New: State shifts strategy on Line 5, drops federal case

Updated, 3:22 p.m., 11/30/21, with comment from Enbridge and Sault Tribe Chairman

Gov. Gretchen Whitmer has voluntarily dismissed her lawsuit against Canadian pipeline company Enbridge, six days after a federal judge ruled in Enbridge’s favor that the case would be heard in federal court.

Whitmer’s office signaled in a release Tuesday that the state is “shifting its legal strategy.” Rather than attempting to appeal Judge Janet Neff’s ruling or trying to fight it out in federal court, Whitmer chose to dismiss State of Michigan v Enbridge to clear the way for Attorney General Dana Nessel’s 2019 lawsuit to shut down the controversial Line 5 pipeline.

Nessel vs Enbridge had been playing out in state court for a year and a half until Whitmer’s suit put it on pause. Like Whitmer’s suit, Nessel’s lawsuit also seeks to decommission Enbridge’s dual Line 5 pipelines that run under the Mackinac Straits. But Nessel’s suit hinges largely on public trust doctrine, whereas Whitmer’s had relied mainly on the Democratic governor’s termination of Enbridge’s 1953 easement with the state.

The now-dismissed State of Michigan v Enbridge would have ultimately enforced or rejected Whitmer’s November 2020 order for the company to shut down Line 5 by May 12.

“While I respectfully disagree, the federal court has now decided to keep the lawsuit I filed in November 2020. I believe the people of Michigan, and our state courts, should have the final say on whether this oil company should continue pumping 23 million gallons of crude oil through the Straits of Mackinac every day,” Whitmer said Tuesday.

“After today’s action, Attorney General Dana Nessel’s lawsuit, filed in June 2019, should now be able to move forward expeditiously in state court. Our goal here remains the same: protecting the Great Lakes, protecting Michigan jobs, and protecting Michigan’s economy.”

Enbridge spokesperson Ryan Duffy said Tuesday that the company is “pleased by the State of Michigan’s decision to drop its case to enforce its November 2020 notice of revocation and termination related to Line 5,” and will continue to pursue its case in federal court to affirm federal jurisdiction over the pipeline.*

The decision was met with praise from environmentalists including the Michigan League of Conservation Voters, the National Wildlife Federation (NWF) and the anti-Line 5 Oil & Water Don’t Mix coalition.

But Aaron Payment, chairman of the Sault Ste. Marie Tribe of Chippewa Indians, said that he hopes Whitmer's move "is a retrenchment and not a retreat."

"Enbridge's failure to maintain the pipeline makes Line 5 an imminent threat to our community and the state of Michigan as a whole," Payment continued. "I pledge to continue to work with the Governor and the Biden Administration to uphold our treaty rights and make clear that both the current pipeline and the proposed tunnel are in conflict with their values of transitioning to a clean energy future. We will continue our all-hands-on-deck effort until the pipeline is removed from the Straits entirely.”

Payment added that tribal leaders had a call with Whitmer's legal counsel Tuesday, in which he and others urged the governor to "make a clear statement that a tunnel is not tenable."

All 12 federally recognized tribes in Michigan are opposed to both Line 5 as it currently exists and Enbridge's proposed tunnel-enclosed replacement pipeline.*

Nessel said in a statement that the state court case is the quickest path toward a successful shutdown.

"I fully support the Governor in her decision to dismiss the federal court case and instead focus on our ongoing litigation in state court,” Nessel said Tuesday. “The state court case is the quickest and most viable path to permanently decommission Line 5. The Governor and I continue to be aligned in our commitment to protect the Great Lakes and this dismissal today will help us advance that goal."

While revoking and terminating Enbridge’s 1953 easement in November 2020, Whitmer had simultaneously given the company until May 12 to cease operations through the dual pipelines under the Mackinac Straits.

She had backed her order with a suit in Ingham County’s 30th Judicial Circuit. Enbridge filed a motion to remand that case to federal court, while also filing a countersuit against Whitmer and the state.

Throughout the web of legal entanglements between Michigan and Enbridge, the state has always contended that the issues at hand lie squarely within state law and statutes. The Canadian company has long argued that federal regulations should instead take precedence.

“We urgently call on President Biden to move quickly to support the protection of the Great Lakes by clearly and definitively backing the State of Michigan’s duty and authority to take all necessary actions to protect this critical resource, Michiganders, and Tribal treaty rights,” said Mike Shriberg, NWF Great Lakes regional executive director. “President Biden can and should act swiftly to stop Enbridge’s meritless legal claims that have one goal: delay.”