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Line 5 tunnel’s future could hinge on a few words in 2018 law, court learns

Enbridge

Lawyers for the state of Michigan and Canadian energy conglomerate Enbridge squared off in court Wednesday over the wording of the 2018 law that paved the way for a planned Line 5 tunnel beneath the Straits of Mackinac.

The arguments before a three-judge panel of the Michigan Court of Appeals were the second courtroom tussle in recent weeks between Michigan Attorney General Dana Nessel and Enbridge, as two lawsuits wind their way through the legal system over the 67-year old twin pipelines that transport oil and natural gas liquids beneath the Straits. 

At issue: whether the title of the 2018 law that created the Mackinac Straits Corridor Authority in the final days of Gov Rick Snyder’s administration and paved the way for Enbridge’s tunnel plan sufficiently previewed the law’s contents.

State lawyers argue it didn’t. Enbridge attorneys say it did.

Enbridge plans to replace Line 5’s exposed lake bottom segment by 2024 with a segment running through the tunnel. The company contends the $500 million tunnel project would virtually eliminate the risk of an oil spill into the Straits. 

Tunnel opponents  — including Nessel and Michigan Gov. Gretchen Whitmer, who both won office on promises to shut down Line 5 — argue the environmental risk remains too great. Some cite the possibility of a spill as well as broader concerns about greenhouse gases emitted by the petroleum products Line 5 transports.

The battle over the tunnel law’s language began after negotiations failed between Whitmer and Enbridge over a target shutdown date for the existing lakebottom pipelines. 

Whitmer wanted Enbridge to shut down the Straits segment by 2021, a timeline Enbridge rejected. The company sued the state and won a Michigan Court of Claims decision that upheld a series of agreements Enbridge signed with Snyder’s administration to complete the tunnel project. 

Nessel appealed, arguing the tunnel law is unconstitutional because the law’s body goes beyond the purpose outlined in its title. 

While the title authorizes the Mackinac Bridge Authority to acquire a utility tunnel, the actual law goes on to authorize the creation of a new Mackinac Straits Corridor Authority to authorize a tunnel agreement. 

State lawyers argued in court Wednesday the discrepancies between the law’s title and body violate a provision of the state constitution that requires consistency between the title and text of legislation.

“Simply put, the title says one thing, and the body says something different,” Assistant Attorney General Robert Reichel said Wednesday. Such discrepancy, he said, fails to meet a constitutional standard designed to make sure legislators and the public are aware of a bill’s content before it goes to vote.

“Not only does the title fail to provide fair notice of certain key provisions,” Reichel said, but it also “says one thing in certain key areas and the body says another.”

As a result, he argued, the court should declare the law unconstitutional and invalidate any actions taken by the Mackinac Straits Corridor Authority under the law — a move that would essentially cancel plans for the Line 5 tunnel. 

Enbridge lawyers counter the constitutional requirement in question amounts to a demand for public notice. That notice, they said, came in the form of intense media coverage and legislative debate leading to the 2018 law’s passage. 

Given the high-profile debate surrounding the 2018 law, Enbridge attorney John Bursch said, legislators and the public should have been well aware that the law would pave the way for the Line 5 tunnel.

“We should not be striking down bipartisan legislation that was enacted by a supermajority in both chambers of the Legislature,” Bursch said, adding that “common sense” indicates the public and legislature understood the law’s contents.

Judge Thomas Cameron closed the hearing by calling the case “well argued on both sides,” but gave no indication of when the court will rule. 

While the Court of Appeals considers the tunnel case, Nessel and Enbridge are awaiting a ruling in a separate case before the Ingham County Circuit Court. 

Nessel sued Enbridge in Ingham County in June 2019, arguing the 1953 easement that enabled the existing dual pipelines violates Michigan’s public trust doctrine because a potential oil spill would compromise the public’s right to fishing, boating and other protected uses of the Great Lakes. Enbridge attorneys have argued Nessel’s claims amount to a “policy question” that state legislators have already answered. 

Judge James Jamo heard oral arguments in that case May 22, but has offered no timeline for when he will issue an opinion.

While the legal challenges play out in court, Enbridge has applied for several key state and federal permits that, if granted, would enable the company to begin construction on the tunnel. The company aims to start construction next year, and begin transporting petroleum products through the tunnel in 2024. 

A company spokesperson said in a statement Wednesday that the project remains on schedule.

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