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

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.