Enbridge sues Whitmer in federal court over Line 5 easement

Beth LeBlanc
The Detroit News

Enbridge Energy has sued Gov. Gretchen Whitmer and the Michigan Department of Natural Resources in federal court to challenge the state's recent decision to revoke the Canadian pipeline giant's Line 5 easement in the Straits of Mackinac. 

The lawsuit seeks a federal order ruling that federal commerce and pipeline safety laws preempt state regulatory attempts. 

“In the face of continued roadblocks by this administration, it’s time for the state to stop playing politics with the energy needs and anxieties of U.S. and Canadian consumers and businesses that depend on Line 5,” said Vern Yu, executive vice president and president of liquids pipelines. “It is concerning to see the current administration is willing compromise these needs." 

This June 2020 file photo, shot from a television screen provided by the Michigan Department of Environment, Great Lakes, and Energy shows damage to anchor support EP-17-1 on the east leg of the Enbridge Line 5 pipeline within the Straits of Mackinac in Michigan.

Enbridge's lawsuit is evidence that the company responsible for the 2010 Kalamazoo River spill "cares only about its bottom line," Whitmer said in a statement.

"Today’s lawsuit filed by Enbridge brazenly defies the people of Michigan and their right to protect the Great Lakes from a catastrophic oil spill," the Democratic governor said. "In short, Enbridge claims it can continue to pump oil through the Straits of Mackinac indefinitely, posing enormous risk to our economy and way of life — and that the people of Michigan have no say in the matter."

Enbridge ended up paying $1.2 billion for the cleanup and restoration of the southern Michigan area that experienced the largest inland oil spill in U.S. history.

Attorney General Dana Nessel's office said Tuesday it was still reviewing the filings.

The suit came on the same day Enbridge sought an order to remove the state's case seeking a judge's order supporting the easement revocation from Ingham County Circuit Court to the Western District of Michigan's U.S. District Court, where one of five judges appointed by Republican presidents would consider the case. 

The closure, if allowed to proceed, would create a "disturbing precedent" that other states could follow to impede interstate and international commerce, Enbridge argued in the lawsuit.

The state's action "interferes with the comprehensive federal regulation of pipeline safety, impermissibly burdens and discriminates against interstate and foreign commerce, and hinders the United States' ability to 'speak with one voice' with respect to transboundary shipments by pipeline," according to the lawsuit.

"Only the federal government may determine, taking into account competing interests within the national as a whole, whether safety or other local conditions warrant the shutdown of Line 5."

The suit invokes the Supremacy Clause of the U.S. Constitution, which the company argued places federal pipeline safety law above state regulations; the Commerce Clause, which stops states from taking "protectionist actions" affecting interstate commerce; and the Foreign Commerce Clause and Foreign Affairs Doctrine, which prohibits state policies from "excessively interfering" in foreign affairs.

Line 5 transports oil and natural gas liquids to Canada, where some of the propane refined from the natural gas liquids in Sarnia comes back into Michigan on other lines. 

The suit was filed in the Western District of Michigan's U.S. District Court, which would allow Enbridge to avoid the new Democratic-nominated majority on the Michigan Supreme Court.

Whitmer filed earlier this month in Ingham County Circuit Court, seeking a declaratory judgment upholding the state's revocation of Enbridge's 1953 easement on public trust grounds. Ingham County is a Democratic stronghold. 

The dual pipelines carrying up to 540,000 barrels of light crude oil a day through the straits have long been a source of controversy as environmentalists and others worried about the catastrophic effects of a potential spill from the 67-year-old pipeline. 

In 2018, Enbridge reached an agreement with Republican then-Gov. Rick Snyder for the construction of a $500 million tunnel to house the pipeline beneath the straits. The tunnel would guard against a potential rupture.

So far, courts have upheld the tunnel agreement.

The National Wildlife Federation urged the courts to reject Enbridge's new filing. 

"The courts should reject this irresponsible effort to strip Gov. Whitmer and the State of Michigan of their authority to protect our Great Lakes," said Mike Shriberg, regional executive director for the Great Lakes branch of the federation.