New: Judge rules for Enbridge, Line 5 shutdown case to be heard in federal court

By: - November 16, 2021 4:44 pm

Enbridge sign in St. Ignace | Susan J. Demas

A federal judge has ruled that the lawsuit over Gov. Gretchen Whitmer’s Line 5 shutdown order, originally brought before a state court, will be heard in federal court, per Enbridge’s request.

“.. .The Complaint arises under federal laws and treaties, and it presents substantial federal questions,” Judge Janet Neff writes in her 218-page Tuesday ruling, bringing up several points about interstate commerce and multistate/multinational energy needs that Canadian pipeline company Enbridge has leaned on in its arguments.

“Though nominally asserted under state law, the Complaint seeks to shut down an Enbridge interstate pipeline that has been serving the energy needs of multiple states and parts of Canada for over 65 years,” Neff writes. “… Such a shutdown order would prevent Enbridge from continuing to serve the energy needs of customers in other parts of this country and in Canada.”

With Tuesday’s ruling, the lawsuit determining the outcome of that order will now bounce over to the U.S. District Court for the Western District of Michigan.

The last few months of the court case regarding jurisdiction were peppered with briefs and letters from the Canadian government asking Neff to consider Canada’s 1977 Treaty with the United States and asking the case to be held in abeyance.

Neff did not pause the jurisdictional case, but cited many of the points made by both Enbridge and Canada in her ruling.

“Enbridge is pleased with the decision and agrees that this case belongs in federal court as we’ve asserted all along,” Enbridge spokesperson Ryan Duffy said Tuesday. “This is both a federal and international law issue and the federal court will now handle the case.”

Line 5 map | Laina G. Stebbins graphic

Attorney General Dana Nessel spokesperson Lynsey Mukomel said that the attorney general’s office is “reviewing the decision and considering next steps.”

“We are disappointed that the court denied the state’s motion to remand our case against Enbridge back to state court,” said Whitmer spokesperson Bobby Leddy. “We have made our views here clear — Michigan’s sovereign rights and duties regarding the use of our own lands and the protection of our Great Lakes are matters that belong before the state courts of Michigan.

“We are still reviewing today’s ruling and order as we consider next steps. Regardless of today’s ruling, we remain committed to getting the Line 5 dual pipelines out of the water as quickly as possible,” Leddy continued.

The legal fight over which court State of Michigan v Enbridge belongs in began in November 2020, shortly after Whitmer ordered the Department of Natural Resources (DNR) to revoke and terminate Enbridge’s 1953 easement with the state.

The Democratic governor simultaneously gave the company until May 12 to cease operations through the dual pipelines under the Mackinac Straits, backing it with a suit in Ingham County’s 30th Judicial Circuit.

Enbridge then filed a countersuit against Whitmer and the state, along with a motion to remand Michigan v Enbridge to federal court. While the state contended that the issues at hand lie squarely within state law and statutes, the Canadian company intended to lean heavily on federal regulations to defend its case.

The conclusion of the lawsuit at hand, which experts believe now bends in favor of Enbridge, will either enforce or reject Whitmer’s May 12 shutdown order.

The state argues that Enbridge has been an international trespasser in the Straits for six months since refusing to shut down its oil pipeline without the backing of a court order.

The state’s arguments for a shutdown are primarily founded on a 18-month review of Enbridge’s easement compliance completed by the DNR last year.

The review had found “numerous, incurable violations” of the 1953 easement by Enbridge, and ultimately recommended for the 68-year-old pipeline to cease oil transport under the environmentally-sensitive Straits.

Enbridge has continued to insist that Line 5 is safe, despite those findings. A proposed tunnel-enclosed replacement for the four-mile-long section of pipeline under the Straits is slated for construction as soon as Enbridge receives necessary permits from the U.S. Army Corps of Engineers and the Michigan Public Service Commission (MPSC).

“Today’s decision in U.S. District Court means that a foreign corporation has secured at least a temporary success in protecting oil profits at any cost — even if that means keeping the Great Lakes at tremendous risk,” said Sean McBrearty, campaign coordinator for the anti-Line 5 Oil & Water Don't Mix coalition. “The court’s decision may appear to be a victory for Canada and Enbridge, but the reality is that Canadians and Michiganders who care about protecting the Great Lakes and our climate both lose with this decision.”

McBrearty added that if the court does ultimately rule in Enbridge’s favor, President Joe Biden should step in and “withdraw the presidential permit for Line 5, save the Great Lakes, and honor his commitments to reducing greenhouse gas emissions. He should stand by Governor Whitmer and do it without delay. Time is not on our side.”

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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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