Enbridge wins another round over Dana Nessel in Michigan Line 5 tunnel fight

A diver for Enbridge Energy inspects the Straits of Mackinac pipeline. Michigan Attorney General Dana Nessel’s efforts to delay a lower court ruling in her efforts to block a tunnel project for the Enbridge Line 5 pipeline received a setback this week. (Courtesy photo)

LANSING — Enbridge Energy Inc. can proceed as planned with construction of an underwater tunnel beneath the Straits of Mackinac to house a replacement for the dual Line 5 oil pipelines after the Michigan Court of Appeals this week declined to suspend a prior ruling.

A three-judge panel on Tuesday denied Attorney General Dana Nessel’s request to delay construction pending final resolution of ongoing litigation over the late 2018 law that paved the way for the $500 million tunnel project. 

Nessel filed new appeal arguments Thursday seeking to overturn an October ruling by Court of Claims Judge Michael J. Kelly, who she contends relied on a “straw man” argument advanced by Enbridge, the Canadian energy giant that sued to spur state action. Michigan Gov. Gretchen Whitmer had initially used a legal opinion by Nessel to halt any state work on the tunnel project.

This week’s 2-1 ruling by the Michigan Court of Appeals means Enbridge can “move forward” with next steps on the project, including permit requests that will be necessary for construction —  at least “for now,” said Nessel spokeswoman Kelly Rossman-McKinney. 

Enbridge spokesman Michael Barnes said the ruling shows “it’s time for Enbridge and the State to move forward together with the Great Lakes Tunnel Project.” He was not immediately able to say when the company will begin applying for permits.

Enbridge recently completed the “geotechnical phase” of the project and spent $40 million on the effort in 2019, reflecting “our deep commitment to building the tunnel and to being part of Michigan’s future,” Barnes said in a statement. “We believe the tunnel is the best way to protect the community and the Great Lakes while safely meeting Michigan’s energy needs.”

Nessel campaigned in 2018 on a pledge to shut down Line 5, citing fears the 67-year-old dual pipeline could cause massive damage to the Great Lakes should it rupture or fail. The first-term Democrat continues to fight the pipeline and legislation that former Gov. Rick Sndyer and the Republican-led Legislature approved to enable the tunnel replacement project. 

The tunnel law sought a specific policy outcome, Nessel argued in a Thursday brief: “The perpetuation of the operation of unreasonably risky oil pipelines in the Straits of Mackinac for at least several years until they could be replaced in a newly-constructed tunnel.”

And in their rush to enact the law while the GOP maintained full control of state government, Snyder, Enbridge and Republican allies in the Legislature “relied upon a legislative strategy that ran afoul of long-established requirements of Michigan’s Constitution,” Nessel claimed.

The attorney general effectively argues the law was unconstitutional because it did more than it said in its title, which authorized the existing Mackinac Bridge Authority to acquire a utility tunnel. As amended and approved, it instead created a new authority to authorize a tunnel agreement. Nessel has questioned whether lawmakers knew what they were voting on. 

Kelly rejected that contention in his October ruling, calling the law’s contents “well known, as evidenced by the strong policy-based reactions the Act has drawn.” 

“Regardless of whether the Court agrees with defendants about the lack of tidy draftsmanship, the argument advanced by defendants misses the mark,” Kelly wrote. 

Court of Appeals Judges Michael Gadola and Patrick Meter did not explain their decision to deny Nessel’s requested “stay” in the case while they consider her full appeal. The decision was rendered as a one-sentence ruling. 

Judge Amy Ronayne Krause, the only Democratic appointee on the panel, said she would have granted the stay. She noted Nessel issued an attorney general’s opinion finding the tunnel authority law unconstitutional, but the trial court found the statute valid. “Both seem very well-reasoned and a stay should be granted until the appeal on this issue in this Court is resolved,” she wrote. 

Nessel filed a separate lawsuit in June that seeks to shut down Line 5 by voiding the 1953 easement that allowed Enbridge to run the dual pipeline across the bottom of the Straits, which is controlled by the state. A status conference in that case is set for Jan. 31 before Ingham County Circuit Court Judge James Jamo.

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Barry Visel
Sat, 01/18/2020 - 12:38am

As a condition for the tunnel we should require that it be constructed to accommodate rail and/or auto as well as the pipeline. Sort of like the chunnel from England to France. We should leverage this project for public good.

Sun, 01/19/2020 - 10:07am

Agree! This should be considered.

There's precedent for long tunnels, as you noted.

The Mackinac bridge is too often shut down because of high winds and falling ice and a tunnel wouldn't have either of these problems.

Sun, 01/19/2020 - 6:19am

So another republican judge get paid off by a Canadian company!
Michinga DOES not get any gas of oil for the pipe line it goes back into Canada!!!

