Enbridge sues Michigan over Line 5 shutdown order

Enbridge’s lawsuit follows an announcement Nov. 13 that Gov. Gretchen Whitmer is revoking an easement that allows Enbridge to operate in the Straits of Mackinac over fears that the pipeline’s continued operation poses an unacceptable risk of environmental catastrophe in the waterway. (File photo courtesy of Enbridge)

Enbridge Energy is suing the State of Michigan in federal court in hopes of thwarting Michigan Gov. Gretchen Whitmer’s quest to shut down the Line 5 petroleum pipeline.

The Canadian company’s filing in the U.S. District Court for the Western District of Michigan seeks an injunction against Whitmer’s shutdown orders. 

The suit repeats a familiar argument the company has made in past disputes with the state: that federal regulators with the U.S. Pipeline and Hazardous Materials Safety Administration are in charge of pipeline safety, not the state of Michigan. As a result, Enbridge argues, Michigan has no authority to shut down Line 5 over alleged safety concerns.

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“The attempt to shut down Line 5 interferes with the comprehensive federal regulation of pipeline safety and burdens interstate and foreign commerce in clear violation of federal law and the US Constitution,” an announcement from the company states. 

In its filing, the company argued Michigan’s shutdown order interferes with federal authority in a way that “would create a disturbing precedent” and encourage “copycat” actions in other states.

The move follows Whitmer’s Nov. 13 announcement that she has ordered Enbridge to shut down the pipeline running across the bottom of the Straits of Mackinac by May for fear that its continued operation would pose an unacceptable oil spill risk in the Great Lakes. 

Whitmer ordered the shutdown after a state Department of Natural Resources review concluded Enbridge has violated the terms of the state easement that grants the company permission to operate Line 5 in the lakebottom of the Straits. The DNR review also concluded the easement should never have been granted, because allowing Line 5 to operate in the straits violates the public’s overriding interest in protecting the Great Lakes. 

 

As a result, Whitmer notified Enbridge that the state is revoking and terminating the easement.

In conjunction with Whitmer’s order, Michigan Attorney General Dana Nessel sued Enbridge in Ingham County Circuit Court, seeking legal reinforcement of Whitmer’s decision.

With Tuesday’s filing, Enbridge also filed paperwork seeking to remove the state’s Ingham County lawsuit to federal court. A spokesman for Nessel’s office said only that state lawyers have not yet had a chance to review the filing.

“Once we do, we will discuss it with our clients and determine the appropriate next steps,” Nessel spokesman Ryan Jarvi said.

The Ingham County Circuit Court website still showed Nessel’s case on the docket, assigned to Judge James Jamo.

Court jurisdiction could prove important, particularly given the partisan nature of debates over Line 5. 

Michigan’s Republican-led Legislature has supported the tunnel plan and many legislators have vocally advocated for the pipeline’s continued operation until a tunnel is built. Whitmer and Nessel, both Democrats, ran for office on promises to shut down the pipeline.

Line 5 opponents have expressed optimism about Nessel’s chances of winning a lawsuit in state courts, in part because the Michigan Supreme Court’s makeup shifted to a liberal majority with voters’ election Nov. 3 of Democratic nominee Elizabeth Welch to replace outgoing Republican nominee Stephen Markman. 

In contrast, all five Western District federal court judges were nominated by Republican presidents. 

Noting that federal regulators have deemed Line 5 safe to operate, Enbridge says Michigan is “assuming authority it does not possess.” 

“In the face of continued roadblocks by this Administration it’s time for the State to stop playing politics with the energy needs and anxieties of US and Canadian consumers and businesses that depend on Line 5,” Vern Yu, Enbridge’s executive vice president and president of the company’s Liquids Pipelines division, said in a statement. “It is concerning to see the current Administration is willing to compromise these needs.”

Enbridge also contends that a shutdown would create a propane shortage in the Upper Peninsula, raise energy prices and cause fuel shortages at refineries across the region, although the company’s opponents have long argued Enbridge is overstating the potential economic impacts of a shutdown.

A report by Lansing-based Public Sector Consultants found Michigan can find other ways to meet the Upper Peninsula’s energy needs without Line 5, but it would come with a modest cost increase. 

