Gretchen Whitmer and Dana Nessel vowed to shut Line 5. Now’s their chance

At a September press conference in Lansing, Dana Nessel said she would work to shut down Line 5 “as soon as possible.” Right: Sean McBrearty of the advocacy group Clean Water Action. (Bridge photo by Jim Malewitz)

LANSING — Gretchen Whitmer and Dana Nessel now have the chance to deliver on campaign promises to shut down the controversial oil and gas pipeline Line 5.

Can it happen? Yes, but it may not be easy, and could risk a countersuit, legal experts and other officials told Bridge Magazine this week.

This is a pivotal week for the controversial 65-year-old pipeline that transports up to 540,000 barrels of light crude oil per day from Superior, Wisconsin, to Sarnia, Ontario –  and runs beneath the Straits of Mackinac

Today, the Mackinac Bridge Authority will hear for the first time plans to swap out twin pipelines in the Straits for a new pipe that would be protected in a bedrock tunnel 100 feet below the lake bottom.

Update: Mackinac Bridge Authority in no hurry to consider Line 5 tunnel deal
Related: 5 places where Michigan’s governor and legislature can make deals​

And on Tuesday, Whitmer was elected governor and Nessel won her race for attorney general, after both Democrats spent months promising to move quickly to shut down Line 5, echoing environmentalists’ concerns about a low-probability, high-consequence rupture in the Great Lakes.

“Every day that it continues to operate is a day that we’re in peril,” Nessel, who defeated Republican Tom Leonard for the attorney general job, said at a press conference in September. “The only way we can truly to protect the people who actually live in this state is to —  firstly shut down Line 5 and shut it down as quickly as possible.”

Whitmer, who defeated Attorney General Bill Schuette, promised legal action “on the day I take office.”

Experts say making the Straits pipeline-free is easier said than done. Courts would likely have the final say, and some legal experts see major challenges for Michigan in a fight that could prove expensive.

“That’s going to be tough,” said Bill Rustem, a former adviser to Gov. Rick Snyder and a environmental policy consultant.

Nessel and Whitmer could face several legal obstacles, including an October agreement between outgoing Gov. Rick Snyder and pipeline owner Enbridge Energy to build a tunnel, said Susan Sadler, a Bloomfield Hills-based energy and environment attorney who has represented industry and environmental groups.

That agreement may not be completely rock-solid, but Snyder still has time to maneuver before Whitmer and Nessel take office in January, Sadler said.

“What we're going to see in the next 30 days or so is maybe the governor trying to issue a couple more things to tighten that up.”

Violated easement?

Enbridge, headquartered in Calgary, calls Line 5 a “vital piece of Michigan energy infrastructure,” and it says it’s committed to protecting the Straits and wider Great Lakes.

Asked by Bridge about promises by Whitmer and Nessel about Line 5, Enbridge released a statement saying the company looks forward to working with state and local officials to "ensure necessary investments in critical energy infrastructure will continue to drive economic growth and job creation -- safely, reliably and efficiently."

In its decades of operation, there have been no documented leaks of Line 5 in the Straits. But Enbridge also owned Line 6B, which broke in the Kalamazoo River in 2010, triggering one of the worst inland oil spills in U.S. history.

Michigan does not regulate pipelines, but Line 5’s stretch along the state-controlled Straits lakebed offers some legal leverage. Michigan granted Lakehead Pipe Line company — now Enbridge — permission to use the space in a 1953 easement.

Critics allege Enbridge has violated several stipulations in that document, including that the company exercise “due care” for the “safety and welfare of all persons and of all public property.”

And in early negotiations between the state and Enbridge, Schuette’s office scolded the company for violating requirements related to supports along the pipeline’s Straits section.

Nessel and Whitmer say they’d cite such violations in court in an effort to yank the easement.

“The easement has been violated in multiple ways,” Nessel told Bridge in September.

In 2015, a state task force chaired by Schuette and then-Department of Environmental Quality Director Dan Wyant examined the option of revoking the easement.

The task force described such an action as “extraordinary,” and said Michigan would face a heavy burden in court.

The state would have to prove, “there were clear violations of the 1953 Easement or state law, that there was an imminent threat that the Straits Pipelines would fail, and that such a threat outweighed any interest in Enbridge continuing to operate the Pipeline,” the task force wrote.

And if Michigan took Enbridge to court, Snyder’s tunnel agreement might gum up the works.

Snyder’s administration touted the plan as a way to separate oil from water — while keeping propane flowing to the Upper Peninsula.

Whitmer and Nessel panned the plan as inadequate, particularly due to its projected seven-to-10-year timeline for planning and construction when oil would keep flowing like normal.

The agreement is hardly set in stone. It’s subject to a litany of state and federal permitting approvals — including from the bridge authority, which must agree to own the tunnel and lease space to Enbridge.

“The agreement does not itself provide certainty,” Assistant Attorney General Rob Reichel acknowledged last month, but it does outline a process.”

Even so, some of the deal’s language could complicate future efforts to terminate the easement, Sadler said. Enbridge, if challenged in court, could argue several paragraphs suggest Michigan has no objections to the pipeline.

