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Appeals court ruling means state must process Line 5 tunnel permits

Beth LeBlanc
The Detroit News

Lansing — A state Court of Appeals ruling Thursday reaffirmed Enbridge Energy’s right to move forward with plans for tunnel construction to house the controversial Line 5 oil pipeline beneath the Straits of Mackinac.

In a brief 2-1 decision from the Court of Appeals, judges Michael Gadola and Patrick Meter denied Michigan Attorney General Dana Nessel’s request to stay a lower court opinion that overruled Nessel’s objections to the agreement that allowed for the tunnel construction.

Appeals Judge Amy Ronayne Krause wrote she would have granted Nessel’s request, noting that arguments for and against the constitutionality of the tunnel agreement “seem very well-reasoned and a stay should be granted until the appeal on this issue in this court is resolved.”

A diver inspects the Line 5 oil pipelines at the bottom of the Straits of Mackinac in 2013.

The appellate decision came after the Michigan Court of Claims in October ruled Enbridge Energy’s tunnel construction agreement with the state of Michigan — entered into under Republican former Gov. Rick Snyder — was valid.

Nessel filed a brief Thursday with the Court of Appeals to reverse the decision, arguing the agreement was unconstitutional because it violated the title-object clause of the state Constitution and involved two unrelated objects: the tunnel and the Mackinac Bridge.

Nessel's request would have temporarily halted the implementation of the Court of Claims opinion pending appeal.

Without the stay, the agreement remains in effect, overruling Democratic Gov. Gretchen Whitmer’s March executive directive ordering agencies to stop processing permit applications for Enbridge.  

“If Enbridge applies for permits needed for the construction of the proposed tunnel, state agencies would have the responsibility to process the applications as provided by law; the potential unconstitutionality of Act 359 is not a basis at this time for declining to do so,” said Nessel spokeswoman Kelly Rossman-McKinney.

Enbridge, which completed roughly $40 million of work in 2019 on the tunnel, is expected to begin submitting applications for the next phase of the project in February or March.

“It is clear from the court’s decision in October, its decision to reject the Attorney General’s stay request, and now this decision, that Enbridge’s 2018 agreements with the state are valid and constitutional,” said Enbridge spokesman Michael Barnes.

“It is now time for Enbridge and the state to move forward together with the Great Lakes tunnel project,” Barnes said.

Line 5 has concerned environmentalists and state officials since a separate Enbridge line near the Kalamazoo River spilled oil in 2010. Enbridge ended up paying $1.2 billion for the cleanup and restoration of the area.

Activists fear a similar spill from Line 5 in the straits, where the 66-year-old dual span transports up to 540,000 barrels per day of light crude oil and natural gas liquids. Such a spill would have a catastrophic effect on the Great Lakes because of the pipelines' placement between lakes Michigan and Huron.

Pipeline supporters have raised concerns about what a shutdown would mean for the Upper Peninsula, which relies on the natural gas liquids for propane.

Whitmer negotiated with the company last year in an attempt to shorten the time frame for tunnel construction from five to two years.

When the negotiations fell apart, Enbridge filed its suit in the Court of Claims seeking a ruling on the validity and enforceability of its agreement with the state and Nessel filed a lawsuit in Ingham County Circuit Court seeking the pipeline’s immediate shutdown on the argument that it was a public nuisance and environmental risk.