Judge strikes Canada letters in Line 5 case

By: - October 13, 2021 3:42 pm

Protest against Line 5 in Lansing | Laina G. Stebbins

The federal judge tasked with deciding jurisdiction for the state’s lawsuit to enforce Gov. Gretchen Whitmer’s Line 5 shutdown order, Judge Janet Neff, has stricken letters regarding the Canadian government’s attempts to pause the proceedings.

Since June, the government of Canada has repeatedly submitted letters to the court asking Neff to hold the case in abeyance while officials from both countries discuss the possibility of a Line 5 closure through an international treaty mechanism.

Attorney General Dana Nessel has opposed these efforts, arguing that the 1977 Treaty has nothing to do with the jurisdictional question before the court. Whitmer specifically called on Canada Prime Minister Justin Trudeau to “reverse his decision” to defend Enbridge’s operations.

In the meantime, Canadian oil still flows through Enbridge’s dual pipelines along the Mackinac Straits lakebed. Whitmer had ordered the company to cease operations in the Straits by May 12, but Enbridge has refused to comply without the backing of a court order.

“This Court does not rule via letter requests,” Neff wrote in her Wednesday order, hitting back against the attempts to alter the proceedings via attorney letters. She notes that the court’s local rules explicitly instruct that briefs shall not be submitted in the form of a letter to the judge.

Despite this, legal counsel for the Canadian government submitted a letter on Oct. 4 informing the court that Article IX of the 1977 Treaty had been invoked and asking for abeyance; Assistant Attorney General Robert Reichel then sent in a letter opposing those arguments on Oct. 6; and Enbridge attorneys submitted a letter Tuesday mirroring Canada’s talking points and asking for abeyance.

“Because the letters at bar wholly fail to comply with the requirements of this Court’s Local Rules, they will be stricken. To the extent the parties in this case request relief from the Court, they must request such relief in conformance with the Rules,” Neff continued.

This Court does not rule via letter requests.

– Judge Janet Neff

That would involve the amici curiae (“friends of the court”) formally seeking leave to file a brief in support of or opposition to the relief requested, with the proposed document attached as an exhibit to the motion.

An Enbridge spokesperson did not immediately return a request for comment.

“The Court’s order speaks for itself,” Nessel spokesperson Lynsey Mukomel told the Advance Wednesday.

There are no remaining deadlines or hearings in the case as Neff deliberates.

If the state succeeds, the State of Michigan v Enbridge lawsuit will be sent back to the 30th Circuit Court, where Whitmer, Nessel and the Department of Natural Resources (DNR) are likely to have the upper hand.

If Neff rules in Enbridge’s favor, the lawsuit will be heard in federal court. The oil company would have the advantage in that case, as it intends to lean heavily on federal statutes and international commerce arguments to win.

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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).

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