Another delay: Line 5 mediation is likely to wrap by late September

Mediation between the state of Michigan and Canadian oil company Enbridge has been pushed back one month due to a cancelation, meaning that a federal judge may not make a decision on which court will preside over Michigan’s lawsuit to shut down the Line 5 oil pipeline until late September or early October at the earliest.

According to a document filed Wednesday in federal court, the scheduled Aug. 11 mediation session in State of Michigan v Enbridge was canceled. A reason was not provided for the cancelation, but the parties have rescheduled to meet on Sept. 9.

“The parties at present anticipate that the mediation could be completed by or about September 30, 2021,” the document reads, which is a full month later than previously anticipated.

After that point, it is still unclear how long it will take for Judge Janet Neff to make a ruling on which court — state or federal — Michigan’s lawsuit against Enbridge belongs in.

The state and oil company remain locked in several different court battles dating back to 2019, but all else are on pause for now until the required mediation sessions are complete and Neff makes a ruling in State of Michigan v Enbridge.

Although Neff’s ruling will decide which court will preside over the case, the case itself has yet to play out and will ultimately decide whether to enforce Gov. Gretchen Whitmer’s Line 5 shutdown order.

The Democratic governor announced the order in November due to numerous and “incurable” violations of Enbridge’s 1953 easement with the state. She had the Department of Natural Resources (DNR) revoke and terminate the easement, then ordered that the oil company cease all operations of Line 5 in the Straits of Mackinac by May 12.

Despite pressure from the state, Indigenous water protectors and environmentalists — and even a threat from Whitmer that the state seeks to seize all profits from Line 5 after that date — Enbridge refused to comply with Whitmer’s order unless she secures a court order.

Shortly after Whitmer filed a lawsuit in state court in November to back up her shutdown date, Enbridge filed suit against Michigan in federal court, while also filing a motion for Neff to remove the state’s lawsuit to federal court — thus creating another court hurdle to clear before an ultimate outcome can be reached.

If Enbridge succeeds and Neff removes the case to federal court, Enbridge is seen as having the upper hand, as the company intends to rely heavily on federal statutes and international commerce arguments to keep oil flowing through Line 5.

Whitmer, Attorney General Dana Nessel and the DNR would have the advantage if the case is remanded back to the 30th Circuit Court, where they would point to state laws, public trust doctrine and Enbridge’s easement violations in a bid to force a Line 5 shutdown.