Federal judge shoots down Michigan's 'unfair' bid to move Line 5 lawsuit to state court

Beth LeBlanc
The Detroit News

U.S. District Judge Janet Neff on Thursday denied a request to move a lawsuit supported by Gov. Gretchen Whitmer's administration seeking to shut down Enbridge Inc.'s Line 5 oil pipeline back to state court.

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

The decision marks the second time in a year Neff has insisted a case challenging the pipeline's continued operation remain in federal court, where federal laws give the Canadian oil transportation company an upper hand to keep oil flowing through twin pipelines at the bottom of the Straits of Mackinac.

Neff described the state's second attempt to move the case to state court as an effort "to engage in procedural fencing and forum manipulation."

"The court reinforces the importance of a federal forum in deciding the disputed and substantial federal issues at stake, with uniformity and consistency," Neff wrote in Thursday's decision.

Enbridge moved the current case to federal court in December after Attorney General Dana Nessel filed the lawsuit in Ingham County Circuit Court in 2019. 

The state began to pursue the 2019 case in earnest after Neff in November denied remand to state court on a separate case filed by Whitmer in 2020. Whitmer dismissed the 2020 case after Neff's refusal to have it removed to state court and said she would instead shift her support to Nessel's 2019 suit. 

But Neff dismissed the renewed effort under the banner of Nessel's 2019 case, calling it an "attempt to gain an unfair advantage through the improper use of judicial machinery."

"It is apparent that plaintiff seeks to avoid this federal forum," Neff said in her Thursday order.

"... The court will not accept the state’s invitation to undermine its previous decision and perpetuate a forum battle."

Enbridge on Thursday said the judge's decision highlights the underlying federal issues facing the state's case, including "interstate commerce, exclusive federal jurisdiction over pipeline safety and the serious ramifications for energy security and foreign affairs if the state and the U.S. government were to defy an international treaty with Canada that has been in place since 1977."

"Enbridge looks forward to a prompt resolution of this case in federal court," said Ryan Duffy, a spokesman for the Calgary-based company.

Nessel's office on Thursday said the attorney general remained committed to protecting "Michigan's natural resources from the potentially devastating impact of environmental disaster."

"The department strongly disagrees with the judge’s mistaken characterization of both the law and the attorney general’s approach to this and related cases," Nessel's spokeswoman Amber McCann said. "We are reviewing the decision and considering next steps to pursue in the litigation."

The National Wildlife Federation called the decision unfortunate. 

“While we disagree with the ruling, it doesn’t change that fact that Line 5 is a ticking time bomb for the Great Lakes and needs to be shutdown immediately," said Mike Shriberg, Great Lakes regional executive director for the environmental group. "We can’t wait until the pipeline fails — and it will fail —to take action.”

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 bid documents, likely won't begin until 2024 and will take four years to complete.

Whitmer and Nessel, who both ran on promises in 2018 to shut the line down, attempted to challenge the agreement between the state and Enbridge when they took office in 2019.

Nessel was the first to file suit, arguing in Ingham County Circuit Court in 2019 that the line should be shut down because 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 lawsuit 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 countersuit days later in federal court, arguing federal regulators ultimately had the final say over questions regarding the pipeline's safety and continuous operation. At the same time, Enbridge moved 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 October 2021, Canada formally invoked a 1977 treaty that the country's officials said prevented 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.

Canada and the U.S. have met three times since then under the terms of negotiation included in the treaty.

On Nov. 16, 2021, Neff ruled that moving Whitmer's suit to federal court was proper based on federal regulatory jurisdiction, questions pertaining to federal law and Canada's invocation of the treaty. 

Whitmer dismissed the suit days later and said she would put her support behind Nessel's 2019 lawsuit. In December, Enbridge moved Nessel's suit to federal court again prompting a second forum battle that Neff ultimately settled Thursday.