WASHINGTON –
The international dispute over Line 5 belongs in federal court, a Michigan judge announced Thursday, dealing a critical blow to Gov. Gretchen Whitmer’s attempt to shut down the controversial transboundary oil and gas pipeline.
It’s the second time in nine months that U.S. District Court Judge Janet Neff has ruled in favor of pipeline owner Enbridge Inc., which wanted the dispute elevated to the federal level.
The first ruling last November prompted Michigan Attorney General Dana Nessel — believing her only path to victory was in state court — to drop the original case, instead turning to a separate, dormant, nearly identical case in district court to try again.
Neff’s disdain for that tactic was palpable during Thursday’s decision.
“The court concludes that (the) plaintiff’s motion must fail based on … (the) attempt by (the) plaintiff to obtain an unfair advantage by misusing the judicial machinery,” Neff wrote.
“The court’s decision . . . is supported by (the) plaintiff’s willingness to engage in procedural edging and forum manipulation.”
The reaction late Thursday from Amber McCann, Nessel’s director of communications, was even more furious.
Nessel “remains unwavering in her commitment to protect Michigan’s natural resources from the potentially devastating impact of an environmental disaster,” McCann said.
“The department strongly disagrees with the judge’s mischaracterization of both the law and the attorney general’s approach to this and related cases.”
The office is reviewing the decision and “is considering the next steps to proceed in the litigation,” she added.
Whitmer is a Democrat and a close ally of President Joe Biden, whose political fortunes depend on the support of environmental groups in the state. She ordered the shutdown of Line 5 in November 2020.
She pointed to the risk of environmental disaster in the Straits of Mackinac, the environmentally sensitive passage between Lake Michigan and Lake Huron, where the pipeline runs underwater between the state’s upper and lower peninsulas.
Enbridge staunchly opposed the original case in district court, arguing that its core elements of energy security, cross-border trade and international relations required it to be heard at the federal level, a move Nessel tried hard to resist.
Late last year, Neff sided with Enbridge, prompting Whitmer and Nessel to drop the complaint and try again, this time with a similar case in district court that has been dormant since 2019.
This time, Nessel hoped to fend off Enbridge’s jurisdictional argument on a technicality: that under federal law, cases can be transferred to federal jurisdiction only within 30 days of a complaint being filed.
But Neff didn’t believe it, citing the precedent she herself set in 2021 when she first took over from Enbridge.
“It would be an absurd result for the court to remand the present case and sanction a fight in the forum,” Neff wrote.
“The 30-day rule in the removal statute is intended to promote the fair administration of justice and to prevent abuse of federal jurisdiction, but here it is clear to the court that (the) plaintiff is the one engaging in abuse.”
The Line 5 pipeline carries more than 540,000 barrels per day of crude oil and liquid natural gas across the Canada-US border and the Great Lakes via a twin line that runs along the bottom of the lake.
Critics want the line closed, saying it is only a matter of time before an anchor strike or technical failure causes disaster in one of the area’s most important watersheds.
Supporters of Line 5 call it a vital and indispensable source of energy, especially propane, for several Midwestern states, including Michigan, Ohio and Pennsylvania. It is also a key source of feedstock for Canadian refineries, including those that supply jet fuel to some of Canada’s busiest airports.
In a statement, Enbridge described Thursday’s decision as “consistent with the court’s November 2021 decision that the state’s prior claim against Line 5 belongs in federal court.”
The company said it was the right forum for “important federal issues” about interstate commerce, pipeline safety, energy security and foreign relations.
The statement also said that closing Line 5 would “violate an international treaty with Canada that has been in place since 1977.”
Negotiations on Line 5 between the two sides of this treaty, which deals specifically with the issue of cross-border pipelines, have been ongoing since late last year.
“Enbridge looks forward to the speedy resolution of this case in federal court.”
This report from The Canadian Press was first published on August 18, 2022.
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