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Appeals Court Hands Nessel A Loss On Line 5 Tunnel

June 16, 2020

The Michigan Court of Appeals Thursday said legislation allowing construction of a Line 5 tunnel beneath the Mackinac Straits is constitutional.

Attorney General Dana Nessel plans to appeal the ruling, which affirmed a lower court’s holding that Public Act 359 of 2018 is valid, to the Michigan Supreme Court. 

Nessel argued the title of act deals with the Mackinac Bridge Authority (MBA). The public act itself deals with the construction of a tunnel under the bridge through a public body that’s not the MBA.

“While we are disappointed by the Court of Appeals decision, we stand by our position that Act 359 is unconstitutional,” said spokesperson Courtney Covington. 

Enbridge Energy spokesperson Ryan Duffy said the court’s decision “once again confirms” that Enbridge’s agreements with the state “are valid and enforceable.”

“We look forward to working with the state to make a safe pipeline even safer,” he said in a statement to MIRS. 

In March, the Democratic AG issued an opinion at the request of fellow Democrat Gov. Gretchen Whitmer that held the tunnel legislation — signed into law by former Republican Gov. Rick Snyder — violates the state constitution because its provisions go beyond the scope of what was disclosed in its title. 

That opinion prompted Enbridge to sue in the Court of Claims where Judge Michael J. Kelly upheld the constitutionality of PA 359 in October. Kelly said the state stressed a “too narrow” view of the relevant sections of the Constitution.

In a June 3 hearing, the AG’s office told the appeals panel that the statute violates the Michigan Constitution and as a result any action, including creation of the Mackinac Straits Corridor Authority and its agreement with Enbridge in December 2018, is likewise invalid.

Enbridge’s attorney disagreed, saying there is a presumption of constitutionality and that the court should not strike down bipartisan action that resulted after both the public and Legislature had “fair notice” of its contents.

The appeals court sided with Enbridge, noting that a bill’s title is to give notice to the public about its contents. The court held the Legislature amended the title of 1952 PA 214 to include the word “utility tunnel” and “bridge.”

“The Act’s stated purpose involved ‘connecting the Upper and Lower Peninsulas of Michigan,’ and both a utility tunnel and a bridge are structures capable of connecting Michigan’s peninsulas,” the court’s opinion from Judge Thomas Cameron reads. “Thus, a utility tunnel and a bridge are not unconnected objects.”

The $500 million project is currently in the design stage and permit applications were submitted in April. Completion of the tunnel is expected in 2024. 

Appeals Judges Mark Boonstra and Anica Letica concurred. 

Snyder appointed Cameron, Boonstra and Letica to the bench in 2017, 2012 and 2018, respectively.

State Rep. Beau LaFave (R-Iron Mountain), a Nessel critic, was quick to tweet about Nessel’s loss in the appeals court, noting that the Flint water prosecutions were dropped and she lost in a case challenging the Governor’s ban on flavored vaping products; the shutdown of an Owosso barber who defied the stay-home orders; and shutting down the tunnel project.

“This is MI Attorney General’s record, and it’s worse than the Detroit Lions,” he quipped.

The decision to dismiss the pending criminal cases in the Flint water crisis were made under the leadership of Solicitor General Fadwa Hammoud’s team after discovering undisclosed evidence languishing in a basement of a state building.

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