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Since mid-2019, Canadian pipeline company Enbridge and the state of Michigan have been locked in numerous court disputes about the fate of the controversial Line 5 pipeline that has transported oil under the environmentally sensitive Straits of Mackinac since 1953.
Until last week, the first and primary legal battle had been on pause since January, as a federal court deliberated and ultimately ruled against Gov. Gretchen Whitmer’s attempt to keep her shutdown lawsuit against Enbridge in state court.
Options are whittling down for the governor and Attorney General Dana Nessel, who both ran on platform promises to decommission Line 5. Essentially, just one option for the Democrats remains, aside from smaller lawsuits and bold, seemingly unlikely actions from a federal regulatory agency and/or President Joe Biden.
In an interview with Attorney General Dana Nessel last week, the Advance asked about the state’s new strategy for shutting down Line 5, how things will now proceed in the court system and what certain court decisions or slowdowns might mean for the fate of the pipelines.
“I will say that the governor remains just as committed now as she’s ever been to shutting down Line 5 and to averting what could be, obviously, a cataclysmic oil spill in the Great Lakes. But, from a strategy standpoint, it just made sense to pursue one [legal] track,” Nessel said Wednesday.
As of now, there are now just two court battles left at play:
- Nessel v Enbridge et al, filed June 27, 2019.
- Filed in state court (Ingham County’s 30th Judicial Circuit)
- Seeks to decommission Line 5 via public trust protections and other state laws; will now also likely cite Enbridge’s lack of an easement with the state
- Enbridge v Whitmer et al, filed Nov. 24, 2020.
- Filed in federal court (U.S. District Court for the Western District of Michigan)
- Seeks court ruling establishing that the Pipeline and Hazardous Materials Safety Administration (PHMSA), not the state, has sole regulatory authority over Line 5 regulation
As the Advance reported in June 2020, legal experts and environmentalists believe that there are two primary courses of action that could result in the permanent shutdown of the current Line 5 pipeline.
One of those has already happened and failed: Whitmer ordering the dissolution of Enbridge’s 1953 easement with the state.
That happened in November 2020 after a nearly yearlong review by the DNR. With that order, Whitmer also gave Enbridge until May 12 to shut down the pipeline. Enbridge refused, filed a motion to remove Whitmer’s lawsuit-backed order to federal court and then filed a separate federal lawsuit, Enbridge v Whitmer.
Enbridge’s effort to remove State of Michigan v Enbridge was ultimately successful, with a federal judge ruling last week that the case that would either enforce or reject Whitmer’s order belongs in federal court.
Whitmer and Nessel announced six days later that they would be dropping that lawsuit.
“The governor dropping the federal case removes one more obstacle to starting construction on the Great Lakes Tunnel Project,” Enbridge spokesperson Ryan Duffy said Monday.
Nessel said the choice was a mutual one by her and Whitmer — although it “was not an easy discussion, and it wasn’t an easy decision.”
But dismissing that lawsuit was in no way giving up the fight. Instead, the action cleared the way for Nessel’s 2019 lawsuit to “be able to move forward expeditiously in state court,” Whitmer said in a statement Tuesday.
“From a strategy standpoint, it just made sense to pursue one track,” Nessel said Wednesday.
That track is what experts say is the last real shot this administration has at permanently shutting down Line 5 as it currently exists: Whitmer putting her backing behind Nessel’s 2019 lawsuit that rests firmly in state court.
So far, Nessel has Whitmer’s public support but the governor has not joined the case as a plaintiff alongside Nessel.
Whitmer spokesperson Bobby Leddy did not directly respond to an inquiry as to whether she has plans to do so, saying instead that the governor “fully supports” Nessel’s lawsuit as an “attempt to cut through legal red tape” to counter Enbridge’s delay tactics.
“Focusing the State’s full efforts on that lawsuit is what will best protect Michigan and the Great Lakes by shutting down the dual pipelines as soon as possible,” Leddy said.
“I supported the governor in her decision, and I intend to work very closely with her on my case,” Nessel said regarding Whitmer’s choice to drop the lawsuit headed for federal court, adding that state cases typically move much faster than federal cases.
Nessel v Enbridge has been held in abeyance since Jan. 20 as Whitmer’s own shutdown case played out. Now, the state lawsuit is set to resume on Jan. 7, 2022, when the parties will meet for a status conference and the case will get rolling along once again.
“I do think that we will be successful, ultimately, in our state court case,” Nessel said, adding that she hopes Enbridge’s separate federal case will not impact the state court case.
“I think our arguments have great weight behind them. I think that they are the proper arguments factually, legally — and frankly, morally and ethically — to not sacrifice the Great Lakes so that Enbridge can make more of a profit and continue to profit, especially when the vast majority of any of the benefits go strictly to Canadian citizens and not to us here in Michigan,” Nessel said.
