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? Attorneys for the state of Michigan and Enbridge energy are duking it out in court over that question.

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.

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Gary Lea
Sat, 05/23/2020 - 10:15am

If entirely pre-paid (plus cleanup funding in escrow), maybe. I expect that in less than a decade, electric vehicle pricing / range will reach parity with internal combustion vehicles, reducing demand for petroleum, leaving who, exactly to cover the construction costs of such a tunnel? I wonder if Enbridge would then insist that the state of Michigan be forced to pay for a tunnel that a Canadian corporation constructed.

Sun, 05/24/2020 - 11:40am

Also consider that oil is drying up. The potts for fracking are dead. Oil is in serious trouble right now. Snyder signed papers that say, "In case of bankruptcy on Enbridge's side the State of Michigan will be completely responsible for the continuation of the project. Michigan is near broke right now. So what happens then? Canada assumes all property rights to our State? Do you think Donald Trump is going to bail out the oil companies this week or next week? How many Americans are involved in the Enbridge Oil Company? We've searched for that answer for the last 10 years.

Vicki Wiederhold
Sat, 05/23/2020 - 12:04pm

Line 5 is a crumbling, cracking, rusting clump of metal on the bottom of Lake Michigan. It has been there for too long. This pipeline carries Enbridge’s (a Canadian oil company) oil, including the filthy tar sand oil. The oil and gas products are moved across our beautiful state and then go back into Canada near Detroit. WE are taking all of the risks while Enbridge uses our state for profit. I live in Battle Creek, MI where the Kalamazoo River was horribly polluted by the 2010 Enbridge oil spill. This oil leak went on for hours despite low pressure alarms on the pipeline. I doubt that they will watch the pressure gauges any better than they did here. How many hours would pass before they notice any leaking? Lakes Michigan and Huron would be ruined immediately. The Kalamazoo River will never be the same, not to mention the towns along her. No Enbridge. No excuses. Our natural resources are at risk. Once they are polluted, it’s too late. I know. I’ve seen it firsthand. I beg that this pipeline and others in the State of Michigan be permanently shut down. We should be moving to eliminate gas and oil use and move towards alternative energy sources. Now is the perfect time to start down that road. Thank you for your attention.

Sat, 05/23/2020 - 6:25pm

Oil and natural gas is used for more than transportation. Plastics, heating your home plus other many uses. The frustration is the longer we argue, the greater the risk in the current line leak. Then the billion dollar lawsuits begin, with no resolution either. The legal battle goes on and by 2030, we may have a replacement for a now 77 year old pipe line. The whole process makes perfect sense for foolishness. Political idiots!

Sun, 05/24/2020 - 12:54pm

Well, no, this is not a matter of political idiots haggling over the issue. It is a matter of great concern to people with opposing views. Calling either side, or both sides, idiots does not shed any needed light on the issue and only inflames negative emotions.

Also, what this Canadian company does with it's plastic is also beside the point. this company would be the one to profit from this, not us. If the lack of oil flowing through this pipeline would make the price of plastics go up, wouldn't that be a good thing? We would buy less of them and parts that so often break because they are made of plastic would be made of metal again, perhaps.

Brenda Rusch
Sun, 05/24/2020 - 9:19am

While the world is experiencing a pandemic, the middle of Michigan is experiencing the worst flood to date. Contamination from DOW and sewage treatment plants threatens mid Michigan drinking water. PFAS threatens Michigan water supplies throughout the state. Many Flint residents still cannot use their water supply due to callous decisions made during the Snyder administration. Why is there any question that 40% of the world's fresh drinking water should continue to be endangered by two 67 year old Canadian owned oil pipelines? Michigan and all of North America having clean water should be the only priority. Michigan is facing yet another absolute catastrophe WHEN one or both of the line 5 pipelines ruptures. Why is a Canadian Oil Company being allowed to exploit Michiganders for their profits?

Sun, 05/24/2020 - 5:30pm

Simple answer: shut is down ASAP.

Jan Stowe
Tue, 05/26/2020 - 7:09pm

When the pipeline was built in the 1950's Enbridge only had to have a 1 Million liability policy. I wonder what it is now? The remediation of the Kalamazoo River remediation was a joke. Environmentalists discovered Enbridge just put sand over much of the oil along the banks and planted grasses over it-out of sight out of mind must be their philosophy. We can't drink money so whatever settlement would be reached if God forbid it ruptures, it will not remediate the water and the 700 miles of shoreline on both lakes it will despoil. Shut it down! Oh, and I found the Enbridge attorney's statement that it had reached the statute of limitations for a suit very laughable and very sad. Of course it has as the pipeline only had a 50 year lifespan at most.

leonard page
Sun, 05/24/2020 - 10:01pm

the tunnel will never be built. but the snyder third agreement permits ENbridge to keep pumping 23 million gallons of canadian crude products by means of this high risk Michigan shortcut - to sarnia ontario. the tunnel project will drag out indefinitely while the twin pipelines wait for corrosion or the next anchor drag to release up to 2.5 million gallons (worst case spill study). another problem with the tunnel is that every 5th day, it pumps 23 million gallons of natural gas liquids. a leak of gas under pressure in a confined space now 21 feet in diameter--with a lsength of almost 5 miles is the world's largest pipe bomb - with st ignace and mac city at either end. no first year engineer or risk management expert would authorize pumping highly explosive gas in a confined space.

