2018-12-08 / Top News

Senate Passes Bill To Create Tunnel Authority

By Stephanie Fortino

The Michigan Senate passed a version of Senate Bill 1197 Wednesday, December 5, that will create a new Mackinac Straits Corridor Authority through an amendment to the Mackinac Bridge Authority Act. The new three-member board will be an independent body overseen by the Michigan Department of Transportation. While the tunnel authority will be separate from the Mackinac Bridge Authority, a move called for by citizen groups, opponents criticize the current version of the bill as a sloppy way to establish a new body, as Governor Rick Snyder scrambles to have the tunnel in place before he leaves office at the end of December.

The bill passed the Senate 25 to 13, with local legislator Senator Wayne Schmidt of the 37th District voting in favor, even though he previously said he was against involving the Mackinac Bridge Authority in the proposed utility tunnel.

Rather than creating an entirely new bill to form the tunnel authority, legislators decided to extensively modify SB 1197 after an earlier version passed a Senate panel that would have put the Mackinac Bridge Authority in control of the tunnel, resulting in widespread public outcry against it (see related story in this issue). The new SB 1197 is very confusing, said retired Michigan legislator and lobbyist Dennis Cawthorne who has been working with Lansing lawmakers on the bill. According to the Michigan Constitution, once a bill is introduced to the legislature, its purpose cannot change from its title, he explained.

“What they had to do was somehow, even though they were going to create a new authority, they had to somehow tie it into the Mackinac Bridge Authority,” he said.

The MBA will initially get the power to construct, operate, and own a utility tunnel, he continued, but the minute the governor creates the new corridor authority, all the power will shift to that body. The time period the MBA would be in control of the utility tunnel could be a matter of minutes, he said, the time between when the governor signs SB 1197 into law and when he appoints members to the tunnel board. Mr. Cawthorne believes the bill may be unconstitutional because its intended purpose is to create a tunnel authority, rather than amend the bridge authority act to have the MBA control the tunnel.

This roundabout way of creating a tunnel authority was done because the governor, state departments, and legislators pushing for the Straits tunnel that will house Enbridge Energy’s Line 5 pipeline feared they wouldn’t have enough time to write and introduce a new tunnel authority bill before the end of the year, as Governor-elect Gretchen Whitmer takes office January 1. Mr. Cawthorne disagrees that a new bill couldn’t have been done in time, even though it would need to be considered for 11 days before being voted on.

“It’s all very messy,” he said, “but they had to do it for technical reasons, and I understand this, but they could have accomplished it.”

Mr. Cawthorne’s primary goal in speaking out against SB 1197 was to ensure that the bridge authority was not involved in owning and operating the proposed utility tunnel. While that issue has been solved, there are still implications for the bridge authority because of how the legislature handled the issue.

“Their act is now screwed up and made complicated and will stay that way until it’s amended in the future, but we don’t know that it will” be, Mr. Cawthorne said.

Mr. Cawthorne’s primary concern with an earlier version of the bill was that the governor’s office had intended the corridor authority to have broad powers to condemn property, which has since been removed.

There are still outstanding questions over how the bill as written will affect local property taxes, Mr. Cawthorne said, mainly whether property Enbridge has been buying for the footprint of the tunnel on the mainland can be removed from local tax rolls. If that can be done, it would have severe negative impacts on local municipalities and school districts. Mr. Cawthorne has also been working closely with Mackinaw City Public Schools, which receives a significant portion of its budget from Enbridge property taxes. Mr. Cawthorne has advised the school to consult its tax attorneys to learn how SB 1197 will affect their budget.

Michigan Department of Natural Resources spokesman Ed Golder said Enbridge property currently on tax rolls will not become tax exempt if SB 1197 is signed into law.

The bill requires the new authority to continue negotiations about the proposed utility tunnel and make a decision by December 21. The bill does not indicate that Native American tribes or the public will be included in these negotiations, although Mr. Golder said the new authority will be subject to the Open Meetings Act and Freedom of Information Act.

According to the DNR, the agreement must also allow multiple utilities to use the tunnel, ensure the tunnel will be “built to last” and won’t allow spills to enter the Straits of Mackinac, limit the liability for the corridor authority and its members, and require that all governmental permits and approvals be acquired. The DNR also says the agreement must not do any of the following things: require the state to pay any cost for construction, maintenance, and operation of the tunnel; require the use of eminent domain; excuse privately owned infrastructure from taxes; or require the corridor authority to bear legal costs.

A Straits Protection Fund managed by the treasury department will allow the authority to hire independent contractors to ensure the tunnel is built properly. That money will come from the state’s general fund, Mr. Golder said, and the legislature is considering a $4.5 million supplemental appropriation for it.

The bill also requires the Michigan Attorney General to defend the corridor tunnel if it faces legal challenges. Incoming Attorney General Dana Nessel, who takes office in January, is an outspoken critic of Line 5, which will be the primary user of the utility tunnel.

Sitting Mackinac Bridge Authority members will not be allowed to serve on the corridor authority. No more than two corridor authority members can be from the same political party. Members will serve sixyear terms or until the governor names a replacement.

Opponents of the bill continue to question whether the state can pursue a utility tunnel, which they contend will primarily benefit one private Canadian company, Enbridge.

“If Enbridge, a multinational corporation, wants an oil tunnel in the Mackinac Straits that primarily benefits its shareholders, it should propose doing it without governmental partnerships or special treatment,” said Sean McBrearty, senior organizer for Clean Water Action, in a statement.

A copy of SB 1197 is posted to the Town Crier Web site, mackinacislandnews.com.

Update to the Printed Story: The Michigan House of Representatives passed Senate Bill 1197 74 to 34 Tuesday, December 11, after the bill was approved by a House committee that heard widespread public opposition. The Senate then quickly approved the revised SB 1197, 25 to 12. The bill was presented to Governor Rick Snyder Tuesday afternoon, and he signed it into law Wednesday morning, December 12. He named Geno Alessandrini of Iron Mountain, Anthony “Tony” England of Ypsilanti, and Michael Zimmer of Dimondale to the Mackinac Straits Corridor Authority. Mr. Zimmer resigned from his position on the Mackinac Bridge Authority. Mr. Alessandrini has since resigned his position on the tunnel authority, and Thursday, December 13, Mr. Snyder appointed James "J.R." Richardson of Ontonagon to the board to represent Republicans.

The approved Senate Bill 1197 is available on our Web site.

Return to top

Click here for digital edition
2018-12-08 digital edition