Nessel to court: Shut down Line 5 as environmental risk

Beth LeBlanc
The Detroit News
Enbridge provided this photo documenting damage to the east pipeline of Line 5 caused by an April 2018 anchor strike to a U.S. Senate committee.

Lansing — Attorney General Dana Nessel has asked a state court for an order to shut down and decommission Enbridge's Line 5 oil pipeline in the Straits of Mackinac.

Nessel argues the Canadian company's 66-year-old pipeline's easement is a public nuisance and violates public trust and environmental laws. 

In what she called a "one-two legal punch," the attorney general also asked the Michigan Court of Claims to dismiss separate legal action filed by Enbridge asking the state to find the agreement for the building of a utility tunnel beneath the Straits valid and enforceable. Nessel opined in March that the agreement was unconstitutional and argued as much in her Thursday filing.

Nessel had promised to file legal action against the Canadian pipeline giant while on the campaign trail but bided her time as Gov. Gretchen Whitmer attempted to reach an agreement with Enbridge that would expedite the tunnel construction process. When the talks stalled in early June, "there was no need for further delay," the attorney general said. 

Enbridge had not yet evaluated Nessel's filing, but the company expressed disappointment that the state would not "advance talks on the Straits tunnel."

"The state also ignored our offer to suspend litigation and jointly appoint an independent, Michigan-based moderator to help facilitate the discussions," Enbridge said in a statement. "We also committed to making additional safety enhancements to the current line."

The easement lawsuit filed in Ingham County Circuit Court asks the court to order the pipeline shutdown because of the environmental risks from a potential rupture due to anchor strike. 

"The debate over Line 5 has been raging for over five years,” Nessel said in a statement.  “Real-world events have shown me we can’t wait another five to 10 years for Enbridge to build a tunnel.

"We cannot prevent accidental or emergency anchor deployments in one of the busiest shipping channels in the Great Lakes. And it only takes one such incident to cause an environmental and economic catastrophe. That is a risk no one should be willing to take.” 

Doubling down on Nessel's lawsuit, Whitmer on Thursday directed the Department of Natural Resources to start "a comprehensive review of Enbridge's compliance with the 1953 easement, and other factors affecting its validity."

"Possible violations of the easement are just one of several grounds by which the state could seek to shut down the pipelines, some of which the attorney general has already invoked today," Whitmer press secretary Tiffany Brown said.

Enbridge hopes to reach an agreement outside of court and resume conversations with the governor. Whitmer said she remains willing to speak with Enbridge. 

"Enbridge is deeply committed to being part of Michigan’s future," the company said in a statement. "We believe the Straits tunnel is the best way to protect the community and the Great Lakes while safely meeting Michigan’s energy needs."

Michigan Senate Republicans on Thursday urged Whitmer in a letter to reach a compromise with Enbridge that would "ensure the continued operation and long-term safety of the Line 5 oil pipeline." The shutdown of the pipeline, they said, would result in the loss of thousands of construction jobs expected from the tunnel construction, an increase in costs at Detroit and Toledo refineries and the loss of a significant mode of propane transportation in Michigan. 

"It is estimated that replacing the propane lost by closing the line would require an additional 30,000 truckloads and 9,600 rail cars annually," the letter said. 

Lawsuit strategy

Nessel's lawsuit asks the judge to issue a permanent injunction that would force Enbridge to cease operation of the line and permanently decommission it. Specifically, the lawsuit alleges Enbridge's easement was "void from its inception" and a violation of the public trust, that the pipeline is a public nuisance and that the line would likely violate the Michigan Environmental Protection Act by causing "pollution, impairment or destruction of water and other natural resources."

The court filing alleges Enbridge's 1953 easement violates the public trust because officials never showed the easement would improve public trust activities — such as navigation, fishing or recreation — nor did it include assurances that the easement would not impair the public trust. Lacking either of those guarantees, the easement is void under the public trust doctrine, the lawsuit argues. 

Likewise, the lawsuit said, the continued transport of petroleum through a busy shipping channel as authorized by the 1953 easement "cannot be reconciled with the state's duty to protect public trust uses of the lakes, including fishing, navigation, and recreation from potential impairment or destruction."