Sun, 01/19/2020 - 7:26pm

You are wrong. This pipeline transports over 75 percent of the oil produced in lower Michigan and over 2/3 of propane to the UP. Also much of the propane delivered in Canada is piped back to St. Clair county and stored and used in lower Michigan.

Mon, 01/20/2020 - 4:51pm

I like your ...'transports over 75 percent of the oil produced in lower Michigan...'. Nice deflection and play on words.
Where is this oil turned into gasoline and sold?

Sun, 01/19/2020 - 7:23am

Former Democratic governor Jim Blanchard sat on the Enbridge board of directors for many years after leaving office. Quit trying to make this a Republican vs Democrat issue. Michigans newly named EGLE should be doing their job insuring that this pipeline / tunnel is handled in an expeditious manner. Quit wasting taxpayer $ on frivolous lawsuits and get this issue handled. Then fix the ‘ damn ‘ roads !

Sun, 01/19/2020 - 8:41am

Can not understand why people are so against the tunnel. It will be 100’ below the bottom of the lake, drilled into bedrock. The inside of the tunnel will undoubtedly be well lit so the pipe itself can be inspected in a dry environment that will allow detection of mere drops. It could be easily automated to leave a record of all inspections and the results. And certainly no errant anchor is going to drag across it.

Sun, 01/19/2020 - 4:15pm

It's not about oil spilled in the lakes or preventing it but the left is too fearful to have an honest debate about shutting down the petroleum sector in favor of its unworkable and insufficient solutions, so they must resort to irrational fearmongering instead.

Mon, 01/20/2020 - 9:29am

I have no problem with the tunnel, per se. What I have a problem with is not shutting down the existing pipeline immediately, before some disaster happens. I view this whole tunnel project as a way to delay doing anything about the existing issue.

Mon, 01/20/2020 - 11:34am

The majority of households in the UP use propane. Most of that propane depends on Line 5. We here in the UP realize that we are not a major population center (and we like it that way!), but we would like the rest of the state to remember that we are Michiganders and that a "simple" solution like shutting down the pipeline would impose a financial hardship on a lot of people. Most of the households who use propane do so because they are located far from any natural gas service, and electric rates in many parts of the UP, especially if you are in UPPCO's service area, are extremely high. So either the cost of propane would increase significantly, people would have to switch to expensive electric heat, or use wood.

Tue, 01/21/2020 - 8:20am

Propane costs would rise a few cents per gallon of Line 5 shuts down. It's a very weak excuse for keeping it up

Tue, 01/21/2020 - 11:24am

Where does that (few cents) claim come from? I've seen it but never a source.

Wed, 01/22/2020 - 4:23pm

First of all, propane prices can be very volatile -- think back to the winter of 2013-14 when prices up here were 3-4 times what they are now. Any disruption to propane supply can cause huge spikes in prices. Second, if you are filling a 350-gallon tank multiple times per year, even a few cents a gallon adds up pretty quickly. And finally, I don't believe the increase would be only "a few cents." The places in the UP that produce propane located where they did because of Line 5, and would probably close if the pipeline were shut down. That would leave the UP dependent on suppliers from Wisconsin or elsewhere, with associated transportation costs.

Michigan Observer
Sun, 01/19/2020 - 6:00pm

Attorney General Nessel said in her brief that "The perpetuation of the operation of unreasonably risky oil pipelines in the Straits of Mackinac for at least several years until they could be replaced in a newly-constructed tunnel.” What risk would she consider reasonable? An annual risk of one in a hundred, an annual risk of one in a thousand, an annual risk of one in a million, or an annual risk of one in a billion? Surely, there must be a risk somewhere along this risk spectrum that she would find acceptable. But for believers in the Precautionary Principle, which she evidently is, there is no such thing as an acceptable risk. It has been described as don't do anything for the first time. If our ancestors had been believers in the Precautionary Principle, we would still be living in primitive dwellings, hunting for our dinner. Cass Sunstein, Barack Obama's regulation czar, has made a compelling case against the Precautionary Principle.

It is perfectly legitimate to say that a given risk is unacceptable, but the costs and benefits of any policy should be clearly spelled out and acknowledged by all concerned. Without such information, how are voters supposed to make a rational decision? Yet, the provision of such information rarely occurs. Journalists instead engage in marketing what they believe to be the correct, approved viewpoint.

