Enbridge Inc. has won an important ally in a court battle over the future of its Line 5 crude oil pipeline, which Michigan’s Governor and Attorney-General want removed from the Straits of Mackinac.
Michigan’s Republican-majority legislature, comprised of its Senate and House of Representatives, filed a brief to the Michigan Court of Claims last month that bolsters Enbridge’s case.
The legislature says it did its job properly last year when it passed an act that enabled Calgary-based Enbridge to build a tunnel beneath the straits to replace an underwater section of the pipeline.
“The law was entirely consistent with the legislature’s powers enshrined in the Michigan Constitution," the document read, going on to accuse Michigan’s Attorney-General Dana Nessel of trying to "subvert the democratic process in order to replace a duly-enacted law with an unpopular policy she personally supports.”
The pipeline transports 540,000 barrels a day of crude oil from Alberta to refineries in Sarnia, Ont., passing underwater through the straits that separate Lake Michigan and Lake Huron. Alberta oil producers already have trouble finding space on chronically full pipelines to ship their product to market, and an interruption of service on Line 5 would exacerbate the glut of crude. It would also choke the supply of oil Sarnia refineries rely on to make their products.
The question of how soon the crude oil pipeline needs to be removed from the water has caused a political divide in Michigan. Ms. Nessel and Governor Gretchen Whitmer, both Democrats, along with several environmental groups, say they believe that the existing pipeline creates too high a risk of an oil spill in the Great Lakes. They’ve said their fears were amplified last year when a tugboat’s anchor struck the pipe, damaging but not rupturing it.
Enbridge’s proposed solution is an underground tunnel it says would be safer. The tunnel could be finished in five years, Enbridge says, but the Governor wants the current pipeline out within two. The existing agreement to build the tunnel, signed last year by the previous Republican governor, does not include a firm time limit for taking the current line out of the water. It’s an omission Ms. Whitmer and Ms. Nessel have criticized.
Ms. Nessel is locked in two legal battles with Enbridge: one to have the underwater pipeline shut down and another to have the replacement tunnel agreement ripped up. Ms. Nessel alleges the original tunnel agreement is unconstitutional. Enbridge, and now the legislature, argue it is constitutional.
The legislature has thrown its weight behind the tunnel plan by filing the amicus briefing in one of the two cases, a statement to the court from a party not involved in a case but which has a vested interest in its outcome.
The legislature supports the tunnel plan because it would allow continued supply of energy products used to heat homes and power vehicles in Michigan, while “virtually eliminating any risk of an oil spill at the Straits of Mackinac." Enbridge has agreed to pay the entire $500-million cost of the tunnel.
Ms. Nessel argues the tunnel agreement isn’t constitutional because it violates Michigan’s title-body clause, which says a law’s title must accurately reflect its contents. That rule is supposed to ensure legislatures don’t pass laws that say they do one thing but actually do another.
Enbridge, and now Michigan’s legislature, say that senators, House representatives and the public understood what was in the original tunnel agreement, in part because it was so widely discussed in news media at the time.
Gideon D’Assandro, communications director for Michigan’s Republican Speaker of the House, said Ms. Nessel’s arguments that the original tunnel agreement was rushed prompted the legislature to weigh in.
“[They] felt it was appropriate for legislature to clarify their intent was not murky,” he said. “They were very clear on what they passed and why they passed it.”
Ms. Nessel filed a response to the amicus briefing Thursday, saying the legislature’s document is “all heat and no light,” offering “nothing new of legal substance.”
“The current legislature is basically saying, ‘Hey you’ve got to uphold the bill. You don’t get to not enforce the law just because you don’t like it,’ ” said James Coleman, an energy law professor at Southern Methodist University in Texas.
It would be “foolhardy” to predict the outcome of this pipeline lawsuit, he added, especially given how highly politicized is.
Enbridge "appreciates the support from legislators for the Line 5 tunnel project,” company spokesman Ryan Duffy said.
The Court of Claims case, where the legislature filed this latest briefing, deals with whether the tunnel agreement was constitutional. The second lawsuit asks Michigan’s Ingham County Circuit Court to declare the existing pipeline a public nuisance and revoke the original land-use agreement from the 1950s that allowed it to be built.
“The two cases combined are potentially quite dangerous for Enbridge," Mr. Coleman said. “The only thing worse than not getting a new pipeline built is having a pipeline that you earn money on just go out of service.”
If Enbridge loses the Court of Claims case, the state could negotiate a new tunnel agreement that contains a deadline for removing the existing straits pipeline. If it loses the Ingham County Circuit Court case, there’s a risk the existing line could be shut down.
Line 5 also delivers fuel to the Detroit airport, picks up oil from northern Michigan producers and carries propane used to heat homes in Michigan’s Upper Peninsula.
Local media report a handful of Michigan counties have passed resolutions supporting the tunnel project, because they don’t want service on Line 5 interrupted.
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