohibited
from entering into any other third-party assignment, grant, lease or licenses without Enbridge’s consent.61
The easement and assignment of the easement grant all rights to Enbridge to the “underground lands”

56
Id. p. 416.
57
Id.
58
Third Agreement, Dec. 19, 2018, paragraph 4.2, p. 4.
59
See also Tunnel Agreement, section 6.1, p. 10.
60
See also Assignment of Utility Easement for Utility Tunnel, paragraph 2.
61
Id., paragraph

14 | F L O W
“specifically lands located beneath the lakebed to which the state has title.” 62 As discussed below, this
language is asserted to limit the authorization for the easement and lease to the area beneath the lakebed
of the Straits in an unlawful attempt to avoid the public trust doctrine and explicit standards imposed by
the Great Lakes Submerged Lands Act (“GLSLA”).63

Like the easement, the lease transfers possession to Enbridge to use, control, and operate the tunnel and
its new Line 5 segment for the 99-year term. The lease provides for possible use by other utilities subject
to Enbridge’s consent and determination that it will not interfere with its private use of the tunnel for its
pipeline. In the event another utility subleases from Enbridge, the costs of operating the tunnel can be
apportioned, to reduce Enbridge’s cost obligations.64 As noted above, if the lease is terminated under
certain circumstances, the assignment of the subsurface easement for the tunnel “will remain in effect;65
and Enbridge has a right to purchase the tunnel and all rights to subsurface if the corridor authority wants
to abandon its ownership and oversight of the tunnel and lease.66 Enbridge was not required to pay any
fair market compensation for the assignment of the easement or lease for the rights of construction,
occupancy, use, and operation of the tunnel and its Line 5 segment to the tunnel and soils and
bottomlands of Lake Michigan beneath the lakebed. While Enbridge is required to pay real estate taxes
for its leasehold interest and replacement pipeline segment, the land and tunnel are exempt from real
property taxes, so those taxes are not passed along to Enbridge as they would be in normal circumstances.
The corridor authority assures Enbridge it will not terminate the tunnel easement during the term of the
lease.67

a. Act 10 of Public Act (“Act 10”) Easements for Public Utilities Over, Under or Through
State Lands and State-owned Public Trust Bottomlands

The legislature enacted Act 10 in 1953 to authorize the state to grant easements over, though, under, and
upon any and all lands belonging to the State of Michigan, including “the unpatented lake bottomlands
belonging to or held in trust.” Act 10 was reenacted as part of NREPA, MCL 324.324.2129, and is the
basis for the Easement for the Utility Tunnel in lands and soils beneath the lakebed of the Straits. Section
2129, MCL 324.2129, authorizes “easements” (not leases or conveyances) for public utility projects
certified by the Michigan Public Service Commission (“MPSC”). However, the MPSC has not certified
this utility tunnel easement at issue. Act 10, now MCL 324.2129, clearly applies to public trust
bottomlands and lakebeds beneath the Great Lakes.

In 1955, two years after the enactment of Act 10, the Michigan legislature passed the GLSLA. The
GLSLA supplied for the first time in the State of Michigan’s history express authorization for
conveyances, easements, leases, and occupancy or use agreements for the waters and soils under the Great
Lakes. The GLSLA inserted standards to incorporate the prohibition against disposition, leases, and
occupancy of the public trust soils, lakebed, and waters pursuant to the seminal case of Illinois Central
Railroad. Before the GLSLA, Act 10 (and MCL 324.2129 now) did not incorporate public trust standards
for the narrow exception for disposition, easements, leases, and occupancy of these public trust
bottomlands and soils. In Obrecht v National Gypsum Co, the Michigan Supreme Court adopted Illinois
Central principles and standards that were incorporated into the GLSLA. As such, any public utility
easement authorized under MCL 324.2129 is now subject to the GLSLA and its required authorization
based on due recorded findings of fact that the public trust standards under public trust law are satisfied.

62
Id., p. 1.
63
MCL 324.32502; MCL 324.32503 et seq.
64
Tunnel Lease, Art. 9, pp. 5-6.
65
Id., 18.3, p. 15.
66
Id., 19.1 through 19.3, p. 15.
67
Id., 20.1, p. 16.

15 | F L O W
Accordingly, the transfer of state bottomlands to the authority and Enbridge for a tunnel and the grant of
the tunnel easement, its assignment, the lease, and other use and occupancy assurances to Enbridge
granted under MCL 324.2129 have not been authorized pursuant to the required public trust standards and
findings under Illinois Central and Obrecht.

a. Great Lakes Submerged Lands Act of 1955: Limited Conveyances, Leases, Agreements,
or Actions Over, On, In, or Through Soils and Bottomlands of the Great Lakes.

The GLSLA prohibits any conveyance, lease, agreement, occupancy, use or other action in the waters or
on, in, through or under the bottomlands of the Great Lakes, unless authorized by the Michigan DEQ
pursuant to the public trust standards in the GLSLA and the common law of the public trust doctrine.68

This part shall be construed to preserve and protect the interests of the general public in the lands
and waters described in this section…to provide for the sale or lease or other disposition…or
permit filling in [including dredging or removal of materials]…If it is determined by the
department that the public or private use of those lands and waters will not substantially affect the
public use of those lands and waters for hunting, fishing, swimming, boating, or navigation or
that the public trust in the state will not be impaired by those agreements use, sale, lease or other
disposition.”69
***
(4) Agreements for lands or water… described in section 32502 may be granted with local units
of government for public purposes.70

No agreement or lease can be authorized for Enbridge’s 99-year tunnel lease and crude oil pipeline
because: (1) it is not for a recognized public trust purpose such as fishing, boating, navigation, and
recreation, and (2) it will interfere with and impair navigation, fishing, and cause massive disruption to
fish, habitat, and other public trust uses. Moreover, under the GLSLA, the public trust soils and waters of
the Great Lakes cannot be used for construction for a privately leased and operated tunnel and pipeline
unless Enbridge proves under rule of law that there are no other feasible and prudent alternatives.71

In this instance, the MDEQ, MDNR, Governor and Enbridge inserted language in the Tunnel Easement
that states, “The easement and right of way do not include any lands or interests in land on or above the
lakebed.”72 This language was a calculated attempt by the State of Michigan and Enbridge to circumvent
the required authorization and findings to comply with the public trust doctrine under the GLSLA. Failure
to do so violates the GLSLA, and the tunnel agreement, easement, and lease are therefore void.
Moreover, the attempted avoidance of the GLSLA also violates the title vested in and held by the state
under the trust imposed on all navigable waters and the soils under them by the equal footing doctrine.73

Therefore, the transfer of bottomlands by Act 359, the tunnel agreement, easement and use, as well as the
assurances to continue the operation of the existing dual lines in the Straits of Mackinac must be

68
MCL 324.32501 et seq., specifically sections MCL 322.32502 and 32503.
69
MCL 324.32502; see also 324.32503, 324.32504, 324.32505(4), 324.32512.
70
MCL 324.32505(4).
71
GLSLA Rule 1015. R 322.1015.
72
Easement to Construct Underground Utility Tunnel at the Straits of Mackinac, second paragraph, p. 1.
73
Shively v Bowlby, 14 S. Ct. 548 (1894); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892); State v Venice of
America Land Company 160 Mich 680 (1910); Glass v Gackle, 473 Mich 667 (2005).
73
Id.; see also Obrecht v National Gypsum, 361 Mich 299 (1961).

16 | F L O W
authorized by the GLSLA in addition to MCL 324.2129. If not, the authorization under MCL 324.2129
fails for lack of the required public trust standards and findings imposed by the public trust doctrine.

17 | F L O W
 February 8, 2019

ATTORNEY GENERAL DANA NESSEL Via Electronic Mail to:

G. Mennen Williams Building NesselD@michigan.gov
525 W. Ottawa Street
PO Box 30212
Lansing, MI 48909

RE: Legal issues raised by Public Act 359 of 2018 and Potential Impacts on Pending
Contested Case Proceedings
Our File No. 6247.00

Dear Attorney General Nessel:

This office represents the STRAITS OF MACKINAC ALLIANCE, the GRAND TRAVERSE BAND
OF OTTAWA AND CHIPPEWA INDIANS, and the CITY OF MACKINAC ISLAND. We are submitting this
letter on behalf of our clients in response to your public invitation for interested parties to provide
legal memoranda, briefs, and/or comments concerning Act 359 of the Public Acts of 2018 (Act
359) and Governor Whitmer’s January 1, 2019 formal request for an Opinion of the Attorney
General regarding Act 359.

Contested Cases

As you likely know, our clients have initiated contested case proceedings challenging two
permits issued by the Michigan Dept. of Environmental Quality (DEQ) to Enbridge Pipelines
(Lakehead), LLC (Enbridge) in March and November of 2018 for the installation of 22 and 48
anchor support structures, respectively, along the dual “Line 5ˮ oil pipelines in the Straits of
Mackinac. 1

Those contested cases are premised primarily on the contention that in issuing those
permits the DEQ failed to follow and properly apply the requirements of the Great Lakes
Submerged Lands Act (Part 325 of the Natural Resources and Environmental Protection Act; MCL
§324.32501 et seq.), and also effectively surrendered the State’s duty to protect the public trust
interests in the Great Lakes and their bottomlands. Furthermore, the Petitioners assert that the
installation of these anchor support structures (which, if all supports authorized by all current and
pending permits are installed, would number roughly 200) effectuates a fundamental change in the
original design of Line 5 as it was approved by the State in 1953. The structures lift nearly three
miles of the dual pipelines off the lakebed, and the DEQ has never undertaken an evaluation or
analysis of the risks and potential impacts of doing so under the GLSLA, its Rules, and other
applicable Michigan law.

1
See May 18, 2018 Petition for Contested Case & Addendum, Michigan Office of Administrative Hearings &
Rules, Docket No. 18-010802; and January 24, 2019 Petition for Contested Case & Addendum, Michigan Office of
Administrative Hearings & Rules, Docket No. TBD.
Public Act 359 & Line 5 Pipeline
February 8, 2019
Page 2

Opinion Regarding PA 359

As you know, Act 359 purports to authorize the creation and operation of a utility tunnel
that would potentially house a newly-constructed portion of the Line 5 pipeline beneath the Straits
of Mackinac. Unfortunately, however, Act 359 and certain related documents executed by
Governor Snyder’s administration go beyond merely addressing this tunnel concept, and instead
appear to facilitate the continued operation of Line 5 in the Straits without regard to the DEQ’s
failures as set forth above (and more fully in our client’s contested case petitions).

Due to the structure of Act 359 and the various related agreements, we believe it is possible
that your forthcoming Opinion could potentially touch on or even directly implicate matters at
issue in these pending contested cases concerning the existing Line 5 pipelines, including, but not
limited to, the application of the Great Lakes Submerged Lands Act and the public trust doctrine
– both of which are crucial components of these proceedings.

As such, we therefore write to respectfully request that your Opinion be narrowly drawn
and focused entirely on the validity of Act 359, rather than addressing larger questions of whether
Enbridge’s operation of Line 5 is legally compliant and whether oil should keep flowing through
the Straits. We further ask that the Opinion not affect, in any way, the obligation of the State to
review and require Enbridge to comply with the GLSLA, its rules, the public trust doctrine, and
other relevant Michigan law related to the ongoing operation of the exising Line 5 pipelines, as
doing so could affect the viability of the pending administrative appeals and/or foreclose potential
claims by or outcomes for our clients.

Should you have any questions regarding the foregoing, please contact us at our office by
phone at 231.946.0044 or via email at your convenience. Thank you for your considered attention
to our request.
Sincerely,

Scott W. Howard Ross A. Hammersley

scott@envlaw.com ross@envlaw.com

William C. Rastetter Rebecca L. Millican

bill@envlaw.com rebecca@envlaw.com

cc: Kelly Keenan (KeenanK@michigan.gov)

Memorandum
To: Attorney General Dana Nessel
From: Environmental Law & Policy Center
Andrene Dabaghi and Margrethe Kearney
National Wildlife Federation
Andy Buchsbaum, Benjamin Muth, Oday Salim, Mike
Shriberg, Beth Wallace, and Bruce Wallace
Date: 2019 February 1
Subject: Constitutionality of tunnel law in light of Article 4,
§ 24 of the Michigan Constitution

In a letter dated January 1, 2019, Governor Whitmer wrote to you requesting an opinion on the con-
stitutionality of Public Act 359 of 2018 (“Act 359”). In particular, Governor Whitmer posed six
questions. We provide answers to Questions 1, 2, 3, and 6. If you have any questions, please contact
Oday Salim, attorney for National Wildlife Federation: salimo@nwf.org and 586-255-8857.

In its haste to enact the law during a lame duck session that preceded the inau-
guration of a governor and attorney general from another political party, the
legislature committed many fatal flaws when drafting Act 359.
Despite years of discussion, reports, studies, and task forces, 2017-2018 legislature and Governor
Snyder took no legislative action on a proposed tunnel after the November 6, 2018 elections, jam-
ming all the legislation actions—multiple bills and proposed authorities, significant amendments,
and many mistakes – into a brief lame duck session. Informally, the Snyder administration an-
nounced on October 3, 2018, a month before the November elections, that the Mackinac Bridge
Authority (“MBA”) would take ownership of the underground tunnel located in the Great Lakes
bottomlands that would house the replacement to Line 5. It appears the board members of the
MBA were not aware of this until the announcement and there was no legislative action until over a
month later.

On November 7 – prior to any bill being introduced-- MBA board members received a draft of a
proposed agreement between the MBA and Enbridge in anticipation of the MBA being given the
authority to enter into agreements for the underground tunnel. The next day, the MBA hosted a
standing room only public meeting in St. Ignace where most of those who commented for the rec-
ord expressed vigorous opposition to the notion that the MBA should add to its responsibility an
underground tunnel intended to transport oil.
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 2 of 17

Then came the lame duck session. The Senate introduced SB 1197 on November 8, 2018. The initial
version of SB 1197 would have altered the MBA’s mandate by adding responsibility for an under-
ground tunnel to transport oil. After significant public opposition and opposition by members of the
MBA board, on December 5 the Senate substantially altered SB 1197 by creating a new political au-
thority, the Mackinac Straits corridor authority, which would be responsible for construction and
operation of the underground tunnel. The new version of SB 1197 purported to amend the Macki-
nac Bridge Authority Act, Act 214 of 1952, MCL 254.311-332, by amending sections 1 and 5 and
adding sections 14, 14a, 14b, 14c, 14d, and 14e.

SB 1197 was enacted into law on December 12, 2018 – only thirty-five days after originating in the
Senate. Act 359 of 2018, MCL 254.311, 315, 324-324e. Immediately Governor Snyder appointed
members of the corridor authority’s board so that the board could sign the contract he had pro-
posed for a different authority -- the Mackinac Bridge Authority -- two months earlier. But in his
haste, he made mistakes. On December 13 and 17, two members initially appointed to the corridor
authority board resigned based on conflicts of interest. Snyder immediately made new appointments
and the Senate quickly rubber-stamped them. On December 19 the brand new corridor authority
board approved the agreement between itself and Enbridge – the agreement that had been drafted
prior to creation of the corridor authority and to which the corridor authority board made no mate-
rial revisions. In rushing to make SB 1197 into law, the legislature failed to amend Act 21 of 1950.
MCL 243.301-302. Act 21 was an organic constitutive law that created the Mackinac Bridge Author-
ity (“MBA”), addressed liability and insurance issues, and provided the initial powers and duties of
the MBA.

The law SB 1197 did amend, Act 214, was enacted in 1952. Since Act 21 had already created the
MBA, Act 214 was exclusively about how the MBA would operate, maintain, and raise revenue for
the Mackinac Bridge.

Yet SB 1197 (now Act 359) makes only minor modifications to the operation and duties of the
Mackinac Bridge Authority, the subject of the original Act 214 it amended. Instead, it establishes a
wholly new governing body called the corridor authority to construct and operate an underground
tunnel that will mainly transport oil. Act 359 also creates a new fund for the tunnel in the treasury,
requires the attorney general to either defend the law or pay for outside attorneys to do so, and re-
quires the newly created corridor authority to enter into a very specific contract for the underground
tunnel.

Question 1
Does Act 359 violate the Title-Object Clause (Const 1963, art 4, § 24) because it
embraces more than one object, the object embraced is not stated in the law’s
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 3 of 17

title, or because SB 1197 was altered or amended on its passage through the
legislature so as to change its original purpose?
Yes, Act 359 violates the Title-Object Clause because the title does not adequately express the object
of the law and because the law embraces more than one object.
Act 359 amended the title of Act 218 by adding three phrases that relate to the utility tunnel. Below
is a comparison of Act 218’s title with that of Act 359. The words added by Act 359 are highlighted
in green.

