Enbridge seeks to thwart state by moving second Line 5 closure suit to federal court

Beth LeBlanc
The Detroit News

Enbridge Energy is trying to shift a second state lawsuit seeking to shut down Line 5 to federal court, continuing a battle over the proper venue to decide the future of the Straits of Mackinac pipeline.  

Enbridge filed in the Western District of Michigan's U.S. District Court Wednesday to "remove" the state lawsuit in Ingham County Circuit Court to federal jurisdiction.

The eventual winner of the state court versus federal court debate could steer the outcome of the case by indicating whether the state of Michigan and its laws have ultimate jurisdiction over the pipeline.

Gov. Gretchen Whitmer's administration last month refocused its attention on the 2019 lawsuit filed by Attorney General Dana Nessel after a federal judge ruled a separate 2020 case field by the state would remain in federal court because it raised critical federal issues. 

The 2019 case was scheduled for a Jan. 7 hearing in Ingham County Circuit Court, but Wednesday's removal by Enbridge means the 2019 case will join an Enbridge-initiated case in U.S. District Court. 

The removal "will allow a single judge to rule on the closely related issues in these two cases. Enbridge looks forward to a prompt resolution of both cases," spokesman Ryan Duffy said. 

This June 29, 2018 file photo shows tanks at the Enbridge Energy terminal in Superior, Wis.

Nessel called the removal an "outrageous maneuver" that violates federal law limiting removal to a 30-day window after the initial filing of the complaint.

"We will address this flagrant attempt to undermine that process in court and remain fervently committed to our belief that the fate of Michigan’s greatest natural resources should be determined in a Michigan court," Nessel wrote in a statement.

"Our residents deserve more than a company who seeks to profit from our natural resources while at the same time attempting to evade legal review of their actions by our state’s courts.”

Usually, a defendant in a lawsuit has only a 30-day window after a complaint is filed to move the case to federal court, but Enbridge is arguing that window reopens for 30 days if "solid and unambiguous information" emerges supporting removal. 

"The Nov. 16 ruling provided the solid information relied on here, and the case has now been removed for further proceedings before the federal district court," the company said.

Western District of Michigan U.S. District Judge Janet Neff on Nov. 16 ruled that a case the state filed in Ingham County court in 2020 seeking the pipeline's closure was properly removed to federal court because it involved federal issues, such as the authority of federal pipeline regulators and the invocation of a 1977 Transit Pipeline Treaty by Canada over the threatened closure. 

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

The fate of Line 5 has been debated for several years amid environmental concerns over the impact of a spill from the 68-year-old pipeline into the Straits of Mackinac. 

In late 2018, Republican former Gov. Rick Snyder entered an agreement with Enbridge to construct a tunnel beneath the Straits to house a new segment of Line 5. Construction on the more than $500 million project, according to recent bid documents, likely won't begin until 2024 and wouldn't finish until 2028. 

Upon taking office in 2019, Whitmer and Nessel attempted to challenge the agreement between the state and Enbridge. When that effort was unsuccessful, Nessel sought to shut down the pipeline with her 2019 suit 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. 

Whitmer filed a separate suit in November 2020 after revoking Enbridge's easement through the Straits of Mackinac and ordering the pipeline's closure by May 2021. The lawsuit sought an Ingham County court order supporting her closure mandate. 

But Enbridge filed its own counter-suit days later in federal court, arguing federal regulators ultimately had the final say over questions regarding the pipeline's safety and continuing operation. At the same time, Enbridge removed Whitmer's case to federal court. 

Nessel's 2019 case was put on pause in January 2021 while the state and Enbridge battled over whether Whitmer's 2020 case was properly removed to federal court. 

In early October, Canada formally invoked a 1977 treaty that the country's officials said prevents the U.S. government or Michigan from disrupting the operation of Enbridge's Line 5 oil pipeline, pulling the Biden administration into the dispute over the pipeline's future.

On Nov. 16, Neff ruled the removal was proper based on federal regulatory jurisdiction, questions pertaining to federal law and Canada's invocation of the treaty.