Alex Sagady
Mon, 05/25/2020 - 1:37am

>>>>Should the Line 5 pipelines under the Straits of Mackinac ever have been built?
That was the central question Friday
>>>>>>1953 easement that made way for the pipeline’s construction.

The matter being discussed was the issuance of a 1953 Easement granted to Lakehead Pipeline Company in 1953 by the Department of Conservation and authorized by an Act of the legislature allowing the twin pipelines to occupy the state bottomlands at the Mackinac Strait......and whether this Easement should be considered void from its inception as claimed by the AG.

The 1953 Easement was only a real estate agreement allowing the pipeline to occupy the state-owned bottomlands at the Straits. It did NOT authorize any state land "transfer" and wasn't a document that actually authorized construction or routing of Line 5....that action along with route approval was previously done by the Michigan Public Service Commission in 1953, a decision that AG Nessel is NOT challenging. Nor is AG Nessel challenging a subsequent Michigan Supreme Court decision and finding that held that Line 5 was a public utility and common carrier whose operation served the public interest, confirming the 1953 MPSC decision that AG Nessel is not challenging.

>>>>>Nessel, a Democrat who campaigned for office on a promise to shut down Line 5, has mounted multiple challenges against the pipelines

The case before Judge Jamo is the only case in which AG Nessel is attacking and trying to shut down Line 5. Nessel defended MDEGLE and their permit decision to allow Enbridge to construct mechanic supports for Line 5 in the Straits. Other litigation filed by AG Nessel did NOT attack Line 5, but sought a declaratory ruling that Act 359 of 2018, the tunnel authority law, was unconstitutional. That is all for AG Nessel's Line 5 docket matters.

>>>>>During a live YouTube broadcast that cut out multiple times for extended periods,

You must be having trouble with your internet provider or with YouTube, as the only interruption I experienced was a deliberate 10 minute break in the middle that required the online stream to be reaquired by viewers. No other disruptions occurred in the continuous transmissions I viewed. Judge Jamo and his staff did an outstanding job with this entire online court hearing.

>>>>>ongoing project to replace the lakebottom pipes with a line buried in a tunnel deep beneath the sandy bottom of the Straits.
>>>>>Enbridge plans to replace the exposed lines by 2024 with a line running through a tunnel buried deep below the Straits

While it is technically feasible to construct a tunnel that is sunk and buried in a watercourse, that is NOT how the planned Mackinac Strait tunnel will be constructed, which will be done using a tunnel boring machine and lined with concrete, sealed sections -- no burial operations will be involved at all.

>>>>>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.

This is NOT a matter of "safety concerns best left to federal jurisdiction" and that is NOT how Enbridge pleaded this issue. Read the briefs at:

The Federal Pipeline Safety Act PREMPTS all state pipeline safety standards and state regulation of interstate hazardous liquids transportation. There is NO basis for state pipeline safety standards, decisionmaking or evaluations in the manner requested by AG Nessel -- none. The only authority the state has under these laws is over interstate hazardous liquid pipeline siting decisions.

States are in control of routing decisions (See 42 USC Sec. 60104(e)), but not safety standards at all. See 42 USC Sec. 60104(c) and the case of Olympic Pipeline Company v. City of Seattle:

There is no discretion under this federal law for Judge Jamo to assume
any jurisdiction over the pipeline safety questions or the relief requested
by AG Nessel in the case at bar based on her allegations of pipeline safety matters,
which are NOT supported by the Pipeline and Hazardous Materials Safety
Administration. Nessel cannot claim the case is about the pipeline's location, and
then NOT challenge the 1953 routing decision, while trying to pretend that
her case is NOT a safety challenge over which the AG and the State of Michigan have
zero jurisdiction under federal preemption.

While your article treats this issue as some kind of minor afterthought and discretionary matter ("best left"), the federal preemption issue is the matter which could result in the entire case being removed from Judge Jamo's courtroom all the way to Federal District Court for Western Michigan if he rules against Enbridge in the summary disposition matter on the federal preemption question.

The federal court would then likely dismiss AG Nessel's case for lack of jurisdiction
and standing - resulting in spectacular loss for the Attorney General.

Laurent Godin
Mon, 05/25/2020 - 5:53pm

Whitmer is clearly playing games, if she cared about the small level of threat the lines currently pose she would move forward with the tunnel plan. The fact that she is fighting that as well shows she doesn't care about safety, this is an ideological fight for her and her radical donors who are opposed at all costs everywhere to oil and gas infrastructure. What's to become of the refineries that need the oil and homes that need the propane? Whitmer doesn't care.