Application to relocate a fuel pipeline; MI Admin Code, R 792.10447(1)(c); The Public Service Commission’s (PSC) ruling on a motion in limine; The Administrative Procedures Act (APA); MCL 24.272(3); The Michigan Rules of Evidence (MREs); MRE 401; Scope of the consideration of the public need; The public trust doctrine; The PSC’s lack of common-law powers; Comparisons the PSC used for its analysis under the Michigan Environmental Protection Act (MEPA); MCL 324.1705(2); “Conduct”; Alternatives; MCL 324.1703(1); Adequacy of the analysis of the impact of greenhouse-gas emissions (GHGs); Thomas Twp v John Sexton Corp of MI; Nemeth v Abonmarche Dev, Inc; An attempted appeal as of right

Finding no basis to reverse or remand, the court affirmed the PSC’s order conditionally approving petitioner-Enbridge Energy’s application “to relocate a portion of its ‘Line 5’ fuel pipeline into a tunnel beneath the Straits of Mackinac.” Intervenor-appellants asserted that in considering the application, the PSC “erred by only looking to the public need for the new portion of pipeline, to be located in a tunnel underneath the lakebed (‘the Replacement Project’), as opposed to reconsidering the need for Line 5 as a whole.” But the court found it difficult to find that the PSC abused its discretion in “concluding that the need for Line 5 as a whole was simply not a salient issue in the proceedings because the application was for the Replacement Project, not for the construction of Line 5 as a whole.” The court also rejected some appellants’ argument that the PSC’s ruling on the motion in limine related to this issue violated the APA and MREs, again determining “there was no abuse of discretion by virtue of the PSC’s evidentiary ruling, given that the application at issue was for the Replacement Project.” And while it at first blush appeared the PSC “violated its own ruling by incorporating references to the need for Line 5 as a whole into its” final order, the court concluded that in “large part, what the PSC was stating in the December order was that the already-established public need for Line 5 was a piece of the puzzle demonstrating a need for the Replacement Project.” Further, the court found an appellant’s reliance on the public trust doctrine was misplaced given that the PSC has no common-law powers. It also held that the PSC’s “general MEPA decision was adequately supported by the law and evidence.” Noting that “the ‘conduct’ sought to be ‘authorized or approved’ was the Replacement Project[,]” the court found that the PSC, in “looking to the desired ‘conduct,’ was following the plain language of MCL 324.1705(2).” As to appellants’ argument that the PSC used improper comparisons in its analysis under the MEPA, the court concluded the PSC “acted appropriately because it could have limited its ‘comparisons’ analysis to just alternatives for the Straits segment of pipeline . . . but instead decided to look to all presented alternatives, and ultimately it reached a decision that was supported by the evidence in the record.” The court further found that two appellants failed to show they were entitled to appellate relief related to “their arguments about how the PSC evaluated the impact of GHGs.”