Judge: Michigan's Line 5 shutdown case must stay in federal court

Beth LeBlanc
The Detroit News

A federal judge has denied Michigan's request to move its lawsuit seeking the closure of Enbridge Energy's Line 5 pipeline back to state court, where it might have had better chances with a county judge. 

U.S. District Judge Janet Neff issued an order Tuesday denying the state's motion for remand, a decision that was a victory for Enbridge Energy and the government of Canada. 

Neff wrote that the case calls for the exercise of "substantial-federal-question jurisdiction" over the issues that the state's case covers.

"...with Canada’s invocation of the dispute resolution provision in the 1977 Treaty, the federal issues in this case are under consideration at the highest levels of this country’s government," she wrote.

"The federal issues are far from 'trivial' but raise vitally important questions that implicate the federal regulatory scheme for pipeline safety and international affairs."

This is Enbridge's Mackinaw Station for Line 5.

Enbridge said in a Tuesday statement Tuesday it was pleased with the decision and noted it had "asserted all along" the issue belonged before a federal judge.

"This is both a federal and international law issue, and the federal court will now handle the case," company spokesman Ryan Duffy said. "Line 5 is vital, critical infrastructure which is operating safely and is in compliance with all applicable laws."

Gov. Gretchen Whitmer's office said it was still committed "to getting the Line 5 dual pipelines out of the water as quickly as possible."

"We have made our views here clear — Michigan’s sovereign rights and duties regarding the use of our own lands and the protection of our Great Lakes are matters that belong before the state courts of Michigan," Whitmer spokesman Bobby Leddy said. "We are still reviewing today’s ruling and order as we consider next steps."

The National Wildlife Federation in a Tuesday statement said the ruling puts the Biden administration "squarely in the middle of the Line 5 debate."

"Now it’s time for President Biden to stand with Gov. Whitmer to uphold state and Tribal sovereignty in this case," said Beth Wallace, the Great Lakes freshwater campaigns manager for the federation. "The protection of the Great Lakes, along with the communities that depend on their clean freshwater, needs to come before the interests of a foreign oil corporation that has proven time and time again they are not safely operating this pipeline."

Michigan had initially filed the suit in Ingham County courts in November 2020, seeking a judge's ruling that would uphold Whitmer's revocation of Enbridge's easement and closure order of Line 5 through the Straits of Mackinac.

Enbridge later filed suit in federal court seeking a judge's ruling that regulation of its pipeline fell under federal regulators. At the same time, the company removed the state's case into federal court on the grounds that the federal issues should be resolved in federal court. 

Enbridge refused to close its pipeline by Whitmer's May 12 deadline and said it wouldn't do so without a court order.

The government of Canada filed a friend-of-the-court or amicus brief supporting Enbridge's position and argued that the country's invocation of a 1977 transit pipeline treaty with the U.S. should keep the case in federal court. 

In her Tuesday opinion, Neff noted there are a few particular federal issues in the state's case that would merit federal judicial intervention. 

Specifically, the state's asserted right over the bottomlands of the Great Lakes is delegated to it by the Federal Submerged Lands Act, which sets some limits on state ownership, Neff wrote. She referenced the 1977 U.S.-Canada treaty and the Pipeline Safety Act as examples of those limitations.

The 1977 transit pipeline treaty invoked by Canada, Neff wrote, burdened the state's ownership interest nearly 50 years ago by barring Michigan government or any other public authority in the U.S. or Canada from encumbering hydrocarbon transmission between the two countries. 

She also noted that the federal Pipeline Safety Act prohibits states from imposing safety regulations on interstate pipelines. In fact, Neff wrote, the federal Pipeline and Hazardous Materials Safety Administration is “vested with exclusive jurisdiction to issue an emergency order requiring pipeline closure" when there is a question of safety.

"The state parties’ claims 'arise under' federal law because the scope of the property rights the state parties assert necessarily turns on the interpretation of federal law that burdens those rights, and this court is an appropriate forum for deciding these disputed and substantial federal issues," Neff wrote. 

The 68-year-old twin pipelines that Whitmer is seeking to shut down sit exposed on the lake bottom between Lakes Huron and Mich. The pipeline has been a concern of environmental advocates for years because of its age and vulnerability to elements such as anchor strikes or water conditions. 

The tunnel agreement entered into by Enbridge and the state of Michigan in late 2018 requires the company to build an estimated $500 million tunnel beneath the Straits of Mackinac to house a new segment of Line 5 — a task that likely won't be completed until 2028.