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Michigan Gov. Gretchen Whitmer halts action on Line 5 tunnel

Oct. 31, 2019: Michigan judge rules Enbridge Line 5 construction is constitutional
June 27, 2019: Michigan AG Dana Nessel files lawsuit to shut down Line 5 in Mackinac Straits
April 1: With Line 5 tunnel plan halted, next steps may belong to Enbridge Energy
March 31: Halting Line 5 tunnel is ‘shameful.’ Prepare for a lawsuit, GOP leader says

LANSING – Michigan Gov. Gretchen Whitmer on Thursday ordered state agencies to halt action on a proposed tunnel to encase the controversial Line 5 pipeline in a tunnel.

Whitmer’s executive directive came minutes after a fellow Democrat, Attorney General Dana Nessel, issued a legal opinion claiming that a law creating a state authority to oversee construction of the tunnel is unconstitutional.

“I agree with the conclusion reached by Attorney General Nessel,” Whitmer said in a statement. “The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law.”

Nessel’s opinion was her first since taking office Jan. 1, and it came in response to a request from Whitmer to review the law. Last year, both campaigned on shutting down the 66-year-old oil pipeline, and they opposed compromises including a tunnel.

The move puts Whitmer and Nessel on a collision course with Republicans that could likely end up in court. 

"An AG opinion is exactly that, an opinion.  It’s not binding.  It's not final.  And it's certainly not without cause to challenge," said Senate Majority Leaker Mike Shirkey, R-Clarklake.

"The Senate will pursue its options in order to advance the very important work and purpose of the energy tunnel. This is the fastest, safest, and most economical long-term solution for Michigan. It’s very important to our economy."

House Speaker Lee Chatfield, R-Levering, called the tunnel plan "the right thing to do for our state, our waterways, and for our future." 

"It is well past time to put aside political talking points and campaign rhetoric and just do the right thing. This administration needs to protect the people of our state, secure our critical Mackinac Straits and approve the tunnel project immediately," he said in a statement.

Whitmer's move was cheered by environmental groups, who have repeatedly said a leak in the line could create havoc on the Great Lakes.

“Governor Whitmer’s leadership today ... should be immediately followed by implementing a process to decommission Line 5,” Anne Woiwode, chair of the Sierra Club Michigan Chapter, said in a statement.

“Every day these oil pipelines remain in the Mackinac Straits is a day when Michigan’s future can be drowned in a sea of oil,” she added.

For its part, Enbridge said it was "surprised and disappointed" and wants Whitmer to clarify the path forward.

“Enbridge worked in good faith with the Michigan government on the tunnel project,”  Chief Legal Officer Bob Rooney said in a statement Thursday night. “We disagree with the attorney general’s opinion and continue to believe in the benefits of the tunnel.”

Nessel's opinion kickstarted a new chapter in the short, but complicated history of Enbridge’s plans to encase Line 5 in a $350 million to $500 million tunnel below 100 feet of bedrock.

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 the tunnel. The Republican immediately made appointments to the authority’s three-member board, which approved a series of tunnel related agreements with Enbridge.

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

The legislation’s passage, the board’s creation and its signed agreement with Enbridge came in a matter of days, leading to complaints from Democrats and environmentalists that language in the law and was poorly vetted, if lawmakers had any time to read it.

Initially, Snyder’s plan hinged on the Mackinac Bridge Authority, an independent state agency that oversees the iconic bridge, owning the 4-mile, 12-foot in diameter tunnel and leasing space to Enbridge for 99 years.

That prompted fierce opposition, including from former bridge authority members who worried it would distract from oversight of Mackinac Bridge.

Rather than scrapping the original bill, Republicans — to save time during the fast-moving lame duck session — re-wrote it, keeping the Mackinac Bridge Authority in the bill's title as a body authorized to acquire the new “utility tunnel."

The bill was written so that the Mackinac Bridge Authority would immediately transfer all of its initial powers over the tunnel — including acquisition construction and operation —to the newly created corridor authority board.

In doing so, Nessel wrote in her opinion, the Legislature violated the “title-object” provision of the 1963 Michigan Constitution, which is meant to give lawmakers clear notice of what they’re voting on. The provision says “no bill shall be altered or amended” after passing either legislative chamber “so as to change its original purpose.”

The far-reaching power transfer to the corridor authority board "comes without fair notice and is a surprise" to lawmakers, Nessel wrote, because it is not mentioned in the bill's title. 

“Michigan law is clear that where the body of an act exceeds the general scope of what is expressed in the title, the offending provisions violate” the Constitution, Nessel wrote.

Her opinion came two weeks after Michigan Court of Claims Judge Stephen L. Borrello found another part of the corridor authority law unconstitutional. The law granted six-year terms to the board’s members, even though the constitution bars terms greater than four years.

That ruling came in a lawsuit filed by a nonprofit called A Felon's Crusade for Equality, Honesty and Truth. The term-limit issue was the only challenge in that lawsuit, and Borrello wrote that the corridor could continue to operate.

In her review, Nessel wrote that courts would likely see the separate “title-object” violation as too large to keep the corridor authority intact.

“It cannot be concluded” that lawmakers would have passed the law had they known of the constitutional violations, she wrote.  

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