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Gov Dismisses Enbridge Suit Over Line 5

December 7, 2021

Gov. Gretchen Whitmer Tuesday shifted the state’s legal strategy against Enbridge Energy’s Line 5 pipeline by voluntarily dismissing her 2020 lawsuit to focus on a separate, but similar, lawsuit filed in state court by the Attorney General.

Whitmer is not, however, withdrawing her notice to the Canadian-based company to revoke the 1953 agreement that allows the operation of Line 5 in the Straits of Mackinac.

“Today’s actions seek to protect the Great Lakes and our state’s natural resources, which support 1.3 million jobs, including 350,000 jobs in our state, and generate $82 billion in wages annually,” a press release from the Governor’s office explained.

Whitmer’s decision comes two weeks after U.S. District Court Judge Janet T. Neff declined her request to return the lawsuit to the Ingham County Circuit Court – where Whitmer filed the suit, which Enbridge had moved to federal court.

Attorney General Dana Nessel expressed full support for Whitmer’s decision, noting her 2019 state court case is the “quickest and most viable path to permanently decommission Line 5.”

Enbridge spokesperson Ryan Duffy said the company was pleased by the state’s decision to drop its federal case to revoke the ability for Line 5 to be in the Straits of Mackinac and will continue to pursue its own federal case to affirm that the feds, not the state, have jurisdiction over Line 5.

“Enbridge will continue to deliver safe, reliable and affordable energy to Michigan and the region. We will continue to pursue the Great Lakes Tunnel to house a replacement section of Line 5 so that it can continue to serve the region safely,” Duffy said.

Line 5 is a 68-year-old dual oil pipeline that runs along the bottom of the Straits of Mackinac with 23 million gallons of oil flowing through it daily.

Nessel filed her suit against Enbridge in June 2019 in Ingham County Circuit Court seeking to decommission Line 5 because it “presents an unacceptable risk to the Great Lakes.” She called the 1953 easement a public nuisance, saying it violated the public trust doctrine and was likely to cause pollution in violation of environmental laws.

Nessel simultaneously filed a motion to dismiss Enbridge’s Court of Claims suit that seeks enforcement of agreements made in the last months of former Gov. Rick Snyder’s administration that allowed the oil company to build a 4.5-mile, $500 million tunnel under the Straits of Mackinac.

Jamo issued an order in January putting Nessel’s suit on hold “to allow time for further presentation in the federal litigation.” 

Whitmer said her decision Tuesday should allow Nessel’s lawsuit to move through the court process.

Whitmer maintains that “the people of Michigan, and our state courts, should have the final say on whether this oil company should continue pumping 23 million gallons of crude oil through the Straits of Mackinac every day.”

Dan Eichinger, director of the Department of Natural Resources, agreed. In the same press release, he said no oil company should be able to dictate what happens on Michigan’s sovereign lands and waters.

Neff said the case called for the exercise of “substantial-federal-question jurisdictions” over the issues and with Canada invocating the 1977 Treaty, “the federal issues in this case are under consideration at the highest levels of this country’s government.”

Whitmer notified Enbridge in November that the 1953 easement allowing it to operate the dual pipelines is being revoked and terminated, and she filed her lawsuit to effectuate that decision.
Enbridge’s response was a definite “no,” and instead filed its own suit to block the shut-down.

Response to Whitmer’s decision was quick, including support from the National Wildlife Federation and For Love of Water.

Kate Madigan, executive director at Michigan Climate Action Network, said her group knew it was “going to be difficult to take on an international oil transport company,” but the oil pipeline “needs to be shut down.”

Sean McBrearty, coordinator with Oil & Water Don’t Mix, said it is up to Michigan residents to “ensure that the Great Lakes are safeguarded and that Enbridge is not permitted to continue” to place the state at risk.

Rep. John N. Damoose (R-Harbor Springs), however, criticized Whitmer and Nessel, calling on both to end their attempts to shut down the pipelines.

“Dropping one lawsuit doesn’t change the fact that the Governor and Attorney General are trying to eliminate a major source of energy for the Upper Peninsula and other areas of the state,” Damoose said in an afternoon statement. “The freezing winter weather has arrived, and Line 5 speedily and safely transports the natural resources that keep people warm at home, school and work. 

“Our officials must stop threatening to shut down the pipeline – a disastrous proposal that would cut off fuel for our communities and increase costs for families,” he added.

Senate Majority Leader Mike Shirkey (R-Clarklake) also had criticism, saying it is the “height of hubris to promise citizens’ affordable heating, a better economy, and continued economic investment with the left hand, while the right hand actively works to dismantle the infrastructure for safe, affordable, reliable, American-made energy.” He added: “No one should mistake this clumsy political sleight-of-hand as either sincere or good policy. It’s a nothing burger.”

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