In blow to state, Nessel’s 2019 suit to shut down Line 5 to remain in federal court

Nessel disagrees with federal judge’s ‘mistaken characterization’

By: - August 19, 2022 4:01 am

Enbridge, St. Ignace | Susan J. Demas

A federal judge on Thursday denied Attorney General Dana Nessel’s motion to remand her 2019 lawsuit against Enbridge back to state court where it originated, presenting a significant setback in the state’s efforts to shut down the aging Line 5 pipeline that transports oil under the Straits of Mackinac.

Gov. Gretchen Whitmer, after Neff ruled the same in her own court case against Enbridge last year, had dropped that suit and put her backing behind Nessel’s lawsuit as a last-ditch effort to decommission the nearly 70-year-old pipeline. 

The case being heard in federal court gives a clear advantage to the Canadian oil company, whereas a judgement remanding the case back to state court would have lent favor to the state’s arguments.

Dana Nessel | Ken Coleman

“Attorney General Nessel remains steadfast in her commitment to protect Michigan’s natural resources from the potentially devastating impact of environmental disaster,” Nessel spokesperson Amber McCann said Thursday evening.

“The Department strongly disagrees with the judge’s mistaken characterization of both the law and the Attorney General’s approach to this and related cases. We are reviewing the decision and considering next steps to pursue in the litigation.”

Nessel has previously told the Advance: “If I get a second term or if we make it to the [Michigan] Supreme Court before I’m out of office, I absolutely believe that we’ll be successful [with Nessel v Enbridge].”

Nessel v Enbridge et al was filed on June 27, 2019, in Ingham County’s 30th Judicial Circuit. It seeks the decommissioning of Line 5 based on public trust protections and other state laws. It had been on pause while Whitmer’s lawsuit played out, but was scheduled to restart in earnest once the Democratic governor dropped the suit.

However, hoping to have their success repeated, Enbridge asked the same judge to also remove Nessel’s lawsuit to federal court.

Generally speaking, defendants have 30 days from the start of the case to move it to federal court. In this case, it appears that Neff prioritized jurisdictional continuity among the Line 5 cases.

“Plaintiff seeks to perpetuate duplicative litigation and inconsistent results,” Neff wrote in her Thursday ruling.

“The extraordinary circumstances of this case, Plaintiff’s conduct, equity, and the Court’s regard for comprehensive and efficient administration of justice demand that this case remain in federal court. … The Court views such policy considerations as judicial economy, fairness, convenience, equitable administration, and consistent results as counseling for keeping this case in federal court.”

Now that the jurisdictional question has been answered, the Canadian pipeline company will now likely have the upper hand in the case. It intends to lean heavily on federal statutes and international commerce arguments to win.

In her ruling, Neff cited the importance of  hearing those arguments.

“Plaintiff, unhappy with the result in Michigan v. Enbridge, is pursuing in this motion duplicative or piecemeal litigation and conflicting results; where consolidation in this Court can occur, and the Court has said, important federal issues are at stake, counseling for a federal forum,” the filing reads.

Neff also writes that Nessel is attempting to “gain an unfair advantage through the improper use of judicial machinery.”

Experts have characterized Nessel’s lawsuit as the administration’s last real shot at permanently shutting down Line 5 as it currently exists.

Enbridge spokesperson Ryan Duffy said in a statement that Neff’s decision is consistent with the court’s November 2021 ruling in Michigan v. Enbridge.

Mackinac Bridge | Susan J. Demas

“This properly keeps the Michigan Attorney General’s lawsuit in federal court and underscores that the State’s attempts shut down this critical energy infrastructure raises important federal questions of interstate commerce, exclusive federal jurisdiction over pipeline safety and the serious ramifications for energy security and foreign affairs if the State and the U.S. government were to defy an international treaty with Canada that has been in place since 1977,” Duffy said.

“ … Enbridge looks forward to a prompt resolution of this case in federal court.”

Sean McBrearty, campaign coordinator for the anti-Line 5 Oil & Water Don’t Mix coalition, said the fight to shut down Line 5 “continues” despite Neff’s ruling.

“Michigan, through its Governor and Attorney General, has a clear duty to protect the Great Lakes as a public resource on behalf of Michigan residents. Our Governor and Attorney General are doing exactly what they must, and they should continue to litigate this issue, knowing every day this pipeline continues to function, our Great Lakes are at risk,” McBrearty said.

“Michigan cannot be bullied into submission by a foreign oil company that insists on risking our water for profit, and so our fight to shut down Line 5 continues. Enbridge’s own experts admit that shutting down this pipeline would have no impact on oil supply, and temporary price impacts would result in less than a cent per gallon increase on gasoline.”

McBrearty added that, with the court now holding up state action, President Joe Biden should revoke the presidential permit for Line 5.

Biden has still not taken a public stance on Line 5, despite most of his former opponents in the Democratic presidential primary coming out against the pipeline years ago.

That includes former South Bend mayor Pete Buttigieg, who now leads the U.S. Department of Transportation — the department which houses the federal agency Enbridge argues has the sole authority to shut down Line 5.

“The decision, unfortunately, prevents the state court from hearing the merits of the case,” said National Wildlife Federation’s Great Lakes Regional Executive Director, Mike Shriberg. “While we disagree with the ruling, it doesn’t change the fact that Line 5 is a ticking time bomb for the Great Lakes and needs to be shut down immediately. We can’t wait until the pipeline fails — and it will fail — to take action.”

Also teed up for a court ruling from Neff is Enbridge v Whitmer et al, a federal lawsuit the company filed in November 2020 in response to Whitmer’s suit. It seeks a court ruling to establish that the Pipeline and Hazardous Materials Safety Administration (PHMSA), not the state, has sole regulatory authority over Line 5 regulation.

A ruling in Enbridge’s favor in Enbridge v Whitmer would further cripple the state’s effort to shut down the pipeline as the decision would solidify that only PHMSA has that power.

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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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