Whitmer, Nessel lose as appeals court upholds Line 5 tunnel law

Karen Bouffard
The Detroit News

Lansing — The Michigan Court of Appeals has unanimously upheld the constitutionality of a law to let Enbridge build a tunnel to house the 66-year-old Line 5 under the Straits of Mackinac — another setback for Attorney General Dana Nessel's quest to stop the operation of the oil pipeline.

The three-judge panel rejected the technical arguments of Nessel, who argued in a March 2019 opinion that the law violated the Michigan Constitution's title object clause “because its provisions go beyond the scope of what was disclosed in its title.”

Oil pipeline operator Enbridge moves under the Mackinac Bridge on their way to inspect their controversial Line 5 under the Straits of Mackinac Wednesday, June 8, 2016. Using an autonomous underwater vehicle and a roving underwater  vehicle over several days, the entire five-mile-long pipeline, which rests on supports along the bottom of Lake Michigan,will have been covered by both sonar and visual means.

Appeals court judges Thomas Cameron, Mark T. Boonstra and Anica Letica ruled the title of the 2018 law "does not address objects so diverse that they have no necessary connection."

The panel upheld an October 2019 ruling by Kelly, who wrote that a utility tunnel spanning the Straits of Mackinac was "germane, auxiliary or incidental" to the law's general purpose.

The governor's office is reviewing the decision, said Tiffany Brown, spokeswoman for Gov. Gretchen Whitmer. Nessel's office didn't immediately respond to a request for comment.

Republican lawmakers with the backing of some Democrats and GOP then-Gov. Rick Snyder approved a law at the end of the 2018 session that sought to secure the tunnel project despite opposition from Gov.-elect Whitmer and Nessel, who are 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.

In office, Whitmer issued an executive order directing state departments not to implement the 2018 agreements forged by the Snyder administration and Enbridge.

The Canadian firm, which agreed to build the $500 million tunnel at no cost to Michigan taxpayers, decided to sue Whitmer and other state officials to ensure the building of the tunnel could proceed.

"The Appeals Court decision once again confirms that Act 359 is constitutional and that Enbridge’s agreements with the State of Michigan are valid and enforceable," Enbridge spokesman Ryan Duffy said in a Thursday statement.

"We look forward to working with the state to make a safe pipeline even safer. We are investing $500 million in the tunnel’s construction — thereby further protecting the waters of the Great Lakes and everyone who uses them."

Since the Legislature amended the title of the 1952 law to include the words "utility tunnel" and "bridge," the changes are connected to the law's stated purpose of "connecting the Upper and Lower Peninsulas of Michigan," the three-judge panel ruled.

Environmentalists have feared Line 5 could rupture, spilling oil into a volatile waterway that connects Lakes Michigan and Huron. Enbridge operated a pipeline in southern Michigan that ruptured a decade ago, causing the largest in-land oil spill in American history.

The judges decided not to address other parts of Nessel's arguments. At one point, they noted that the Attorney General's office misrepresented the basis of Kelly's decision.

"Defendants' argument that the Court of Claims improperly considered extraneous material is unsupported," according to the ruling written by Cameron, a Snyder appointee. Boonstra and Lenica also were appointed by Whitmer's predecessor.

"Replacing the portion of Line 5 beneath the Straits with the Great Lakes Tunnel is the safest, most reliable, affordable, and environmentally sound energy solution for Michigan’s citizens and businesses," said John Walsh, President & CEO of the Michigan Manufacturers Association. "That’s why the tunnel is supported by Democrats and Republicans, business and labor.  We’re glad the court rejected the latest stall tactic and are excited about next steps in the development process.”

But Bob Allison, deputy director of the Michigan League of Conservation Voters, said the ruling doesn't alter the fact that Line 5 "remains a danger to our Great Lakes, our economy and our primary source of drinking water. Enbridge has shown repeatedly they cannot be trusted — further evidenced by the slew of violations it’s committed for years."

Nessel is separately seeking an order from Ingham County Circuit Court to shut down and decommission Line 5 because its easement is a public nuisance and violates public trust and environmental laws and has the potential to rupture from an anchor strike. Enbridge has repeatedly said the dual pipeline running under the Straits is safe. 

As long as Enbridge gets all pending permits and regulatory approvals, the company said it anticipates it will finish building the tunnel in 2024.