16 states, 4 tribes back Whitmer’s lawsuit over Line 5 shutdown

By: - April 23, 2021 3:55 pm

Anti-Line 5 sticker by the Straits of Mackinac | Laina G. Stebbins

As the state of Michigan continues to battle Canadian oil company Enbridge in court over Gov. Gretchen Whitmer’s impending shutdown order for the company’s Line 5 oil pipeline, Attorney General Dana Nessel announced Friday that 28 entities have so far thrown in their support for the state’s motion to remand the case back to the Ingham County 30th Circuit Court.

Those entities include four tribes (Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians and Nottawaseppi Huron Band of Potawatomi); the Great Lakes Business Network and six environmental organizations (the Environmental Law and Policy Center, the Michigan Climate Action Network, For Love of Water, the Great Lakes Law and Policy Center, the National Wildlife Federation and the Straits of Mackinac Alliance).

There also are 16 states and Washington, D.C. (including attorneys general from California, Delaware, the District of Columbia, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Virginia, Washington and Wisconsin, along with the governors of Kentucky and Louisiana).

“We are grateful to the long list of Attorneys General, Governors, tribes, and organizations for their support in our fight to have this case tried where it belongs — in state court,” Nessel said in a statement. “Gov. Whitmer and [Department of Natural Resources (DNR)] Director [Daniel] Eichinger took the necessary steps in November to address the grave threat posed by Enbridge’s unlawful operation of its pipelines in the Straits of Mackinac and we simply cannot continue to put our public waterways at risk.”  

Friend of the court briefs in support of Enbridge — in addition to the company’s formal response to the state’s motion to remand — are due Tuesday. Republican Ohio Attorney General Dave Yost has already submitted one such filing.

In November, Whitmer ordered the DNR to revoke and terminate Enbridge’s 1953 easement with the state — effective May 12 — while giving Enbridge the same deadline to decommission the pipeline. Nessel filed suit in state court on behalf of Whitmer and the state to give the directive legal backing.

Enbridge promptly filed suit in federal court to fight the order, while also filing to remove the state’s lawsuit to federal court.

Essentially, the future of Line 5, as it currently exists, is now in the hands of U.S. District Court Judge Janet Neff. If Neff decides that Whitmer’s lawsuit belongs in federal court, Enbridge will likely have the upper hand as it can argue the national and possibly international ramifications of a Line 5 shutdown while asserting that the federal government, not Michigan, has regulatory power over Line 5.

If Neff sides with Whitmer and Nessel by remanding the case back to state court, the state will likely have the upper hand, as it can focus on relevant Michigan laws and the 1953 easement while asserting more regulatory authority over the dual pipeline.

Enbridge has made it clear it will not shut down the pipeline unless it is legally forced to via court ruling.

“The Line 5 dual pipelines that run through the Straits of Mackinac are a ticking time bomb that threaten the health and safety of Michiganders and our Great Lakes,” Whitmer said Friday.

“Enbridge’s argument that the people of Michigan, having once said ‘Yes’ to a pipeline 68 years ago in 1953, have no further say in the matter is both absurd and antidemocratic. I’m thrilled to have the support of so many other governors and attorneys general who recognize the important rights states have over the location of pipelines within their boundaries.” 

Nessel submitted the state’s formal motion to remand on March 16 to argue that Neff should return the case back to the Ingham County 30th Circuit Court.

According to court documents, both sides met with a facilitative mediator on April 16. The parties agreed to holding “at least” two more mediation sessions, one which occurred on April 28 and another which is set for May 18 — six days after Whitmer’s notice of termination and revocation goes into effect.

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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).