Act 218’s title Act 359’s title

AN ACT authorizing the Mackinac bridge au-
thority to acquire a bridge connecting the Up-
per and Lower Peninsulas of Michigan, includ-
ing causeways, tunnels, roads and all useful re-
lated equipment and facilities, including park,
parking, recreation, lighting, and terminal facili-
ties; extending the corporate existence of the
authority; authorizing the authority to enjoy
and carry out all powers incident to its corpo-
rate objects; authorizing the appropriation and
use of state funds for the preliminary purposes
of the authority; providing for the payment of
the cost of the bridge and authorizing the au-
thority to issue revenue bonds payable solely
from the revenues of the bridge; granting the
right of condemnation to the authority; grant-
ing the use of state land and property to the au-
thority; making provisions for the payment and
security of bonds and granting certain rights
and remedies to the holders of bonds; authoriz-
ing banks and trust companies to perform cer-
tain acts in connection with the payment and
security of bonds; authorizing the imposition of
tolls and charges; authorizing the authority to
secure the consent of the United States govern-
ment to the construction of the bridge and to
AN ACT authorizing the Mackinac bridge au-
thority to acquire a bridge and a utility tunnel
connecting the Upper and Lower Peninsulas of
Michigan, including causeways, tunnels, roads
and all useful related equipment and facilities,
including park, parking, recreation, lighting, and
terminal facilities; extending the corporate ex-
istence of the authority; authorizing the author-
ity to enjoy and carry out all powers incident to
its corporate objects; authorizing the appropria-
tion and use of state funds for the preliminary
purposes of the authority; providing for the
payment of the cost of the bridge and authoriz-
ing the authority to issue revenue bonds paya-
ble solely from the revenues of the bridge;
granting the right of condemnation to the au-
thority; granting the use of state land and prop-
erty to the authority; making provisions for the
payment and security of bonds and granting
certain rights and remedies to the holders of
bonds; authorizing banks and trust companies
to perform certain acts in connection with the
payment and security of bonds; authorizing the
imposition of tolls and charges; authorizing the
authority to secure the consent of the United
States government to the construction of the
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 4 of 17

secure approval of plans, specifications, and lo-
cation of the bridge; authorizing employment
of engineers regardless of whether those engi-
neers have been previously employed to make
preliminary inspections or reports with respect
to the bridge; authorizing the state transporta-
tion department to operate and maintain the
bridge or to contribute to the bridge and enter
into leases and agreements in connection with
the bridge; exempting bonds and the property
of the authority from taxation; prohibiting
competing traffic facilities; authorizing the op-
eration of ferries by the authority; providing for
the construction and use of certain buildings;
and making an appropriation.
bridge and to secure approval of plans, specifi-
cations, and location of the bridge; authorizing
employment of engineers regardless of whether
those engineers have been previously employed
to make preliminary inspections or reports with
respect to the bridge; authorizing the state
transportation department to operate and main-
tain the bridge or to contribute to the bridge
and enter into leases and agreements in connec-
tion with the bridge; exempting bonds and the
property of the authority from taxation; prohib-
iting competing traffic facilities; authorizing the
operation of ferries by the authority; authoriz-
ing the creation of the Mackinac Straits corridor
authority; authorizing the operation of a utility
tunnel by the authority or the Mackinac Straits
corridor authority; providing for the construc-
tion and use of certain buildings; and making an
appropriation.

The Title-Object Clause states in full:

No law shall embrace more than one object, which shall be expressed in its title. No
bill shall be altered or amended on its passage through either house so as to change
its original purpose as determined by its total content and not alone by its title.
Const 1963, art 4, § 24 (“TOC”). “The purpose of the [TOC] is to prevent the Legislature from
passing laws not fully understood, to ensure that both the legislators and the public have proper no-
tice of legislative content, and to prevent deceit and subterfuge.” People v Cynar, 252 Mich App 82,
84 (2002); People v Bosca, 310 Mich App 1, 83 (2015). “The constitutional requirement should be
construed reasonably and permits a bill enacted into law to ‘include all matters germane to its object,
as well as all provisions that directly relate to, carry out, and implement the principal object.’” Gen
Motors Corp v Dep’t of Treasury, 290 Mich App 355, 388 (2010) (citation omitted).
There are three ways in which legislation can violate the TOC: 1) title-body, 2) multiple-object, 3)
change of purpose. People v Kevorkian, 447 Mich 436, 453 (1994).
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 5 of 17

The amended title in Act 359 does not adequately express the content of Act 359. Therefore,
Act 359 violates Const 1963 Art 4, § 24.
A title-body infirmity exists if the title does not adequately express its contents, Township of Ray v
B&BS Gun Club, 225 Mich App 724, 728 (1997), such that the “body exceeds the scope of the ti-
tle.” Coalition Protecting Auto No-Fault v Mich Catastrophic Claims Ass’n, 305 Mich App 301, 314
(2014), vacated in part on other grounds by 498 Mich 896 (2015). “The title of an act must express
the general purpose or object of the act.” Township of Ray, 225 Mich App at 728-29. “However, the
title of an act is not required to serve as an index to all of the provisions of the act. Instead, the test
is whether the title gives the Legislature and the public fair notice of the challenged provision.” Id.
“The fair-notice requirement is violated only ‘where the subjects [of the title and body] are so di-
verse in nature that they have no necessary connection….’” Coalition Protecting Auto No-Fault, 305
Mich App at 315 (quoting Cynar, 252 Mich App at 85). The content of the body must be “germane,
auxiliary, or incidental to the general object and purpose of the [law] as expressed in its title, ….” Rohan
v Detroit Racing Ass’n, 314 Mich 326, 357 (1946) (emphasis added); see also, Price v Township Bd
of Oakfield, 182 Mich 216, 223 (1914) (finding that the body of an amendment fell outside the
scope of the title when the title related to prohibition of liquor traffic while the body of the amend-
ment provided for regulation of liquor traffic). “Insofar as one of the purposes of the Title-Object
Clause is to provide notice of the content of a bill to the Legislature and the public, a more specific
title better achieves that purpose, […].” Kevorkian, 447 Mich at 458.
Ultimately, when courts in Michigan evaluate whether there is a title-body problem, they essentially
look to see whether the title of an amended law (whether or not the title itself is amended) corre-
sponds to the body of the amendment.
In Rohan v Detroit Racing Ass’n, the court held that an amendment did violate the TOC due to a
title-body problem because the amendment itself did more than what the title communicated. 314
Mich 326 (1946). The statute at issue addressed horse racing. The title stated in full:
An Act to provide, regulate and license the conducting of racing meets in the state of
Michigan; to create the office of Michigan racing commissioner, to prescribe his
powers and duties and to provide for this salary and expenses; to legalize and permit
auction pools, the pari-mutuel or certificate method of wagering on the result of
races at licensed race meetings in the state of Michigan; to appropriate the funds de-
rived therefrom; to render inapplicable all acts or parts of acts in conflict therewith,
and to provide penalties for the violation thereof
The body of the amendment authorized the Department of Agriculture to lease public land for
horse racing. The Supreme Court held that, even though leasing land for horse racing is related to
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 6 of 17

the law’s object which was horse racing, nothing in the title provided the legislature fair notice that
the body of the amendment would also contain a public land leasing provision. Id at 355-58.
The question to ask about Act 359 is, did the title adequately express the object of the bill so as to
provide fair notice to the legislature? Act 359 amended the title of Act 218 by adding three phrases
that relate to the utility tunnel. The new title reads:
AN ACT authorizing the Mackinac bridge authority to acquire a bridge and a utility
tunnel connecting the Upper and Lower Peninsulas of Michigan, including cause-
ways, tunnels, roads and all useful related equipment and facilities, including park,
parking, recreation, lighting, and terminal facilities; extending the corporate existence
of the authority; authorizing the authority to enjoy and carry out all powers incident
to its corporate objects; authorizing the appropriation and use of state funds for the
preliminary purposes of the authority; providing for the payment of the cost of the
bridge and authorizing the authority to issue revenue bonds payable solely from the
revenues of the bridge; granting the right of condemnation to the authority; granting
the use of state land and property to the authority; making provisions for the pay-
ment and security of bonds and granting certain rights and remedies to the holders
of bonds; authorizing banks and trust companies to perform certain acts in connec-
tion with the payment and security of bonds; authorizing the imposition of tolls and
charges; authorizing the authority to secure the consent of the United States govern-
ment to the construction of the bridge and to secure approval of plans, specifica-
tions, and location of the bridge; authorizing employment of engineers regardless of
whether those engineers have been previously employed to make preliminary inspec-
tions or reports with respect to the bridge; authorizing the state transportation de-
partment to operate and maintain the bridge or to contribute to the bridge and enter
into leases and agreements in connection with the bridge; exempting bonds and the
property of the authority from taxation; prohibiting competing traffic facilities; au-
thorizing the operation of ferries by the authority; authorizing the creation of the
Mackinac Straits corridor authority; authorizing the operation of a utility tunnel by
the authority or the Mackinac Straits corridor authority; providing for the construc-
tion and use of certain buildings; and making an appropriation.
The words that Act 359 added to Act 214 are highlighted in green. Highlighted in yellow are the
words that relate expressly or obviously to a bridge and not to a tunnel.
The title states that Act 359 does the following in relation to a utility tunnel:
• Authorizes the Mackinac Bridge Authority to acquire a utility tunnel
• Authorizes the creation of the corridor authority
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 7 of 17

• Authorizes either the Mackinac Bridge Authority or the corridor authority to operate a utility
tunnel
Contrast what the amended title in Act 359 says about the corridor authority with what Act 359 it-
self says about the corridor authority:
• Authorizes the Mackinac Bridge Authority to acquire a utility tunnel
• Authorizes the creation of the corridor authority
• Authorizes either the Mackinac Bridge Authority or the corridor authority to operate a utility
tunnel
• Creates a fund within the state treasury related to the tunnel (§ 14c)
• Causes an automatic transfer of all tunnel-related authority, and all money from the protec-
tion fund, from the Mackinac Bridge Authority to the corridor authority once the corridor
authority’s board is appointed (§ 14d(1))
• Creates a new role for the Mackinac Bridge Authority, which is to receive and review reports
from the corridor authority that describe any impacts of the utility tunnel on the bridge
(§ 14d(2))
• Declares that leasing of space in the utility tunnel to a utility is not competition with the
bridge (§ 14d(3))
• Requires the corridor authority to enter into a very specific kind of contract to construct,
maintain, operate, and decommission the utility tunnel, and describes the kind of contract it
needs to be in great detail (§ 14d(4))
• Requires the Attorney General to pay for the defense of any claim related to the utility tun-
nel should the Attorney General refuse to represent either the Mackinac Bridge Authority or
the corridor authority (§ 14d(5))
These provisions of Act 359 that are nowhere to be found in the title are significant. The provision
about the Attorney General could subject the state to hundreds of thousands of dollars in attorney
fees and constitutes a major restriction on traditional executive powers. The provision that requires
the corridor authority to enter into a contract within days of the law’s enactment forces a governing
body responsible for, among other things, the care of public trust natural resources, Const 1963, Art
4, § 52, to enter into a contract that could threaten those resources without providing it any time to
meaningfully review the contract first.
Act 359’s title provides almost no correspondence to its body. How would the legislature or the
public (who filled the room at a November Mackinac Bridge Authority meeting to complain that the
MBA should have nothing to do with an underground oil tunnel) have known from the title that the
bill purported to punish the Attorney General for not defending the law by forcing her to pay a pri-
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 8 of 17

vate attorney to do it? How would the legislature or the public have known from the title that in re-
ality, the MBA would be a mere conduit for utility tunnel governance to flow automatically to the
corridor authority once its board was appointed (which, in fact, occurred within a week of enact-
ment)? Clearly, the amended title, which added less than forty words about the corridor authority
and utility tunnel, did not adequately express the body of the amendment. The amended title did not
provide fair notice to the legislature that the body of the amendment would address the items in §§
14c & 14d.
Act 214’s object was to authorize an already existing authority to construct and operate a ve-
hicle bridge. Act 359’s object is to create a new authority and authorize it to construct and
operate an underground tunnel for the transport of oil. Because Act 359 creates a single law
with multiple objects, it violates Const 1963 Art 4, § 24.
A law with multiple objects violates the TOC and is void in its entirety. The “object” of a law is its
general purpose or aim. Local No. 1644 v. Oakwood Hosp. Corp., 367 Mich 79, 91 (1962). If the
legislature is going to enact a law by amending an existing law, the object of the new law must be
germane, auxiliary, or incidental to that of the existing law. City of Livonia v Department of Social
Services, 423 Mich 466 (1985). “The ‘one object’ provision must be construed reasonably, not in so
narrow or technical a manner that the legislative intent is frustrated.” Kuhn v Dep't of Treasury, 384
Mich 378, 387–388 (1971). “However, if the act contains ‘subjects diverse in their nature, and having
no necessary connection,’ ” it violates the TOC. Livonia, 423 Mich at 499. Even when a single title
manages to address two different objects, the “two distinct and unrelated objects [] embraced in []
one act […] offend[] against the constitutional provision.” Kent County ex rel Board of Supervisors
v Reed, 243 Mich 120, 122-23 (1928). “A prohibition against the passage of an act relating to differ-
ent objects expressed in the title makes the whole act void[]” and thus not subject to severability. In
re Advisory Opinion (Being 1975 PA 227), 396 Mich 123, 131 (1976).
In Hildebrand v Revco Discount Drug Centers, the question was whether a statute that regulated
polygraph examiners could lawfully contain a provision that subjected employers to a penalty if they
terminated employment based on polygraph results. 137 Mich App 1 (1984). The court held that the
object of the law regulating polygraph examiners was an object separate and apart from the provi-
sions relating to employer penalties. Id at 7-9. Both were about polygraphs and their relevance, but
the object of each was fundamentally different.
In People v Carey, the court considered a provision that gave public service commission inspectors
the status of peace officers in a statute – the Motor Carrier Act – whose object was to authorize the
commission to supervise and regulate for-hire motor vehicle transportation. 382 Mich 285 (1969). In
spite of the fact that both the title and body of the law contained language about inspection and en-
forcement, the provision granting inspectors peace officer status diverged too much from the object
of the statute being amended. Id at 295-97.
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 9 of 17

The prior section explained why the title of Act 359 does not embrace its object and content. In ad-
dition, by amending Act 214, Act 359 added an object that is completely unlike and not necessarily
connected to the object of Act 214, thus violating the prohibition against a law containing multiple
objects.
Act 359 took a law that for over sixty years has been about the MBA constructing and operating a
bridge to allow vehicles to cross the Mackinac Straits, and combined that with a law that creates a
different authority that will construct and operate an underground tunnel to convey oil beneath the
Mackinac Straits. The object of Act 214 is to get cars and trucks over the Straits, while the object of
Act 359 is to move oil underground.
Additionally, Act 359 is in part an organic law that has as one of its primary objects the creation of a
governing body, while Act 214 simply took a governing body that already existed and authorized it
to construct and operate infrastructure. Act 214 did not create the MBA. Two years before Act 214’s
enactment, Act 21 created the MBA. Instead, Act 214 authorized the already created MBA to oper-
ate and maintain the vehicle bridge and raise revenues for it. By contrast, Act 359 is both an organic
law and a law about constructing and operating infrastructure. The Supreme Court has said that the
“legislature may empower a body created by it to do everything requisite, necessary, or expedient to
carry out the principal objective to be attained.” Local No 644 v Oakwood Hosp Corp, 367 Mich
79, 91 (1962). With Act 359, however, the legislature created a corridor authority that does nothing
and is incapable of doing anything about the Mackinac Bridge or anything else from Act 214. Act
359 both creates a brand new authority and authorizes the new authority to operate an underground
energy tunnel. One of the principal objects, then, of Act 359 is to create a governing body to operate
an underground tunnel to transport oil, which is an object Act 214 does not share.
Because Act 359 creates a new, separate corridor authority and then divests the MBA of any author-
ity over the utility tunnel, Act 214 and Act 359 cannot be characterized as having a shared single ob-
ject of operating infrastructure. Act 359 uses the MBA as a vehicle for creating the corridor author-
ity, but then strips the MBA of any authority regarding the utility tunnel from the moment the board
for the corridor authority is appointed. The purpose of Act 359 was never to grant any powers or
duties regarding the utility tunnel to the MBA. Rather, referencing the MBA was a mere ruse to pass
the powers and duties regarding the tunnel through the MBA to the corridor authority, which in fact
happened within days of enactment.
Moreover, section 14d, which transfers powers and duties from the MBA to the corridor authority,
contains the majority of substantive law defining the new corridor authority’s powers and duties.
There is no establishment of authority over the utility tunnel absent the transfer of such powers to
the corridor authority. In other words, had the corridor authority not been formed, the powers and
duties contained in section 14d would not have been the MBA’s powers and duties. Section 14d only
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 10 of 17

allows for the corridor authority to have those powers and duties. In fact, section 14d ends by stat-
ing that the “corridor authority board shall exercise its duties independently of the state transporta-
tion department and the Mackinac bridge authority.” Therefore, there is no plausible argument that
Act 214 and Act 359 share the object of the MBA governing infrastructure, or that the legislature
had to enact Act 214 as an amendment to Act 359 due to its reliance on the MBA.

Question 2
Does the requirement that members of the board of the Corridor Authority
serve for six years or more violate the constitutional mandate under section 3 of
article 5 of the Michigan Constitution of 1963 that the terms of office of any
board or commission created or enlarged after January 1, 1964 must not exceed
four years?