It’s not clear how fast the state could make the necessary adjustment to help the U.P. meet its energy needs. Whitmer’s office has not responded to questions from Bridge Michigan about its plan for replacing Line 5 as a transport source for the Upper Peninsula propane industry.

In a statement Tuesday, Whitmer spokeswoman Tiffany Brown said Enbridge’s lawsuit “brazenly defies the people of Michigan and their right to protect the Great Lakes from a catastrophic oil spill.”

“In short, Enbridge claims it can continue to pump oil through the Straits of Mackinac indefinitely, posing enormous risk to our economy and way of life – and that the people of Michigan have no say in the matter,” Brown said. “The company that spilled nearly one million gallons of oil into the Kalamazoo River and made Michigan the home of the largest on-land oil spill in American history has again demonstrated it cares only about its bottom line.”  

Enbridge supporters applauded the company’s lawsuit, arguing that allowing Line 5 to remain operational until Enbridge can replace the existing dual-span with a single pipe buried in a tunnel deep beneath the straits is the best way to improve pipeline safety while avoiding economic repercussions from a lapse in fuel transports through the pipeline.

"We're grateful today for the important steps being taken in court to protect Michigan's energy supply, and the access to affordable energy Michigan businesses and their employees count on,” said Mike Alaimo, Director of Environmental and Energy Policy at the Michigan Chamber of Commerce. “Governor Whitmer's move to close Line 5 would devastate local communities who rely on the Line for jobs, for energy, and for millions in tax revenue. Line 5 is safe, and there's a plan to make it even safer by burying it deep below the lakebed.” 

Environmentalists, meanwhile, lambasted the company’s efforts as proof that Enbridge is more concerned with its bottom line than the safety of the Great Lakes.

A statement from the group Oil & Water Don’t Mix, which represents a host of Line 5 opponents in Michigan, called the lawsuit “a transparent Hail Mary pass by Enbridge” that will fail. Mike Shriberg, Great Lakes regional executive director for the National Wildlife Federation, called it a “last-ditch effort.”

“The courts should reject this irresponsible effort to strip Gov. Whitmer and the State of Michigan of their authority to protect our Great Lakes,” Shriberg said in a statement. “The National Wildlife Federation stands with Gov. Whitmer, Attorney General Dana Nessel and the rule of law and we urge the courts to put clean water and the protection of our Great Lakes and our recreational tourism economy over Big Oil company profits.”

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Comments

leonard page
Tue, 11/24/2020 - 7:46pm

enbridge knows their 67 year occupation of michigan has soured. removal to federal court will fail and the question of contract enforcement (the 1953 easement) and the state's public trust to protect the great lakes for future generations will remain in state court to be ultimately resolved by the now more balanced mich supreme court. neither federal pre-emption or these two issues provide a basis for removal. why should michigan risk its greatest natural treasure to get western canadian oil to sarnia for the canadian market and export to asia? only 6% of line 5 product stays in michigan.

Build a Wall
Wed, 11/25/2020 - 12:08am

Why do people think canadians are nice? They send us all their garbage. Our landfills are full of canadian toxins and they spill their dirty petrol products all over our state.

DEMS STATEWIDE
Wed, 11/25/2020 - 12:18am

We the People of MICHIGAN VOTED STATEWIDE for BIDEN, STABENOW, PETERS, WHITMER, NESSEL, BENSON, MCCORMACK, and WELCH. Clearly Michigan is a MAJORITY Democratic state despite decades of unethical gerrymandering. Michigan also voted STATEWIDE to STOP that gerrymandering. Soon our legislature will reflect the truth. GOP corruption, ba bye!

Anonymous
Tue, 12/01/2020 - 9:09am

Yes, and we want enbridge to shut down line 5.

Alex Sagady
Wed, 11/25/2020 - 2:13am

On this statement by Gov. Whitmer...

>>>>" “The company that spilled nearly one million gallons of oil into the Kalamazoo River and made Michigan the home of the largest on-land oil spill in American history has again demonstrated it cares only about its bottom line.”

Part of that statement by Governor Whitmer is factually false.