Specifically, a 2017 state-commissioned dynamic risk report that said the greatest risk to the pipeline was an inadvertent anchor strike. An actual anchor strike in 2018 exposed "an extreme vulnerability for a catastrophic oil spill" and, by continuing to operate, generate a "public nuisance," the lawsuit said. 

The attorney general's decision to pursue a public nuisance argument is a "creative" and necessary approach to the laws surrounding easements, said Charles Ten Brink, a professor in Michigan State University's College of Law.

Most lawsuits seeking to revoke an easement make the argument that the easement holder violated the terms of the original agreement through an expansion or new use, but Enbridge appears to be using its 1953 easement as it always has, Ten Brink said. 

That leaves Nessel's office making the argument that Line 5 has since become a public nuisance because of the environmental threat it poses. 

"Clearly, they’re going to say that the danger of this constitutes an abuse of the easement," Ten Brink said. "There’s not a lot of law on this. The arguments on easements ... typically involve the expansion of use rather than the nuisance view.”

The easement lawsuit was "properly brought" in Ingham County Circuit Court rather than consolidated with Enbridge's Court of Claims case because they concerned different issues, Nessel's office said. The easement case has been assigned to Ingham County Circuit Judge James Jamo, while Enbridge's legal action was assigned to Court of Appeals Judge Michael Kelly. 

The filing in Ingham County drew questions from at least one lawyer, Bob LaBrant, a former Michigan Chamber of Commerce executive and Republican consultant who lobbied to move the Court of Claims into the Court of Appeals in 2013 to handle cases of statewide concern. 

The case should be consolidated with the Enbridge filing in the Court of Claims or filed in a court closer to the Straits, such as Emmet or Mackinac counties, LaBrant said. 

"Right off the top of my head, I would say she’s in the wrong venue," LaBrant said. "This sounds like forum shopping to me.”

Nessel's office said it would not "publicly debate" its legal strategy but noted that two separate statutes allow the attorney general to file in Ingham County Circuit Court. 

A history of concern

Environmentalists have long worried about the pipeline running along the lake bed between the Upper and Lower peninsulas, fearing a catastrophic oil spill similar to a June 25, 2010, spill from an Enbridge line in Marshall.

Concerns about the line heightened in April 2018 when a tug and barge accidentally deployed its anchor and dragged it across the lake bottom, severing three transmission cables and gouging Line 5. A federal report this month said the tug and barge didn’t realize its 12,000-pound anchor had paid out until it neared Indiana Harbor at the other end of Lake Michigan.

Negotiations with the state took on a new urgency after the April strike and by the end of the year, Enbridge had agreed to build a $500 million tunnel 100 feet below the lack bed to house Line 5 and other potential transmission lines. 

In March, Nessel issued an opinion that said Enbridge’s agreement with the state was unconstitutional because it stemmed from invalid legislation that created the Mackinac Straits Corridor Authority to oversee and enter into the agreement with Enbridge.

The legislation, Nessel said, violated the state Constitution’s “title-object clause” because the final language lawmakers approved late last year didn’t match the original title on the law. The inconsistency would make it difficult for lawmakers to understand the details of the law when they voted.

The Republican-led Legislature criticized Nessel’s opinion, but Whitmer acted on it, ordering state agencies to stop any work they were performing to move the tunnel project forward. She later entered negotiations with the Canadian pipeline giant.

Those talks stopped in June when the governor said Enbridge wouldn’t agree to a firm shutdown date for the aging line and Enbridge said it couldn’t meet the two-year deadline Whitmer was seeking.

Enbridge has maintained the fastest it could complete the 4.5-mile utility tunnel is in five years but has worried about the prospect of permitting delays or other issues.

Enbridge took legal action in the Michigan Court of Claims earlier this month after negotiations with Whitmer soured on June 4. In its filing, Enbridge asked the court to rule that laws passed by the state Legislature and agreements allowing for the construction of the utility corridor were valid and enforceable.

(517) 371-3661