The only real concern for Nessel about the case is the looming factor of time; “whether the clock will run out,” as she said.
Nessel’s current term as attorney general expires at noon on Jan. 1, 2023. If she does not win reelection, she says it is all but guaranteed that whichever Republican takes her seat will dismiss the case.
The GOP-led Legislature approved and then-Gov. Rick Snyder signed off on a new tunnel-enclosed pipeline to extend Line 5’s life shortly before Whitmer took office in January 2019. That agreement, which was held up in court as constitutional later that year, was written in a way that was meant to tie the hands of the incoming Democratic administration.
GOP lawmakers have continued to push back against Whitmer’s actions on Line 5 since she took office, with most arguing that the U.P. could face a propane shortage without the pipeline.
“If I don’t make it to the Michigan Supreme Court [with Nessel v Enbridge] by the time my term expires, and if I am not successful in reelection, then this case will be dismissed. And it’s likely that the pipeline will continue operating until it ruptures,” Nessel said.
“Under no circumstances will Enbridge decide to shut down the pipeline, until or unless there is a tunnel built — and even then, that could be eight years. That could be 10 years. That could be never. I don’t think they ever intend to shut down Line 5,” she added.
Construction on Enbridge’s proposed tunnel-enclosed Line 5 replacement will likely not begin until 2024 at the earliest, and the tunnel would likely be completed by 2028 or later, according to documents obtained by the NWF through a recent lawsuit against the Michigan Department of Transportation (MDOT).
Until then, the 68-year-old dual pipelines will continue to age under the Mackinac Straits as they transport oil from peninsula to peninsula. The environmental risk Line 5 poses to the Straits has been met with fierce environmental and tribal backlash for the last decade — particularly since the pipeline was originally built to last an expected 50 years, and it has now reached two decades past that point.
“If I get a second term or if we make it to the [Michigan] Supreme Court before I’m out of office, I absolutely believe that we’ll be successful [with Nessel v Enbridge]. If we don’t get a Supreme Court ruling in Michigan by the time I’m out of office, then the case will be dismissed. 100%,” Nessel said.
If the case is ultimately dismissed or ends in favor of Enbridge, Nessel said there is still other recourse that opponents could pursue. The likeliest one rests with the tribes in Michigan.
All 12 federally recognized Native American tribes in the state are publicly opposed to Line 5, both its current form and its proposed replacement tunnel.
“They’re sovereign nations, so they have their own claims that they can make,” Nessel said. “I think they’ve been holding off on making those claims because they were waiting to see how things work out with the governor’s case and my case.”
Those claims would likely argue for the closure of Line 5 based primarily on tribal treaty rights. Of particular focus would be the 1936 Treaty of Washington, which has granted hunting, fishing and gathering rights to the Odawa and Ojibwe people for 185 years. The nexus of that treaty territory lies at the Straits of Mackinac, which are sacred waters for the tribes.
“Then, of course, federally, at any time, the federal government could pull the presidential permit in terms of the line going back into Sarnia,” Nessel said, a rather doubtful action given that the White House is reportedly not studying the impacts of Line 5 as it currently exists and Biden has not taken any position on the pipeline.
“Or, PHMSA could make an assessment of Line 5 and decide that it’s unsafe and they could take action to shut down the pipeline,” she said.
That federal agency is the one Enbridge argues has the sole legal right to decommission the pipeline. So far, however, the agency has been quick to greenlight the company’s requests.
PHMSA “has consistently determined the condition and operation of Line 5 are safe, following evaluations conducted as recently as 2020,” Duffy said Monday.
Both the agency and the U.S. Department of Transportation (USDOT) that houses it have undergone some administrative changes since then. Previously headed up by Elaine Chao, spouse of Republican U.S. Senate Minority leader Mitch McConnell (R-Ky.), USDOT is now led by the former South Bend Mayor Pete Buttigieg.
Buttigieg was one of four Democratic presidential nominees for 2020 who signaled public opposition to Line 5.
Leading PHMSA now as acting administrator is Tristan Brown, a Michigan-born attorney who served as U.S. Sen. Gary Peters’ (D-Bloomfield Twp.) legislative council from 2019 until 2021. He replaced controversial former President Donald Trump-appointed Howard R. Elliott.
Michigan Advance is part of States Newsroom, a network of news outlets supported by grants and a coalition of donors as a 501c(3) public charity. Michigan Advance maintains editorial independence. Contact Editor Susan Demas for questions: email@example.com. Follow Louisiana Illuminator on Facebook and Twitter.