Judge upholds Line 5 tunnel authority as Dana Nessel’s review continues

Michigan Court of Claims Judge Stephen L. Borrello ruled that a law creating the Mackinac Straits Corridor Authority was legal even though the terms of its board members are too long.

LANSING — The Michigan board that approved a plan to build a tunnel around Enbridge Energy’s Line 5 oil pipeline may continue to function, a state judge ruled Monday, even though part of the law authorizing the agency violates the state constitution.

The ruling from Michigan Court of Claims Judge Stephen L. Borrello  comes as Democratic Attorney General Dana Nessel is weighing a broader set of legal questions surrounding the tunnel board.

During his final weeks in office in December, Gov. Rick Snyder signed Public Act 359 to create the Mackinac Straits Corridor Authority to oversee construction and operation of a $350 million to $500 million tunnel that would encase the pipeline in the Straits of Mackinac. The Republican immediately made appointments to the authority’s three-member board, which approved a series of tunnel related agreements with Enbridge.

But in enacting the law, the Legislature violated the 1963 Michigan Constitution by granting six-year terms to the board’s members, Borrello ruled. That’s because the constitution bars terms greater than four years for boards or commissions created after 1963.

That legal flub does not undermine the entire Line 5 law or the authority’s actions, Borrello’s eight-page decision said.

“The six-year term cannot stand and it must be stricken,” Borrello wrote. “However, the Court must nevertheless enforce the remainder of the statute, to the extent possible.”

Borrello wrote that he must “remain mindful of the Legislature’s intent,” and he could “strike only those provisions of that statute that are unenforceable.”

The plaintiff — a nonprofit called A Felon's Crusade for Equality, Honesty and Truth — did not challenge other aspects of the law creating the corridor authority.

The nonprofit was created by Robert Davis, a former Highland Park school board member, union activist and open government champion who served time for embezzlement in 2016.

Davis said he was disappointed Borrello didn’t throw out the law and plans to appeal.

“If I was appointed to a term of office that was deemed to be unconstitutional, how can I remain?” Davis told Bridge Magazine.

The tunnel plan, which Snyder pushed through the Republican-controlled Legislature during a fast-moving lame duck session, would swap out the aging twin pipelines running along the bottom of the Straits for a new pipe that would be protected in a bedrock tunnel 100 feet below the lake bottom.

Snyder, Enbridge and other supporters have called a tunnel the best way to protect the Straits while keeping energy flowing to the Upper Peninsula.

Environmentalists say an oil rupture in the Straits, however unlikely, would devastate the Great Lakes. They’ve called for a Line 5 shutdown.

Liz Kirkwood, executive director of For Love of Water, a nonprofit advocacy group that contends the tunnel plan is illegal, said Monday’s ruling is “just one piece of a very complex set of legal questions.”

“This ruling does not go to the heart of the matter,” she told Bridge Magazine.

The ruling comes as Nessel, at the request of Gov. Gretchen Whitmer, weighs six questions concerning the legality of the law creating the corridor authority.

Those include the discrepancy over board terms, as well as concerns the law varies dramatically from original bill language that would have given oversight of the tunnel to the Mackinac Bridge Authority.

Nessel and Whitmer are both Democrats who promised during last year’s campaigns to shut down Line 5.

Kelly Rossman-McKinney, a spokeswoman for Nessel, declined comment on the ruling.

In accepting Whitmer’s request in January, Nessel said: “There are serious and significant concerns regarding PA 359, which the previous governor and Legislature initiated and passed without the care and caution one would expect for an issue that will have a monumental impact on our state.”

Nessel has since asked separate groups to offer their own legal opinions, according to MLive, which reviewed seven responses from five groups last month.

The Michigan Chamber of Commerce, which supports the Line 5 tunnel, flagged the term-limit discrepancy, but, like Borrello, didn’t believe it doomed the entire law.  For Love of Water, in its brief, saw multiple deficiencies that it claimed should invalidate the corridor authority.

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Alex Sagady
Mon, 03/11/2019 - 10:37pm

As to this....

>>>>Nessel and Whitmer are both Democrats who promised during last year’s campaigns to shut down Line 5.

Let the record show that, at least as far as MI AG Dana Nessel was involved, that her campaign promised to file a motion with the Michigan Court of Claims on her first day in office seeking to shut down operations of Line 5. ......something that didn't happen on Nessel's first day of office or any day since.

All such state court litigation would be rapidly removed to federal court by Enbridge because of a federal preemption over all matters of pipeline safety under 49 USC Sec. 60104(c).

Tue, 03/12/2019 - 9:43am

Whitmer never said she was going to shut down Line 5. (I agree Nessel did.) Whitmer said she wanted the 'oil out of the water'. The media keeps pressing that she said 'shut it down' and this is fake news. The proposed tunnel does exactly what Whitmer stated was her goal. Support the tunnel to keep our energy reliable, cost effective and safe.

Jim Malewitz
Tue, 03/12/2019 - 11:17am

Hi, Yooper4. Thanks for reading. 

Here is what Gov. Whitmer wrote in the issues section of her campaign website under the heading "Clean up Our Water:" 

"An oil spill in the Great Lakes would be absolutely devastating to our environment and our economy. We can’t afford to sit around and wait for disaster to strike, we need Governor Snyder and Bill Schuette to stop making excuses and announce an immediate plan to shut down Line 5. Enough is enough. If they don’t have the guts to do their jobs and take action, we’ll get it done when I’m governor. On the day I take office, I will immediately file to enjoin the easement and begin the legal process for shutting down Line 5 to protect the Great Lakes, protect our drinking water and protect Michigan jobs."

Tue, 03/12/2019 - 6:17am

Line 5 presents a potential for a devastating oil leak/spill which would be a disaster for the Great Lakes and for Michigan.
Every legal challenge to the proposed tunnel just serves to extend the length of time that line 5 is in service and posing that risk. The tunnel will prevent a spill disaster from the Straights and will be paid for and maintained by Enbridge at no cost to the State of Michigan.
It is wishful thinking on the part of those who continue to just push for and attempt to force Enbridge to abandon line 5. That's not going to happen. Let them get started on the tunnel and make it safe.

Tue, 03/12/2019 - 8:40am

Why are not the other state on the Great Lakes and Canada not apart of this,,, When them pipes break their water will be destroyed also!!!!

Jimmie wright
Tue, 03/12/2019 - 9:15am

When you worked for me you showed greater judgement- both HST and I are saddened by your decision.

Larry Shaheen
Fri, 03/22/2019 - 9:30am

The great lakes region is largest body one fifth of fresh water on Earth, in the hands of a panel of three and a foreign corporation,( REALLY!) . Everyone knows oil and water don't mix how much is the bond one fifth of the world's wealth put up or shut up!!!