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Michigan drops one lawsuit, revisits another in Enbridge Line 5 fight

mackinac bridge
Whitmer in November gave Enbridge a 6-month deadline to stop transporting oil through the Straits, and Nessel followed up with a lawsuit seeking to reinforce the order. That case is now dead, but the state hopes to resume an earlier case in Ingham County Circuit Court. (Bridge Michigan file photo)

After a federal judge this month dealt a blow to Gov. Gretchen Whitmer’s campaign to shut down Enbridge Energy’s Line 5 pipeline, Michigan is hoping for better legal luck in state court.

State Attorney General Dana Nessel on Tuesday filed notice with U.S. District Court Judge Janet Neff that she is voluntarily dismissing the state's federal lawsuit. The suit, originally filed in state court but later moved, sought to reinforce the governor's year-old order for Enbridge to stop transporting oil through the Straits of Mackinac.

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Instead, Nessel is seeking to kickstart an earlier lawsuit she filed against the company in Ingham County Circuit Court soon after taking office. That lawsuit, which also seeks a Line 5 shutdown, was paused this year while Michigan and Enbridge fought in federal court over Whitmer’s shutdown order. 

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In November of last year, Whitmer gave Enbridge a 6-month deadline to stop transporting oil through the Straits, and Nessel followed with a lawsuit seeking to reinforce the order before a Michigan judge.

Enbridge quickly counter-sued, arguing the state had no authority to shut down a federally-regulated pipeline. The company also was successful in getting the case removed to federal court, arguing, over Nessel’s protests, that the case belonged before a federal judge.

In a statement, Nessel noted that the dismissal Tuesday of the federal suit was the governor’s decision and said Michigan will continue fighting Enbridge in state court.

“The state court case is the quickest and most viable path to permanently decommission Line 5,” Nessel said. “The Governor and I continue to be aligned in our commitment to protect the Great Lakes and this dismissal today will help us advance that goal.”

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The dismissal follows Neff’s ruling earlier in November that the lawsuit over Whitmer’s shutdown order must continue in federal court because Line 5 is now subject to an international treaty dispute, and because it falls under the regulatory purview of the federal Pipeline and Hazardous Materials Safety Administration.

That decision was a blow to state attorneys, who had argued that the state’s public trust authority gives the Whitmer administration authority to shut down Line 5. By keeping the case in federal court, Neff was essentially nullifying the state’s central argument. 

Michigan faced a decision: Appeal Neff’s ruling, let it stand and proceed to fight with Enbridge in federal court, or drop that suit and decide whether to reignite the earlier state suit. It chose the third option.

Whitmer, in a separate statement Tuesday, said she disagreed with Neff’s decision. In seeking to resume the state court case, she said, “our goal here remains the same: protecting the Great Lakes, protecting Michigan jobs, and protecting Michigan’s economy.” 

In a statement Tuesday afternoon, Enbridge spokesperson Ryan Duffy said the company will “continue to pursue its case in federal court to affirm federal jurisdiction over Line 5.” The Canadian energy company has argued Michigan has no state-level claim against Enbridge, because pipeline regulation is an issue regulated by a federal agency. 

Michigan Sen. Ed McBroom, R-Vulcan, who supports Enbridge's position in the pipeline fight, said he was not surprised by the Whitmer administration’s decision to drop the federal court suit, which he saw as doomed to fail.

“I’ve said so many times, this was a waste of money to attempt this litigation,” McBroom told Bridge Michigan.

McBroom, who contends the best way to eliminate Line 5’s threat in the Straits is to speedily build an underground tunnel, called the administration’s push to revive the earlier state court case “nonsensical.” He accused Whitmer and Nessel of concocting a “Hail Mary” strategy to “discourage Enbridge from ever doing anything, to the point where they give up and quit themselves.”

Environmentalists lauded Nessel and Whitmer’s actions Tuesday, arguing a state judge is best-positioned to decide whether Michigan has the right to order Enbridge out of the Straits.

“I see it as the state trying to take state control of the Great Lakes,” said Mike Shriberg, executive director of the National Wildlife Federation's Great Lakes Regional Center. Shriberg called Michigan’s dispute with Enbridge “a battle over whether the state of Michigan actually has the ability to protect its water.”

Michigan’s decision to drop one lawsuit and seek to reopen another means Line 5 is likely to keep operating in the Straits, at least for now. The fate of a proposed tunnel to house a replacement pipeline beneath the Straits’ lakebed remains unclear.

That proposed tunnel, which Enbridge originally hoped to begin building this year and finish by 2024, has been plagued by delays and cost overruns. Enbridge is now telling contractors to expect construction to start no earlier than 2024, as the company awaits key permits it must secure before breaking ground.

The lawsuit dismissal is the latest development in a tense legal battle between Michigan and Enbridge, one that sparked debate among the company’s friends and foes about what rights a Canadian company should have to operate in Michigan’s waters against the wishes of state government leaders.

In the months following Nessel’s lawsuit, the government of Canada warned that a shutdown could violate its treaty rights with the U.S. The two countries signed a 1977 treaty that, in part, bans either party from shutting down cross-border pipelines except in certain instances. Canada, where Enbridge is based, argued Michigan could not unilaterally order Line 5 shuttered.

In October, Canada formally invoked the treaty, triggering negotiations with the U.S. Enbridge and Canada have both argued that any lawsuit over the pipeline should be tabled until the two governments have a chance to negotiate.

Michigan Native American tribes, meanwhile, have warned that the pipeline threatens their treaty-protected fishing rights in the Straits, and that they could sue Michigan and the federal government if the two governments allow Line 5 to continue operating and a spill occurs.

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