Yes, Act 359 creates a board whose members can serve for six years or more, which plainly violates
the constitutional four-year limit on board member terms. The constitution is abundantly clear that
members of boards created by law can serve no more than four years. In hastily working to enact
Act 359 during the lame duck session in part to try to prevent the next governor of a different politi-
cal party from being able to make appointments to the board during her initial term in office, the
legislature created a board whose members can serve six or more years.

The Michigan Constitution restricts board membership to four years, providing that “[t]erms of of-
fice of any board or commission created or enlarged after [Jan. 1, 1964] shall not exceed four years
except as otherwise authorized in this constitution.” Art 5, §3. See also, Civil Service Com’n v De-
partment of Labor, 424 Mich 571, 611 (1986) (concluding that the Michigan Constitution limits to
four years the term that members of a board created by law can serve).

Section 14b(2) provides in full (with emphasis added):

The Mackinac Straits corridor authority shall exercise its duties through the corridor
authority board. The corridor authority board shall consist of 3 members appointed
by the governor with the advice and consent of the senate. No more than 2 of the
corridor authority board members shall be members of the same political party. Mem-
bers of the corridor authority board shall serve for terms of 6 years or until a successor is appointed
and qualified, whichever is later.

When Michigan courts examine the constitutionality of statutes, “[s]tatutes are presumed to be con-
stitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 11 of 17

is clearly apparent.” Taylor v. Smithkline Beecham Corp, 468 Mich 1, 6 (Mich 2003). Section 14b(2)
clearly violates the Michigan Constitution’s unambiguous limit on the term of years.

The board of the Corridor Authority is a “board or commission”. Const 1963, Art 5, §3. Act 359 al-
lows members of the board of the Corridor Authority to serve terms of six or more years. Because a
six year term is greater than the four-year term limit that the Michigan Constitution mandates, Act
359 is unconstitutional. See also, 2015 Mich OAG No 7178 (Aug 2, 2005) (explaining that section 3
of article 5 is self-executing and that its meaning is unambiguous as to the four-year maximum term
of service on a board or commission created by law); 2007 Mich OAG No 7200 (Feb 23, 2007)
(confirming the interpretation of section 3 of article 5).

Question 3
Does Act 359 revise, alter, or amend other sections of law, including any re-
strictions on the construction or operation of a tunnel included in Section 18 of
Public Act 214 of 1952, in a manner that violates Section 25 of Article IV of the
Michigan Constitution of 1963?
Yes, Act 359 of 2018 was enacted in violation of Article IV, Section 25 of the Michigan Constitution
of 1963 which states as follows: “No law shall be revised, altered or amended by reference to its title
only. The section or sections of the Act altered or amended shall be reenacted and published at
length”. Controlling authority of the Michigan Court of Appeals, In re Application of International
Transmission Co. for Expedited Siting Certificate, 298 Mich App 338, 354 (2012) quoted the Michi-
gan Supreme Court in People v Mahaney, 13 Mich 481, 496 (1865) as follows:

An amendatory act which purported only to insert certain words, or to substitute one
phrase for another in an act or section which was only referred to but not repub-
lished, was well calculated to mislead the careless as to its effect, and was, perhaps,
sometimes drawn in that form for that express purpose. Endless confusion was thus
introduced into the law, and the constitution wisely prohibited such legislation. But
an act complete in itself is not within the mischief designed to be remedied by this
provision, and cannot be held to be prohibited by it without violating its plain intent.

An act complete in itself will not be found to violate Article IV Section 25. Allen v. Wayne County,
388 Mich 210 (1972). But the Michigan Supreme Court in Allen adopted Justice Potter’s dissent in
People v Stimer, 248 Mich 272, 293 (1929) for the manner in which the determination of whether an
act was complete in itself would be made:

The character of an act, whether amendatory or complete in itself, is to be deter-

mined not by its title, alone, nor by the question of whether it professes to be an
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 12 of 17

amendment of existing laws, but by comparison of its provisions with prior laws left
in force, and if it is complete on the subject with which it deals it will not be subject
to the constitutional objection, but if it attempts to amend the old law by intermin-
gling new and different provisions with the old ones or by adding new provisions,
the law on that subject must be regarded as amendatory of the old law and the law
amended must be inserted at length in the new act.

The Court of Appeals in International Transmission goes on to state that “[i]f a bill under considera-
tion is intended whether directly or indirectly to revise, alter or amend the operation of previous stat-
utes, then the constitution, unless and until appropriately amended, requires that the Legislature do
in fact what it intends to do by operation.” Id. at 285.

Section 25 of Article IV was before the Michigan Supreme Court in Midland Township v. State
Boundary Commission, 401 Mich 641 (1977), and was discussed in OAG, 1975-1976, No 4896, p
132 (September 9, 1975). It requires the Legislature to reenact and republish any act which is
amended by the Legislature in another act in a manner which “disposes with” or “changes” provi-
sions of the act amended. See 1996 Mich OAG No. 6912 (Mich A.G.), 1996 WL 459814.

Act 359 was enacted in violation of the republication clause (Const 1963, art 4, § 25) for fail-
ure to reenact and republish relevant MBA law.

As stated in the Governor’s Request: “The Bridge Authority was originally created by Public Act 21
of the Extra Session of 1950 (“Act 21”) in part to determine the physical and financial feasibility of a
bridge connecting the Upper and Lower Peninsulas.” The 1950 statute limited the purpose of the
Mackinac Bridge Authority (“MBA”) to oversight of what was eventually to become known as the
Mackinac Bridge. This purpose, limited to the enormous and daunting task of facilitating vehicular
transportation between the two peninsulas of Michigan, has never been amended and has never
been reenacted by full recitation of its terms as required by Section 25 of Article IV, rendering the
effort to amend the Authority’s powers in clear violation of that constitutional provision.

As the Court of Appeals further instructed in International Transmission Co., the remaining ques-
tion is whether the clear conflict between the limited and specific purpose of Act 21 and the sweep-
ing addition of issues wholly unrelated to transportation or to the Mackinac Bridge itself (but rather
to construction, ownership, operation, and liability for a utility tunnel expected to cost in the hun-
dreds of millions of dollars) was “accidental or inadvertent.” Here, the Legislature had full
knowledge of the conflict and acted with clear intent to add unrelated issues to the statute, and any
claim of accident or inadvertence must be rejected. Michigan courts have not been persuaded by
prior attempts to justify non-compliance with Section 25 of Article IV. The Supreme Court in Allen
drove home the importance of going to the trouble of reenactment and publication at length of the
original authorization by rejecting any objection that “it would be hard work to comply with the
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 13 of 17

constitution” given “technological advances in printing and copying and the Legislature’s ‘own so-
phisticated bill drafting and research services.’” Id at 283-284.

Per Allen, this is a textbook case of a statute that seeks to “directly or indirectly . . . revise, alter, or
amend the operation of previous statutes.” Much like the legislature could not read a new exception
into the structure of public improvement bonds as outlined in their organic act, so too the legislature
should be precluded from conferring new powers onto the MBA without reenactment of the under-
lying powers statute. See Midland Twp., 401 Mich 641, 649-51. Further, the hasty manner in which
this act was passed contravenes the anti-logrolling policy that underlies § 25. People ex rel Drake v.
Mahaney, 13 Mich 481, 497 (1865). The 1950 Act was required to be reenacted with the 1952 Act
because of the changes worked by the 2018 Amendments to the MBA’s powers. If the 1952 Act is
unconstitutional and the MBA never had the authority to “acquire, construct, operate, maintain, im-
prove, repair, and manage a utility tunnel,” MCL 254.324a, it follows there could be no valid transfer
of authority to the Mackinac Straits Corridor Authority (“MSCA”) under MCL 254.324b.

The 2018 Amendment to the 1952 Act works a substantive amendment to the underlying powers of
the MBA without reenacting and republishing the statute, and is therefore unconstitutional. Various
provisions capture the duties and powers of the MBA in its organic statute. For starters, the title of
the 1950 Act contemplates only transportation duties assigned to the authority. P.A. 1950 No. 21.
Nowhere does the title mention a utility tunnel. As previously discussed, the use of “tunnel” and
“utility line” is contemplated in the 1950 and 1952 Acts as relating to transportation. See supra at 2.
Further, MCL 254.301’s definition of bridge does not include a “utility tunnel” but again only con-
templates transportation related infrastructure. This provision is incorporated whole cloth without
amendment in the new statute. See MCL 254.311. Finally, and most importantly, MCL 254.302 out-
lines the powers and duties of the MBA. The operative provision in full is

(1) The Mackinac bridge authority is created within the department of transporta-
tion as a nonsalaried entity, a public benefit corporation, and an agency and in-
strumentality of the state of Michigan. The Mackinac bridge authority is a body
corporate and may by that name sue and be sued, plead and be impleaded, con-
tract and be contracted with, have a corporate seal, and enjoy and carry out all
powers granted to it in furtherance of the duty of the state of Michigan to
provide and maintain a system of highways and bridges for the use and
convenience of its inhabitants. In addition to the powers expressly granted to
it under Michigan law, the authority shall have all powers necessary or conven-
ient to carry out the things authorized and to effect the purposes of this act.

(emphasis added).
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 14 of 17

In the instant case, the Legislature skipped, and not through inadvertence or accident, a critical step.
For more than half a century the Mackinac Bridge Authority, created in 1950 by Act 214, has existed
solely for purposes related to the iconic Mackinac Bridge. The Legislature’s decision to ignore Act
21 altogether, and instead tack on a utility tunnel function to the subsequent operational provisions
of Act 214 of 1952, directly violated the requirements of Section 25 of Article IV. As a result, Act
359 of 2018 is unconstitutional.

Act 359 is also invalid because it violates Section 18 of PA 214 of 1952.

Act 359 of 2018 may also be invalid because it violates Section 18 of PA 214 of 1952. Section 18 of
PA 214 of 1952 expressly prevents the MBA from creating a “tunnel” that competes with the Mack-
inac Bridge. On its face, Act 359 of 2018 directly modifies, changes, and absolves Section 18. How-
ever, there is a significant question of fact as to whether the creation of a utility tunnel competes
with the Mackinac Bridge’s vehicular travel. An argument could be made that Section 18 only applies
to a tunnel that is designed for vehicular travel. Of relevance to this analysis, on two separate occa-
sions, the Michigan Attorney General in Opinions determined that “An act authorizing state high-
way department to operate a ferry service between the Michigan lake ports of Frankfort and Me-
nominee would be invalid under the noncompeting provisions of Section 18. Op.Atty.Gen.1957-58,
No. 3167, p. 524.” And that “Under this section [of the MBA Act], no competing traffic service may
be operated after the Mackinac Bridge is completed and open to traffic. Op.Atty.Gen.1957-58, No.
3093, p. 519.” It could be the case that a utility tunnel would circumvent vehicular travel that would be
made if the tunnel did not exist. For instance, natural gas trucks, supply vehicles, work trucks, etc
might all be rendered unnecessary because of a tunnel. Those vehicles that would ordinarily deliver
product over the bridge are now delivering product through the tunnel, and therefore directly com-
peting with the Mackinac Bridge.

If the State adopted the latter argument, then the MBA would be expressly prevented from creating the
MSCA because the creation of the MSCA competes with the Bridge, and violates Section 18. That
violation occurred through a “backdoor” process of amendment that did not comport with Section
25 of Article 4 of the Michigan Constitution because the title of the amendment and publication did
not expressly override and modify section 18 as described above.

While the authors of this memo believe there is a cogent legal argument for the unconstitutional na-
ture of amending Section 18, the authors also recognize that a significant question of fact exists as to
whether the utility tunnel competes with the bridge in the manner expressed by Section 18.
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 15 of 17

Additional Cases And Attorney General Opinions Regarding Violation Of Section 25 Of Ar-
ticle 4

Amendment of title of act, after declaration of unconstitutionality of portion of act itself, no matter
what reason for finding of unconstitutionality, will not, in and of itself, suffice to resurrect voided
portion;  if voided portion is to be once again considered part of law, then law must be revised, al-
tered or amended. People v. Clabin, 411 Mich 472 (1981).

1995 Enrolled HB 4410, § 305(3), which attempts to authorize state reimbursement of counties for
housing parolees convicted of new felonies contrary to the provisions of § 4(1) of 1978 PA 16, vio-
lates Const. 1963, Art. 4, § 25, and is unconstitutional and void. Op. Atty. Gen. 1996, No. 6912,
1996 WL 459814.

Where Legislature did not reenact amendment to MCL 800.283 governing possession of weapon
while inmate after Supreme Court had declared amendment unconstitutional on grounds that title of
statute did not embrace scope of amendments, but merely changed title of act, Legislature's attempt
to rectify unconstitutionality of statutory amendment was ineffective; thus, conviction of defendant
under such amendment was invalid. People v. Clabin.

Question 6
If the Corridor Authority was not created in a manner that conforms with the
Michigan Constitution of 1963, is the Authority, its board, and action taken by
the board void?
Yes, in light of the unconstitutionality of Public Act 359 of 2018 on the basis of, inter alia, its viola-
tion of the title object clause, its unconstitutional embrace of more than one subject, its unconstitu-
tional amendment in violation of Article IV, Section 25, and its attempted inclusion of provisions
not germane to the original title, Public Act 359 and actions taken pursuant to such Public Act are
void in accordance with controlling authority of the Michigan Supreme Court.

The Supreme Court of Michigan held as follows in the case of Stanton v. Lloyd Hammond Produce
Farms, 400 Mich 135 (1977):

It is a general rule of statutory interpretation that an unconstitutional statute is void

ab initio. This principle is stated in 16 Am. Jur. 2d, Constitutional Law, s 177, pp.
402-403, as follows:

The general rule is that an unconstitutional statute, though having the

form and name of law, is in reality no law, but is wholly void, and in-
effective for any purpose; since unconstitutionality dates from the
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 16 of 17

time of its enactment, and not merely from the date of the decision
so branding it, an unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed. Id, at p. 144.

This rule has been consistently followed in Michigan. See Adsit v. Secretary of State,
84 Mich 420 (1891); Michigan Sugar Co. v. Auditor General, 124 Mich 674; Briggs v
Campbell, Wyant & Cannon Foundry Co., 379 Mich 160 (1967); People v. Carey,
382 Mich 285 (1969) (opinion of T. M. Kavanagh, J.); and Horrigan v. Klock, 27
Mich App 107 (1970).

The Stanton case goes on to state as follows:

Briggs v. Campell, Wyant & Cannon Foundry Co., supra, involved the question of
whether an amendatory state statute could apply retroactively in order to cure defects
of a statute previously declared unconstitutional. In discussing this issue, the Briggs
Court held that the prior unconstitutional statute was void from the date of its pas-
sage and, therefore, could not be cured retroactively by a subsequent statutory
amendment, unless the contrary clearly appeared from the context of the statute it-
self.

In Horrigan v. Klock, supra, the Court of Appeals followed the rule that an uncon-
stitutional statute is void ab initio, which was reaffirmed in Griggs, in holding that
Maki v. East Tawas, 18 Mich App 109 (1969), aff’d 385 Mich 151 (1971), which de-
clared a state statute to be unconstitutional, was “fully retroactive”. See Pittman v
City of Taylor, 398 Mich 41, 46 (1976).

The force and rationale of the general rule could not be more on-point than in the circumstance of
Public Act 359 of 2018. As stated in the Governor’s Request:

On November 8, 2018, Senate Bill 1197 (“SB 1997”) was introduced in the Michigan
Senate seeking to amend Act 214 and expand the powers of the Bridge Authority to
authorize it, separate and apart from the bridge, to acquire, construct, operate, main-
tain, improve, repair, and manage a utility tunnel for the purpose of accommodating
utility infrastructure, including pipelines, electric transmission lines, facilities for the
transmission of data and telecommunications, all useful and related facilities, equip-
ment, and structures, and all necessary tangible or intangible real and personal prop-
erty, licenses, franchises, easements, and rights-of-way. After introduction, SB 1197
was amended on its passage through the Michigan Senate on December 3, 2018 to
add additional purposes, including the creation of the Corridor Authority as a sepa-
rate new state authority and authorizing the operating of the tunnel by the Bridge
Memorandum to Attorney General Dana Nessel
Re the constitutionality of Act 359
February 1, 2019
Page 17 of 17

Authority or the Corridor Authority. The bill was further amended on its passage
through the Michigan House of Representatives.

As amended, SB 1197 was approved by the legislature, signed by the governor, and
became Act 359 on December 12, 2018. Under Act 359, the Bridge Authority, sepa-
rate and apart from its authorized activities relating to the bridge, is authorized,
among other things, to acquire, construct, operate, maintain, improve, repair, and
manage a utility tunnel, determine the rates charged for services offered by the utility
tunnel, and enter into contracts or agreements necessary to perform its duties under
Act 214. Act 359 provides for a single tunnel joining and connecting the Upper and
Lower Peninsulas at the straits of Mackinac.

Less than three weeks later, on January 1, 2019, newly-elected Governor Whitmer authored the
Governor’s Request to which this Opinion responds.