One example: Michigan in deal agrees that “the continued operation of Line 5 through the State of Michigan serves important public needs by providing substantial volumes of propane to meet the needs of Michigan citizens.”

Rustem, the former Snyder adviser, said Michigan risks drawing a countersuit by taking Enbridge to court. Enbridge could accuse Michigan of seizing the company’s property, the pipeline, without just compensation.

Highlighting the consequences, Rustem pointed to  Michigan’s $94 million payout to oil companies in the 1990s after courts ruled the Michigan Department of Natural Resources’ had no grounds to drilling ban in Nordhouse Dunes Wilderness, north of Ludington.

A Line 5 lawsuit would look different than the dunes fight, and such cases can prove increasingly complex, Sadler said, but “Enbridge would probably have good standing in a case.”

Public trust doctrine

Others disagree.

Jim Olson — a Traverse City environmental attorney with For Love of Water, a nonprofit advocacy group — considers the 1953 easement flimsy and believes Michigan has several avenues for a shutdown, whether in court or at Whitmer’s DEQ.

Olson argues the pipeline easement — and alterations along the pipeline over the years — violate the Great Lakes Submerged Lands Act.

Under the 1955 law, Michigan “has a perpetual responsibility to the public to manage these bottomlands and waters for the prevention of pollution, for the protection of the natural resources and to maintain the public's rights of hunting, fishing, navigation, commerce,” according to a state summary.

Whitmer could require Enbridge to submit an application under the act, triggering a review of how Line 5 affects the public trust — a thorough vetting it never received, Olson said.

“Depending on how this is handled, I think the new administration could drastically reduce the risk of a takings claim,” he said. “There’s no takings if there was no legal agreement in the first case.”

Nessel has said the case as winnable and worth fighting.

“I certainly think there is a very good case to be made as to why Enbridge is in violating of the easement. But my general philosophy when it comes to protecting the people of this state is you can’t win a case you can’t file,” she told Bridge in September. “Something clearly has to be done here.”

Whitmer has indicated she’d be an eager partner in any court challenge.

“As governor, I will immediately file to enjoin the easement and begin the legal process to decommission Line 5, and anything short of that is insincere,” she wrote in a statement in November 2017.

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Comments

Matt
Thu, 11/08/2018 - 12:57pm

Aside from just strangling all petroleum infrastructure this issue now is a publicity stunt opportunity for Office holders who have precious little chance of accomplishing any of the other items on their wish lists. Tax payers be damned.

duane
Thu, 11/08/2018 - 7:53pm

Matt,
The difference now is that they have now be given access to the open wallet of Michigan Taxpayer to spend in court so they can look like delivering on a campaign promise. And Michigan politics is all about appearances rather than results.

Alex Sagady
Fri, 11/09/2018 - 2:09am

No State Line 5 Shutdown Suit Based on Enforcing Easement
Agreements Will Ever Be Adjudicated in a Michigan Court
Because Enbridge Will Remove Such Litigation to the
Federal District Court for the Western District of Michigan

The legal analysis in this Bridge article is not complete and is deficient on the matter
of what is the controlling and superintending law provision
affecting Line 5 as an interstate hazardous liquids pipeline and
any state litigation attempt to terminate its operations on the
basis of some physical aspect addressed by the state easement
agreement for the Mackinac Strait Crossing.

As noted (but not analyzed) in the Michigan Petroleum Pipeline
Task Force report [See text at footnote 104], federal law at 49 USC Sec
60104(c) provides:

"A State authority may not adopt or continue in force safety standards for inter -
state pipeline facilities or interstate pipeline transportation. " 49 USC Sec 60104(c).

What this section of law means is any matter of interstate pipeline
design [other than initial routing], operation, safety, integrity, inspections, maintenance, testing, etc. ....such as analogous conditions in the 1953 Pipeline Easement for Line 5 affecting physical and operational aspects of the pipeline, are solely matters of federal regulation and sole jurisdiction over these matters will be in federal district court.

The City of Seattle found out the hard way that safety-related provisions of a local easement agreement with a pipeline company are unenforceable because of 49 USC Sec. 60104(c).
https://caselaw.findlaw.com/us-9th-circuit/1058087.html
With Line 5, many such pipeline physical and operational aspects were also addressed in federal court litigation between Enbridge and the Justice Department, and those federal judges, not state court judges, have jurisdiction over those issues previously considered in federal court.

Under the U.S. Constitution Supremacy Clause, federal law and the applicable pipeline safety federal statutory preemption control over any application of a state law, and states are prohibited from enacting pipeline safety standards for interstate pipelines or interstate hazardous liquids transportation.

Because of 49 USC Sec 60104(c), and because Enbridge will always oppose litigation for
Line 5 shutdown, any state court Plaintiffs (like Whitmer/Nessel) starting state court litigation on easement enforcement through Line 5 shutdown will rapidly find Enbridge filing motions in federal court under the Federal Rules of Civil Procedure seeking the removal of the state court litigation to federal district court of the Western District of Michigan.
Such removal motions will likely be granted considering the overarching federal law jurisdiction over interstate hazardous liquids pipelines.