The largest inland oil spill in American history happened in the early 1990s
at Grand Rapids, MN....caused by Lakehead Pipeline Company, a predescessor of
Enbridge and involved a volume of oil release exceeding the Marshall, MI/Kalamazoo
River spill volume by at least 17000 barrels of oil. ....see this incident report from the
National Atmospheric and Oceanic Administration:
https://incidentnews.noaa.gov/incident/6793

On this:
>>>>>>"It’s not clear how fast the state could make the necessary adjustment to help the U.P. meet its energy needs. Whitmer’s office has not responded to questions from Bridge Michigan about its plan for replacing Line 5 as a transport source for the Upper Peninsula propane industry."

Shutting down Line 5 eliminates 55% of the entire propane supply for the entire
State. This is not solely [or even mostly] a UP problem. Line 5 supplies a fractionator with natural gas liquids in Sarnia, Ontario. That single facility is the source of 55% of the propane sold in Michigan and its output is transported back across the border from Sarnia
to an underground storage and terminal location located in Michigan thumb.

A shutdown of Line 5 would have to be replaced by other hydrocarbon liquids
transportation, such a marine tankers on the Great Lakes, or about 8 one hundred car
unit trains a day leaving from Superior WI (with 8 empty trains leaving each day), or
about 2500 truck tankers per day coming down U.S. 2, along with the 2500 return trips empty. Governor Whitmer has not acknowledged either the risks or the additional greenhouse gas emissions that would be caused by such transportation....see, for example,
what can happen with liquid petroleum gas rail tanker car accidents:
https://www.youtube.com/watch?v=QqsKQ9R47CM
....or transportation of Bakken crude oil:
https://www.youtube.com/watch?v=WpXfQMFR_Qs&t=970s

Anonymous
Tue, 12/01/2020 - 9:14am

Alex, you are like the sad blacksmith who longs for the return of horse-based transportation. The argument: less pollution. We have better, cleaner alternatives now and the prospects will be much better when we decide to STOP subsidizing dirty fossil fuels and START to include the true costs.

Good comments
Tue, 12/01/2020 - 9:44am

I agree. There are just NO safe ways to use fossil fuels.

The Lakes/Jobs!
Wed, 12/02/2020 - 4:40pm

The risk that Line 5 poses to our Great Lakes and economy far outweighs any benefit it brings to Michigan. An oil spill in the Straits of Mackinac would devastate the health of the Great Lakes while threatening more than 214,000 Michigan jobs that rely on the tourism industry.

Enbridge Untrus...
Wed, 12/02/2020 - 4:53pm

In 2010, Enbridge’s Line 6B Pipeline ruptured, spilling more than a million gallons of oil, which resulted in the LARGEST INLAND oil spill in US HISTORY.

In June 2020, Line 5 was temporarily shut down due to significant damage to anchor supports on the pipeline caused by an anchor strike and

Enbridge carelessly FAILED to inform state officials about the damage and condition of the line.

In recent years, Enbridge has CONTINUOUSLY failed to demonstrate PROPER CARE for the pipeline, VIOLATING its agreement with the state of Michigan.

I call BS
Wed, 12/02/2020 - 4:48pm

Alex,

Line 5 provides only a portion of the propane in Michigan. The U.P. Energy Task Force has provided a number of solutions to better meet the U.P.’s energy needs that will maintain affordability and access through proper planning and alternatives. An independent study from London Economics International found that price impacts for propane from a Line 5 shut down would be negligible, at around 5 cents/gallon.

Peter Hubbard
Wed, 11/25/2020 - 9:06am

I am unclear about what is flowing through line 5 and what direction it is going. If Enbridge is concerned about providing propane to the UP, ??

Why?
Wed, 11/25/2020 - 11:13am

Why does Governor Whitmer hate the people of the Upper Peninsula? The cost of propane will increase and cost us more money, does the Governor have a plan for that? The pipeline has operated for decades without any problems and Enbridge has the tunnel plan to increase the safety of line 5 into the future. It is hypocritical of the Governor to hurt the people but continue to benefit from oil.