The wholly accurate recitation of the course of legislation contained in the Governor’s Request lays
to rest any argument that a rarely-invoked exception to the rule that an unconstitutional statute is
void ab initio applies here. That exception obtains only in the event of justifiable reliance by per-
sons having every reason to believe that a given statute constituted applicable law and could be re-
lied upon. See, e.g., discussion in Justice Fitzgerald’s dissent in Stanton at p. 151. In the instant case,
the contractual undertakings of the pipeline owner and the State of Michigan occurred either before
the Corridor Authority was ever created or in conjunction with its creation. The creation of the Cor-
ridor Authority occurred in legislation pending only a handful of days and was followed almost im-
mediately by the January 1 request by Governor Whitmer raising multiple questions of constitutional
infirmity. Neither the pipeline company nor the Corridor Authority, the creation of which was un-
constitutional, can complain that there was justification for taking any detrimental steps in reliance
on a statute the constitutionality of which was certain to be challenged and which was challenged
with almost immediate alacrity.

The actions of the Bridge Authority taken solely pursuant to the provisions of the unconstitutional
amendatory act are null and void. Likewise, the actions of the Corridor Authority, the purported au-
thority for which arises out of unconstitutional legislation, are in their entirety null and void. The
parties to any contract or other action which depends upon or contemplates the authority and power
of the Bridge Authority to own and operate a utility tunnel are subject to, limited to, and controlled
by the status quo ante pursuant to which Public Act 21 of the Extra Session of 1950 and Public Act
214 of 1952 remain in full force and effect.
Memorandum
To: Attorney General Dana Nessel
From: Environmental Law & Policy Center
Andrene Dabaghi and Margrethe Kearney
National Wildlife Federation
Andy Buchsbaum, Benjamin Muth, Oday Salim, Mike
Shriberg, Beth Wallace, and Bruce Wallace
Date: 2019 February 6
Subject: Constitutionality of tunnel law in light of Article 4,
§ 24 of the Michigan Constitution

In a letter dated January 1, 2019, Governor Whitmer wrote to you requesting an opinion on the con-
stitutionality of Public Act 359 of 2018 (“Act 359”). In particular, Governor Whitmer posed six
questions. You invited comment on the questions Governor Whitmer identified. We provided com-
ment on February 1.

At your office’s invitation, we provide this supplemental memorandum to address the comments
submitted by the Michigan Chamber of Commerce (“Chamber”). If you have any questions, please
contact Oday Salim, attorney for National Wildlife Federation: salimo@nwf.org and 586-255-8857.

The Chamber concurs with our comments on two critical points. First, in response to the Gover-
nor’s second question, the Chamber agrees that the six-year term provided for members of the Cor-
ridor Authority Board in Act 359 violates Article, 5, section 3 of the Michigan Constitution. The
Act’s blatant disregard of a clear constitutional mandate reflects the haste and careless disregard for
the law exhibited by the lame-duck Legislature and Governor Snyder in enacting and signing into
law Act 359.

Second, with the exception of the 6-year board terms, the Chamber agrees that any constitutional
infirmity identified in Act 359 in response to the Governor’s queries will render the Act, the Corri-
dor Authority, and any actions taken by that Authority null and void.

The principal areas of constitutional disagreement between the Chamber’s analysis and ours center
on whether Act 359 is constitutionally infirm because of (1) a title-body violation; (2) a multiple-ob-
ject violation; or (3) the Act’s failure to comply with the Constitution’s requirements for amendment
of a prior act. After responding to the Chamber’s prefatory remarks our supplemental comments
will focus on these three subjects of critical divergence.
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 2 of 12

Michigan does not need an oil pipeline through the Straits of Mackinac.
Before providing further detail in response to the questions asked by Governor Whitmer, we would
like to address a misconception repeatedly advanced by Enbridge and its allies, and parroted in the
Chamber’s submission here. They claim that the existing Straits of Mackinac pipelines, and the tun-
nel proposed to replace them, are of paramount public importance to the state of Michigan and its
citizens. This claim, of course, is not legally relevant to the constitutionality of Act 359. It is also
false.

The current Line 5 transports up to 23 million gallons a day of petroleum products through two
pipes lying on the bottom of the Straits of Mackinac. These pipelines will be 66 years old this year –
16 years older than their planned lifetime. They are owned and operated by Enbridge, Inc. – the
same company that is responsible for the two worst inland oil spills in U.S. history, including the
2010 Marshall, Michigan, spill that polluted 40 miles of the Kalamazoo River watershed. Enbridge’s
record has not improved; from 2002 until today, Enbridge has experienced over 300 spills on its
systems, including a horrific explosion of a natural gas pipeline in Noble County, Ohio that hap-
pened just last month. Line 5 alone has had 33 spills reported, which amounts to over 1 million gal-
lons of product that has been released into the environment.

Enbridge’s operation of the Straits pipelines has been fraught with hazard and deception. The dual
pipelines have been improperly anchored and supported for decades; their outer coating has de-
graded; their wall thickness has thinned in many places; and in sections they bend far more sharply
than they are legally allowed. Most of these hazards have gone uncorrected. Where Enbridge has
taken some corrective action, it has done so only after misleading, deceiving, and stonewalling state
officials. For example, a 2017 Detroit Free Press investigation revealed that Enbridge withheld a
2003 inspection report that informed Enbridge about 16 locations where the pipeline was unsup-
ported for at least 140 feet in violation of the Mackinac Straits Easement. Also in 2017, an Enbridge
vice president misled state officials by testifying that the coating of the pipelines was intact; three
months later Enbridge was forced to admit that it knew of damage to the coatings much earlier, in
2014.

The damage that a substantial rupture would do to Michigan and the Great Lakes would be cata-
strophic. A University of Michigan study ran multiple simulations of a spill and found that a spill in
the strong and variable currents of the Straits could contaminate up to 700 miles of Great Lakes
shoreline, prompting the foremost expert on the Straits’ currents, Dr. David Schwab, to conclude
that the pipelines were located in the worst place possible in the Great Lakes. The Coast Guard has
indeed testified that it “is not ‘Semper Paratus’ for a major pipeline oil spill in the Great Lakes”
given the conditions at the Straits. A study commissioned by the previous administration concluded
that a spill (which could only be partially cleaned up) would cost $1.86 billion in economic damages.
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 3 of 12

However, that study dramatically underestimates the damage to the state’s Pure Michigan brand and
the tourism and recreation dollars that would be lost. A subsequent Michigan State study puts the
damage from a major spill much higher, at $45 billion.

The risks the dual pipelines pose to the state of Michigan are enormous. Those risks were reinforced
last year when a ship inadvertently dragged an anchor across the dual pipelines leaving them scoured
and dented – damage that Enbridge took weeks to fully disclose. The State and its citizens were in-
credibly fortunate that the anchors did not rupture the pipelines, which would have led to a major
spill.

Michigan is subjected to massive risk from this pipelines. What does the state get in return? An inde-
pendent review of Enbridge’s own data, by London Economics International, concludes that Line 5
is not critical infrastructure for Michigan’s energy needs and alternatives to what little Enbridge pro-
vides Michigan can be established in as little as 6 months.

• Propane: much of the UP already receives and delivers propane by rail or truck, which could
be expanded to replace the limited reliance on Line 5. The estimated increased cost is con-
sidered to be well below normal price fluctuations (less than $.05) and could be lessened fur-
ther with state policies that focus on energy diversity in Michigan.
• Michigan oil: only some producers utilize Line 5 and production has been in steady decline.
Other modes of transportation already include rail, truck or other pipelines. LEI also con-
cluded that regional refineries could increase demand for locally produced product if Line 5
is no longer in service, offsetting any impacts on profitability for producers that have to uti-
lize new forms of transportation.
• Regional refineries: there is enough capacity in existing oil pipelines, including Enbridge’s
recently expanded pipeline in lower Michigan, to make up much of the potential losses at
Detroit and Toledo-area refineries if Line 5 were decommissioned. The estimated increased
cost to consumers would be a fraction of a cent/gallon.

The evidence demonstrates that the real paramount public importance for the state of Michigan is to
immediately stop the flow of petroleum products through the Mackinac Straits. The risks to the
State are enormous and the benefits are negligible.

The tunnel proposal worsens the risks without increasing the minimal benefits to the state because it
allows the existing pipelines to continue in operation. The tunnel agreements hastily arranged in the
lame duck session between then-Governor Snyder’s administration, the Corridor Authority and
Enbridge, and authorized by the constitutionally infirm Act 359, attempt to lock the state into part-
nering with Enbridge to keep the hazardous Straits pipelines open and operational, no matter what
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 4 of 12

the risk, for what will realistically be a decade or more – until the tunnel is built and operational.
The state suffers from those agreements and the tunnel legislation.

That is the context for Act 359—but regardless of that context, Act 359 in unconstitutional.

Act 359 violates the Title-Object Clause (Const 1963, art 4, § 24) because the ti-
tle does not embrace the law’s principal object. The Chamber misreads the ti-
tle and body of Act 359. (Governor Query #1)
Act 359 violates the Title-Object Clause because the title does not adequately express the object of
the law. In this supplemental memo, we address the Chamber’s argument and explain with more ex-
amples why Act 359’s title is clearly misleading in various respects.
The Chamber argues that:
Although this title does not specifically address every amendment related to the au-
thority and utility tunnels (nor need it do so under the Title-Object Clause), it does
generally inform the Legislature and the public that the act provides for the acquisi-
tion of a utility tunnel by the Bridge Authority as well as the operation of a utility
tunnel by the Bridge Authority or the Corridor Authority.
Chamber Memo at 4.
To begin with, the Chamber misapprehends the law in stating that the title must merely “generally
inform” the legislature and public of what is in the body. To borrow from our February 1 memoran-
dum, a title-body infirmity exists if the title does not adequately express its contents, Township of
Ray v B&BS Gun Club, 225 Mich App 724, 728 (1997), such that the “body exceeds the scope of
the title.” Coalition Protecting Auto No-Fault v Mich Catastrophic Claims Ass’n, 305 Mich App
301, 314 (2014), vacated in part on other grounds by 498 Mich 896 (2015). “Insofar as one of the
purposes of the Title-Object Clause is to provide notice of the content of a bill to the Legislature
and the public, a more specific title better achieves that purpose, […].” Kevorkian, 447 Mich at 458 (empha-
sis added). While a title need not be a full index of what is in the body, the title must specifically in-
form the legislature and public of the contents of the body.
Even using the Chamber’s overly liberal “generally inform” standard, the Chamber’s argument fails
based on an accurate reading of the title and body of Act 359.
The full title of Act 359, with green highlights of the words added by Act 359 to Act 214’s title,
states:
AN ACT authorizing the Mackinac bridge authority to acquire a bridge and a utility
tunnel connecting the Upper and Lower Peninsulas of Michigan, including cause-
ways, tunnels, roads and all useful related equipment and facilities, including park,
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 5 of 12

parking, recreation, lighting, and terminal facilities; extending the corporate existence
of the authority; authorizing the authority to enjoy and carry out all powers incident
to its corporate objects; authorizing the appropriation and use of state funds for the
preliminary purposes of the authority; providing for the payment of the cost of the
bridge and authorizing the authority to issue revenue bonds payable solely from the
revenues of the bridge; granting the right of condemnation to the authority; granting
the use of state land and property to the authority; making provisions for the pay-
ment and security of bonds and granting certain rights and remedies to the holders
of bonds; authorizing banks and trust companies to perform certain acts in connec-
tion with the payment and security of bonds; authorizing the imposition of tolls and
charges; authorizing the authority to secure the consent of the United States govern-
ment to the construction of the bridge and to secure approval of plans, specifica-
tions, and location of the bridge; authorizing employment of engineers regardless of
whether those engineers have been previously employed to make preliminary inspec-
tions or reports with respect to the bridge; authorizing the state transportation de-
partment to operate and maintain the bridge or to contribute to the bridge and enter
into leases and agreements in connection with the bridge; exempting bonds and the
property of the authority from taxation; prohibiting competing traffic facilities; au-
thorizing the operation of ferries by the authority; authorizing the creation of the
Mackinac Straits corridor authority; authorizing the operation of a utility tunnel by
the authority or the Mackinac Straits corridor authority; providing for the construc-
tion and use of certain buildings; and making an appropriation.
As our February 1 memorandum explains, Act 359’s title leaves out key components of the body of
the law. Act 359 creates a fund within the state treasury related to the tunnel (§ 14c); causes an auto-
matic transfer of all tunnel-related authority, and all money from the protection fund, from the
Mackinac Bridge Authority to the corridor authority once the corridor authority’s board is appointed
(§ 14d(1)); creates a new role for the Mackinac Bridge Authority, which is to receive and review re-
ports from the corridor authority that describe any impacts of the utility tunnel on the bridge
(§ 14d(2)); declares that leasing of space in the utility tunnel to a utility is not competition with the
bridge (§ 14d(3)); requires the corridor authority to enter into a very specific kind of contract to con-
struct, maintain, operate, and decommission the utility tunnel, and describes the kind of contract it
needs to be in great detail (§ 14d(4)); and requires the Attorney General to pay for the defense of any
claim related to the utility tunnel should the Attorney General refuse to represent either the Macki-
nac Bridge Authority or the corridor authority (§ 14d(5)). As we explained, these are not minor
omissions from the title, and the Chamber’s memorandum does not speak to them
The problems with Act 359’s title go beyond the fact, fatal in and of itself, that there are significant
provisions in the body that the title does not adequately communicate. Contrary to the Chamber’s
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 6 of 12

claim that the title generally informs the legislature and the public of its contents, the title is decep-
tive and misleading.
First, Act 359’s title states that it “authoriz[es] the operation of a utility tunnel by [Mackinac Bridge
Authority] or the Mackinac Straits corridor authority.” It is true that Section 14a authorizes the
Mackinac Bridge Authority (“Bridge Authority”) to “acquire, construct, operate, maintain, improve,
repair, and manage a utility tunnel.” However, Section 14d defines in precise detail how the utility
tunnel should be operated by the Mackinac Straits corridor authority (“Corridor Authority”). Section 14d
applies only to the Corridor Authority. It forces the Corridor Authority to enter into a contract with
Enbridge “for the construction, maintenance, operation, and decommissioning of a utility tunnel”
and then defines with precision various terms of such an operation agreement. §14d(4). Therefore,
the title of Act 359 is misleading because it pretends that the operation of the oil tunnel will be the
same for either the Bridge Authority or the Corridor Authority. Section 14d makes it clear that the
Corridor Authority must operate the tunnel according to a completely different set of rules than the
Bridge Authority to which section 14d does not apply. Neither legislators nor the public would
know from the title of Act 359 that operation of the oil tunnel would be entirely distinct depending
on which authority were operating it.
Second, Act 359 does not actually intend for the Bridge Authority to ever operate the tunnel. Upon
creation of the Corridor Authority board, section 14d(1) automatically transfers to the Corridor Au-
thority all authority granted by section 14a to the Bridge Authority. As intended, this transfer hap-
pened within days of the legislature enacting the law. Section 14d(1), then, renders flatly misleading
the part of the title that says that the law authorizes the Bridge Authority to operate the oil tunnel.
Third, the title of Act 359 misleads about the ability to acquire an oil tunnel. The title of Act 214 of
1952 stated that the law authorized the Bridge Authority “to acquire a bridge connecting the Upper
and Lower Peninsulas of Michigan[]….” Act 359 amended that to read “to acquire a bridge and a
utility tunnel connecting the Upper and Lower Peninsulas of Michigan[]….” (emphasis added). How-
ever, as explained above, section 14d(1) transfers all of the Bridge Authority’s powers and responsi-
bilities to the Corridor Authority. This includes the power to acquire a tunnel. Yet the title never
communicates to the legislature or the public that the Corridor Authority will have the power to ac-
quire a tunnel. In fact, the title states only that the law will grant acquisition authority to the Bridge
Authority. Therefore, the title misleads the reader into thinking that the Bridge Authority will ac-
quire the tunnel when the law itself gives that power to the Corridor Authority.
Presumably as a result of this clear, apparent discrepancy about whether the Corridor Authority has
the power to acquire, the Chamber felt the need to casually add a footnote stating that “[a] title au-
thorizing the ‘operation’ of a tunnel includes all things incidental to that operation; since the Author-
ity cannot ‘operate’ a tunnel that does not exist, the acquisition and/or construction of the tunnel by
the Authority are plainly contemplated by the Act’s title as well.” Chamber Memo at 4, note 2. The
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 7 of 12

