Michigan lawmakers ask to join legal fight between Enbridge, Nessel

Beth LeBlanc
The Detroit News

Lansing — The Michigan Legislature wants to enter the Line 5 legal fray between Attorney General Dana Nessel and Canadian oil company Enbridge Energy. 

House and Senate leaders asked a judge Thursday to let them to file a brief in support of the law they approved at the end of 2018 that allowed Enbridge to enter an agreement with the state to pay for and construct a $500 million tunnel to house its  pipeline beneath the Straits of Mackinac. 

Michigan Attorney General Dana Nessel.

In March, Nessel opined the law was unconstitutional because its initial title did not match the eventual content of the bill. In June, Enbridge initiated legal action, asking the state Court of Claims to rule the agreement is valid and enforceable. 

In its proposed brief Thursday, the Michigan Legislature defended the law, noting it proceeded from “years of public discussion” about the pipeline, committee meetings on the bill, extensive media coverage of the bill’s evolution through the legislative process and eventual bipartisan support for the measure. 

“That the legislation changed in response to the comments received to incorporate suggestions on better ways to accomplish the same ends is undisputed, and an example of good democracy at work,” lawmakers said in their filing.

Nessel’s “absurd assertion” that lawmakers didn’t understand the law they passed is an effort to obtain a “retroactive veto” and “would place a stranglehold on the Legislature’s ability to pass laws,” the brief said. 

“The attorney general now asks this court to endorse an exercise of ‘pedantic tyranny,’ by which she seeks to usurp the lawmaking powers denied to her office,” the brief said. 

Republican former Gov. Rick Snyder signed the legislation at the end of  2018 after years of debate regarding the pipeline’s reliability, which has been questioned by environmentalists worried about a spill from the 66-year-old dual pipeline. 

After undergoing changes and revisions in the Legislature, the bill created the Mackinac Straits Corridor Authority to authorize and oversee the construction of a roughly 4-mile tunnel to house Line 5, protecting it from potential anchor strikes. 

Democratic Gov. Gretchen Whitmer, who campaigned with Nessel on vows to close Line 5, took immediate action upon taking office to question the law and later entered negotiations with Enbridge largely regarding the timeline for the project. 

Enbridge has said the shortest time frame it could construct the tunnel in was five years, but Whitmer insisted on a two-year completion, according to the company. Shortly after reaching an impasse, Enbridge filed its request with the Court of Claims. 

The lawmakers’ filing Thursday comes the same day Nessel’s office filed its latest argument about why the lawsuit should be dismissed.

Nessel accused Enbridge of presenting a “self-serving” version of the history of the company’s agreement with the state and of erroneously suggesting public debate was enough to excuse a lack of correlation between the act’s actual title and content. 

The company “repeatedly mischaracterizes the state defendants’ arguments and erects ‘straw person’ positions that state defendants have not and do not advocate,” Nessel’s office wrote. 

Nessel’s brief comes roughly two weeks after the Canadian oil company pushed back against Nessel’s attempt to dismiss the lawsuit. Enbridge argued in early August that the laws governing the project were “duly enacted” and accused Nessel of politically motivated opposition to Line 5 and the tunnel project. 

Given Nessel’s vows on the campaign trail to shut down the pipeline, “it came as no surprise” when she said the tunnel legislation is unconstitutional, Enbridge wrote in its Aug. 1 brief. But the legislation was approved after extensive debate and media coverage, the company said.

“The Legislature’s policy choices cannot be thwarted by others with their own preexisting agenda,” the company wrote. 

With both parties’ motions and responses now filed, the court will decide whether to hold oral arguments on Nessel’s request to dismiss. 

Enbridge's legal action in the Court of Claims is separate from a lawsuit Nessel filed in June in Ingham County Circuit Court to decommission Line 5 immediately. Enbridge has not yet responded to the initial complaint in that matter.