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Enbridge sues Michigan over Line 5 shutdown order

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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