Michigan tells court more Line 5 mediation talks with Enbridge would be unproductive

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The State of Michigan says it sees no further use for mediation talks with Enbridge Inc. over Governor Gretchen Whitmer’s effort to shut down the Line 5 pipeline, a crucial petroleum conduit for Ontario and Quebec.

This development would appear to hamper chances for a negotiated settlement to the dispute.

In a Sept. 15 court filing in the U.S. District Court for the Western District of Michigan, Michigan Attorney-General Dana Nessel said the state feels no further mediation sessions would be helpful.

“Indeed, at the conclusion of the September 9th session,” Ms. Nessel wrote, Michigan’s representatives “unambiguously communicated to the mediator that any further continuation of the mediation process would be unproductive for them, and they have no ‘desire to continue with the mediation process.’ ”

She also said any insistence by the court-appointed mediator that talks continue “would be improper and fundamentally at odds with the principle of voluntary facilitative mediation,” as stipulated in the mediation process.

Bobby Leddy, a spokesman for Ms. Whitmer, said he was unable to comment on the case. “Under legal obligations from the court, I can’t weigh in on the mediation process,” he said.

Enbridge Line 5 is a vital energy link for Ontario and Quebec that runs through the Great Lakes region. It carries up 540,000 barrels a day from Alberta and Saskatchewan through two Great Lakes states before re-entering Canada at Sarnia, Ont. The Canadian government has warned a shutdown would represent a threat to this country’s energy security.

Last fall, Ms. Whitmer revoked an easement permit first granted in 1953 that allows Line 5 to cross the Straits of Mackinac waterway, citing the risk of oil spills and calling it a “ticking time bomb.” She gave Enbridge until May 12 to comply, and warned the company it would be breaking the law after that.

Calgary-based Enbridge has challenged these actions in U.S. federal court, arguing that only the federal government can pass judgment on the safety of a pipeline. The company defied Ms. Whitmer, saying it would not shut the line down, unless ordered to do so by a judge. The state is seeking to have the matter sent back to state-level court. Enbridge and the Michigan state government have been in court-ordered mediation since the spring.

The two sides have met four times since April.

A spokeswoman for Enbridge on Wednesday said the Canadian company remains committed to resolving the dispute.

“Our goal from the beginning has been to work cooperatively to reconcile interests, resolve disputes and move forward in the best interest of people throughout the region,” Tracy Larsson said in a statement.

“We believe in the process and have participated in this mediation in good faith. We are committed to continuing to seek resolution, whether through mediation or pursuing diplomatic solutions consistent with the U.S.-Canada Transit Pipelines Treaty and by asserting our rights in the courts.”

Ms. Whitmer’s office could not be immediately reached for comment.

The Canadian government, which filed an amicus brief in the court case in May, has argued that no decisions should be taken by the state or court while Ottawa is in talks with Washington about its rights under the 1977 treaty, which was designed to ensure uninterrupted transmission between the two countries.

Michigan, in turn, questioned whether such negotiations were really taking place. In a June 1 filing, Ms. Nessel argued the 1977 pipeline-transit treaty between Canada and the United States has no bearing on what it considers its right to unilaterally shut down Line 5. And Ms. Nessel also disputed whether negotiations under the 44-year-old treaty were actually taking place.

Canada has previously publicly warned it is prepared to invoke the 1977 treaty, which calls for binding arbitration to settle disputes. The treaty says the only justifications for impeding the flow are natural disasters or emergencies – and these may only be temporary interruptions.

In a June 21 letter to Janet Neff, the U.S. district judge presiding over the Enbridge-Michigan legal dispute, Canada says talks related to the pipeline treaty are occurring.

Gordon Giffin, the former American ambassador to Canada who is part of the Canadian legal team in this matter, listed in a court filing discussions on Line 5 that have taken place between Prime Minister Justin Trudeau and U.S. President Joe Biden on the issue, as well as between members of their respective cabinets.

Mr. Giffin wrote that these discussions, “along with interventions to the [U.S.] Department of State and the White House by the ambassador of Canada have resulted in the establishment of a bilateral process in which representatives of the two countries are meeting biweekly to address the potential shutdown, including in the context of the 1977 Treaty.”

Enbridge says Line 5 has never leaked into the Straits of Mackinac, but critics say it has leaked elsewhere along the route.

They also point to 2010, when another pipeline operated by Enbridge, Line 6B, ruptured and released 3.3 million litres of oil into a tributary of the Kalamazoo River. That became one of the largest inland oil spills in U.S. history and took five years to clean up.

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