Enbridge: AG lacks power to 'second guess' Line 5 tunnel agreement

Beth LeBlanc
The Detroit News

More than three months since negotiations with the governor broke down and the attorney general sued for the immediate closure of Line 5, Enbridge continues to monitor, secure and transport oil through the Straits of Mackinac.

Enbridge has been and will continue preliminary work on the Straits of Mackinac tunnel project while weather permits, was just approved to install 54 supports for the existing structure and is asking a Lansing judge to dismiss Attorney General Dana Nessel’s case against the company.

Enbridge installs one of 54 steel anchors along unsupported spans of the Line 5 oil pipeline beneath the Straits of Mackinac on Tuesday, Sept. 24, 2019.

“Where, as here, the Legislature has made a considered judgement about how best to fulfill its duties, the attorney general has no authority to second-guess that judgement — or ask the courts to do so,” Enbridge wrote in a Sept. 16 motion to dismiss Nessel’s lawsuit.

On Friday, the Canadian pipeline giant received a permit form the U.S. Army Corps of Engineers to install supports along its Straits of Mackinac span in sections where erosion or shifting currents had dug out the lake bottom supporting the structure. On Tuesday night, it finished installing two of the 54 steel supports.

The supports, for which Enbridge requested permits last year, are required for the company to maintain compliance with its easement agreement that requires supports for exposed sections measuring more than 75 feet.

It is the same easement agreement that Nessel is challenging in Ingham County Circuit Court, where she’s asked a judge to rule that Enbridge's 67-year-old oil easement is invalid and that the safety risk of the pipeline violates state law.

When she announced the lawsuit in June, Nessel said "real-world events" show the state cannot wait five to 10 years for Enbridge to construct a tunnel on the lake bed. 

"We cannot prevent accidental or emergency anchor deployments in one of the busiest shipping channels in the Great Lakes," she said. "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.”

The argument over the future of Line 5 has drawn battle lines between environmentalists and industry, Republicans and Democrats, and usually Democratic-leaning union workers who stand to benefit from eventual construction of the $500 million utility tunnel planned to house Line 5.

Enbridge’s dual span transporting roughly 540,000 barrels of light crude oil daily under the Straits of Mackinac has been a source of increasing concern for environmentalists and the subject of state-initiated safety studies since a separate Enbridge line in Marshall, Michigan, ruptured in 2010.

Last year, Republican former Gov. Rick Snyder and the GOP-led Michigan Legislature entered an agreement with the company to build a roughly 4-mile tunnel on the Straits lake bottom to house the line, but Democratic Gov Gretchen Whitmer, who vowed on the campaign trail to close the pipeline, expressed concerns about the roughly 10-year window in which Enbridge initially said it could complete the tunnel.

Nessel opined in March that the Legislature’s lame duck effort to create a framework and governing authority over the tunnel was unconstitutional. And, when the governor was unable to get Enbridge to agree to a 2-year timeline for tunnel construction, the company asked a judge to counter Nessel’s opinion and rule the tunnel agreement valid and enforceable.

Enbridge has been completing geotechnical borings in the Straits this summer to prepare for tunnel construction with state permits it received prior to Whitmer halting state work on the pipeline in March. The corps’ Friday permits will allow the company to install supports on exposed sections of the pipeline this week and bring an unsupported 81-foot span back in compliance with its state easement.

“Since 2002 we have installed 147 supports on Line 5, and they have performed well in enhancing the safety of the Line,” the company’s spokesman Ryan Duffy said in a statement.

In June, Nessel asked that Enbridge’s case seeking affirmation of its tunnel agreement be dismissed and filed her own lawsuit seeking the pipeline’s closure based on questions regarding the validity of the company’s 1953 easement, the possibility for an oil spill and the public nuisance such a release would create in the Great Lakes.

Last week, the company responded with its own motion seeking the dismissal of Nessel’s lawsuit, claiming its easement is valid and the risk of a spill is “un-quantifiably low.”

The motion claimed that Nessel was violating the separation of powers by trying to undo what the Legislature had seen fit to approve. The filing also alleged Nessel overstepped her state jurisdiction by raising safety concerns in a regulatory environment usually patrolled by federal authorities such as the Pipeline and Hazardous Material Safety Administration and the U.S. Coast Guard.

“…to permit the Michigan attorney general to regulate these interstate operations is to permit the same regulation fifty times over,” Enbridge’s filing said. “If permitted, this patchwork of state regulation over safety standards for interstate pipelines would wreak havoc on the industry.”

Nessel's office disagreed with Enbridge's arguments "and will be detailing why in the response we will file by October 28th," spokeswoman Kelly Rossman-McKinney said. 

The tunnel is the best solution for the concerns raised in Michigan and Enbridge plans to continue moving forward with roughly $40 million in geotechnical work at the site, Duffy said. The company maintains the safety of the existing line.

“We remain open to discussions with the governor, and are hopeful we can reach agreements outside of court," Duffy said.

The governor's office was not as optimistic, arguing Enbridge abandoned the negotiations. 

"Enbridge sued the governor and walked away from the table; they’ve not come back since," Whitmer spokeswoman Tiffany Brown said.