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Whitmer seeks Nessel opinion to block Line 5 tunnel

Beth LeBlanc
The Detroit News
Michigan Gov. Gretchen Whitmer has asked Attorney General Dana Nessel to issue a legal opinion on legislation creating an authority for the building of a Line 5 tunnel project.

Lansing — Michigan Gov. Gretchen Whitmer has asked newly elected Attorney General Dana Nessel for a legal opinion on the Mackinac Straits Corridor Authority in an apparent attempt to block construction of a tunnel for Enbridge’s Line 5 oil pipeline.

The authority, assembled days before the close of 2018, voted Dec. 19 to approve an agreement with Enbridge for the construction of the 4-mile-long tunnel underneath the Straits of Mackinac. The project would cost up to an estimated $500 million. 

The approvals came amid a time crunch before the Jan. 1 inaugurations of Whitmer and Nessel, who campaigned on promises to shut down the aging pipeline rather than allow it to operate for up to 10 years during construction.

Whitmer’s letter outlines what appears to be the basis for Democratic elected officials' arguments against the corridor authority. It questions the length of appointments, the title of the law, and potential conflicts with the state Constitution.

“Resolving any legal uncertainty” around the agreement “is necessary to assure that we can take all action necessary to protect the Great Lakes, protect our drinking water and protect Michigan jobs,” Whitmer said in statement. “I pledged to take action on the Line 5 pipeline on day one as governor, and I am holding true to that campaign promise.”

In a Wednesday statement, Nessel said she welcomed the request regarding “serious and significant concerns” surround the new law that was “passed without the care and compassion” expected for such an issue. She said she would consider the request immediately and encouraged interested parties to send her briefs or legal memos on the issue.

“Let me remind those who stand to benefit from this act: take heed that this request raises serious legal concerns,” Nessel said. “In no way should any entity rely on this act to move forward unless and until these matters have been resolved.”

Repeating Whitmer's inaugural call for compromise and cooperation in Michigan, House Speaker Lee Chatfield, R-Levering, voiced his support for the tunnel construction project in a Wednesday afternoon social media post.

"I support building bridges AND tunnels, especially when it comes to transporting energy resources so hard-working Michigan families can heat their homes. Let’s keep our peninsulas connected and uphold our constitutional legislation," Chatfield wrote on Twitter.

Republican Senate Majority Leader Mike Shirkey "is confident that the legislation passed last term is sound," said his spokeswoman Amber McCann. 

In a Wednesday statement, Enbridge maintained that the tunnel "would make a safe pipeline safer" and repeated the company's commitment to working with Whitmer and Nessel "to ensure critical infrastructure — like Line 5 —continues to safely and reliably meet the energy needs of the people of Michigan."  

The Line 5 tunnel project involved lame-duck legislative approval for the authority, two resignations of initial board members and a five-day comment period on three separate agreements. The authority approved a construction agreement with Enbridge and granted the Canadian company an easement to the bedrock beneath the Straits of Mackinac. 

Former Gov. Rick Snyder also signed a third and final agreement with Enbridge, which cemented the tunnel deal and held Enbridge to inspection and maintenance requirements related to the existing pipeline. 

“Today’s actions will result in the removal of the oil pipeline from the bottom of the Straits of Mackinac, maintain critical infrastructure connections between our peninsulas, provide energy security for residents of the Upper Peninsula and northern Michigan and create good-paying jobs," Snyder said at the time. 

Enbridge will pay for the tunnel's construction, transfer ownership to the state and then sign a 99-year lease to use and maintain the tunnel. 

The agreements "demonstrate our commitment to protecting the environment and the Great Lakes," said Brad Shamla, Enbridge vice president for U.S. operations. 

Whitmer’s letter notes that the Mackinac Bridge Authority was barred from operating a tunnel under a 1952 law, but the amendments initially introduced by the Senate in November initially sought to authorize just that.

Weeks later, amid outcry from former and current bridge authority members, the Senate-introduced bill was amended to allow for the creation of the Mackinac Straits Corridor Authority that would assume responsibility for the tunnel. The amended version was passed by both chambers and was signed by Snyder. 

In her letter to Nessel, Whitmer questioned the corridor authority's powers based on six issues:

  • Whether the amended law violates a statute that requires the main focus of an act to be reflected in the title.
  • Whether the six-year appointments of corridor authority board members violate a constitutional requirement limiting appointments to four-year terms.
  • Whether the amended law violates parts of the Michigan Constitution related to tunnel construction and operation.
  • Whether the law constitutes a special or local act when it should have been created under a general act.
  • Whether the new authority possesses more power than it is entitled to by law or the Constitution. 
  • Whether the authority and its actions are invalid if the authority is found to violate state law or the state Constitution.

“I would appreciate your attention to these questions of law,” Whitmer said at the conclusion of the letter. “An oil spill in the Great Lakes would be absolutely devastating to our environment and our economy.”