Enbridge tries gambit to move state’s final Line 5 shutdown case to federal court

Nessel says ‘outrageous’ move is against federal law

By: - December 16, 2021 1:04 pm

Enbridge sign, St. Ignace | Laina G. Stebbins

The plot has thickened once again in the ongoing Line 5 legal saga between Canadian pipeline company Enbridge and the state of Michigan, as Enbridge is now pushing for the state’s sole remaining shutdown case to be removed to federal court.

Enbridge wants to see Nessel v Enbridge heard in the U.S. District Court for the Western District of Michigan, and to be ruled on by the same judge dealing with the company’s separate federal lawsuit that seeks to firmly establish a federal agency, not Michigan, as the sole regulatory power over Line 5.

“The consolidation in the same court of the attorney general’s case with Enbridge’s pending federal case challenging the right of State officials to close Line 5 will allow a single judge to rule on the closely related issues in these two cases. Enbridge looks forward to a prompt resolution of both cases,” spokesperson Ryan Duffy said Wednesday evening.

If the company is successful, Attorney General Dana Nessel will have exhausted her attempts to shut down the Line 5 oil pipeline within the confines of a state court — a jurisdiction which is considered significantly more favorable for her and Gov. Gretchen Whitmer than a federal court would be.

Enbridge filed a motion Wednesday to move the Nessel v Enbridge lawsuit to federal court and out of the hands of the Ingham County circuit court it has been in since the AG filed the challenge in June 2019.

Whitmer and Nessel strategically dropped Whitmer v Enbridge last month, a newer shutdown lawsuit from the Democratic governor, after Enbridge successfully removed it to federal court. The strategy was to dismiss the federal case Whitmer likely couldn’t win, while instead putting the state’s bets on Nessel’s 2019 lawsuit in Ingham County.

Mackinac Bridge | Laina G. Stebbins

Enbridge now threatens to evade that strategy with Wednesday’s motion for removal.

“This is an outrageous maneuver by Enbridge that flies in the face of federal law, which clearly establishes the process to remove a suit must be initiated within 30 days,” Nessel said in response to Wednesday’s filing. “We will address this flagrant attempt to undermine that process in court and remain fervently committed to our belief that the fate of Michigan’s greatest natural resources should be determined in a Michigan court.

“Our residents deserve more than a company who seeks to profit from our natural resources while at the same time attempting to evade legal review of their actions by our state’s courts,” Nessel wrote.

According to the American Bar Association, a defendant has 30 days from the time a case is served to remove it to federal court. If the case becomes removable later — i.e. the plaintiff adds new claims, more defendants join and/or the case increases the amount in controversy — there is typically a 30-day deadline from the date of the operative event that makes it removable.

But in many situations, a defendant cannot remove a case if more than one year has elapsed since the lawsuit was first filed.

Nessel originally filed Nessel v Enbridge on June 27, 2019. It has been dormant since last winter as Whitmer fought a separate legal battle to shut down Line 5, but was scheduled to pick back up with a status conference slated for Jan. 7.

“Enbridge’s only legal tactic appears to be delay, and more delay,” said Beth Wallace, Great Lakes campaign manager for the National Wildlife Federation (NWF) on Thursday. “This latest desperate ploy is over a year too late and is designed to waste time, keeping the Great Lakes at risk while spending millions to mislead the public.”

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins is a former Michigan Advance reporter. 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.