Nessel's opinion used to halt Line 5 tunnel work

Beth LeBlanc
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 — Gov. Gretchen Whitmer used a legal opinion issued Thursday by Attorney General Dana Nessel to halt work on Enbridge's Line 5 tunnel replacement that was negotiated by former Gov. Rick Snyder.

The opinion, Nessel’s first in office, is expected to pit the Democratic attorney general and governor against the Republican-controlled Legislature in court. They are headed for a battle over the legality of the law passed in December and its critical role in the construction of the utility tunnel meant to house Enbridge's controversial Line 5 oil pipeline. 

Nessel wrote in her opinion that the law that created the authority to approve Enbridge’s Line 5 tunnel agreement with the state was unconstitutional “because its provisions go beyond the scope of what was disclosed in its title.”

Any court ruling that finds the law unconstitutional would apply retroactively, voiding the authority, its board and any of its actions, including the approval of a tunnel beneath the Straits of Mackinac to house Enbridge's Line 5 oil pipeline, she said.

Shortly after Nessel issued her opinion, Whitmer signed an executive directive ordering all state departments to stop any activity related to the tunnel project approved by the authority and "report to the governor's legal counsel regarding actions taken since the bill was passed."

“I agree with the conclusion reached by Attorney General Nessel,” Whitmer said in a statement. “The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law.” 

In a statement late Thursday, Enbridge said it was “surprised and disappointed” by Nessel’s opinion and said the line would continue operating safely, “as it has for more than 60 years." The company will ask the administration to clarify the "path forward.”

“Enbridge worked in good faith with the Michigan government on the tunnel project,” Enbridge Chief Legal Officer Bob Rooney said. “We disagree with the Attorney General’s opinion and continue to believe in the benefits of the tunnel.”

Legislative Republican leaders have said they believe the law is constitutional. Senate Majority Leader Mike Shirkey, R-Clarklake, said in a Thursday statement the upper chamber will "pursue its options in order to advance the very important work and purpose of the energy tunnel."

"An AG opinion is exactly that, an opinion," Shirkey said. "It’s not binding. It's not final. And it's certainly not without cause to challenge."

Enbridge was issued its first permit for the tunnel project by the Michigan Department of Environmental Quality in January to begin taking rock and soil samples from the Straits area. Enbridge couldn't be reached for comment.

But House Speaker Lee Chatfield, R-Levering, said Whitmer and Nessel need to stop the "campaign rhetoric and just do the right thing."

"Hundreds of thousands of people rely on the line to heat their homes and survive, and we all rely on the Great Lakes for our economy and our way of life," Chatfield said in a statement. "... This administration needs to protect the people of our state, secure our critical Mackinac Straits and approve the tunnel project immediately.” 

House Majority Floor Leader Triston Cole said Nessel's opinion threatens the energy rate relief Northern Michigan residents would have realized and jeopardizes the jobs that would have stemmed from the tunnel construction. The Mancelona Republican said Nessel's opinion "splits legal hairs for political brownie points" over a decision that was thoroughly vetted.

"This plan was put forward after months of debate, public testimony and rigorous investigation," Cole said in a statement. "There were few issues discussed more publicly than constructing a tunnel for Line 5."

Partisan sparring expected

While Whitmer's proposed 45-cent gas tax or 171 percent increase may have sparked the first big fight between the Democratic governor and GOP-led Legislature, the Line 5 issue will "continue the sparring and it's not going to cease," said David Dulio, head of the political science department at Oakland University.

The decision shouldn't surprise those who listened to the campaign trail promises of Whitmer and Nessel, but the pluck of the Republican legislative majority — several members fewer than the lame-duck majority that passed the legislation — remains to be seen, Dulio said.

"We’ll have to see what the will of the Legislature is to fight that, but I have to believe they’ll at least start the process," he said. 

The Mackinac Straits Corridor Authority, assembled days before the close of 2018, voted Dec. 19 to approve an agreement with Canadian firm Enbridge for the construction of a controversial 4-mile-long tunnel underneath the Straits of Mackinac. The project would cost up to an estimated $500 million and replace the 65-year-old dual pipelines carrying natural gas and oil underneath the Straits of Mackinac.

The approvals came before the Jan. 1 inaugurations of Whitmer and Nessel, who campaigned on promises to shut down the aging pipeline rather than allow it to operate for up to 10 years during the tunnel's construction.

Whitmer’s Jan. 1 letter seeking an opinion from the attorney general asked Nessel to “resolve any legal uncertainty” around the agreement, specifically questioning the length of appointments, the title of the law and potential conflicts with the state Constitution.

The original language of the bill as introduced in November would have given the Mackinac Bridge Authority oversight of Enbridge’s proposed Line 5 tunnel.

But the legislation was later changed after members of the Mackinac Bridge Authority opposed the added responsibility and others voiced concerns about keeping Mackinac Bridge funds from mingling with those dedicated for the tunnel. 

Substitutes to the bill included a host of changes, the largest being the creation of the Mackinac Straits Corridor Authority, the authority board, the Straits Protection Fund and a provision requiring the state’s labor pool be engaged in tunnel construction.

Law's technical problems

In her Thursday opinion, Nessel said the changes that ceded utility tunnel oversight from the Mackinac Bridge Authority to the Mackinac Straits Corridor Authority violated the title-object clause of the Michigan Constitution. The amended title of the act did "not provide ‘fair notice’ of an imminent tunnel agreement authorizing the construction of a utility tunnel,” she wrote.

“The transfer of all powers and duties relating to the acquisition of a utility tunnel for the Bridge Authority to the Corridor Authority is not simply an extension of the main purpose reflected in the title,” Nessel added.

The clause bars laws from encompassing “more than one object” not reflected in the title of the law and stops the Legislature from changing the bill’s original intent “as determined by its total content and not alone by its title.”

The clause was meant to stop “legislation that didn’t give lawmakers clear notice of what they were voting on,” Nessel’s office said.

The finding likely would work retroactively “and conclude that the Mackinac Straits Corridor Authority, its board and any action taken by the board are void from their inception.”

In response to a separate lawsuit filed in relation to the Line 5 agreement, Michigan Court of Claims Judge Stephen Borrello earlier this month rejected a request to invalidate the Corridor Authority law because of a provision creating six-year terms for members of the new authority.

Instead, Borrello ruled that board members can only serve for four years, the maximum allowed under the Michigan Constitution. The issue of board members' term durations was one of the questions Whitmer raised in her request to Nessel. 

The Michigan League of Conservation Voters applauded Nessel's opinion and the potential ramifications for the continued operation of the Line 5 pipeline beneath the Straits of Mackinac. 

“Attorney General Nessel’s opinion rightly reinforces what we said before: that the tunnel authority is nothing more than an unconstitutional backroom deal by Gov. Snyder and Enbridge Energy to keep this pipeline operating," said Bob Allison, the league's deputy director. "We urge Gov. Whitmer to work with the attorney general to shut it down and keep oil out of our Great Lakes.”

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