Mackinac Bridge | Susan J. Demas
Updated, 8:12 p.m., 9/21/21, with comments from Enbridge
The federal judge tasked with determining which court — state or federal — will determine whether Gov. Gretchen Whitmer can shut down Enbridge’s Line 5 pipeline has formally acknowledged the mediation breakdown between the parties.
In a Tuesday order, Judge Janet Neff dismisses the state’s Sept. 14 motion regarding its issue with the mediator as moot while settling any doubt as to whether the mediation process is complete.
“The Court determines from the parties’ filings that the formal VFM [voluntary facilitative mediation] process is at least at a standstill, although the parties remain under a continuing obligation to engage in good faith to resolve this case,” Neff wrote.
The agreed-upon facilitative mediator, former Judge Gerald E. Rosen, had been working with the parties in State of Michigan v Enbridge for nearly six months. The last scheduled session on Sept. 9 ended without a settlement; but, upon notice that Rosen intended to file additional documents to potentially continue the process past that point, the state filed a complaint and asked Neff to block any further filings from him.
“The mediator subsequently filed a Report Following Voluntary Facilitative Mediation (‘the Report’), indicating only that mediation is ‘continuing,’ with the date of any next session ‘to be determined,’” Neff said.
But, regardless of the propriety of Rosen’s filing, Neff acknowledges that there has been an “apparent breakdown” in the mediation process that prevents it from continuing either way.
“While the Enbridge Parties indicate their willingness to continue to work towards a mutually acceptable resolution, the State Parties filed a ‘response’ to the mediator’s Report indicating that they have ‘no desire to continue with the mediation process’ and requesting that the Court treat the process as ‘completed without a settlement,’” Neff wrote.
“Voluntary facilitative mediation necessarily requires voluntary participation by both parties,” she added.
Accordingly, Neff dismissed the state’s motion to enforce notice of appointment of facilitative mediator as moot.
In November 2020, Whitmer ordered the May 12 shutdown of Enbridge’s aging pipeline while simultaneously revoking and terminating the company’s easement with the state.
Enbridge is fighting back in federal court while also attempting to pull the state’s shutdown case into federal court, which would likely give the oil company an advantage.
“We’re in the process of reviewing Judge Neff’s order,” said Lynsey Mukomel, spokesperson for Attorney General Dana Nessel.
Enbridge spokesperson Ryan Duffy said the state “walked away” from mediation.
“As you saw from the filings in the Federal Court last week, and the order issued by the Court today, the State has walked away from mediation. As the Judge noted in her order the parties remain under a continuing obligation to engage in good faith to resolve this case and Enbridge remains ready to do exactly that,” he said in an email.
“…We believe in the process and participated in mediation in good faith. We are committed to continuing to seek resolution, whether through mediation or by asserting our rights in the courts if necessary. We also support a diplomatic solution consistent with the US-Canada Transit Pipelines Treaty, which prohibits Michigan from impeding the operation of Line 5.”
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