Michigan judge clears way for Enbridge to build Line 5 tunnel

Craig Mauger
The Detroit News

Lansing — A Michigan Court of Claims judge has sided with Enbridge Energy in a legal battle and ruled the company should be able to build a new tunnel to house the Line 5 oil pipelines beneath the Straits of Mackinac.

But after the ruling was released Thursday, Attorney General Dana Nessel and Gov. Gretchen Whitmer vowed to appeal it.

"We will appeal this decision," Nessel said in a statement. "The State of Michigan will not rely on a foreign corporation to protect and preserve our state’s most precious resource, its Great Lakes."

“The governor is committed to protecting the Great Lakes," Whitmer spokeswoman Tiffany Brown said. "The administration clearly disagrees with today’s ruling, and we plan to appeal.”

House Speaker Lee Chatfield, R-Levering, welcomed the judge's decision.

"This is great news for thousands of Michigan’s families & our statewide economy," Chatfield tweeted Thursday. "With this ruling, people will have peace of mind that they are not going to be left out in the cold this winter by political gamesmanship.

"We need these jobs. We need this tunnel. Let's get it built."

Republican lawmakers with the backing of some Democrats and GOP Gov. Rick Snyder approved a law at the end of the 2018 session that sought to secure the tunnel project despite opposition from Whitmer and Nessel, both Democrats. The tunnel's supporters see Line 5 as a vital source of natural gas and propane for heating homes in the Upper Peninsula and the rest of Michigan.

An  April 24, 2018 photo shows damage to the east pipeline of Line 5 caused by an anchor strike.

In a March 2019 opinion, Nessel said the law violated the Constitution's title object clause “because its provisions go beyond the scope of what was disclosed in its title.”

Enbridge officials said the Michigan Legislature met the title object requirements when they passed the law and hoped the state court would declare the law valid.

In his ruling, Court of Claims Judge Michael J. Kelly wrote that a utility tunnel spanning the Straits of Mackinac was "germane, auxiliary or incidental" to the law's general purpose.

"Here, regardless of whether the Court agrees with defendants about the lack of tidy draftsmanship, the argument advanced by defendants misses the mark," Kelly added.

The section of the Michigan Constitution in question says no law should embrace more than one object, "which shall be expressed in its title."

The Michigan Supreme Court has previously focused on the idea that the requirement is "intended to provide notice and to prevent the passage of statutes not fully understood," Kelly wrote. That wasn't the case with the tunnel legislation that became Public Act 359, the judge said.

"And here, the Supreme Court’s discussion is persuasive, given that there have been no serious assertions that anyone was misled as to the contents and object of PA 359," Kelly added. "Rather, the contents of Act 359 were well known, as evidenced by the strong policy-based reactions the Act has drawn."

Shortly after Nessel issued her opinion in March that the 2018 law was unconstitutional, Whitmer used the opinion to halt work on the tunnel in the Straits of Mackinac.

Whitmer signed a directive ordering state departments to stop activity related to the tunnel project and "report to the governor's legal counsel regarding actions taken since the bill was passed."

But Enbridge was allowed to proceed with rock and soil samples for which it already had received permits. The work “preserves the schedule to complete the tunnel at the earliest possible date,” which is expected to be five years from now in 2024, the Canadian company said in June.

The geotechnical work is part of the $40 million the Canadian company plans to spend this year in the beginning phases of its construction of a $500 million utility corridor project.

Nessel has also challenged Enbridge in Ingham County Circuit Court, where she has asked a judge to rule that Enbridge's 67-year-old easement is invalid and that the safety risk of the pipeline violates state law.

Environmental groups have argued against the tunnel's construction and are concerned Line 5 could rupture in Straits of Mackinac before the tunnel is finished. Mike Shriberg, Great Lakes executive director for the National Wildlife Federation, called the Court of Claims ruling "scary for the Great Lakes" and criticized the 2018 legislation as lacking a deadline for decommissioning the existing Line 5.

“Whether the Court of Appeals eventually reverses this decision or not, without a timeline for shutting down the existing Line 5, any tunnel discussion is as illusory as a Halloween ghost," Shriberg said.

As for Enbridge, the company remains "fully committed" to the tunnel project, spokesman Ryan Duffy said Thursday evening.

"We continue to believe the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated during the period while the tunnel is being constructed," Duffy added. "And we are committed to build it."

The Consumer Energy Alliance also welcomed the ruling as potentially ending "the constant delays and political games" surrounding Line 5.

“It’s time to put our unions back to work and ensure our families and businesses across the state have access to affordable energy delivered by infrastructure that will be equipped with the latest technology and environmental protections," Consumers Energy Alliance Michigan State Director Chris Ventura said in a statement.

"The Line 5 tunnel project will not only be one of the safest pipelines in the country; it will serve as a critical piece of infrastructure moving Michigan into the future.”