How Biden could impact the Line 5 shutdown fight

With Gov. Gretchen Whitmer and Attorney General Dana Nessel at the helm, the state of Michigan’s position on the embattled Line 5 oil pipeline is crystal clear as the Democratic leaders fight to shut down the Canadian pipeline in state and federal court.

What remains a mystery, however, is the federal government’s position on the issue. The White House under Democratic President Joe Biden has yet to give an inkling of the administration’s stance on Line 5, let alone whether it plans to intervene in the battle over the Mackinac Straits.

Since Wednesday, the Canadian oil company is considered by the state to be an international trespasser in the Mackinac Straits. Enbridge refused to shut down Line 5 by the deadline Whitmer ordered back in November, choosing instead to only voluntarily do so if the state wins a court order forcing the issue.

Last week, Whitmer said she had spoken with Biden about Line 5 prior to the president’s visit to Dearborn Tuesday and added she is “hopeful the administration will join us.”

Whitmer spokesperson Bobby Leddy declined to provide further details about their conversation and what she has specifically asked of Biden on the issue. Enbridge also did not comment on the visit.

“[Biden] is in Michigan … and there’s all this activity around Line 5. So I think that I think this is the time, really, for the DOJ [U.S. Department of Justice] to make its determination and file the statements” of interest, said Oday Salim, staff attorney at the National Wildlife Federation (NWF) Great Lakes Regional Center and director of the University of Michigan Law School’s Environmental Law and Sustainability Clinic.

According to Salim, the federal government is capable of stepping in most effectively by a legal tool known as a statement of interest.

Statements of interest are essentially amicus brief filings that are routinely filed in federal and state trial courts by the DOJ. Through these, the United States is formally instructing the judge on the federal government’s position on a curtain issue. These are often helpful and influential, Salim said, and would be particularly useful for the case at hand.

A federal judge is currently weighing out whether the shutdown case should be tried in federal court or state court. If the state of Michigan is able to remand the case back to circuit court, the odds of Whitmer winning a court order would be more favorable.

Salim pointed out that it is more likely than not for the DOJ to file a statement of interest in the case for two reasons: Enbridge is making claims about how the federal government treats Enbridge by citing the “federal officer” doctrine, making it appropriate for the U.S. government to make its voice heard about this claim; and Enbridge is invoking a treaty between Canada and the United States, which Canada has already voiced its position on, making it appropriate for the United States to also weigh in.

“I think that the biggest thing that the federal government can and should do is a DOJ statement of interest on those two topics and stating the position of the United States to the courts,” Salim said.

“I think that if it did that, it would be the equivalent of President Biden getting up and saying, ‘This is Gov. Whitmer’s realm. This is not something that the federal government needs to or should get involved in.’”

If the DOJ does file a statement of interest with the U.S. District Court for the Western District of Michigan, where the petition for removal is being heard, that filing would be on behalf of the entire Biden administration. That would include the U.S. Department of Transportation, which houses the Pipeline and Hazardous Materials Safety Administration (PHMSA).

Enbridge’s primary argument in court is that PHMSA, not the state of Michigan, has the sole authority to shut down Line 5.

“I think this would be a perfect opportunity for Biden, through his Department of Justice, to say, ‘It’s not that I’m taking a position one way or another on the substance of what’s happening here. It’s that I trust Gov. Whitmer and the state of Michigan to make decisions that are best for Michiganders and for Michigan’s natural resources,’” Salim said.

A coalition of activist groups, including the Michigan Anishinaabek Caucus, two local branches of the youth-led climate justice Sunrise Movement organization, the Metro Detroit Democratic Socialists of America and Palestinian and Yemini Liberation organizers held a “Biden: Go Big or Go Home” event in Dearborn near the location Biden visited to push the president to “oppose colonial violence in all its forms.”

One of the primary asks of the gathering: For Biden to take action and forcibly shut down Line 5, as well as halt Enbridge’s proposed tunnel-encased replacement pipeline.

A press briefing by White House Press Secretary Jen Psaki on Wednesday, in which U.S. Department of Transportation Secretary Pete Buttigieg also participated, did not provide any clearer answers on the federal government’s view on Line 5.

“That’s in the courts. So, we’re not going to have anything to add. It’s in a courts process right now,” Psaki said in a response to a reporter’s question about Line 5 and Canadian relations.

When pressed on whether shutting down Line 5 could harm the country’s relationship with its northern ally, Psaki again skirted the question.

“I think we’ve talked about, in here, how important of a partner Canada is and will continue to be on a range of issues — from addressing the pandemic, to just being a regional partner on facing issues around the globe.  But this, again, is a — is a situation that’s in the court, so I’m not going to have more comment on it,” Psaki said.

Buttigieg did not comment on Line 5 during the press conference.

Biden’s public stance on Line 5 was also noticeably absent during the 2020 Democratic presidential primary. Four of his former opponents — Buttigieg, U.S. Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.) and Washington Gov Jay Inslee — had all declared their opposition to the pipeline’s continued operation during the campaign.

Michigan League of Conservation Voters (LCV) Executive Director Lisa Wozniak said Tuesday Biden should support Whitmer’s shutdown order on the basis of environmental protection and also because it fits into his American Jobs Plan.

“The Line 5 Pipeline, which is a ticking time bomb in our Great Lakes, threatens more than 700 miles of Great Lakes shoreline. Gov. Whitmer has a duty to protect our Great Lakes, our tourism industry and drinking water, which is why she ordered Line 5 to be shut down in the first place. The fate of the pipeline should be decided by Michigan judges,” Wozniak said.

“We are urging President Biden to support Gov. Whitmer’s order to shut down Line 5, which is directly in-line with his American Jobs Plan that will put Americans to work updating our infrastructure and transitioning our economy to clean energy and cleaner transportation.”

If Biden’s DOJ was to act, Salim said, it would likely be in the next several weeks, rather than months.