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Court: State Law Allowing Line 5 Tunnel Construction Is Constitutional

November 5, 2019

A Court of Claims judge Thursday dealt a blow to the Gov. Gretchen Whitmer administration’s effort to block construction of the Line 5 tunnel in the Straits of Mackinac.

Judge Michael J. Kelly said 2018 Public Act 359 — which was signed by former Gov. Rick Snyder during lame duck — doesn’t contain “the required symptoms” necessary to be considered unconstitutional.

“While there are reasons to debate the appropriateness of the utility tunnel called for in PA 359, issues surrounding notice and” article 4, section 24 of the state Constitution, “are not among them,” the judge wrote, referencing a section that says no law shall embrace more than one subject that should be expressed in its title.

Kelly’s ruling overturns Attorney General Dana Nessel’s March opinion that held the tunnel legislation violates the state constitution because its provisions go beyond the scope of what was disclosed in its title.

Kelly disagreed, saying the title accurately reflects its purpose and the state stresses “too narrow” of an interpretation of the relevant sections of the constitution.

“The title of PA 359 stresses that the Corridor Authority is to acquire and operate a utility tunnel across the Straits of Mackinac,” Kelly wrote. “The precise parameters for how the same is to be accomplished need not be spelled out in painstaking detail in the Act’s title.”

Reacting to the ruling Nessel said “we will appeal this decision. The State of Michigan will not rely on a foreign corporation to protect and preserve our state’s most precious resource, its Great Lakes.” 

In a statement, Enbridge said it was pleased with the ruling. 

“We continue to believe the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated during the period while the tunnel is being constructed, and we are committed to build it,” said Ryan Duffy, spokesman for Enbridge. 

Enbridge filed the lawsuit in June, seeking to enforce its Line 5 Tunnel agreement with the state, which approved PA 359 and the creation of the Mackinac Straits Corridor Authority.

Nessel filed a separate suit in Ingham County Circuit Court seeking to close Enbridge’s underwater pipelines in the Straits of Mackinac.

Kelly did not, however, opine on whether the policy goals of PA 359 are sound, noting: “Those concerns are not the focus of the instant action and are best left to the Legislature.”

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