Canada formally invokes pipeline treaty, asks court again to pause Line 5 proceedings

Updated, 5:01 p.m., 10/4/21 with comment from Whitmer

While Canadian oil company Enbridge and the state of Michigan await a federal judge’s decision on which court — state or federal — should oversee the state’s lawsuit to enforce Gov. Gretchen Whitmer’s Line 5 shutdown order, the Canadian government is once again attempting to grind proceedings to a halt while officials from both countries discuss the issue.

This time, the Canadian government’s counsel says the country has formally invoked the treaty dispute settlement mechanisms of the 1977 Treaty in order to make this happen rather than simply alluding to it.

The treaty between Canada and the United States sets forth agreements related to transit pipelines that travel through both countries.

“It is neither necessary nor proper for this Court (or any other domestic court) to make any determinations that could undermine, conflict or interfere with the obligations and processes established by the Treaty,” reads the Monday filing from Canadian counsel Gordon D. Giffin.

But 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, said the move is simply a “distraction” and unlikely to alter anything at this stage of the case.

“Right now, the federal district court is in the process of determining whether the lawsuit belongs in federal court or state court. There’s nothing about that determination that is affected in any way by this treaty,” Salim told the Advance Monday.

“Not this letter, not anything else really should get in the way of Judge [Janet] Neff determining where the case belongs,” he said, noting also that there is technically “no lawsuit to pause” at the moment because Neff has not made that conclusion yet.

Like she did when Canada first tried to pause proceedings for the treaty talks, Attorney General Dana Nessel argued in an email Monday that the talks should in no way prevent Neff from ruling on the matter.

“I am disappointed that the Government of Canada continues to align itself with Enbridge’s desire to keep using State-owned lands to pump oil through the heart of the Great Lakes, threatening our most precious public resources,” Attorney General Dana Nessel told the Advance.

“Like its previous communications with the Court, the letter filed by Canada today provides no legal basis for delaying consideration of our case. Neither the Treaty nor the dispute resolution process are relevant to the question now pending before the Court: whether the federal court has jurisdiction over the State’s suit against Enbridge.

“It is our position that the court can and should promptly rule on our motion to remand the case to state court,” Nessel continued.

Further, Salim says, the formal treaty invocation by Canada is not guaranteed to affect anything even after a jurisdiction is decided — based on both the urgency of the matter and the 1977 Treaty’s own premises that allow for states to provide their own natural resource protections.

Salim added that it is “really galling” to see Canada’s letter filed on the same day that the Southern California coast is starting to see the full consequences of a major oil spill discovered Sunday.

In a statement Monday, Whitmer said she is “profoundly disappointed” by Canada’s actions that she views as a bid to help Enbridge transport crude oil “indefinitely” under the environmentally-sensitive Straits of Mackinac.

Despite Michigan remaining a “strong partner” with Canada on a range of issues, Whitmer said she “will not remain silent when the fate of the Great Lakes and Michigan hangs in the balance.”

“Rather than taking steps to diversify energy supply and ensure resilience, Canada has channeled its efforts into defending an oil company with an abysmal environmental track record,” Whitmer said. “…I had expected that Canada, a nation that prides itself on its commitment to environmental protection, would share my interest in protecting the Great Lakes. Instead, the Government of Canada has chosen to do the bidding of the very oil company responsible for the 2010 Kalamazoo River Oil Spill – one of the largest inland oil spills in the history of the nation that happened right here in Michigan.”

“I call on Prime Minister Trudeau to reverse his decision,” Whitmer said.*

Enbridge spokesperson Ryan Duffy said Monday that the oil company appreciates the efforts of “Team Canada” for their efforts to keep Line 5 open.

“We have spoken with government officials on both sides of the border as the State of Michigan has let parties know it is not committed to further mediation,” Duffy said. He added that Enbridge is “still hopeful” for a negotiated resolution that will result in the continued operation of Line 5 and expedited construction of its tunnel-enclosed replacement.