Nessel, Whitmer file argument to keep Line 5 shutdown suit in state court

With just 36 days left until Gov. Gretchen Whitmer’s order for Canadian oil company Enbridge to shut down its controversial Line 5 pipeline goes into effect, the question of which court will preside over the state’s lawsuit to enforce the order is seeing some movement. 

Filed on March 16, the state’s 30-page motion to remand State of Michigan v Enbridge back to the 30th Circuit Court argues that the case should not be sent to federal court because there is no legal basis or jurisdiction for it to belong there.

“The State pleads claims exclusively under state law, alleging that it properly revoked and terminated Enbridge’s Easement in the Straits of Mackinac for violations of both the public trust doctrine and the conditions and terms of the Easement,” the motion reads.

Enbridge’s response to the state’s motion is due by April 28. Whitmer’s notice of revocation and termination will take effect on May 12, even if the court cases have not been concluded by then — but since Enbridge has made it clear that it does not intend to comply voluntarily, a court order will be needed to effectively enforce the shutdown.

In November, Whitmer had directed Enbridge to shut down the existing dual pipeline by May 12 due to “repeated and incurable violations” of the company’s 1953 easement with the state.

Enbridge’s core argument to remand the state’s case into federal court rests on its premise that the federal government, not the state, has the sole ability to decide whether a Line 5 shutdown is warranted. The company alleges that Whitmer’s order of revocation and termination “interferes with comprehensive federal regulation of pipeline safety,” burdens interstate and foreign commerce and more.

The state, for its part — represented by Attorney General Dana Nessel — argues that there are much stronger arguments for keeping the case in state court.

“The Complaint is founded exclusively on state law and addresses the legal validity of and Enbridge’s compliance with the 1953 Easement Agreement,” the motion reads, before outlining the ways in which the state believes its notice of revocation and termination is valid.

Nessel then outlines four main arguments:

• Enbridge has the burden of establishing federal court jurisdiction, which the state argues it cannot.
• The state’s case does not necessarily arise under federal law, as no federal issues are raised by the state’s claims; furthermore, remanding the case to federal court would set a harmful precedent by radically expanding the scope of federal jurisdiction.
• Enbridge cannot “shoehorn” the case into federal court based on its argument for “federal officer jurisdiction,” as its relationship with the Pipeline and Hazardous Materials Safety Administration (PHMSA) does not fulfill the requirements necessary to make this argument.
• Enbridge’s invocation of “admiralty jurisdiction” — jurisdiction that usually arises from an accident in navigable waters and involves some aspect of maritime commerce — is not applicable, as the case at hand concerns contractual state agreements that are not maritime in nature.

“The State’s Complaint is focused on the invalidity of the easement that authorized the installation and operation of the Straits Pipelines on a particular portion of State-owned bottomlands, Enbridge’s noncompliance with the specific terms of that easement, and the interpretation of the specific terms of another agreement between the State and Enbridge in 2018,” the motion reads.

“Enbridge attempts to cast the federal issues it raises as substantial by framing them in the broadest possible terms. … In claiming that the State’s Complaint implicates uniquely federal interests, Enbridge fundamentally and repeatedly distorts its actual content,” it continues. “… Enbridge has not met and cannot meet its burden of establishing federal jurisdiction in this case.”

If the state succeeds in its argument to remand the case back to state court, it would ostensibly be presided over by Circuit Court Judge James Jamo. Jamo also is the judge assigned to Nessel’s ongoing 2019 lawsuit against Enbridge, which is on pause for the time being as the shutdown cases play out.

Enbridge has, so far, secured permits from one of three state entities needed to construct a new, tunnel-encased Line 5 replacement under the Straits of Mackinac. Contrary to Whitmer and Nessel, who want it shut down and decommissioned before the new tunnel is finished, Enbridge plans to operate the current 68-year-old Line 5 dual pipeline until the project is completed.

The construction could take up to a decade to complete, by which time the original Line 5 would be approximately 30 years past its original expiration date.