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Judge upholds Line 5 tunnel law despite 'constitutional defect'

Jonathan Oosting
The Detroit News
Oil pipeline operator Enbridge moves under the Mackinac Bridge on their way to inspect their controversial Line 5 under the Straits of Mackinac Wednesday, June 8, 2016. Using an autonomous underwater vehicle and a roving underwater vehicle over several days, the entire five-mile-long pipeline, which rests on supports along the bottom of Lake Michigan, will have been covered by both sonar and visual means.

Lansing – A Michigan judge has struck down a "constitutional defect" but otherwise upheld a recent state law that created a new authority to oversee construction of a Mackinac Straits tunnel poised to house a replacement for Enbridge's controversial Line 5 oil and gas pipeline. 

Court of Claims Judge Stephen Borrello on Friday rejected a request to invalidate the law because of a provision creating six-year terms for members of the new authority. Instead, Borrello ruled that members can only serve for four years, the maximum allowed under the Michigan Constitution. 

"The unconstitutional length of the term of office does not affect the authority of otherwise validly appointed board members," Borrello said of the law, approved in December by the Republican-led Legislature and signed into law during the final weeks of former Gov. Rick Snyder's tenure.

The ruling appears to answer one of six questions that Democratic Gov. Gretchen Whitmer has asked Attorney General Dana Nessel to review as part of a request for a formal legal opinion that could still invalidate the law in whole or part.  

Republicans made “critical mistakes” in drafting the law late last year, Whitmer said Friday during a community event at Northeast Elementary School in Jackson.

Snyder and legislative Republicans “pushed through” the controversial measure before Whitmer took office, “because they know that I don’t support keeping that pipeline in the water" while the tunnel is built, the governor said.

“Like anything, when you rush, you make mistakes, and the last governor and the Legislature, I believe, made some critical mistakes,” Whitmer added.

Nessel's office requested feedback as it prepares its legal opinion, which is expected within the month.

Business and environmental groups agreed that the six-year terms were unconstitutional, according to documents obtained by The Detroit News through a Freedom of Information Act request. But they disagreed over whether that flaw should invalidate the entire statute, and environmental groups organizations argued the law includes several other unconstitutional provisions.

A defect

Borrello's ruling was "consistent" with case law in past litigation involving impermissible terms, said Gary Gordon, an attorney for the Michigan Chamber of Commerce, which supports the planned utility corridor. 

But it answers "only one part of the six" questions that Whitmer asked Nessel to consider as her office drafts an official attorney general's opinion, he said. 

The lawsuit was filed by activist Robert Davis through his group "A felon's crusade for equality, honestly and truth." The former Highland Park school board member — who was convicted of embezzlement in 2014 — said he "didn't like the fact the Republican-led Legislature intentionally passed unconstitutional legislation."

Davis told The News he intends to appeal the portion of the ruling that will allow Snyder's initial appointees to serve four years on the tunnel authority despite the six-year provision.

"We won one portion of the argument, and I believe this  will assist the attorney general in issuing her opinion with respect to the questions that my lawsuit didn't address," Davis said.

The Michigan Constitution prohibits board terms that exceed four years, a provision designed to discourage governors from binding their successors to appointments for the duration of a four-year term.

The court must "remain mindful of the Legislature’s intent and strike only those provisions of the statute that are unenforceable," Borrello said in his ruling. The appointments themselves — "and all the trappings of decision-making associated therewith" — remain valid, Borrello wrote.

AG opinion coming soon

The Attorney General’s office is expected to issue its formal legal opinion on the tunnel authority law “within the next three or four weeks — tops,” said Nessel spokeswoman Kelly Rossman-McKinney.

House Speaker Lee Chatfield, R-Levering, is a vocal supporter of the tunnel project. Senate Majority Leader Mike Shirkey, R-Clarklake, is "confident that the legislation passed last term is sound," a spokeswoman previously said. 

Nessel's office invited feedback on legal questions surrounding the tunnel authority law and received filings from business groups, environmental organizations, a Western Michigan University law school student and the Straits of Mackinac Alliance, as first reported by MLive.

For Love of Water, an organization that has urged the state to shut down Line 5, called the six-year terms "an intentional end-run attempt to preclude the incoming governor from appointing new board members within her four-year constitutional term."

The chamber, in arguments submitted to Nessel, said the provision for a six-year term could be severed from the larger law. The business group made the case for the continued operation of Line 5 and said agreements between the new corridor authority, the state and Enbridge recognized that “paramount public interest.”

The 1953 pipeline “serves important public needs by providing substantial volumes of propane to Michigan citizens, particularly during cold winters like that which we all are now enduring,” Gordon said for the chamber.“Line 5 also transports essential products, including Michigan-produced oil to refineries, thereby supporting not only our State’s energy needs, but also our businesses and economy.”

But environmental groups argue the tunnel authority law violates several provisions of the Michigan Constitution, not just the six-year term rule. 

The National Wildlife Federation accused the chamber of “parroting” what it called a “misconception repeatedly advanced by Enbridge and its allies” that there are no viable alternatives to the pipeline's public service, including delivery of propane to the Upper Peninsula. 

“The evidence demonstrates that the real paramount public importance for the state of Michigan is to immediately stop the flow of petroleum products through the Mackinac Straits,” the environmental group said.

“The risks to the State are enormous and the benefits are negligible. The tunnel proposal worsens the risks without increasing the minimal benefits to the state because it allows the existing pipelines to continue in operation.”

Legally binding

Attorneys from the Environmental Law & Policy Center and the National Wildlife Federation argue the 2018 law also violates the Title-Object Clause of the Michigan Constitution, which usually requires laws to be focused around one purpose.

The new statute wrote the utility authority into an existing law that created the separate Mackinac Bridge authority. 

“There is nothing about a new Corridor Authority that will acquire, construct and operate an underground oil tunnel that necessarily relates to the Bridge Authority,” the environmental attorneys wrote.

The 2018 statute also amended the 1950 law by changing or enlarging the powers of the bridge authority without republishing the original version, as required under the Michigan Constitution, the group argued.

The law “adds a sweeping array of issues wholly unrelated to transportation or to the Mackinac Bridge, without republishing the very act that defines the scope of the MBA’s authority,” National Wildlife Federation attorneys said.

The chamber disagreed, telling Nessel the law did not violate constitutional provisions designed to ensure lawmakers and the public understand the scope of bills that are voted on. That discourages deception in the form of unrelated or unknown provisions slipped into legislation.

Legislators who voted for or against the 2018 law “were not misled into believing that ACT 359 was anything other than an enactment designed to support the development of a utility tunnel under the Straits that would house (among other utilities) a replacement Line 5,” Gordon said.

“The broad and singular purpose of the statute to promote the operation of a tunnel connecting the two Michigan peninsulas is clearly stated in its title,” he added.

Nessel’s opinion — whether she upholds the law or finds it unconstitutional — is sure to spark additional legal challenges over the fate of the pipeline and planned utility corridor.

An attorney general’s opinion is “binding on all agencies of the state unless set aside by a court,” said Robert Sedler, a constitutional expert and distinguished professor at Wayne State University Law School.

Sedler declined to talk specifics of the Line 5 case because he will be providing pro-bono advice to Nessel’s office on some legal opinions.

Whitmer said Nessel’s opinion will help her understand what her gubernatorial authority is in relation to tunnel agreements codified under Snyder.

“I believe we need to get the oil out of the water at the earliest possible moment, and I’m going to do everything in my rights to make sure that happens,” she said.