Why?
Tue, 12/01/2020 - 9:17am

Better question: why is Enbridge using the people of the UP like pawns to pollute Michigan's Great Lakes when there are so many possible alternatives?

duane
Wed, 11/25/2020 - 5:28pm

It would be interesting to hear from legal minds whether Enbridge could sue the State of Michigan/Governor's office for unlawful confiscation of property/value without due process of law, if the a long operating pipeline that has done no measurable harm/unlawful disruption to the Great Lakes or the Michigan Environment is shutdown by Governor's actions? Could Enbridge and those whose livelihoods that would be lost or otherwise harmed by the Governor's action be able to sue for and possibly win momentary recovery from the State/Governor for her actions?
I wonder how many small communities across the UP would be devastated if the State/Governor cutoff the propane supply and did not provide for an immediate replacement. If the pipeline has to be shutdown by May I suspect there will be disruption of operation and propane supply before May [March, April in the UP] because it will take much work to clear the pipeline and prepare it for an extended/permanent removal from service. How many lives could be lost with such a disruption of home heating and other services? What would it be like to lose fingers and toes because families couldn't heat their homes for a few days and nights in March or April? Would the State have to house and support all of the people across the UP indefinitely or pay for the mental/physical health issues this could contribute to?
I wonder how many billions Governor Whitmer's campaign promise could cost the state, we see how mis-operation of a water plant is costing government over a half billion dollars in one middle size town. What a tough winter the people of the UP are facing with the forced isolation due to the State Covid 19 order and now have added the concern of loss of propane for home heating before the winter is over.
Do politicians ever consider the unintended consequences of their actions? Do they ever think through what they are promising during a campaign? When will a politician be held accountable for what they say and do? We know what would happen to Enbridge if they acted with such abandon, we know what we could expect if we acted the way high powered politicians do, so why not those politicians?

Wondering
Tue, 12/01/2020 - 9:42am

Why would Enbridge have to stop providing propane to the UP? To be spiteful?

duane
Wed, 12/02/2020 - 8:48pm

Wondering,
Best guess is that Enbridge is a pipeline company and once Governor Whitmer shuts down the pipeline any other delivery methods will be something other companies do.

From previous articles it seems that the propane is a small part of what is pumped through the pipeline, so it would not be a sufficient flow to keep the line full and flowing. A pipeline has to be full so it can be pumped, even when full vapor pockets can be created by degassing while a full pipe is idle, those gas pockets can shutdown pumping when they reach a pump [creating vapor lock, cavitation, bubbles collapsing can fatigue the impeller with pitting, stress fractures, etc.]. This can be even more telling based on the volume that is need.
Pipeline maintenance is based on a full pipeline running at a minimum flow. I don't know what the flow requirements for the pipeline, but in the case of propane and the relatively small about that is being drawing off to supply the UP, I suspect that the pipeline would require a circulation line that would be from where the Propane is put into the system to where it is drawn off for the local market, and that would need additional pumping states, and a minimum flow. Might be more cost effective to rip out the pipeline and sue the state for the cost of removal, all adverse environmental impact, all lost value of the operating pipeline, all lawsuits filed against Enbridge for loss of service and related business failures, etc.

Anonymous
Mon, 11/30/2020 - 8:22am

Yes Enbridge had a spill that severely impacted the Kalamazoo River, but they also spent well over a billion dollars to clean up that spill. The section of the Kalamazoo River impacted by the spill is cleaner than it was before the spill. Enbridge did not shirk their responsibility to redress the damage caused by that spill.

Shirley M
Tue, 12/01/2020 - 9:47am

Not true at all and you undermine both the destruction that will never be mitigated as well as all the unnecessary grief, not to mention adverse health effects.

Amen
Wed, 12/02/2020 - 4:41pm

It is clear Enbridge is concerned about protecting its profits at the expense of the safety of our Great Lakes. After years of neglect and a lack of accountability, Enbridge cannot be trusted to ensure the safety of Line 5.

MY GOV, THANKS!
Wed, 12/02/2020 - 4:43pm

Shutting Down Line 5 is the Right Decision for Michigan

A Line 5 rupture in the Straits of Mackinac would impact 700 miles of Great Lakes shoreline, take years to clean up and devastate our Great Lakes economy. Gov. Whitmer’s action to revoke the easement agreement with Enbridge Line 5 will protect the Great Lakes from a catastrophic oil spill.

Jake K
Wed, 12/30/2020 - 11:26am

Sad to recognize that our judges are also being promoted as having partisan favoritism. I thought that the judicial branch was supposed to be impartial and only interpreters of the law? Then again...I also thought that our legislators were supposed to represent the mass citizenry. Instead they seem to be beholding to their respective party while ignoring their constituency. It is REALLY time for a legitimate 3rd political party.