text of the title contradicts the Chamber’s footnote. The legislature knew how to distinguish a grant
of power to acquire from a grant of power to operate. We know that because the title says so. In one
part, the title announces that the law will grant tunnel acquisition powers only to the Bridge Author-
ity. In another part, the title announces that the law will grant the power to operate the tunnel to ei-
ther the Bridge Authority or the Corridor Authority. In contrast to the Chamber’s gymnastics, our
reading respects the plain text of the title.
Act 359 violates the Title-Object Clause (Const 1963, art 4, § 24) because the
law embraces multiple objects. The Chamber’s argument to the contrary
wrongly defines the object of the law and misinterprets both the language of
the Constitution and the relevant case law. (Governor Query #1)
A law with multiple objects violates the Title Object Clause and is void in its entirety. The “object”
of a law is its general purpose or aim. Local No. 1644 v. Oakwood Hosp. Corp., 367 Mich 79, 91
(1962). If the legislature enactsa law by amending an existing law, the object of the new law must be
germane, auxiliary, or incidental to that of the existing law. City of Livonia v Department of Social
Services, 423 Mich 466 (1985). “[I]f the act contains ‘subjects diverse in their nature, and having no
necessary connection,’ ” it violates the Title Object Clause. Id at 499. Even when a single title man-
ages to address two different objects, the “two distinct and unrelated objects [] embraced in [] one
act […] offend[] against the constitutional provision.” Kent County ex rel Board of Supervisors v
Reed, 243 Mich 120, 122-23 (1928).
The multiple objects analysis accounts for both the object of an amending act as well as the
object of the existing law to be amended. Because the Chamber gets this wrong, its princi-
pal arguments fail.
In our February 1 memorandum, we explained how Act 359’s amendment of Act 214 of 1952 cre-
ated a law with multiple objects. Act 214 for over six decades has been about a vehicle bridge,
whereas Act 359 is about an underground oil tunnel. Act 214 took the Bridge Authority, which was
already created by Act 21 of 1950, and authorized it to operate a vehicle bridge, whereas Act 359 is
both an organic statute that creates the brand new Corridor Authority and a law that authorizes that
authority to operate an underground oil tunnel. There is nothing about Act 359 that is “germane,
auxiliary, or incidental” to Act 214. There is nothing about a new Corridor Authority that will ac-
quire, construct, and operate an underground oil tunnel that necessarily relates to the Bridge Authority
that operates a vehicle bridge.
The Chamber’s analysis obscures the multiple objects embedded in Act 359 by employing the wrong
multiple objects standard. Without citing to any supporting case law, the Chamber states in a paren-
thetical that the “Title-Object Clause is applied to the Act itself, and not with respect to how an ex-
isting statute may be changed.” Chamber Memo at 6. This is plainly wrong. If it were true, then a
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 8 of 12

new law about highway safety that amended an already existing law about dog bite liability would not
fall afoul of the Title Object Clause so long as the highway safety act itself contained only one ob-
ject. Common sense alone dispatches with the Chamber’s claim.
Beyond common sense, Michigan courts regularly apply the multiple objects analysis to laws that
comprise a more recent act that amends an already existing act. The Michigan Supreme Court could
not have been clearer when it described the multiple objects analysis in this way: “The Legislature
may enact new legislation or amend any act to which the new legislation is germane, auxiliary, or incidental.”
City of Livonia v Department of Social Services, 423 Mich 466, 500 (1985) (emphasis added). In
fact, in City of Livonia itself, the court applied the multiple objects analysis to a law that comprised a
new act that amended an already existing law, and asked whether the new act contained an object
that was different from the object of the already existing law. See also, Hildebrand v Revco Discount
Drug Centers, 137 Mich App 1 (1984) (where the court examined whether the object of Act 278 of
1975 was sufficiently different from the object of the already existing law it amended, namely Act
295 of 1972); Keep Michigan Wolves Protected v State, Dept of Natural Resources, Docket No.
328604, 2016 WL 6905923 (Nov 22, 2016) (where the court examined whether the object of Act 281
was sufficiently different from the object of the already existing law it amended, namely Act 21).
The Chamber’s reliance on Gillette Commercial Operations North America & Subsidiaries v Dep’t
of Treasury, 312 Mich App 394 (2015) is misplaced. Chamber Memo at 6. In Gillette, the court of
appeals stated that it can be acceptable for the legislature “to enact bits and pieces of legislation in
separate acts or to tack them on to existing statutes” so long as “the bits and pieces enacted are em-
braced” by the law being amended and the law doing the amending. Id at 920-22 (citations omitted).
But that does not help the Chamber here.
First, in Gillette, the plaintiff’s claim that the law at issue violated the Title Object Clause was weak.
All the acts involved there were about the narrow area of apportionment and business taxation. The
amending act repealed a provision in a preexisting law about apportionment methodology and re-
placed it with a new methodology. Id at 921-22. No Title Object violation comes screaming from
these legislative facts the way it does here. Second, there is nothing surprising about the quoted lan-
guage. Yes, the legislature can certainly enact bits and pieces of legislation in separate acts or add
them to existing legislation – but only if the titles of the relevant acts adequately capture the bits and
pieces and if the new bits and pieces do not create a law that now has more than one object. Third,
as described in the title-body section above, Act 359 did not add bits and pieces to Act 214. Act 359
is a law that: creates a new governmental entity; establishes a monumental, new purpose, which is to
acquire, construct, operate, and maintain an underground oil tunnel; defines in detail for the new en-
tity the kind of tunnel agreement it must enter into; imposes significant restrictions on the attorney
general; and creates a new treasury fund. That is not the kind of bit or piece the court addressed in
Gillette.
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 9 of 12

In another departure from the established law, the Chamber claims that, putting aside the plain text
of the title and body of the laws at issue, there could not have been fraud or deceit because the fiscal
analyses and media stories described the content of the laws. The Chamber does not cite to any
cases to support the proposition that something outside the text of the title and body of the relevant
laws can impact a Title-Object Clause analysis. In the nearly twenty cases cited by the Chamber’s
memo and our February 1 memo, not one supports such a proposition and all exclusively review the
text of the laws at issue.
Given its misunderstanding of the legal standard, the Chamber’s argument falls apart. Nearly every-
thing in the Chamber’s multiple objects analysis searches for objects solely within Act 359, as op-
posed to comparing the object of Act 359 with the object of the Bridge Authority law it amended.
Chamber Memo 5-6. Our February 1 memo comprehensively examines the differences in those ob-
jects, differences that the Chamber’s analysis nowhere grapples with.
Even if one only looks to Act 359, the Chamber’s argument fails because Act 359 itself has
multiple objects.
Act 359 itself has multiple objects. Section 1(c) of Act 359 defines “Bridge” to mean:
the project for the acquisition of which this act is adopted and means a bridge or structure ex-
tending from the Upper Peninsula to the Lower Peninsula of Michigan, and includes
all of the following forming any part of the bridge or connected with or used or use-
ful in the operation of the bridge, causeways, bridges, tunnels, roads, fills and ap-
proaches, or any combination thereof, parking space and facilities, park and recrea-
tion facilities, lighting facilities, terminal facilities consisting of areas, structures, and
buildings in which rest rooms, waiting rooms, restaurant and similar facilities, and
other accommodations for the traveling public may be installed, including all fixtures,
utility lines, accessories, and equipment relating to any or all of the above, and in-
cluding the improvement and beautification of terminal areas at each end of the
structure as may be designed to increase the use of the structure, and including all
real and personal property, tangible or intangible, licenses, franchises, easements, and
rights-of-way necessary thereto.
(emphasis added). This is the same definition of “Bridge” from Act 214. However, when used in Act
359, this definition takes on a new meaning. To the extent that “the project for the acquisition of
which this act is adopted” is the vehicle bridge operated by the Bridge Authority, then Act 359 itself
has at least two objects: a vehicle bridge and an underground oil tunnel.
The legislature did not simply forget to update the Act 214 definitions for inclusion in Act 359. The
legislature amended the definitions for “Authority” and “Board”. Act 359 defines “Authority” as
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 10 of 12

“the Mackinac Bridge authority created in 1950 (Ex Sess) PA 21, MCL 254.301 to 254.302. This sub-
division does not apply to sections 14a, 14b, 14d, and 14e[ ]” (emphasis on the text added by Act 359). Act
359 defines “Board” as “the members of the authority. This subdivision does not apply to section 14b.”
(emphasis on the text added by Act 359). The legislature knew how to take definitions from Act 214
and update them to accommodate the new object of the underground oil tunnel. However, the legis-
lature failed to update the definition of “Bridge”. That definition is perhaps the most important be-
cause it defines a vehicle bridge as the purpose of “this act”. Either “this act” refers to Act 359, giv-
ing Act 359 two objects, or “this act” refers to Act 214, giving Act 214 an object that is completely
different than that of Act 359. Both violate the Title-Object Clause under a multiple purposes analy-
sis. This is the quintessential case in which a “provision was put in [by the legislature in an] attempt
to wedge a regulation into a vessel not competent to carry it.” Hildebrand, 137 Mich App at 12
(1984) (holding that amendments to Elliot Larsen Act prohibiting hiring and firing decisions based
on polygraph tests violated the Title Object Clause because the polygraph provisions were not ger-
mane to the civil rights purpose of the statute).
*
In essence, the Constitution requires the legislature in an act’s title to inform legislators and the pub-
lic of what is in the act, and prohibits the legislature from amending an existing law with a new act
that embraces another significant object. With its incomplete and misleading title and its attempt to
combine an underground oil tunnel law with a vehicle bridge law, Act 359 fails both constitutional
tests.
Act 359 revises, alters, and amends 1950 PA 21 in violation of Section 25 of Arti-
cle IV of the Michigan Constitution of 1963. The Chamber’s analysis misap-
plies caselaw and misreads the text of 1950 PA 21. (Governor Query #3)
Act 359 amended the 1950 PA 21 by changing and enlarging the powers of the Mackinac Bridge Au-
thority (MBA). Act 359 violates section 25 of article 4 of the Michigan Constitution of 1963 by do-
ing so without republishing the 1950 PA 21. The Chamber argues that the 1950 Act was not
amended; it was merely added to by a separately enacted statute. The Chamber relies on a recent ap-
pellate court case concluding that a statute creating an exemption from FOIA disclosure for the
Michigan Catastrophic Claims Association did not amend the FOIA law. See Coal. Protecting Auto
No-Fault v. Michigan Catastrophic Claims Ass'n, 317 Mich. App. 1 (2016). But that case is inappli-
cable here.

First, in Coal. Protecting Auto No-Fault, the FOIA law explicitly invited public bodies to exempt
records from disclosure under FOIA. Id. at 8 (“a public body may exempt from disclosure as a pub-
lic record under this act”)(citing MCL 15.243(1)(d)). Here, the language of 1950 PA 21 has no such
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 11 of 12

invitation for future statutes to expand the scope and authority of the Mackinac Bridge Author-
ity. The Chamber points to the provision in 1950 PA 21 that states “In addition to the powers expressly
granted to it under Michigan law, the authority shall have all powers necessary or convenient to carry out
the things authorized and to effect the purposes of this act.” Chamber Comments at 12. The
Chamber argues that these “powers expressly granted to it under Michigan law” refer to those pow-
ers that may be granted to the MBA in future statutes. This is an incorrect reading of the statute;
nothing in its phrasing suggests that the Legislature had in mind powers to be granted the MBA in
the future. The far more natural reading is that the Legislature was referencing the state of the law
at the time of enactment, including those powers granted under 1950 PA 21 itself. As the second
clause of the sentence makes perfectly clear—the authority shall have all powers necessary or convenient to
carry out the things authorized and to effect the purposes of this act—1950 PA 21 defines what powers could
be granted beyond those specified in the act. Those powers, though omitted by the Chamber in its
recitation of 1950 PA 21, are clearly defined as “powers granted to [the MBA] in furtherance of the
duty of the state of Michigan to provide and maintain a system of highways and bridges for
the use and convenience of its inhabitants.” 1950 PA 21 MCL 254.302 (emphasis added)(see full
quote in NWF Comments at 13 of 17).

Second, unlike in Coal. Protecting Auto No-Fault, Act 359 is not an “act complete in itself.” Such
an act will not “assume in terms, to revise, alter or amend any prior act.” People v. Stimer, 248
Mich. 272, 281 (1929). An incomplete act, in contrast, “contains new provisions commingled with
old ones, so that it is necessary to read two acts together in order to determine what the law is . .
.” Id. at 293 (internal citations omitted). Here, Act 359 amends the scope of the MBA’s authority,
which cannot be deduced without referencing 1950 PA 21. As explained in earlier comments, Act
359 is merely “a piecemeal amendment to an existing comprehensive statutory scheme.” Id. at 31
(citing Nalbandian v. Progressive Michigan Ins. Co., 267 Mich. App. 7, 16 (2005)). As in Nal-
bandian, Act 359 “attempt[ed] to amend the old law by intermingling new and different provisions
with the old ones.” 267 Mich. App. at 16. Rather than being an act complete in itself, Act 359
could not accomplish its goals without amending 1950 PA 21.

The Chamber argues that “Act 359 did not revise, alter, or amend any part of 1950 PA 21, or even
attempt to revise, alter, or amend 1950 PA 21.” Chamber Comments at 13. However, the plain lan-
guage of Public Act 21, which created the MBA as a body to “enjoy and carry out all powers granted
to it in furtherance of the duty of the state of Michigan to provide and maintain a system of
highways and bridges for the use and convenience of its inhabitants,” expressly limits the MBA
to the singular purpose of facilitating vehicular transportation between Michigan’s two peninsulas—
nothing more. The Chamber’s argument that section 18 of Public Act 214 is “structured as a cove-
nant with bondholders as opposed to a statutory restriction” only reinforces the fact that the cove-
nant with bondholders pertains only to “actual vehicular traffic.” Chamber Comments at 11 (empha-
sis in original). The Chamber’s admission demonstrates that it is beyond question that the MBA’s
Memorandum to Attorney General Dana Nessel supplementing our February 1 memorandum
Re the constitutionality of Act 359
February 6, 2019
Page 12 of 12

role is confined to vehicles. Yet Act 359 adds a sweeping array of issues wholly unrelated to trans-
portation or to the Mackinac Bridge, without republishing the very act that defines the scope of the
MBA’s authority. The constitutional bar against reenactment without republication does not allow
the legislature to confer expansive new powers onto the MBA sub silentio.

In its haste to pass Act 359, the Legislature enacted a law whose constitutional
infirmities render it, and the Corridor Authority it created, null and void.
The Chamber was correct when it said:

If, however, Act 359 is fatally flawed and, as the question presupposes, the creation
of the Corridor Authority was unconstitutional (which as discussed above is not the
case), then the Corridor Authority, its board, and actions already taken by the board
would almost certainly be void.

Chamber Memo at 16. Act 359 is unconstitutional, and any actions taken by the Corridor Authority
board are void.

The legislative process principles articulated in the Constitution are crucial to prevent deception and
fraud. They require legislators to take their time when developing complex laws that will have major
impacts on their constituents and on the public natural resources they rely on. In its haste to enact
the law during the lame duck session, the Legislature failed to exercise the required due care and
produced a law whose constitutional infirmities render it null and void. Governor Whitmer was right
to ask for your opinion on Act 359’s constitutionality, and based on well-established principles of
Michigan constitutional law, you would be right to opine that Act 359 is unconstitutional.
 Protecting the Common Waters of the Great Lakes Basin
Through Public Trust Solutions

MEMORANDUM

To: Attorney General Dana Nessel

From: James Olson, President and Legal Advisor
Elizabeth Kirkwood, Executive Director
For Love of Water (FLOW)
Date: February 8, 2018
Re: Constitutionality of Act 359 and Referenced Tunnel or Related Agreements

On January 1, 2019, Governor Gretchen Whitmer submitted a request for a formal Opinion of the
Attorney General (“OAG”) to Attorney General Dana Nessel, dated January 1, 2019, on the
constitutionality of Act 359 of the Public Acts of 2018 (“Act 359”), together with the validity or legal
effect on a tunnel and other agreements referenced in the Act.1

Governor Whitmer’s Request for OAG seeks a legal opinion on six questions. 2 Attorney General Nessel
announced on January 2, 2019 that she would form an opinion panel from her staff of lawyers, Assistant
Attorney Generals, to research and advise her on the questions. Attorney General Nessel also invited
interested persons or entities to submit a legal brief or legal memorandum on all or any of the six
questions or questions implicitly included in or related to the six questions.

This legal memorandum addresses the following: (1) summarizes the stark differences between the
amended 2018 Public Act 359, the original 1950 Public Act 21, and 1952 Public Act 214 Mackinac
Bridge Authority laws, together with the multiple and related agreements signed by Governor Snyder,
MDEQ, MDNR, Mackinac Straits Corridor Authority (“MSCA” or “corridor authority”) and Enbridge
that are referenced as part of Act 359; (2) submits a legal analysis for your review and opinion on
Questions 1, 2, 5, and 6 as set forth in Governor Whitmer’s Request for OAG; and (3) submits a legal
analysis of a directly related question of the constitutionality or validity of Act 359, and referenced
agreements, under Article 4, Section 30 of the State Constitution and the Great Lakes Submerged Lands

1
Letter from Governor Gretchen Whitmer to Attorney General Dana Nessel, dated January 1, 2019, requesting
formal Opinion of Attorney General on several questions related to constitutionality or validity of Act 359 and
certain related agreements (hereafter “Request for OAG”).
2
Id., p. 3.

