US Supreme Court to hear Line 5 pipeline dispute between Michigan, Enbridge

• The US Supreme Court will consider which court  — federal or state — will decide Attorney General Dana Nessel’s suit seeking to shut down the Line 5 pipeline
• Filed six years ago, that suit has ricocheted between courts as the two sides seek a friendly forum to argue their case
• While the legal dispute drags on, federal regulators appear poised to approve key permits for a replacement pipeline buried in a tunnel beneath the Straits of Mackinac

The US Supreme Court will have the final say in a dispute between oil giant Enbridge Energy and the state of Michigan over which court — federal or state — should decide whether the pipeline shuts down.

The court-venue dispute stems from Attorney General Dana Nessel’s 2019 lawsuit that aims to shut down the Line 5 petroleum pipeline over concerns that it could cause an oil spill in the Straits of Mackinac. 

That case, originally filed in state court, has ricocheted into federal court and back again as Nessel and Enbridge spar over which court should decide the lawsuit. Now, the Supreme Court has agreed to take up the venue fight during its next term, which starts in October.

The outcome is considered crucial to the case, because experts believe state courts will be more receptive to the state’s claim that Enbridge’s continued transport of oil in the Straits violates Michigan’s public trust doctrine, while federal courts are more likely to sympathize with Enbridge’s claim that federal pipeline safety regulations trump those state laws.

Nearly two years into arguments in the case, which Nessel originally filed in the 30th Circuit Court in Ingham County, Enbridge moved the case into federal court, arguing pipeline safety issues are a federal matter. But the 6th US Circuit Court of Appeals last year sent it back, ruling that Enbridge had missed a 30-day deadline to switch venues.

Related:

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• US officials release Line 5 environmental review; conclude project is needed
• Trump administration to fast-track Line 5 tunnel, calling project 'emergency'
• Seven tribes in Michigan withdraw from federal talks over Line 5 tunnel permit

In a statement to Bridge Michigan, Nessel spokesperson Kimberly Bush said the state’s attorneys “remain undeterred in our commitment to protect the Great Lakes, especially from the devastating catastrophe a potential Line 5 rupture would wreak upon all of Michigan.”

“The Department’s lawsuit is based on state claims and law, and it belongs before a Michigan court,” Bush said.

Enbridge spokesperson Ryan Duffy called news of the Supreme Court’s involvement encouraging for the company.

“The Sixth Circuit’s remand decision is in conflict with decisions from two other federal Circuit Courts of Appeals, which both held that there can be exceptions to the 30-day limit,” Duffy said. “The Supreme Court review will resolve this conflict in the courts of appeals.” 

While Nessel and Enbridge prepare to make their case to the nation’s highest court, Enbridge is pursuing a separate federal lawsuit challenging Gov. Gretchen Whitmer’s November 2020 order for the pipeline’s shutdown.

Tunnel project

While those two cases drag on, Enbridge is still pursuing plans to replace the lakebottom section of the pipeline with a new section buried in a concrete tunnel deep beneath the lakebed. 

Last month, the US Army Corps of Engineers published a long-awaited draft environmental review of that plan, concluding that its environmental impacts would be mostly “short-term with effects resolving once construction is completed.”

That review ignored the potential climate pollution caused by decades of continued fossil fuel transport and consumption through the pipeline — a change of plans in response to executive orders from President Donald Trump that directed federal agencies to favor energy developments while downplaying climate concerns.

Environmentalists have submitted a flurry of comments challenging the agency’s analysis as incomplete. Sean McBrearty, leader of the anti-Line 5 group Oil & Water Don’t Mix, said he has little hope those comments will sway the agency.

“Unfortunately, the Army Corps has turned into a sham process that's going to green-light a tunnel without environmental review,” McBrearty said.