James tomlinson
Sun, 01/19/2020 - 7:03pm

It is dem v gop issue. Dem’s would not risk the worlds biggest fresh water reserve for a short term oligarch purchased, proposed by a callous group of profiteers guilty of a careless disaster of Biblical proportions- a decision that would never win a referendum. This is what callous election fraudsters/fixers do when they pack courts with synchofants that normalize the wresting control of good govt and turn into govt that never governs for the public. This is an epic disaster waiting for its time whose authors hope to be retired when it happens

Mon, 01/20/2020 - 4:53pm

Yes. This is what this is all about.
If you trust Enbridge then I have a bridge for sale that you'd love.
And guess who's on the hook for a spill? Not Enbridge. It's us taxpayers in Michigan.
I really don't understand why these two concepts are so hard for some in Michigan to understand.

Michigan Observer
Tue, 01/21/2020 - 2:19pm

I find it extraordinary that some people, including Attorney General Nessel, still believe that "And guess who's on the hook for a spill? Not Enbridge. It's us taxpayers in Michigan." Do any of them remember the Kalamazoo oil spill? Evidently not. Enbridge paid two or three billion dollars to clean up that mess.

Mon, 01/20/2020 - 11:36am

So, if we can't get Pipeline 5 shut down, then can we institute an agreement with Enbridge that if there is a leak of any kind of the existing or new tunnel, that they will be responsible to pay each and every a citizen of Michigan a large sum of money. So large that it would close down Enbridge if there is such a leak. Can't think of anything that would hit them between the eyes more that the thought of losing all their money. It might even spark them to become better stewards of that existing tunnel and the new tunnel. Just a suggestion, its hard to beat corporations in court where money is the primary factor. So threaten to take their money away and see what they do.

Otto Stockmeyer
Mon, 01/20/2020 - 12:19pm

Thank you for identifying the members of the divided Court of Appeals panel. This practice should be followed regardless of whether the decision is unanimous or split. https://info.cooley.edu/blog/name-those-judges

Nancy Berg
Tue, 01/21/2020 - 6:28am

We all need to fight the development of this caustic highway under the Straits to protect our greatest inland water supply of fresh water especially in the midst of rising global temperatures and rising salt water ocean levels. Humanity will need s source of fresh water to survive in the very NEAR future. We cannot afford any contamination of our waters. Our lives and that if future generations will depend on it. Now more than ever PROTECT our water! Shut Down Line 5! Overturn this recent ruling to go ahead with Embridge plans. Support Dana Nessel in her efforts!

Rita Mitchell
Mon, 02/03/2020 - 10:48am

Line 5 runs 645 miles through Michigan. Leaks are a risk, and have happened all along its length. The Straits is the most fragile and exposed area, but it does run along Lake Michigan, and through the heart of connected waterways. All of the pipeline is 67 years old. Shut down Line 5. The tunnel does not protect the remaining 640 miles of outdated pipeline.

Wed, 02/12/2020 - 8:43am

All this political foot dragging misses the point entirely, to what end? We need a replacement for line 5. Remember Canada owns and has a 50% stake in this issue. What are their opinions? Not building only brings us closer to that 1 in a hundred chance accident! Think of the immediate environment, instead of “we versus they”! Enough said on my part. I tend to ask questions, and get shot down by haters. Fire away!

Tom Reed
Wed, 02/12/2020 - 9:59am

If you take the time to see the the PBS show "Draining The Great Lakes" you will see for yourself a deep "V" in the topography under the middle of Makinaw Bridge. To date I have seen or heard" .....Will the proposed tunnel go under that too?" How deep under the ground will the tunnel go....or will it shroud the existing line???? In either case I am against prolonging the continuing threat Line 5 is to the health of this wonderful Great Lakes system. Because this is bordered by many States and Provences in Canada it is an International concern, and should not be OK'd by any one State....it should protected by the Federal Government. Please shut down Line 5 pipeline. Thank you. Tom Reed

Thu, 02/13/2020 - 4:51pm

I, too, am concerned about protecting the Great Lakes. Unlike the alarmists who desire to shut down Line 5, however, I believe the quickest way to guard against the danger of a spill in the Straits of Mackinac is to quit the name-calling and finger-pointing, and get the tunnel built. Anyone who thinks that shutting down Line 5 will be a quick solution is naïve. It would take years to work through the legal, jurisdictional, and logistical issues, all the while maintaining Line 5 in its current state rather than doing something to make it safer. And I have heard no concrete proposals that address the economic impact of shutting down Line 5 on the UP. Yes, we choose to live here, and recognize that sometimes it comes at a cost. And yes, we realize that the increased cost of propane is not as serious a problem as a potential spill in the Straits or elsewhere. But it is a serious issue to us in the UP, so let's address both problems and let Enbridge build the tunnel already. They probably could be well into the bidding phase by now, if not construction, if Dana Nessel had not chosen to make this an issue. And by the way, Tom, the proposed tunnel would be 100 feet under the lake bed throughout it's length, and would not shroud the existing line.