Nessel finds Lame Duck pipeline authority law unconstitutional

By: - March 28, 2019 3:28 pm

Enbridge, Sti. Ignace | Susan J. Demas

Updated, 8:38 p.m. with Enbridge’s comments.

A law that created a new political body allowing Enbridge to go forward with plans to build a pipeline beneath the Straits of Mackinac is unconstitutional, Attorney General Dana Nessel argued in an opinion issued Thursday.

Dana Nessel

The Democrat’s first legal opinion as attorney general argued that the content of the new law does not match its title, and thus violates the Title-Object Clause of the Michigan Constitution.

Nessel wrote in her opinion that the content “exceeds the scope of what is generally reflected in the title.” The issue is one of six that Gov. Gretchen Whitmer had asked the new attorney general to weigh after her inauguration in January.

Public Act 359 allows the Mackinac Straits Corridor Authority (MSCA) — by rewriting a law pertaining to the bridge authority that regulates traffic over the Mackinac Bridge — to construct, operate, maintain, repair and manage a planned tunnel that would encase an oil pipeline meant to replace Line 5.

Gretchen Whitmer, March 18, 2019 | Andrew Roth

The new pipeline would be buried 100 feet beneath Enbridge’s existing pipeline in the straits and would eliminate the risk of an oil spill into the Great Lakes, the Canadian energy company has argued.

It also, in effect, allows Enbridge to continue pumping oil through the Straits of Mackinac for nearly another century.

“I agree with the conclusion reached by Attorney General Nessel,” Gov. Gretchen Whitmer said in a statement. “The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law.”

The pipeline carries roughly 23 million gallons of oil and some natural gas each day through the water that intersects the Upper and Lower peninsulas. Environmentalists and researchers have said an oil spill in that location could be devastating to more than 600 miles of Great Lakes shoreline.

Rick Snyder

The statute, which the Republican-controlled Legislature rammed through during the 2018 Lame Duck session, runs afoul of the Constitution, according to Nessel’s legal opinion. Former Gov. Rick Snyder made it a top priority during the waning days of his tenure.

Both Nessel and Whitmer made campaign pledges to shut down Line 5.

Nessel cited a section of the state’s Constitution that states: “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.”

Nessel said in her opinion that the law is “unconstitutional in its entirety” because the sections of the law, known as Public Act 359, which violate the Constitution “cannot be severed.”

In March, Court of Claims Judge Stephen Borrello ruled that one aspect of the law unconstitutional — a section pertaining to appointed term limits — but otherwise upheld it as a whole.

Although Nessel’s opinion primarily rests on one of the six questions Whitmer had asked her to review, the attorney general maintains that her finding renders the entirety of the law unconstitutional, unlike Borrello’s finding.

Any court finding the law unconstitutional “would likely apply that decision retroactively” and conclude that the MSCA and its decision to allow Enbridge to begin its tunnel project “are void from their inception,” Nessel wrote.

Enbridge said in a press release the company “intends to seek clarification” and said “Line 5 will continue to safely operate, as it has for more than 60 years.”

The company’s chief legal officer, Bob Rooney, said in a statement: “Enbridge worked in good faith with the Michigan government on the tunnel project. We disagree with the Attorney General’s opinion and continue to believe in the benefits of the tunnel.”

In its news release, the company reiterated its claim that the tunnel project cuts “the chance of a release of product to virtually zero by placing the pipeline in a tunnel with one-foot-thick concrete walls.”

Burying the line 100 feet beneath the bedrock also prevents anchor strikes from damaging the pipeline, Enbridge said, alluding to an incident in which a ship anchor dented the pipeline. The company said it is “committed to protecting the waters of the Great Lakes” and delivering oil to “families manufacturers and other businesses.”*

Environmentalists are praising the AG’s opinion.

Liz Kirkwood

“The Attorney General has rightly concluded that critical errors were made in this legislation and it does not stand up to constitutional scrutiny,” said Mary Brady-Enerson, Michigan director of Clean Water Action, which opposes Line 5. “Further, she concludes that all subsequent deals made between the state and Enbridge are unconstitutional.”

Sean Hammond, policy director of the Michigan Environmental Council, said the opinion “allows the governor to move forward on shutting down Line 5 in the straits immediately.”

For Love of Water (FLOW) Executive Director Liz Kirkwood said the move restores “the rule of law” and “demands that the state’s air, water and natural resources are treated and protected as paramount.”

The Traverse City-based group has called for Line 5 to be shut down filed a brief with Nessel’s office at the attorney general’s request also arguing the law is unconstitutional.

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Michael Gerstein
Michael Gerstein

Michael Gerstein is a former Advance reporter covering the Governor's office, criminal justice and the environment.