With an appellate court having denied Michigan Gov. Gretchen Whitmer’s most recent attempt to thwart a lawsuit from Enbridge over Line 5, it appears the long-time, much-beleaguered pipeline has a reasonably good chance of remaining online well into the future.
I say “reasonably good” because while the Calgary-based company still faces a number of other legal challenges to Line 5, the state’s fight, at least in this instance, is headed to the U.S. Supreme Court during its next session beginning in October.
This should be seen as good news for Enbridge since legal observers see the U.S. Supreme Court as more supportive of defendants in such cases.
In addition, the high court has said as part of its ruling it will determine whether federal or state court will ultimately decide the case. This outcome is considered crucial, 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.
The initial legal action, resulting in an emergency injunction that blocked Line 5 was issued by an Ingham County (Michigan) Circuit Court in June 2020.
In its earlier ruling, the U.S. 6th Circuit Court again denied the governor’s request to block the pipeline from operating, backing Enbridge’s contention that the pipeline fit an exception to sovereign immunity because it might involve breaches of federal law. The ruling was the third in which Whitmer’s case for immunity had been struck down.
(“Sovereign immunity” is a legal doctrine that protects governments from being sued without their consent.)
Other key legal outcomes, include:
Wisconsin Trespass Ruling (2023): A federal judge ruled that Enbridge was trespassing on the tribal lands of the Bad River Band of the Lake Superior Chippewa in Wisconsin, where a section of Line 5 is located.
Michigan Attorney General Lawsuit (2019): Michigan Attorney General Dana Nessel filed a lawsuit in state court seeking to shut down Line 5. The case has been in a back-and-forth legal battle over whether it belongs in state or federal court.
Michigan Easement Revocation (2020): Michigan's Governor Gretchen Whitmer revoked the 1953 easement allowing Line 5 to operate in the Straits of Mackinac, citing concerns about environmental risks. Enbridge has challenged this in federal court.
Separately, and also working in Enbridge’s favor, three Michigan lawmakers are fighting to keep Line 5 online in what they say is an effort to provide low-cost energy to their constituents.
Congressman John Moolenaar (R-2nd District) and Reps. Tim Walberg (R-5th District) and Jack Bergman (R-1st District) recently introduced the Line 5 Act, which they say would prevent future administrations from shutting down the international pipeline.
“Line 5 is critical to Michigan families and our way of life,” Walberg said, in a release to the media. “No president, regardless of their party, should have the power to shut it down with the stroke of a pen. Line 5 keeps energy affordable, supports thousands of Michigan jobs and helps fuel our economy.”
Line 5 transports a capacity of 540,000 bpd of crude oil and natural gas liquids from Sarnia, Ontario, to the Superior, Wisconsin area. Among the biggest concerns of opponents about the 645-mile (1,038 km) pipeline is a 5-mile (8-km) segment beneath the Straits of Mackinac, connecting Lake Michigan to Lake Huron. This stretch has been the focal point of environmental and tribal opposition due to the fear of a spill occurring in the Great Lakes.
Needless to say the history of the Line 5 legal situation has been a complex one, at one time even involving Canada entering the legal fray by citing Canada a 1977 treaty with the United States – this time in the state of Wisconsin – to keep the pipeline flowing. P&GJ