Michigan attorneys pressed a federal appellate panel on Thursday to move their lawsuit seeking to shut down a portion of an aging oil pipeline running beneath the Straits of Mackinac from federal to state court, arguing that state environmental protection laws are in play.
Assistant Attorney General Daniel Bock told a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati that the challenge to Enbridge Inc.’s Line 5 pipeline deals with the public trust doctrine, a legal concept in which natural resources belong to the public. He said that concept is rooted in state law.
He said the lawsuit also invokes public nuisance concepts governed by state law as well as the Michigan Environmental Protection Act. He added the state owns the bottom of the straits.
“There’s no federal jurisdiction over this case,” Bock said.
Bock went on to assert that Enbridge Inc., the Canadian company that owns the pipeline, missed its deadline to shift the case from state to federal court.
Enbridge attorney Alice Loughran countered that the case should remain in federal court because it affects international trade between the U.S. and Canada. She said the company didn’t have to comply with the standard 30-day deadline for requesting removal to federal court because it lacked enough information to formulate the request.
The judges — Richard Griffin, Amul Thapor and John Nalbandian — questioned Loughran extensively about why the company missed the deadline and sounded skeptical of her answers. It’s unclear when they might issue a ruling.
The pipeline, known as Line 5, was constructed in 1953. It moves 87 million litres daily of crude oil and natural gas liquids between Superior, Wis., and Sarnia, Ont., passing through northern Wisconsin and Michigan’s Upper Peninsula. It’s part of a network transporting Canadian crude to refineries in both nations.
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A section of the pipeline runs beneath the Straits of Mackinac, which link Lake Michigan and Lake Huron. Fears of the section rupturing and causing a catastrophic spill have been growing since 2017, when Enbridge engineers revealed they had known about gaps in the pipeline’s protective coating in the straits since 2014. That section of pipeline also was damaged by a boat anchor in 2018, intensifying concerns about the line’s vulnerability.
Attorney General Dana Nessel filed a lawsuit in state court in 2019 seeking to void a 1953 easement that enables Enbridge to operate a 6.4-kilometre section of pipeline in the Straits of Mackinac, which links Lake Michigan with Lake Huron.
Nessel won a restraining order from a state judge in June 2020. Enbridge moved the case into federal court in December 2021, a year and a half later. Nessel asked U.S. Circuit Judge Janet Neff to shift the case back into state court but Neff refused, prompting Nessel to appeal to the 6th Circuit.
Enbridge filed a separate federal lawsuit in 2020 arguing the state’s attempt to shut down the pipeline interferes with federal regulation of pipeline safety and could encourage others to launch copycat actions and impede interstate and international petroleum trading. That case is still pending in Neff’s court.
Enbridge has insisted the section of pipeline that runs beneath the straits is in good condition and could operate indefinitely. The company maintains that shutting the line down would constrict U.S. and Canadian oil and natural gas supplies, driving up costs. Rather than shutting the pipeline, Enbridge has proposed encasing the pipes in a protective tunnel.
Michigan’s Public Service Commission approved the $500 million project in December despite intense opposition. Enbridge still needs approval from the U.S. Army Corps of Engineers. A final decision might not come until 2026.
A federal judge in Madison, Wisconsin, last summer gave Enbridge three years to shut down part of Line 5 that runs across the reservation of the Bad River Band of Lake Superior Chippewa.
The tribe sued Enbridge in 2019 to force the company to remove about 19 kilometres of pipeline crossing its reservation, saying the pipeline is prone to spills and land agreements allowing it to operate on reservation land expired in 2013.
The company has proposed rerouting the pipeline to end its dispute with the tribe. It has appealed the shutdown order to the 7th U.S. Circuit Court of Appeals. That case is still pending.
Pipeline opponents rallied in downtown Cincinnati ahead of the arguments Thursday, holding signs that read “Shut Down Line 5 Pipeline” and “Evict Enbridge.” Nessel appeared at the rally and accused Enbridge of “forum shopping” in hopes of finding a favorable judge.
“Ultimately, this is a Michigan case brought under Michigan law by Michigan’s chief law enforcement officer on behalf of the people of Michigan on behalf of our Great Lakes and it belongs in a Michigan court,” she said to cheers.
Enbridge spokesperson Ryan Duffy said in an email to The Associated Pres that Nessel is the one looking for a favorable venue for the case and accused her of ignoring the federal interests in the case.
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