Court battle looms after Whitmer, Nessel stall Enbridge pipeline

By: - April 1, 2019 3:27 pm
Chatfield and Shirkey

Lee Chatfield (left) and Mike Shirkey (right)

Top state officials may end up in court over their efforts to halt Canadian energy company’s plans to build a new buried pipeline beneath the Straits of Mackinac, according to Republican leaders in the Legislature.

In an interview Monday morning, state House Speaker Lee Chatfield (R-Levering) called a recent opinion from Attorney General Dana Nessel that deemed the law unconstitutional “laughable.” Chatfield said Nessel is “grasping at straws,” and that the unanswered questions regarding what comes next may be resolved as part of a lawsuit.

“A lot of it, unfortunately … could be determined in court,” Chatfield said on the Frank Beckman talk show on WJR-AM.

Attorney General Dana Nessel
Dana Nessel, March 22, 2019 | Susan J. Demas

But who would bring the legal challenge is still the subject of speculation.

Last Thursday, Nessel issued a legal opinion that said a 2018 Lame Duck law that created a new political authority to oversee the pipeline tunnel project is unconstitutional. According to Nessel’s opinion, the law violates the Title-Object clause of the Michigan Constitution because the bill’s content does not match its title.

The legislation, signed into law by GOP former Gov. Rick Snyder, created the Mackinac Straits Corridor Authority (MSCA) to conduct and oversee the deal after Nessel and Gov. Gretchen Whitmer took office.

Both Democrats campaigned on promises to shut down Line 5. The legal opinion follows Whitmer’s January request that Nessel review six legal legal questions regarding the constitutionality of the law that created the MSCA.

Enbridge's Line 5.
Line 5 | National Wildlife Federation

Environmentalist critics of the law have argued that it was designed to thwart any efforts to halt a new oil pipeline, which Enbridge intends to build 100 feet beneath Great Lakes bedrock in the Mackinac Straits. The Canadian company would pay for the pipeline to replace Line 5, which currently carries about 23 million gallons of crude oil and a small amount of natural gas through the straits each day.

The deal would also ensure that Enbridge continues pumping oil through the area for another 99 years.

Whitmer has temporarily frozen the tunnel plan, however, after issuing an executive directive that bars state departments from granting the permits Enbridge may need for the project. The directive came just minutes after Nessel’s legal opinion.

Observers on both sides of the debate have said they expect a legal challenge from the pipeline’s supporters.

Chatfield and state Senate Majority Mike Shirkey (R-Clarklake) have suggested that may be the next step, but Shirkey spokeswoman Amber McCann told the Michigan Advance that “no decision has been made regarding further action.”

Chatfield said on the radio that it “will depend on how Enbridge handles that at this point with the administration.

“And to that, I don’t know what will happen next,” he continued. “I know the governor has temporarily halted implementation of the law that we passed, so much of it will depend on their reaction – whether they simply decide to go along with the administration, try to work it out or whether there’s a lawsuit.”

Shirkey said in an interview with Bridge that the MSCA board has the option to challenge Nessel’s opinion in court. However, that has disputed by both the authority’s former board Chair Mike Nystrom and Whitmer’s office, both of whom say the MSCA has been disbanded.

“This is going to become complex immediately,” Shirkey told Bridge. “It’s shameful in my mind that we have an attorney general who consistently tries — and very effectively, quite frankly — seeks and finds ways to upset what has been passed into law.”

Nessel’s opinion and Whitmer’s executive directive abolished the MSCA, according to Nystrom and the governor’s spokeswoman, Tiffany Brown.

“So therefore, it makes it kind of tough for the board to be the one to pursue legal remedies,” Nystrom told the Advance. “I think it’s probably more appropriate for Enbridge to consider those options — although I would say that I am extremely hopeful that the governor and Enbridge will sit down together and try to find a path toward the completion of this project without” more delays.

Senate Majority Leader Mike Shirkey
Mike Shirkey | Michael Gerstein

In a letter last week to Nystrom, Deputy Attorney General Kelly Keenan asked that the board “refrain from any further action to implement” the law, including the December “tunnel agreement” between the authority and Enbridge, according to a copy of the letter obtained by the Advance.

Nystrom called it “unfortunate” that Nessel and Whitmer have frozen the tunnel project, claiming it would protect the Great Lakes from an oil spill.

“By putting in a tunnel that is paid for by Enbridge 100 feet below the bottom of the strait, in solid bedrock, was a very positive solution,” Nystrom said. “You get rid of the potential catastrophic event.”

On Monday, Shirkey and Nessel got into a brief Twitter spat regarding the GOP leader’s comment that the efforts to halt the MSCA law have been “shameful.”

Meanwhile, Chatfield defended the MSCA law, saying it ensures that propane will be delivered to Upper Peninsula residents, keeps up supply to refineries and offers a safer alternative to Line 5 that protects the Great Lakes from an oil spill.

Chatfield said that if Line 5 is shut down with no alternative, the cost of propane and other energy sources will “skyrocket” in Michigan.

“We all want to protect the Great Lakes,” he added on WJR.

“It’s not just a part of our economy up north; it’s part of our way of life. I want to ensure that we protect them. But we also have to use sound science and when we’re trying to do that … and we can’t be driven purely by emotion, because we can’t just simply make decisions without having a fallback plan.”

Nessel spokeswoman Kelly Rossman-McKinney declined to comment on the story, saying the attorney general’s office will not “respond to hypotheticals.”

Enbridge spokesman Ryan Duffy told the Advance the company is “evaluating next steps.”

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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.