Dana Nessel and Enbridge argue Line 5 pipeline shutdown to Michigan judge

Should the Line 5 pipelines under the Straits of Mackinac ever have been built? 

That was the central question Friday as lawyers for the state of Michigan and Canadian petroleum giant Enbridge faced off in oral arguments in Ingham County Circuit Court stemming from Michigan Attorney General Dana Nessel’s lawsuit challenging the 1953 easement that made way for the pipeline’s construction.

Friday’s arguments before Judge James Jamo were the latest in a long and multi-pronged legal battle over the fate of the 67-year old twin pipelines, which transport oil and natural gas liquids beneath the Straits. 

Nessel, a Democrat who campaigned for office on a promise to shut down Line 5, has mounted multiple challenges against the pipelines, which she alleges pose a threat to Michigan’s environment and economy. 

Calling Line 5 “a continuing threat of grave harm to critical public rights in the Great Lakes,” the lawsuit under consideration Friday seeks to void an easement that allows Enbridge to run the lines across state-controlled bottomlands in the Straits. 

Nessel claims the pipelines are a nuisance that violate Michigan environmental law and the common law public trust doctrine. That doctrine requires Michigan to hold navigable waterways and the lands beneath them in trust for public uses such as fishing, boating and recreation.

During a live YouTube broadcast that cut out multiple times for extended periods, the two sides each asked Jamo to decide the case in their favor without the need for a trial. State lawyers argued Nessel’s public trust claims are strong enough to compel Jamo to find the pipelines illegal and shut them down. Enbridge lawyers, meanwhile, argued Nessel’s claims were too weak to “get in the door” to court.

Assistant Attorney General Robert Reichel asked Jamo to issue a summary decision that the 1953 easement granting Enbridge’s predecessor, Lakehead Pipe Line company, access to the bottom of the straits violated the public trust doctrine. As such, Reichel argued, Jamo should order Enbridge to stop operating Line 5 as soon as possible.

“The 1953 easement was, and is, void,” Reichel said. 

The state’s arguments rest on the tenet that a state can only relinquish public trust resources when doing so would advance protected public rights, or at the very least, do no significant harm to them. The exposed lakebed lines, Reichel argued, are vulnerable to an oil spill that “represents a substantial threat to the exercise of those rights” and thus should never have been approved. 

Lawyers for Enbridge, meanwhile, argued that state lawyers have inappropriately asked the court to take up a “fundamental policy question” that the legislature has already answered, first by authorizing the pipeline easement in 1953, and again by agreeing to pass a 2018 law that made way for an ongoing project to replace the lakebottom pipes with a line buried in a tunnel deep beneath the sandy bottom of the Straits.

To the extent that a legal question exists, Enbridge lawyer Peter Ellsworth argued, the 1953 easement met the public trust doctrine’s requirement to protect trust uses. And even if it didn’t, Ellsworth argued, the statute of limitations has run out on Nessel’s ability to challenge it. 

State lawyers responded that a public trust doctrine claim has no expiration date, and the state has a “continuing duty” to the trust even as it applies to past decisions. To Enbridge’s contention that the Line 5 dispute was a matter of policy best decided by the Legislature, he responded: 

“This case is not about policy preference by the attorney general or this court. Our complaint alleges claims for relief under existing common law and statutory law.”

Enbridge lawyers asked Jamo to throw out the case, claiming Nessel and her team had failed to state a valid legal claim. Among other points, they contended that Nessel’s legal arguments amount to safety concerns best left to federal jurisdiction under the Pipeline Safety Act, which is intended to oversee interstate pipelines. 

“She’s trying to take matters into her own hands, but neither she, nor any other attorney general, can do this,” Enbidge lawyer David Coburn said.

Enbridge plans to replace the exposed lines by 2024 with a line running through a tunnel buried deep below the Straits, which the company contends would virtually eliminate the risk of an oil spill into the Straits.

Both Nessel and Gov. Gretchen Whitmer campaigned on promises to shut down Line 5, which transports 540,000 barrels daily of crude oil and natural gas liquids between Wisconsin and Ontario. So far, the pair have been unsuccessful.

Nessel filed the Ingham County lawsuit in June, after talks broke down between Whitmer and Enbridge, who had been negotiating a possible shutdown date for the dual pipelines now in place. Whitmer wanted Enbridge to shut down the Straits segment by 2021 — years before Enbridge expects to finish the $500 million tunnel project. 

Enbridge then sued the state, asking the Michigan Court of Claims to uphold a series of agreements the company signed with Gov. Rick Snyder’s administration to complete the tunnel project. That court sided with Enbridge, and Nessel has appealed the decision. Arguments in that case are scheduled for June 2 before a Michigan Court of Appeals panel.

Concern over Line 5 first emerged after another Enbridge-owned pipeline, Line 6B, ruptured in the Kalamazoo River in 2010, polluting nearly 40 miles of the waterway with crude oil. One of the worst inland oil spills in history, the Kalamazoo spill resulted in a four-year cleanup effort that recovered 1.2 million gallons of crude oil. 

After the Kalamazoo spill, opponents including environmental groups, Native American tribes and local municipalities began calling for Line 5’s shutdown, arguing it poses a catastrophic hazard to the Great Lakes and inland waterways. 

It’s not clear when Jamo will rule on the case. A clerk in Jamo’s office said the judge will issue a written opinion, but offered no timeline.

While the legal battle over the pipeline simmers, Enbridge is moving forward with its plans to replace the lake bottom dual span with the new tunneled pipeline. This spring, the company applied for several state and federal permits to build the tunnel and re-site Line 5 inside it. Pending permit approvals, Enbridge plans to begin construction on the tunnel next year and start operating the enclosed pipeline in 2024.  

But the permit applications also could easily wind up embroiled in a prolonged legal dispute. Enbridge’s opponents have filed petitions to intervene in the Michigan Public Service Commission’s consideration of Enbridge’s request to re-site Line 5 in the planned tunnel — a move that indicates they’re prepared to mount legal challenges.

In a statement Friday, company spokesman Ryan Duffy said while the court battle plays out over the existing dual lines, Enbridge remains focused on the tunnel project.

“Most Michigan residents recognize the tunnel as the best solution for making a pipeline safer, and we are committed to build it,” Duffy said.