Line 5 opponents urge Biden’s solicitor general to intervene in Nessel v. Enbridge

With an appeals court now weighing whether to keep Attorney General Dana Nessel’s Line 5 battle in federal court or send it back to state court — either of which would significantly sway the final outcome — dozens of local Democratic party leaders have sent a letter to President Joe Biden urging his administration’s legal support.

The letter was sent to Biden on March 29 and released publicly on Wednesday. In it, 44 chairs of counties, congressional districts and caucuses within the Michigan Democratic Party (MDP) request that “all concerned federal agencies” be asked to consider intervening in the case’s removal appeal in favor of Nessel.

Specifically, the coalition asks that the solicitor general file an amicus curiae (“friend of the court”) brief in a Michigan appeals court that is considering a major jurisdictional question in Nessel v. Enbridge. The solicitor general is Elizabeth Barchas Prelogar.

Biden has not taken a public stance on Line 5.

Nessel v. Enbridge has been ongoing since June 2019, when the Democrat filed a lawsuit in state court to decommission the controversial Line 5 oil pipeline.

Canadian pipeline company Enbridge has fought tooth and nail since then to keep oil flowing through the aging pipeline. Line 5 runs for hundreds of miles throughout both of Michigan’s peninsulas, with opponents’ major source of concern being the 4 1/2 miles of pipeline that cross under the environmentally sensitive Straits of Mackinac.

Enbridge won a major advantage in late August, when a federal judge ruled that Nessel v. Enbridge would play out in her federal court rather than the state court it originated from. Nessel then attempted to appeal that ruling; her request lay untouched for months.

Federal Judge Janet Neff finally acted upon Nessel’s request in late February, certifying the case for interlocutory appeal mere days after Nessel filed a petition for a writ of mandamus alleging improper action by Neff.

Now, the U.S. Court of Appeals for the Sixth Circuit will have a say on whether the case belongs in federal or state court and whether Neff’s actions call for a writ of mandamus to be issued.

Nessel v. Enbridge is stayed and administratively closed until then, pending the outcome of that interlocutory appeal.

“We believe that the imminent risk of a devastating oil pipeline spill in the Great Lakes justifies Presidential intervention,” the MDP chairs write. “However, the recent decision of Judge Neff means that the 6th Circuit will be considering which court should decide the issue — after three years of dangerous delay just on jurisdiction.

“ … Returning that case now to state court — where Enbridge had been litigating the public trust doctrine matter for well over a year — may be the best alternative for final resolution of this most important matter,” the letter continues.

In a previous letter on Jan. 15, MDP Chair Lavora Barnes had asked Biden to declare a climate emergency and cancel the presidential permits authorizing the pipeline to cross the United States-Canada border.