AG argues in court to shut down Line 5, oil company accuses her of pushing political agenda

By: - May 22, 2020 2:21 pm

Mackinac Bridge | Susan J. Demas

The most prominent Michigan lawsuit filed against controversial Canadian oil company Enbridge is moving along once again.

Oral arguments were heard Friday morning in the case of People of Michigan v Enbridge, the lawsuit brought by Attorney General Dana Nessel last summer that challenges the legality of Enbridge’s continued operation of the Line 5 oil pipeline under the Straits of Mackinac.

Judge James Jamo of Ingham County’s 30th Circuit Court did not make a ruling Friday. Both parties plan to file further legal discussions pertaining to issues that arose during arguments as the suit continues to play out.

Law Clerk Kacie Smith said a timeline has not been set for further proceedings, and there are no further hearings planned in the case.

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Nessel’s request for injunctive relief and an orderly decommissioning of Line 5 cites common law public trust protections, among other state laws. Assistant Attorney General Robert Reichel, who argued on behalf of Nessel, said the bottom line is that Line 5 is a “ticking time bomb” and an inherent safety risk to the Great Lakes.

Attorneys for Enbridge are seeking to dismiss Nessel’s suit entirely, arguing that the question of whether Enbridge has a right to transport oil under the Straits is a settled matter of law and not appropriate for the court to decide.

Enbridge’s lawyers also attacked Nessel at certain points for misunderstanding the law and inappropriately inserting her own politics into the matter.

Both sides have received support from amicus curiae (“friends of the court”) briefs. On Nessel’s side are the attorneys general of Minnesota, Wisconsin and California; the Sierra Club, the Great Lakes Business Network, For Love Of Water (FLOW) and the city of Mackinac Island.

Filing in support of Enbridge are the American Petroleum Institute, the Association Of Oil Pipe Lines and the American Fuel & Petrochemical Manufacturers.

On Monday, the Straits of Mackinac Alliance, Grand Traverse Band of Ottawa and Chippewa Indians and the city of Mackinac Island dropped their own lawsuit that had also sought to shut down Line 5.

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However, Straits of Mackinac Alliance Vice-Chair Leonard Page told the Advance that his group and the other plaintiffs planned instead to intervene in Nessel’s case as interested parties — although Page had conceded that less than a week was a narrow timeframe for the judge to allow more parties to join.

Based on filings, it appears that the city of Mackinac Island was the only one of those petitioners able to intervene into Nessel’s case in time.

Enbridge obtained an easement to build Line 5 in April 1953, nearly 70 years ago. It was originally built to last about 50 years. Enbridge maintains that the pipeline is still operating in optimal condition.

In a statement Friday morning, Enbridge maintained that the company’s pipeline is in full compliance with federal laws and the tunnel project will make Line 5 even safer.

“There is no change in the operating condition of the pipeline or change in law to support the Attorney General’s allegations,” the statement reads. “Line 5 is in full compliance with all applicable codes and regulations established by our federal regulator, the Pipeline and Hazardous Materials Safety Administration.

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“… Our focus is on the Great Lakes Tunnel Project. We are currently in the design process for the tunnel and in April submitted applications for permits and approvals for the project with our State and Federal regulators,” the statement continues.

A spokesperson for Nessel did not immediately respond to a request for comment.

But Nessel attorney Reichel said that the state of Michigan failed to consider Line 5’s immense environmental threat to the Great Lakes in 1953, therefore subjecting the constitutionality of the original agreement to legal scrutiny.

A ruling against the validity of the original 1953 easement would also make all subsequent Line 5 agreements null, including the December 2018 deal struck by former Gov. Rick Snyder that gave the green light for Enbridge to build a new, tunnel-encased Line 5 under the Straits.

Much of the arguments from Enbridge’s attorneys focused on the company’s assertion that the state’s suit is not rooted in law, but rather on Nessel’s own personal policy preferences, which Enbridge attorney David Coburn called “inappropriate.”

Coburn also represented the company in court after Enbridge’s Line 6B ruptured near Marshall in 2010, sending almost 844,000 gallons of heavy crude oil down part of the Kalamazoo River. That incident remains the second-largest inland oil spill in U.S. history.

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Another Enbridge lawyer, Peter Ellsworth, said at one point that Nessel “has this upside-down.” Ellsworth conceded that the Straits of Mackinac are protected by the public trust doctrine, and therefore must have special protection, but federal pipeline regulations already ensure its safety.

Ellsworth also argued that Nessel’s case is “asking the court to override the Legislature.”

But Reichel asserted that Enbridge’s attempt to paint the case as a policy dispute is “manifestly not true.” He said the public trust doctrine gives Michigan the explicit duty of protecting and preserving the uniquely vulnerable Straits area.

Given the particular placement of Line 5 in that location, Reichel said Enbridge’s argument that Nessel is attempting to unlawfully impose “the most extreme form of safety standard” is not consistent with either common law or Michigan’s environmental safety responsibilities.

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).