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After Nessel opinion, future unclear for Enbridge Line 5 tunnel, authority

Beth LeBlanc
The Detroit News
After Attorney General Dana Nessel said in an opinion that the law creating an authority to authorize and oversee construction of Enbridge's controversial Line 5 oil pipeline tunnel below the Straits of Mackinac is unconstitutional, the future of the project is uncertain.

The path forward for building a tunnel to house Enbridge's controversial Line 5 oil pipeline below the Straits of Mackinac remains unclear after Attorney General Dana Nessel said the law creating an authority to oversee tunnel construction is unconstitutional.

A couple of hours later, Gov. Gretchen Whitmer ordered state agencies to halt their work on the project.

Republican Senate leadership has indicated the Mackinac Straits Corridor Authority could challenge the Democratic governor’s directive, but the authority’s board chairman doubts the panel has the power to do so.

"From the authority perspective, there aren’t a lot of options because her decision more or less abolished the authority," Chairman Mike Nystrom of East Lansing said. 

Nystrom said Nessel’s office is the board’s only option for representation, making the board's involvement in any type of litigation opposing Nessel or Whitmer's decisions “a little bit of a challenge in my mind.”

The law in question requires the state to pay the authority's attorney costs should the attorney general decline to represent its interests, but Nessel's opinion calling the entire law unconstitutional could render that provision moot. 

“At this point, it’s up to Enbridge to make decisions on how they decide to go forward,” said Nystrom, who also is executive vice president for the Michigan Infrastructure and Transportation Association. “I’m hopeful that they and Gov. Whitmer find a way to continue on with this project.”

Board member Anthony England said he was still uncertain what the panel’s options were. Member James "J.R." Richardson deferred to Nystrom.

Nessel's opinion essentially rendered the authority “dead in the water,” but it's unclear whether the opinion completely relieves the board members of their responsibilities, said England, who is also dean of the College of Engineering and Computer Science at the University of Michigan-Dearborn.

“The issue is we took an oath to do the job of monitoring the tunnel,” England said. “So I think we’re going to have to decide either to resign or challenge this in court.”

In her Thursday opinion, Nessel found the Legislature’s lame-duck passage of a law creating the Mackinac Straits Corridor Authority violated the state’s “title-object” clause because last-minute changes to the bill rendered it different from the original title and intent.

Two weeks before Nessel and Whitmer took office, the Mackinac Straits Corridor Authority voted on Dec. 19 to approve an agreement with Canadian firm Enbridge for the construction of a four-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.

But the authority and its approval of the state's agreement with Enbridge likely would be voided by a court ruling that found the law creating the authority was unconstitutional, Nessel wrote.

The actual language of the law passed last year requires the attorney general to pay for the authority's representation should he or she decline to represent the authority "in a matter related to the utility tunnel." But Nessel's opinion seems to indicate that provision would be voided as well.

On Monday, Nessel's office declined to say who would represent the authority because, without an indication that the board intends to challenge the opinion, such speculation would be "hypothetical and premature."

Nessel's office clarified that her opinion does not abolish the authority, just concludes the law creating it is unconstitutional. However, in a letter to the authority Thursday, Nessel advised the panel "to refrain form any further action."

Senate Majority Leader Mike Shirkey told Bridge Magazine Sunday that the Mackinac Straits Corridor Authority board was authorized to file a lawsuit against the state’s decision to stop working with Enbridge on permit reviews and plans. The Clarklake Republican also said Nessel's opinion was a “shameful” effort to challenge legislative actions.

Nessel took a dim view of the comments on social media, noting that Shirkey is not a lawyer.

“Want laws to withstand constitutional scrutiny?” the attorney general wrote Monday on Twitter. “Pass better laws.”

Shirkey responded on Twitter Monday, saying he thinks her opinion is "wrong" and the attorney general "doesn’t have the power of scrutiny over constitutional issues. That’s why it’s called an opinion."

House Speaker Lee Chatfield, R-Levering, called Nessel’s opinion “laughable” and  “grasping at straws” in a WJR interview Monday.   

“The title object clause is required by our Constitution so the people in the chamber know what they’re voting on,” Chatfield said. “I will tell you this, the people in the chamber knew what they were voting on when that bill was on the board.”

The Whitmer administration has yet to inform residents of an alternative plan forward that could satisfy both the protection of the Great Lakes and continued, affordable energy resources for the Upper Peninsula, the speaker said.

“What it will depend on now is on the relationship between Enbridge and the state of Michigan, but I want to hear, 'What's the plan?'” Chatfield said.

Enbridge Energy said last week it was “surprised and disappointed” by Nessel’s opinion but said it would continue to operate Line 5 safely, “as it has for more than 60 years.”

“We’re going to be working with the administration to find the best way forward,” Enbridge spokesman Ryan Duffy said Monday. “We’re still evaluating the next steps.”       

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