17 state leaders join Michigan's plea for state sovereignty in Line 5 battle

Beth LeBlanc
The Detroit News

Democratic leaders in 16 states and the District of Columbia have taken Michigan's side in its fight to have a state court, not a federal judge, decide whether the state has the authority to shutter Enbridge's Line 5 oil pipeline in the Straits of Mackinac.

The states submitted an amicus brief earlier this month, arguing that federal courts don't have the jurisdiction to rule on disputes over state property rights even if the pipeline alleged to be in violation of those property rights is federally regulated.

Attorney General Dana Nessel asked Ingham County Circuit Court last year to uphold Gov. Gretchen Whitmer's revocation of Enbridge's easement in the Straits of Mackinac as well as her order to shutter the pipeline by May 12. 

But Enbridge removed Nessel's case to federal court, where the Canadian oil giant also sued to stop the closure on the premise that regulation of the pipeline is exclusive to federal authorities, namely the Pipeline and Hazardous Materials Safety Administration. 

This is Enbridge's Mackinaw Station for Line 5.

Nessel has asked U.S. District Judge Janet Neff to send the case back to Ingham County Circuit Court. She was joined Friday by 15 attorneys general and two governors who also believe a state court should decide the issue. 

"Despite federal safety regulations for pipelines, states are free to exercise their public trust powers to determine whether and where pipelines may cross their sovereign lands," the states said in their filing. 

In a Friday statement, Whitmer said Enbridge’s argument that Michigan has no further say in the pipeline's regulation after signing the 1953 easement is "absurd and antidemocratic.”

“I’m thrilled to have the support of so many other governors and attorneys general who recognize the important rights states have over the location of pipelines within their boundaries," Whitmer said.

Enbridge said Friday it would be replying to the state's request to remove the case to state court next week. 

"The reply will be followed by several friend of the court briefs from Michigan and regional business and labor organizations as well as surrounding governments emphasizing the need and benefits of the regional and international energy economy," company spokesman Ryan Duffy said.

The state and Enbridge held their first mediation meeting last week on the continued operation of Line 5 and will meet twice more, later this month and in May. 

In the meantime, Enbridge continues to move forward with a plan to build a more than $500 million tunnel beneath the Straits of Mackinac to house a new segment of Line 5.

The plan came after years of worry from environmental groups concerned about the catastrophic effects of a leak from the 68-year-old pipeline between Lakes Michigan and Huron. The dual span transports about 540,000 barrels a day of light crude oil and natural gas liquids.

Democrats Nessel and Whitmer both campaigned on promises to shutter the pipeline. Whitmer has fought with the company over the past two years to speed the tunnel's construction. In November, Whitmer ordered the 1953 easement revoked and the pipeline closed.

Democratic attorneys general from California, Delaware, Illinois, Minnesota, Maryland, Massachusetts, New Mexico, New York, New Jersey, Pennsylvania, Virginia, Rhode Island, Wisconsin, Washington and the District of Columbia signed onto the brief. The Democratic governors of Kentucky and Louisiana also signed the brief. 

Democratic Louisiana Gov. John Bel Edwards' support for Nessel's argument appears to take a conflicting position from the state's Republican Attorney General Jeff Landry, who joined the state of Ohio in a filing supporting Enbridge in the case.

Also expressing support for the case's remand to state court were several environment groups and Indian communities, including the Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians and the Nottawaseppi Huron Band of the Potawatomi. 

"...the state’s actions that are the subject of the lawsuit are a legitimate exercise of its authority, under state law, to protect land, waters and treaty-protected resources that have deep cultural, spiritual, and economic significance to the tribal amici," the tribes said in their filing.