153 ½ EAST FRONT STREET, STE 203C 231.944.1568

TRAVERSE CITY, MI 49684 FLOWFORWATER.ORG
Act (“GLSLA”), MCL 234.3201 et seq., which incorporate inherent limitations to protect the waters and
soils of the Great Lakes under the “equal footing” and public trust doctrines.3

A. SUMMARY OF LAWS, AGREEMENTS, AND PROCEEDINGS SURROUNDING ACT 359 AND GOVERNOR
WHITMER’S REQUEST FOR THE OAG

In 1950, the legislature established the independent state institution, the Mackinac Bridge Authority
(“MBA”), to conduct a feasibility study for the construction of a bridge over the Straits of Mackinac to
connect the state and federal highway system and to replace the ferry service between the upper and lower
peninsulas.4 In 1952, the legislature enacted the Mackinac Bridge Authority Act that established the MBA
and authorized it to acquire, construct, and operate a highway bridge connecting the upper and lower
peninsulas for the motoring general public. 5 There was and is no private entity involved in the ownership,
construction, operation and maintenance of the Mackinac Bridge. The legislature established and
authorized the MBA for one purpose and one purpose only: the acquisition and operation of the public
highway bridge through transfer of lands, power to acquire private lands, including eminent domain,
revenue bond financing, and contracts. Notably, the law exempted the bridge authority from consent or
approval from any state agency or department.6 The bridge opened on November 1, 1957.

From the introduction of proposed Senate Bill 1197 on November 8, 2018, through the hasty
consideration of the substitute bill (S-1197) on December 5, to the passage of the enrolled SB 1197 and
enactment of Act 359 on December 12, 2018, the legislature shoehorned a completely different and
unfitting public-private project on to an existing public bridge authority by establishing a new corridor
authority to build a mostly privately controlled tunnel and pipeline for the next 99 years. Act 359 vests the
MBA with the power to build a utility tunnel, with no notice in the title that the authority is authorized to
build and enter into a public-private venture for a tunnel and privately-owned crude oil pipeline under the
Great Lakes. Moreover, Act 359 automatically transfers this utility tunnel authority over to the corridor
authority upon the appointment of the members of the MSCA. 7 Governor Snyder appointed the members
on the same day of Act 359’s enactment on December 12, 2019. The primary scheme of Act 359 was and
is to provide legislative cover for a unilateral public-private agreement between the State of Michigan and
Enbridge, public trust easements and assignments, and a 99-year-lease for Enbridge to build a tunnel and
operate a new oil pipeline under the Great Lakes.

The original 1950 and 1952 MBA laws established an independent authority empowered to do only one
thing—build the Mackinac Bridge, maintain it, keep it safe, and pay off the bond debt. 8 It is important to
understand that the MBA Act established a public authority, with public bonds, to acquire, build and
maintain a public bridge as part of the federal and Michigan highway system for the general motoring
public. It is a public project for a wholly public purpose for use by the general public. As discussed
below, the enactment of Act 359 and the authorization of the MBA to acquire, construct, operate a utility
tunnel, with easement, 99-year-lease, tunnel agreement and other agreements with and for Enbridge
Energy to locate and operate a replacement segment in the Straits of Mackinac as part of its privately-
owned Line 5 pipeline. The amended title of Act 359 grafts a utility tunnel onto the state’s bridge
authority and provides for a transfer of the bridge authority’s powers to a newly created state corridor

3
The fact that this legal memo does not address Questions 3 and 4 should not be construed as any indication
regarding the answers to those questions; it was determined that given the extensive case law on republication in
Question 3, and “special” or “local” acts in Question 4, there is nothing new to add.
4
1950 PA 21.
5
1952 PA 214, section 1(c).
6
1952 PA 214, section 11.
7
Act 359, section 14d(1).
8
The repayment debt in 2019 is $60 million.

2|FL OW
authority. Based on the amended title’s authorization of a utility authority, there is absolutely no mention
of a legislative scheme in the body of the bill through the addition of Section 14 and Sections 14a through
Section 14e in the enrolled SB 1197 or Act 359. The title adds a new state corridor authority along with
the bridge authority to build a public tunnel in the same way it acquired and built the Mackinac Bridge.
But the body or amendments to the Mackinac Bridge Authority established under Public Act 21 of 1950
and Public Act 214 does almost the opposite: Sections 14 and 14a through 14e established a corridor
authority to oversee a predominantly privately financed, mixed private and public project, that transfers
rights and leases to Enbridge soils and waters of Lake Michigan and the tunnel for 99 years so the
company can locate and operate a new segment of Line 5 in the Straits to Enbridge.

The purpose of Acts 21 and 214 is to build a public infrastructure to transport vehicles over the Great
Lakes and unite Michigan’s two peninsulas, while the purpose of Act 359 is to build a primarily private
tunnel and pipeline to transport oil for the next century. The new title of Act 359 adds the term “utility
tunnel” but fails to mention that this infrastructure is achieved by a wholly different scheme between a
public authority and a private corporation that grants land, possession, and substantial control over is
assured use and any use by other privately-owned utilities. Act 359 corrupts the “Public-Public Project”
title-object as envisioned by the 1950 legislature by grafting a new “Public-Private Partnership” between
the state and Enbridge. As seen below, in comparing the titles of the original acts and Act 359 with the
provisions of the laws to achieve the object of the laws, the two are not the same; they involve
substantially different legal and constitutional implications, questions, and complexities for a
fundamentally different objective or purpose.

1950 PA 21:

1. Established the Mackinac Bridge Authority as an independent state institution;

2. Authorized and funded the bridge authority to undertake a feasibility study for the state to
build a federal and state highway bridge connecting the upper and lower peninsulas to replace
the state’s car ferry service.

1952 PA 214:

1. Authorized the Mackinac Bridge Authority to acquire, construct and operate a public bridge
as part of the state and federal public highway system for the general public;9
2. Authorized the bridge to finance the bridge with state or public bonds.10
3. Authorized the authority to acquire property rights, easements, and land necessary for the
bridge, including the public trust bottomlands of the Lake Michigan.11

9
1952 PA 214, Title: “An Act authorizing the Mackinac bridge authority to acquire a bridge connecting the upper
and lower peninsula of Michigan…;” Section 4 of 1952 PA 214: “… authorized and empowered to construct a
bridge joining and linking the upper peninsula and lower peninsula… to operate, maintain, improve, and repair such
bridge.”
10
Id., Section 4, 1952 PA 214, MCL 254.314; Section 5(1), MCL 254.315(1).
11
Id. Illinois Central Railroad, 146 US 387 (1892). Under the public trust doctrine, there can be no transfer or
disposition of control, use, occupancy, easements or other agreements for state public trust waters and soils without
express legislative authorization based on application and findings that comply with the standards (public trust
improvement or purpose and non-impairment) of the public trust doctrine. Obrecht v National Gypsum Co., 361
Mich 399 (1960); State v Venice of America Land Co., 160 Mich 680, 125 NW 70 (1910); State v St. Clair Fishing
Club, 127 Mich 580, 87 NW 117 (1901); Great Lakes Submerged Lands Act, MCL 324.32501 et seq.; see infra,
Section B, these comments.

3|FL OW
 4. Granted the authority the power of condemnation for the bridge.12
5. Granted the authority the full easements and rights-of-way of any state lands necessary for
the Bridge.13
6. Granted the right to charge tolls and rents from use and leases for utility lines and equipment
not inconsistent with the use of the bridge, collected as public funds for the use of the bridge
and highway purposes, and no other purpose. 14
7. Granted authority to obtain federal or state aid or grants for construction of the bridge. 15
8. Exempted from securing required consent from any state board, department, or agency. 16
9. Declared the public bridge a public purpose and exempted it from real property and other
taxes.17
10. Assured bondholders that the public bridge is insulated from competing ferries or other
vehicle bridges or tunnels.18

2018 PA 359:

1. Enlarged and changed the title of the MBA act from bridge to bridge and utility tunnel and from
bridge authority to bridge authority and corridor authority;
2. Added a tunnel corridor authority to acquire a corridor tunnel;19
3. Authorized private ownership of tunnel during construction and private financing; specifically
prohibits public or state bond financing that was used for the bridge;20
4. Authorized control and use of tunnel for new oil pipeline by Enbridge by lease and easements for
99 years; essentially, authorized tunnel and other agreements to implement the purpose of the act
through a “public-private partnership,”21 fundamentally different from the purely public bridge
and highway owned and controlled by the bridge authority because it provides for long-term
private control, use, and private purpose.22
5. The tunnel corridor will be used specific purpose of locating a crude oil and petroleum pipeline
pursuant to a “tunnel agreement,” which grants easement and long-term lease of state public trust
bottomlands for such purpose.23
6. The tunnel agreement is a specific agreement called for by paragraph G. in the “Second
Agreement” between Governor, MDEQ, MDNR and Enbridge, dated October 3, 2018, as

12
Id.
13
Id.
14
Section 7, 1952 PA 214, MCL 254.317.
15
Id., Section 8, MCL 254.318.
16
Id., Section 11, MCL 254.321.
17
Id., Section 17, MCL 254.327.
18
Id., Section 18, MCL 254.328. See OAG 1957-58m Bi, 3167, p. 524, confirming that a ferry service from
Frankfort to Menominee would violate this section, except for ferries placed in service by the MBA if the bridge is
out of service.
19
2018 PA 359, Title: “… an act to acquire a bridge and a utility tunnel connecting the Upper and Lower
Peninsulas...” and “authorizing the creation of the Mackinac Straits corridor authority; authorizing the operation of a
utility tunnel by the authority [the MBA] or the Mackinac Straits corridor authority….”
20
Id., Section 5(4).
21
See “Second Agreement,” Oct. 3, 2018, paragraph G, p. 6.
22
Id., Section 14(e).
23
Id., Section 14(d).

4|FL OW
 required by Section 14d of 2018 PA 359, and as described in the “Third Agreement” between the
State and Enbridge, dated December 19, 2018. 24
7. Specifically, dictated that the tunnel agreement or a series of agreements must be submitted by
Governor on or before December 21, 2018, and signed by the corridor authority by December 31,
2018, or within 45 days of the date the agreement was submitted to the authority.25
8. The cost and financing of construction of the tunnel and pipeline are borne by Enbridge;26
9. Because of the private party, initial ownership of lands, including bottomlands for construction,
will transfer to corridor authority on completion; because the tunnel is to be used by Enbridge for
a new Line 5 segment, the power of eminent domain is prohibited.27
10. Enbridge’s long-term lease and pipeline are subject to real property taxes. 28
11. The tunnel agreement provides Enbridge a 99-year-lease whereby Enbridge is authorized to
receive revenues from subleasing space in the tunnel to other utilities who may want to relocate,
except for reimbursement to the bridge authority for loss of revenues, if any, in the event of such
relocation.29
12. The tunnel agreement, signed by the state and Enbridge, December 19, 2018, references the
Second and Third Agreements, and Act 359;30 the Second and Third agreements, along with
tunnel agreement, easement, and lease, transfer control to Enbridge over the use of tunnel and the
public trust soils under of the Straits in Lake Michigan;31
13. The corridor authority and/or Enbridge must secure and obtain all permits and approvals required
by law for the construction and operation of the tunnel and pipeline;32 on appointment of the
corridor authority board, the powers related to the utility tunnel have transferred by law from the
MBA to the corridor authority.33

The Act and the referenced agreements purport to direct and commit the State of Michigan to authorize
and participate in the location, use, and occupancy of the state-owned bottomlands of Lake Michigan in
the Straits of Mackinac for the construction, ownership, use, operation and maintenance of a corridor
tunnel to be leased to Enbridge Energy Partners, a private foreign corporation, for 99 years. Under the
terms of Act 359 and the referenced agreements, the State of Michigan transfers and commits or will
transfer and commit ownership, easements, use and occupancy, and appropriation of state-owned lands,
including the public trust bottomlands of the Great Lakes, for the Enbridge tunnel corridor and pipeline.
Further, under the Act and referenced agreements, Enbridge is authorized to sublease the tunnel to other
utilities who may wish to relocate existing pipelines or cables in the tunnel; the proceeds of these leases
are paid to Enbridge and can be applied to help Enbridge recoup its costs of construction of the tunnel; the

24
Id., Section 14d(4). Section 14d refers to a “tunnel agreement or a series of agreements,” which by reference was
known or assumed to be known by the legislature in passing and changing the purpose of the MBA 1952 PA 214.
25
Id., Section 14d(1)(a).
26
Id., Section 14d(e).
27
Id., Section 14d(f).
28
Id., Section 14d(h).
29
Id., Section 14d(j); Tunnel Agreement, Dec. 19, 2018, 3.3, p. 7.
30
Id., Section 14(2) authorizes the MBA Authority to acquire lands under water (bottomlands and soils of the
Straits); Section 14(3) authorizes the MBA Authority to enter on any public land for certain activities, and grants full
use, rights of way, easements to MBA through, across, over, under public lands, including bottomlands and soils of
the Straits, for the utility tunnel.
31
Tunnel Agreement, 3.1, 3.2, pp. 6-7 and attached DNR Utility Tunnel Easement and Assignment of Easement, 99-
year Utility Tunnel Lease; Second Agreement, paragraphs F and G, pp. 5-6, Third Agreement, paragraph 4.2.
32
Id., Section 14d(g).
33
Id., Section 14d(1).

5|FL OW
authority cannot sell the tunnel without Enbridge’s consent, and in such event, Enbridge has the right to
the assigned easement and to purchase the tunnel. 34

In sum, the historic building and operation of the Mackinac Bridge federal and state highway project
through the MBA under 1950 PA 21 and 1952 PA 214 was and is a wholly public project, with public
ownership, and public control, public financing, public management, and public accountability. The
tunnel corridor, tunnel and other agreements, 99-year-easement and lease of the public trust soils and
waters of the Great Lakes are a completely different end with wholly different mechanisms and means to
achieve a “public-private partnership”—a complex mix of public-private ownership, public-private
purposes, public-private control, private-financing, joint public-private management, public and private
contractual accountability—to allow Enbridge to keep operating the existing Line 5 in the Straits for at
least another seven to 10 years until a tunnel and new Line 5 are built.35

B. QUESTIONS AND LEGAL ANALYSIS

Question No. 1:

Does Act 359 violate the Title-Object Clause (Const 1963, art 4, § 24) because it embraces more
than one object, the object embraced is not stated in the law's title, or because SB 1197 was altered
or amended on its passage through the legislature so as to change its original purpose?

No law shall embrace more than one object, which shall be expressed in its title. No bill shall be
altered or amended on its passage through either house so as to change its original purpose as
determined by its total content and not alone by its title.

This constitutional provision requires that 1) a law shall not embrace more than one object, and 2) the
object of a law must be expressed in its title. Advisory Opinion re Constitutionality of 1975 PA 227, 396
Mich 123, 128; 240 NW2d 193 (1976). There are three kinds of challenges that may be brought against
statutes on the basis of the Title-Object Clause: “(1) a 'title-body' challenge, (2) a multiple-object
challenge, and (3) a change of purpose challenge.” People v Kevorkian, 447 Mich 436, 453; 527 NW2d
714 (1994), cert den sub nom Hobbins v Kelley, 514 U.S. 1083; 115 S Ct 1795; 131 L Ed 2d 723 (1995).

(1) The test for a “title-body” challenge or “one object” constitutional limitation is to insure that both the
legislators and the public have proper notice of legislative content and to prevent deceit and subterfuge.
Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). The
“one object” provision is to be construed reasonably and not in so narrow or technical a manner as to
frustrate the legislative intent. Kuhn v Dep't of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971).

34
Lease Agreement, sections 19.1 and 19.2, p. 15.
35
As stated in Paragraph G, the Second Agreement, p. 6, and now carried through with Act 359, the tunnel
agreement, and the Third Agreement, “The State and Enbridge agree to negotiate a public-private partnership
agreement with the Mackinac Bridge Authority (“Authority”) with respect to the Straits tunnel for the purpose of
locating the Line 5 Straits Replacement segment, and to the extent practicable, Utilities in that Tunnel.” It provided
that the parties would grant Enbridge control of the tunnel for its replacement segment of Line 5, and the right to
operate the existing line until the tunnel was completed, and assured that Enbridge’s existing rights under the 1953
Easement for the existing line would not be altered. This the parties agreed to, as they did in the tunnel agreement
and Third Agreement, and as called for by Act 359, without compliance with the conveyance, occupancy and use
agreements required for the Great Lakes and soils under them under the “equal footing” and public trust doctrines,
that vests absolute and irrevocable title in these waters and soils in the State of Michigan. Illinois Central Railroad,
146 US 387 (1892); fn 11, supra, Obrecht v National Gypsum Co., State v Venice of America Land Co., State v St.
Clair Fishing Club.

6|FL OW
An act may contain all matters germane to its object and any provisions which “directly relate to, carry
out and implement the principal object.” Advisory Opinion, supra, pp 465-467; People v Kevorkian, 447
Mich 436, 454-455, 527 NW2d 714 (1994).

