Whitmer officials set to drop federal Enbridge suit, shift to 2019 state suit

Beth LeBlanc
The Detroit News

Gov. Gretchen Whitmer's administration plans to abandon a federal court case seeking the closure of Enbridge's Line 5 and instead shift its support to a paused, separate state court case filed in 2019 by Democratic Attorney General Dana Nessel. 

Whitmer's office filed notice Tuesday in federal court that Michigan would voluntarily dismiss its lawsuit. The purpose, Whitmer's office said, is to ensure a state court has "the final say in protecting the Great Lakes."

"I believe the people of Michigan, and our state courts, should have the final say on whether this oil company should continue pumping 23 million gallons of crude oil through the Straits of Mackinac every day," Whitmer said in a Tuesday statement. "Attorney General Dana Nessel’s lawsuit, filed in June 2019, should now be able to move forward expeditiously in state court."

With the shift to the 2019 lawsuit, Whitmer's office is attempting to reestablish the state's jurisdiction over the pipeline — a position that has been challenged as Enbridge, the Canadian government and, ultimately, a federal judge opined that the case involves federal subject matter and should be debated in federal court.

Apart from the state's Tuesday dismissal, Enbridge still has a separate federal lawsuit seeking to establish federal jurisdiction over the pipeline, keeping federal issues in play. The Whitmer administration on Tuesday asked for a hearing in the case ahead of a planned request to dismiss the suit.

Nessel said Tuesday her state court case was the "quickest and most viable path" to the pipeline's decommissioning. 

"The governor and I continue to be aligned in our commitment to protect the Great Lakes and this dismissal today will help us advance that goal," Nessel said in a statement.

Enbridge said it was pleased with the state's decision to drop the federal case and would continue pursuing its own case in federal court "to affirm federal jurisdiction over Line 5."

"Enbridge will continue to deliver safe, reliable and affordable energy to Michigan and the region," company spokesman Ryan Duffy said. "We will continue to pursue the Great Lakes Tunnel to house a replacement section of Line 5 so that it can continue to serve the region safely."

The shift in legal strategy comes more than a year after Whitmer revoked Enrbidge's easement through the Straits of Mackinac, ordered Line 5 shut down and filed suit in state court in November 2020 seeking a court order supporting the shutdown. 

Enbridge filed suit in federal court a short time later arguing that its pipeline fell under federal jurisdiction, not state oversight. It also removed Whitmer's lawsuit from state court to federal court, a decision that was upheld by a federal district court earlier this month.

The judge's decision came after Canada invoked a 1977 transit pipeline treaty that it said prevented the U.S. government from allowing Michigan to shut down the pipeline. Those negotiations are ongoing.

Nessel's June 2019 lawsuit asked the Ingham County Circuit Court to issue an order shutting down and decommissioning the Straits pipeline on the grounds that the 1953 easement was a public nuisance, violated the public trust doctrine and is likely to cause pollution in violation of the Michigan Environment Protection Action. 

The Michigan judge overseeing the 2019 case ordered a pause to the proceedings in January 2021 while the separate case was decided in federal court.

Before staying the case in June 2020, Ingham County Circuit Court Judge James Jamo had ordered a temporary shutdown of Line 5 after damage to an anchor support was discovered about a week prior.

Jamo allowed the west leg of the pipeline to restart in early July 2020, but kept the east leg closed until September, after the Pipeline Hazardous Materials Safety Administration confirmed to the judge that it had "not identified any integrity issues" as a result of the damage. 

Enbridge later found that five "small to moderately sized" vessels could have dragged a cable in a north-south direction over Line 5, scraping the east leg and damaging an anchor support. Four out of the five boats had been contracted by the company.

Department of Natural Resources Director Dan Eichinger said in a Tuesday statement that state courts should have a say in what happens in the Great Lakes and the dismissal of the federal case supports that belief. 

"No oil company should be able to dictate to Michiganders what happens in our sovereign lands and waters," Eichinger said. "This dismissal ensures that the people of Michigan have a say in protecting our Great Lakes." 

Environmental groups praised the governor's decision Tuesday, calling it a "courageous and steadfast legal strategy" to protect Michigan against "interference from a Canadian oil company."

“Line 5 is an urgent threat to the Great Lakes and the governor’s move to cut through Enbridge’s legal delay tactics is the best way to move forward toward what really matters: protecting the Great Lakes from a catastrophic oil spill,” said Mike Shriberg of the National Wildlife Federation's Great Lakes Regional Center.