The central question under the “title-body” test for constitutionality is whether the new title and
provisions in the body of the amendment or law are whether the object and provisions are “germane” and
“directly relate to, carry out, and implement the principal object.” Advisory Opinion re Constitutionality
of 1972, supra.; Pohuski v City of Allen Park, 465 Mich 675, 691, 641 NW2d 291 (2002); Loomis v
Rogers, 197 Mich 265, 267, 163 NW 1018 (1917); The plain meaning of “germane” is “closely akin” or
“fitting,” “relevant” and “important.” 36 While there is a presumption of constitutionality of enactments of
the legislature, Pohuski, supra, 465 Mich at 490, the presumption cannot be used to obscure the
underlying requirement that the title-body must be “germane” or “directly related to” the title or object. In
other words, the provisions must be closely connected to the object. Pohuski, Id. For example, in Klinke v
Mitsubishi Motors, 458 Mich 582, 581 NW2d 272 (1998), the Supreme Court ruled that it could not mix
motor vehicle code violations with civil liability in products liability law, holding that the seat-belt statute
did not apply to a product liability action. While both seat-belt code provisions and product liability
provisions may apply to motor vehicle accidents, they are distinct subjects, and the title of one code could
not be enlarged to include the other, quoting Justice Cooley, In re Hauck, 70 Mich 396, 403, 38 NW 289
(1888).

Here, there is nothing in 1950 PA 21 or 1952 PA 214 that is “closely akin” to or “fitting” or “connected”
to the original object and body of the laws establishing the MBA to acquire and operate a public highway
Mackinac Bridge; nothing in the title to acquire a public bridge or “utility tunnel” suggests it would be
acquired, owned, controlled, leased or used for 99 years by a private corporation through a mixed public-
private partnership project to move oil under the Great Lakes. In fact, the provisions in Section 14 and
14a-14e of Act 359 impose an entirely new public-private partnership relationship on to the MBA through
a series of agreements to resolve a completely different object (Enbridge Line 5 pipeline continued
operation in the open waters of the Straits, along with eventual removal of existing line) by means that are
far different than those required to achieve a public project. There is no public financing; Enbridge owns
and controls the public trust soils under the Straits during construction; when the tunnel is finished, the
authority owns the tunnel, but all rights, easements, use of bottomlands are leased back to Enbridge for 99
years.

The title makes the “utility tunnel” sound like it is simply another project like the Mackinac Bridge, when
it is anything but. First, a utility tunnel has nothing to do with serving the traveling motoring citizens of
Michigan. Second, it has nothing to do with operating a bridge. Third, it is for utilities and utility projects
that while they may approve as a public utility in the future, are and will be privately owned. Fourth, the
financing, lease-back, and shared revenues, obligations, liabilities, and even shared legal defense weave a
project with a predominant private purpose into a public project law and title. Mere assertion of a public
purpose does not satisfy the test.

For these reasons, Act 359 is unconstitutional at its core, and the entire Section 14 and Sections 14a
through 14e are invalid in total. The reading of the words “utility tunnel” as stated in the title of Act 359
are reasonably understood to mean acquisition of a public utility tunnel like the Mackinac Bridge; the
provisions in the body of Act 359, Section 14 and Sections 14a through 14e, authorize a public-private
partnership that transfers substantial control, state land, and property rights to Enbridge for 99 years,

36
Merriam-Webster Dictionary, https://www.dicintoary.com/brose/germane; Cambridge English Dictionary,
https://www.dictionary.combridge.org/us/dictionary/english/germane.

7|FL OW
including an option should the state want to terminate the lease or not own the tunnel, for Enbridge to
purchase it.37

(2) The test for constitutionality under “Title-Object” multiple object challenge under Mich Const. 1963,
art. 4, 24, is the "object" of a law or its general purpose or aim. Local No 1644, AFSCME v Oakwood
Hospital Corp, 367 Mich 79, 91; 116 NW2d 314 (1962). Livonia v Department of Social Services, 42
Mich 466, 496-498, 378 NW 2d 402 (1985). To find a general purpose, “One looks to the body of the act,
not the title, to determine whether it has a single object.” Kevorkian, supra, 477 Mich 459; Keep
Michigan Wolves Protected v State (Unpublished opinion, Michigan Court of Appeals, No. 328605). If
the act contains “subjects diverse in their nature, and having no necessary connection,” it violates the
Michigan 1963 Constitution, art 4, § 24. Advisory Opinion, 396 Mich 131, quoting People ex rel Drake v
Mahaney, 13 Mich 481, 494-495 (1865).

In Keep Michigan Wolves, the court of appeals ruled that a provision to provide free hunting and fishing
licenses to veterans, while perhaps worthy, did not fall within the general purpose or aim of a law whose
title was to implement sound scientific principles in the management of wolf populations. See also People
v Milton, 393 Mich 234, 246-247, 224 NW2d 266 (1974). The one-object provision may not be
circumvented by creating a title that includes different objects. Hildebrand v Revco Discount Drug
Centers, 137 Mich App 1, 11, 357 NW2d 778 (1984) (The addition in the title of an act to add a new
section in the body of the act did not cure the constitutional infirmity); Klinke v Mitsubishi Motors, supra.
The “prohibition against the passage of an act relating to different objects expressed in the title makes the
whole act void.” Skinner v Wilhelm, 63 Mich 568, 30 NW 311(1886).

Here the inclusion of a public-private partnership scheme to build a utility tunnel west of the Mackinac
Bridge for location of a privately-owned utility company’s pipeline for 99 years does not fall within the
general purpose of the title or the body of 1950 PA 21 and/or 1952 PA 214. While it could be argued that
both link an activity between the upper and lower peninsulas, the objects or aims of those purposes and
activities or uses are not remotely or even reasonably similar. They are diverse and different in their basic
purpose and nature, with different risks and measures. The sweeping “public-private partnership” or
privatization scheme38 with a public body authorized to build and manage wholly public facilities for a
limited number of privately-owned utilities is diverse and surely not necessary to the purpose and object
of the MBA and the acts in question. Accordingly, Act 359 must be held unconstitutional and invalid.

(3) The test for a “change of purpose challenge” is similar to the analysis regarding whether amendments
or provisions in a bill or substitute provisions are “germane” to the title of a bill, discussed under
Question 1, above. People v Kevorkian, supra, 447 Mich at 461; see discussion regarding the meaning
and application of “germane” or “closely akin” to the title in numbered paragraph (1) above. Moreover,
the purpose of the “change of purpose” provision is to prevent a slight of hand from one law, amendment,

37
Lease Agreement, paragraphs 19.1 and 19.2.
38
Public-private partnership or privatization (“P3 projects”) of public lands, facilities, services involve a distinctly
different range of means and complexities. They are vastly different from purely public funded, designed, bid, built,
owned, and operated facilities and services. Typically, a P3 project involves new legislative authority, consistent
with the state constitution involved, with oversight boards of private involvement and implementation of a project,
different delivery methods (design-build, private financing, design-build ownership and management, long-term
leases, management only, private control subject to oversight; the also involve open-bidding and compliance with
equal opportunity requirements, joint liability and indemnity arrangements, and several other matters. To date, P3s
have been limited to publically owned highways, and not privately owned utility projects. See Jason Tomasulo,
“Pennsylvania Passes Public-Private Partnership (P3) Law,”
https://www.construcionlawnowblog.com/infrastructure/pennsulvania-passes-public-private-partnersship/law;
“Public Private Partnership Laws/Concession Laws,” https://ppp.worldbank.org/public-private-
partnership/legislation-regulation/laws/ppp/.

8|FL OW
bill or substitute bill, to final bill; there is a particular emphasis on scrutiny where legislation, like SB
1197, S-1197, and various changes, are rushed by hasty legislation, where the original bill title is
changed, and provisions are added that would accomplish a different purpose than the purpose of the title.
Id., 447 Mich at 460, citing Anderson v Oakland Co. Clerk, 419 Mich 319, 329, 353 NW2d 448 (1984).

SB 1197 and its summary originally amended the Mackinac Bridge Authority law by adding provisions
that would authorize the authority to build a utility tunnel. Because of the unique purpose, structure,
authority, and powers, the Mackinac Bridge Authority statutes seemingly provided the ideal vehicle for
Enbridge to secure state-owned lands without applying under modern day environmental statutes like the
Great Lakes Submerged Lands Act. The trouble was and remains that the purpose of the Mackinac Bridge
Authority is to finance, acquire, operate, maintain, and improve the Mackinac Bridge as an entirely public
facility operated by an entirely public board.

The addition of the corridor authority to acquire a tunnel to the bill so fundamentally changed the purpose
and threatened the integrity of the bridge authority and bridge, that a substitute bill S-1197 was submitted.
This bill added “acquire utility tunnel” to the title, but did not disclose that it was to be accomplished and
implemented by a public-mostly private partnership, with substantial differences from a purely public
authority. Moreover, the substitute bill authorized the MBA to acquire the tunnel after it was built by
Enbridge, then transfer the tunnel back to Enbridge by a grant of easement and the 99-year lease.
Similarly, the enrolled SB 1197, Act 359, did the same, without disclosure in the title for legislators or the
public during the short 27 days from the introduction of the original bill to the changed substitute bill on
December 5, 2018, and the rushed, hasty consideration of the substitute bill between December 5 and the
day it was passed on December 12, 2018.39

Accordingly, the body of the bill substantially changed the approach and purpose of the original bill, and
for the reasons discussed in (1) above, those changes enacted by the enrolled SB 1197, Act 359, are not
closely related to, akin, or germane to the title or purpose of a public owned, built, operated, utility tunnel.
The entire purpose of Act 359, as described in the last-minute addition of Section 14 and Sections 14a
through 14e implemented a public-private project and partnership with substantial private control, gain,
benefit, and purpose not full disclosed in the title or amended title. This change of overall purpose differs
vastly and is not germane to a public bridge or totally public project.

Question No. 2:

Does the requirement that members of the board of the Corridor Authority serve for six years or
more violate the constitutional mandate under section 3 of article 5 of the Michigan Constitution of
1963 that the terms of office of any board or commission created or enlarged after January 1, 1964
must not exceed four years?

Yes. Act 359’s six-year term for the members of the board of the Corridor Authority violates the
constitutional mandate under Article 5 Section 3 of the Michigan Constitution, which expressly limits all
board terms to no more than four years. The real questions are: What is the effect of this unconstitutional
provision of Act 359. Can an unconstitutional section be severed?

Article 5, Section 3 of the Michigan Constitution of 1963 clearly states in unambiguous language that the
term of office of any board or commission created or enlarged after January 1, 1964 must not exceed four
years. “Terms of office of any board or commission created or enlarged after the effective date of this
constitution shall not exceed four years except as otherwise authorized in this constitution.” Section
39
The rushed atmosphere and confusion surrounding the changes in structure and purpose from the original bill that
barely complied with the 5-day-wait rule for enactment of a substitute bill required by Mich Const., art. 4, sec. 26.

9|FL OW
14b(2) of Act 359 explicitly violates this constitutional requirement as the law states the board members
of the Mackinac Straits Corridor Authority (“MSCA”) serve six-year terms: “Members of the corridor
authority board shall serve for terms of 6 years or until a successor is appointed and qualified, whichever
is later.”

This extended six-year term is not a legislative omission or oversight, nor an appendage of Act 21 of 1950
or Act 214 of 1952. Rather, this six-year term was an intentional end-run attempt to preclude the next
incoming Governor from appointing new board members within her four-year constitutional term, and the
facts support this. Despite strong public opposition at the SB 1197 committee hearings, Governor Snyder
signed Act 359 into law on December 12, 2018, and immediately appointed three members pursuant to
Section 14(b)(2): Geno Alessandrini (D), Tony England (D), Michael Zimmer (R). The following day,
Geno Alessandrini resigns and Snyder names James “J.R.” Richardson (R) as his replacement. Mike
Zimmer was Snyder’s cabinet director and a member of the Mackinac Bridge Authority. Recognizing the
statutory violation of Section 14(b) (8) which prohibits Mackinac Bridge Authority members from
serving on the board of the corridor authority, Governor Snyder then appointed Mike Nystrom (R). The
three current corridor authority board members include Tony England (D), James “J.R.” Richardson (R)
and Mike Nystrom (R) whose appointment to six-year terms clearly contravene and violate the clear and
unambiguous language of the Constitution restricting board terms to four years.

While it is undisputed that statutes cannot contravene the constitution, courts presume the
constitutionality of statutes and, if possible, construe and apply a statute to uphold their validity. Evans
Products v. State Board of Escheats, 307 Mich 506, 533-535 (1943). A facial challenge is “the most
difficult challenge to mount successfully, since the challenger must establish that no set of circumstances
exist under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

In 2005, Attorney General Mike Cox’s opinion no. 7178 addressed a similar constitutional board term
issue raised in Public Act 66 (2001), which amended the Michigan Historical Commission Act, 1913 PA
231, MCL 399.1 et seq. The OAG concluded that Article 5, Section 3 of the Michigan Constitution
invalidates only those provisions of Act 66 that specify a term of office in excess of four years and does
not affect the remaining provisions of the act. In examining the question of what effect the Constitution
has on PA 66, the OAG concluded that Article 5, Section 3 is self-executing by operation of law because
it supplies a sufficient rule by means of which the rights given may be enjoyed and protected and that no
legislation is necessary to give effect to a prohibition. Therefore, according to Cox’s OAG legal
reasoning, the terms of the MSCA are 4 years by operation of law, and the creation of the board itself
remains, along with all other sections of Act 359.

Factually, however, the Michigan Historical Commission and the Mackinac Straits Corridor Authority are
quite different because the unconstitutionally formed corridor authority then took legally binding actions
that committed state public trust resources for 99-years to benefit a private purpose. In the instance of the
Historical Commission, no legally binding agreements were at issue.

As directed by Act 359, the corridor authority immediately committed state public trust resources to an
easement and a lease for 99-years for the primarily private benefit and purpose to transport oil under the
Great Lakes. Because this unconstitutionally formed board took substantia legal action that purported to
transfer lands, including bottom lands of Great Lakes, easement, and long-term lease, turning over nearly

10 | F L O W
exclusive use and control of these lands and the tunnel to Enbridge, the Michigan Supreme Court should
strike down all legal agreements entered into by the Mackinac Straits Corridor Authority board.

Question No. 5:

Does the Corridor Authority have any authority or power that is not constitutionally and explicitly
granted by Act 359?

No. The corridor authority does not have any authority not expressly delegated by the legislature under
Act 359. As a matter of law, absent a constitutional grant of power, such as a local government’s control
over streets,40 a board or authority created by the legislature has no more power than that which is
expressly delegated or necessarily implied by the enabling act. Ranke v Corp & Securities Div., 317 Mich
304, 309, 26 NW2 898 (1947).

Question No. 6:

If the Corridor Authority was not created in a manner that conforms to or is in violation of the
Michigan Constitution, is the Authority, its board, and/or any action taken by the Authority’s
board void or invalid?

To the extent that Act 359, including its express reference to the “tunnel agreement” and “series of
agreements,” violates or is not in conformity with Article 4, Section 24 and Article 5, Section 3, discussed
in the answers and legal analysis to Questions 1 and 2, above, the Act, and, therefore, the tunnel
agreement, easement, lease, and any other agreements entered into by the corridor authority or state in
furtherance of the authorization of a tunnel authority are void.

As a general rule, an unconstitutional statute is void ab initio; this means it is void for any purpose, that is,
the unconstitutional statute has no legal effect from the date it is enacted. Stanton v Lloyd Hammond
Produce Farms, 400 Mich 135 (1977); Briggs v Cambpell Wyant & Cannon Foundry, 379 Mich 160
(1967). Where a statute fails based on title-object, multiple purposes, or change in purpose grounds, the
“whole act is void.” Skinner v Wilhelm, 63 Mich 568, 30 NW 311 (1886); Advisory Opinion re
Constitutionality of 1975 PA 227, 396 Mich 123, 130-131, 240 NW3d 193 (1976).

The radical splicing or grafting the MBA Act transformed the bridge authority law into a law that
authorizes a public-private utility tunnel through private and public agreements or “public-private
partnership” is not germane or necessary to a public highway bridge or a public utility tunnel acquired by
the MBA or a corridor authority. Accordingly, the entire Act 359, and any agreements referenced by it,
such as a “tunnel agreement” or “series of agreements” (including the DNR Easement and Assignment of
Easement for the tunnel and new pipeline for Line 5 to Enbridge, a privately-owned corporation) are void.
The additional provisions added in the Substitute 1197 on December 5, 2018 and passed on December 12,
2018 substantially changed the body from the title by authorizing new means and measures not within the

40
Mich Const., art.7, sec.29.

11 | F L O W
bill or title itself and otherwise not germane, closely akin, or directly and necessarily related to a public
bridge or utility tunnel.

Moreover, as established under Question 2, above, Act 359 established terms of board members for more
than four-years in violation of Article 5, Section 3. The violation was effective on the date of passage of
the amendment on December 12, 2018, seven days before the corridor authority met and signed the tunnel
agreement on December 19, 2018. While the provision may be self-executing, that does not cure the fact
that Act 359 was void ab initio. Skinner, Briggs, Stanton, supra. If it was void ab initio, then the
provision, even if severable, was void before the corridor authority was established and powers
transferred to it from the bridge authority on appointment of its members. If the law authorizing the
appointments was void ab initio, then the Governor’s appointments are void and of no legal effect; as a
result, the corridor authority’s action in approving and signing the tunnel agreement, including the
attached easement, assignment of easement, and 99-year-lease agreement, would be void. It is submitted
that it is legally impossible for members of a board with terms of more than 4 years in violation of the
constitution, where the statutory provision authorizing them to take action is void on enactment.

C. ADDITIONAL COMMENTS ON VALIDITY OF ACT 359, REFERENCED AGREEMENTS, AND

ATTACHMENTS

1. Article 4, Section 30

The assent of two-thirds of the members elected to and serving in each house of the legislature
shall be required for the appropriation of money or property for a local or private purpose.

The Constitution prohibits an appropriation of money or property of the state for local or private
purposes, unless it is approved by a vote of two-thirds of the members serving in each of the Senate and
House. The courts decline to review an appropriation of property where there is a two-thirds vote because
it is considered constitutionally acceptable.41 Where the two-thirds vote is lacking, the courts exercise
judicial review to assure the appropriation serves a public purpose. The language or nearly identical
language to Article 4, Section 30 has appeared in every constitution adopted in Michigan since 1850.42

While the courts defer to legislative declarations of public purpose, the legislature is not insulated from
the two-thirds requirement; a law passed without two-thirds assent granting access to election form
information at public expense constituted a private purpose in violation of art. 4, sec. 30. Grebner v State,
480 Mich 939, 744 NW2d 123 (2007). Conveyances of state land and money for private entities,
including nonprofit organizations are prohibited unless approved by a two-thirds vote, 43 including
forestry districts to help pay for cost-sharing agreements;44 and appropriation of state land to the Red
Cross for $ 1.00.45 The essential question is whether a conveyance of state land, property, or money is for

41
Advisory Opinion on the Constitutionality of Act 346 of Public Acts of 1966, 380 Mich 554 (1968).
42
It first appeared in Const. 1850, art. 14, sec. 6, growing out of the economic benefits or state land given to friends
under Governor Mason’s administration.
43
OAG 1955, No. 2090.
44
OAG 1983, No. 6123,
45
Footnote, 43, supra.

12 | F L O W
fair value or compensation; if there is fair value without a subsidy in the legislative scheme, there is no
violation.46

Under a closely related provision of the Constitution that prohibits conveyance of land or money paid for
by the taxpayers unless for a public purpose,47 the Court struck down a conveyance of public property by
the City of Flint without consideration to the federal government—a conveyance or appropriation for less
than fair value was not a valid public purpose. 48 When the city turned around and conveyed the property
based on the appraised fair market value, the Court held it was a proper public purpose. 49

In another context, the Supreme Court reinstated a strict public purpose standard in the exercise of
condemnation powers50 in Wayne County v Hathcock, 471 Mich 445, 684 NWA2wd 765 (2004).51 In
doing so, the Court overruled the Poletown, concluding that the exercise of eminent domain to take land
for a public use or purpose, and transfer the land for the creation of a private, technological-park land
development; jobs, economy and other incidental benefits did not constitute a valid public purpose.
Poletown Neighborhood Council v Detroit, 310 Mich 616, 304 NW2d 455 (1981).

Across the constitutional landscape in Michigan, the transfer of state or public land for private purposes is
prohibited, or in the case of an appropriation for private purpose requires a two-thirds vote of each house.
The tests are whether the conveyance is for a public use or private use based on payment of fair market
value; if not, there is an underlying subsidy and it is a private, not a public purpose. Further, an additional
test is whether there is a conveyance, lease, or private use under control of a private corporation—that is,
if the private corporation grantee or lessee has control over the independent decision of a governmental
authority, it constitutes an unconstitutional purpose.

Act 359 did not receive the assent of two-thirds of the members serving the house. As described at length
above, Act 359, the tunnel agreement, the easement and lease for private use of the soils under the Straits
grants Enbridge control for 99 years. Act 359 and the tunnel agreement require the transfer of state lands,
including bottomlands and soils under the Straits, to the corridor authority and, in turn, directly to
Enbridge for its private pipeline. Among other provisions, there is no requirement of compensation for the
conveyance and lease; Enbridge retains dominant control of the tunnel, the easement, the leased property,
controls whether another utility can use the tunnel and state lands, and even has assurances that it can
purchase the tunnel should the authority terminate the lease or not want the tunnel. Moreover, as will be
seen in the next section, neither the corridor authority nor Enbridge are required to obtain authorization
for the conveyance based on findings of public purpose and no impairment that are required for a
conveyance of an easement, lease, or other occupancy and use agreement of the soils and bottomlands of
the Great Lakes under the common law of public trust.52

Act 359, the tunnel agreement and related documents and agreements violate art. 4, sec. 30, because the
law and agreements convey public land and rights in state lands for a primarily private purpose and

46
OAG 1994, No. 6804.
47
Mich Const. 1908, art. 10, sec. 12 (Now Mich Const. 1963, art. 9, sec. 18) (“The credit of the state shall not be
granted to, nor in aid of any person, association or corporation, public or private.”).
48
Young lass v City of Flint, 345 Mich 576, 77 NW2d 84 (1956).,
49
Sommers v City of Flint, 355 Mich 655, 96 NW2d 119 (1959).
50
Mich Const. 1963, art. 10, sec. 2.
51
The Court overruled the broader interpretation of “public purpose” in Poletown Neighborhood Council v Detroit,
310 Mich 616, 304 NW2d 455 (1981).
52
Illinois Central and Obrecht, supra, fn 11.

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control and/or for non-public purpose without sufficient and fair market value. Accordingly, the Act and
related agreements, easement, and 99-year-lease to Enbridge are void.

2. The Public Trust Doctrine and Great Lakes Submerged Lands Act (“GLSLA”)

When Michigan joined the United States in 1837, the State of Michigan took title, absolutely, as
sovereign for its citizens under the “equal footing” doctrine to all of the navigable waters in its territory,
including the Great Lakes, and “all of the soils under them” below the natural ordinary high mark. 53 All of
these waters and the soils beneath them are held in and protected by a public trust. 54 The public trust
doctrine means that the state holds these waters and soils beneath them in trust for the public for the
protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing,
drinking water, and other recreation.55 As a general rule, there can be no disposition, transfer, conveyance,
occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a
statute or law that expressly authorizes the proposed disposition, occupancy, or action and the statute
contains and requires a consideration that the following standards for the narrow exception to the rule
have been duly satisfied:56

(1) The proposed disposition, occupancy, or action predominantly serves or enhances a public
trust interest or interest (such as navigation, fishing, etc.), not a private one; and
(2) The proposed disposition, occupancy, or action will not interfere with or impair the public
trust waters, soils, habitat, wildlife like fish and waterfowl, or one or more of the public-trust
uses.57

From the foregoing discussion of the original MBA in 1950 PA 21 and 1952 PA 214, and Act 359 and the
provisions that require signing of the tunnel agreement by the MSCA (corridor authority), it is clear that
the legislature authorized the grant or conveyance of rights, easements, and the 99-year-lease in the Great
Lakes and the soils beneath them. It is also clear that pursuant to Act 359, the MSCA obtained an
easement from MDNR in the soils and bottomlands of the Great Lakes (the Straits) for the utility tunnel,
and reassigned the easement to Enbridge as required by the tunnel agreement. This scheme was set up by
paragraph G of the Second Agreement between the Governor, MDEQ, MDNR an Enbridge, which called
for the State of Michigan to transfer necessary public property for the tunnel and the long-term lease back
of the property to Enbridge to control the tunnel and locate its pipeline in the tunnel within the soils and
bottomlands of the Great Lakes. In addition, the Third Agreement between the State of Michigan and
Enbridge, signed the same day as the tunnel agreement between the MSCA and Enbridge, authorizes
Enbridge to continuing using and occupying the bottomlands and waters of the Straits for the existing
dual pipelines “until such time that the Straits Line 5 Replacement Segment is placed into service with the
Tunnel.”58

Section 3.1(a) of the tunnel agreement provides that the MSCA will acquire from the MDNR a “tunnel
easement” to grant lawful right to enter, occupy, and use lands beneath the lakebed of the Straits…
necessary for the construction, use, operation, and maintenance of the Tunnel.” Under Section 3.1(b) on
the signing of the tunnel agreement, the corridor authority was required to assign the easement or
“subsurface right of way” to Enbridge to occupy, use, construct, operate, and maintain the tunnel. At the

53
Shively v Bowlby, 14 S. Ct. 548 (1894); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892); State v Venice of
America Land Company 160 Mich 680 (1910); Glass v Gackle, 473 Mich 667 (2005).
54
Id.; see also Obrecht v National Gypsum, 361 Mich 299 (1961).
55
Id., Illinois Central, Obrecht, Glass.
56
Id. p. 416.
57
Id.
58
Third Agreement, Dec. 19, 2018, paragraph 4.2, p. 4.

14 | F L O W
same time, Section 3.2(a) of the tunnel agreement provides for acceptance of title of the tunnel after
Enbridge completes construction, coupled with a simultaneous lease-back to Enbridge for 99 years for
exclusive use of the easement or subsurface right-of-way for its new or replacement Line 5 segment.
Section 3.2(b) provides that other utilities may request permission from the MSCA, subject to consent or
non-interference with Enbridge’s rights and use, for other utilities in their discretion to locate electrical,
cable, or other pipelines in the tunnel. 59 Section 17.4(c) grants Enbridge the right to the continued use of
the tunnel easement for 99 years if the tunnel agreement is terminated.60

The MDNR’s easement to the corridor authority issued on December 17, 2018 only cites the authority of
MCL 254.324a(3) and MCL 254.324d(1) for the purpose of granting the authority to place, construct,
operate, maintain… and use” the subsurface soils beneath the lakebed of the Straits and Lake Michigan.
The easement authorizes the corridor authority to assign the easement to Enbridge upon signing the tunnel
agreement with the corridor authority. Under the assignment of the easement, the MDNR is prohibited
from entering into any other third-party assignment, grant, lease or licenses without Enbridge’s consent. 61
The easement and assignment of the easement grant all rights to Enbridge to the “underground lands”
“specifically lands located beneath the lakebed to which the state has title.” 62 As discussed below, this
language is asserted to limit the authorization for the easement and lease to the area beneath the lakebed
of the Straits in an unlawful attempt to avoid the public trust doctrine and explicit standards imposed by
the Great Lakes Submerged Lands Act (“GLSLA”).63

Like the easement, the lease transfers possession to Enbridge to use, control, and operate the tunnel and
its new Line 5 segment for the 99-year term. The lease provides for possible use by other utilities subject
to Enbridge’s consent and determination that it will not interfere with its private use of the tunnel for its
pipeline. In the event another utility subleases from Enbridge, the costs of operating the tunnel can be
apportioned, to reduce Enbridge’s cost obligations. 64 As noted above, if the lease is terminated under
certain circumstances, the assignment of the subsurface easement for the tunnel “will remain in effect; 65
and Enbridge has a right to purchase the tunnel and all rights to subsurface if the corridor authority wants
to abandon its ownership and oversight of the tunnel and lease. 66 Enbridge was not required to pay any
fair market compensation for the assignment of the easement or lease for the rights of construction,
occupancy, use, and operation of the tunnel and its Line 5 segment to the tunnel and soils and
bottomlands of Lake Michigan beneath the lakebed. While Enbridge is required to pay real estate taxes
for its leasehold interest and replacement pipeline segment, the land and tunnel are exempt from real
property taxes, so those taxes are not passed along to Enbridge as they would be in normal circumstances.
The corridor authority assures Enbridge it will not terminate the tunnel easement during the term of the
lease.67

a. Act 10 of Public Act (“Act 10”) Easements for Public Utilities Over, Under or Through
State Lands and State-owned Public Trust Bottomlands

The legislature enacted Act 10 in 1953 to authorize the state to grant easements over, though, under, and
upon any and all lands belonging to the State of Michigan, including “the unpatented lake bottomlands

59
See also Tunnel Agreement, section 6.1, p. 10.
60
See also Assignment of Utility Easement for Utility Tunnel, paragraph 2.
61
Id., paragraph
62
Id., p. 1.
63
MCL 324.32502; MCL 324.32503 et seq.
64
Tunnel Lease, Art. 9, pp. 5-6.
65
Id., 18.3, p. 15.
66
Id., 19.1 through 19.3, p. 15.
67
Id., 20.1, p. 16.

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belonging to or held in trust.” Act 10 was reenacted as part of NREPA, MCL 324.324.2129, and is the
basis for the Easement for the Utility Tunnel in lands and soils beneath the lakebed of the Straits. Section
2129, MCL 324.2129, authorizes “easements” (not leases or conveyances) for public utility projects
certified by the Michigan Public Service Commission (“MPSC”). However, the MPSC has not certified
this utility tunnel easement at issue. Act 10, now MCL 324.2129, clearly applies to public trust
bottomlands and lakebeds beneath the Great Lakes.

In 1955, two years after the enactment of Act 10, the Michigan legislature passed the GLSLA. The
GLSLA supplied for the first time in the State of Michigan’s history express authorization for
conveyances, easements, leases, and occupancy or use agreements for the waters and soils under the Great
Lakes. The GLSLA inserted standards to incorporate the prohibition against disposition, leases, and
occupancy of the public trust soils, lakebed, and waters pursuant to the seminal case of Illinois Central
Railroad. Before the GLSLA, Act 10 (and MCL 324.2129 now) did not incorporate public trust standards
for the narrow exception for disposition, easements, leases, and occupancy of these public trust
bottomlands and soils. In Obrecht v National Gypsum Co, the Michigan Supreme Court adopted Illinois
Central principles and standards that were incorporated into the GLSLA. As such, any public utility
easement authorized under MCL 324.2129 is now subject to the GLSLA and its required authorization
based on due recorded findings of fact that the public trust standards under public trust law are satisfied.

Accordingly, the transfer of state bottomlands to the authority and Enbridge for a tunnel and the grant of
the tunnel easement, its assignment, the lease, and other use and occupancy assurances to Enbridge
granted under MCL 324.2129 have not been authorized pursuant to the required public trust standards and
findings under Illinois Central and Obrecht.

a. Great Lakes Submerged Lands Act of 1955: Limited Conveyances, Leases, Agreements,
or Actions Over, On, In, or Through Soils and Bottomlands of the Great Lakes.

The GLSLA prohibits any conveyance, lease, agreement, occupancy, use or other action in the waters or
on, in, through or under the bottomlands of the Great Lakes, unless authorized by the Michigan DEQ
pursuant to the public trust standards in the GLSLA and the common law of the public trust doctrine. 68

This part shall be construed to preserve and protect the interests of the general public in the lands
and waters described in this section…to provide for the sale or lease or other disposition…or
permit filling in [including dredging or removal of materials]…If it is determined by the
department that the public or private use of those lands and waters will not substantially affect the
public use of those lands and waters for hunting, fishing, swimming, boating, or navigation or
that the public trust in the state will not be impaired by those agreements use, sale, lease or other
disposition.”69
***
(4) Agreements for lands or water… described in section 32502 may be granted with local units
of government for public purposes.70

No agreement or lease can be authorized for Enbridge’s 99-year tunnel lease and crude oil pipeline
because: (1) it is not for a recognized public trust purpose such as fishing, boating, navigation, and
recreation, and (2) it will interfere with and impair navigation, fishing, and cause massive disruption to
fish, habitat, and other public trust uses. Moreover, under the GLSLA, the public trust soils and waters of

68
MCL 324.32501 et seq., specifically sections MCL 322.32502 and 32503.
69
MCL 324.32502; see also 324.32503, 324.32504, 324.32505(4), 324.32512.
70
MCL 324.32505(4).

16 | F L O W
the Great Lakes cannot be used for construction for a privately leased and operated tunnel and pipeline
unless Enbridge proves under rule of law that there are no other feasible and prudent alternatives. 71

In this instance, the MDEQ, MDNR, Governor and Enbridge inserted language in the Tunnel Easement
that states, “The easement and right of way do not include any lands or interests in land on or above the
lakebed.”72 This language was a calculated attempt by the State of Michigan and Enbridge to circumvent
the required authorization and findings to comply with the public trust doctrine under the GLSLA. Failure
to do so violates the GLSLA, and the tunnel agreement, easement, and lease are therefore void.
Moreover, the attempted avoidance of the GLSLA also violates the title vested in and held by the state
under the trust imposed on all navigable waters and the soils under them by the equal footing doctrine. 73

Therefore, the transfer of bottomlands by Act 359, the tunnel agreement, easement and use, as well as the
assurances to continue the operation of the existing dual lines in the Straits of Mackinac must be
authorized by the GLSLA in addition to MCL 324.2129. If not, the authorization under MCL 324.2129
fails for lack of the required public trust standards and findings imposed by the public trust doctrine.

71
GLSLA Rule 1015. R 322.1015.
72
Easement to Construct Underground Utility Tunnel at the Straits of Mackinac, second paragraph, p. 1.
73
Shively v Bowlby, 14 S. Ct. 548 (1894); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892); State v Venice of
America Land Company 160 Mich 680 (1910); Glass v Gackle, 473 Mich 667 (2005).
73
Id.; see also Obrecht v National Gypsum, 361 Mich 299 (1961).

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