Opinion: AG opinion on Mackinac Straits Corridor Authority would be a lose, lose

Evan Carter

A pending attorney general opinion on the legality of the newly-created Mackinac Straits Corridor Authority — which signed-off on an agreement in December to build a tunnel buried under the straits that will likely house an oil and gas pipeline — has cast a heavy shadow over the project and will drag the state into a legal battle that will be difficult to win.

While Gov. Gretchen Whitmer’s request for an opinion from Attorney General Dana Nessel got the attention of Enbridge, which plans to construct the tunnel and the pipeline, and fulfilled a campaign promise made both by her and Nessel, it isn’t likely to land a knockout punch on the authority or the legislation which created it.

Oil pipeline operator Enbridge tows an autonimous underwater veehicle into the Straits of Mackinac to conducting tests on its dual lines under the Straits of Mackinac in this Thursday, June 9, 2016 file photo. Enbridge Energy will pay more than $1.86 million for alleged delays last year in pipeline inspections, including parts of the Line 5 pipeline in Michigan.

In her opinion request,  Whitmer layed-out six different questions about the legality of the lame-duck bill, which Nessel has said raise “serious legal concerns.” But legal experts in Lansing who are familiar with the matter aren’t so sure, and believe many of the concerns raised by the governor are unlikely to pass muster if raised in court.

The questions raised by the governor cover a range of issues: the title of the amended law creating the authority, the length of appointment of corridor authority board members, questions about how the state constitution addresses tunnel construction, whether the law constitutes a “local act,” a question about the power granted to the authority and if the authority itself is even legal.

The questions are not all created equal. According to one legal expert, if the Attorney General’s Office challenges the law creating the authority on the grounds that it’s a “local act” — which requires the approval of two-thirds of both chambers of the state legislature — instead of a “general act” which only requires a simple majority, it will in effect be challenging the legality of the Mackinac Bridge Authority as well.

But the strongest question from a legal standpoint is on whether or not the six-year appointments of corridor authority board members violate a constitutional requirement limiting appointment to four-year terms.

Enbridge animation of potential tunnel under Straits of Mackinac

As with many issues in Lansing since the executive branch flipped from Republican to Democrat on Jan. 1, the 2019 Attorney General’s Office will have to overcome legal arguments raised by the 2018 Attorney General’s Office. And the AG’s office was busy this past December.

In December a nonprofit connected to serial litigant Robert Davis sued the newly-formed Mackinac Straits Corridor Authority, asserting that the six-year terms of the authority’s board members are unconstitutional. And, Davis argues, if the board members are removed, the authority has no means to exercise its commission.

The Attorney General’s Office, then run by Bill Schuette, quickly filed a brief in support of the authority in which it made two strong legal arguments that the current administration will now have to overcome.

First, it argued that “statutes are presumed to be constitutional and must be construed and applied, if possible, to be consistent with constitutional limitations,” and second, that “to the extent that Section 14b(2) of Act 359 provides that board member terms may exceed four years, that provision and its application to board members is severable from the remainder of Act 359.”

In other words, they argue that it's possible for the Mackinac Straits Corridor Authority board members to serve terms of four years, instead of six, without undermining anything fundamental about the bill that creates the authority. Which is a fancy way of saying, “don’t throw the baby out with the bath water.”

Demonstrators from Earth First protest outside the Midland, Mich., home of Michigan Attorney General Bill Schuette Wednesday July 6, 2016 to demand that Schuette take immediate action to shut down the Enbridge oil pipeline Line 5.

Still, if the will is there, there’s nothing stopping the office from issuing this opinion. Davis’ attorney has been in contact with Nessel’s Attorney General's Office and he hopes that an attorney general opinion will cause his suit to win-out in court.

A conflict wall, which separates attorneys involved in meetings, negotiations, and legislation surrounding the new authority on behalf of former Gov. Rick Snyder from those not involved, protects the Attorney General’s Office from ethical concerns surrounding a possible opinion.

But, any attempts by the Attorney General’s Office to use an opinion to bind the Mackinac Straits Corridor Authority or to challenge its legitimacy in court are not without consequence. A long legal battle with Enbridge would not only be expensive, but would complicate the construction of a new utility pipeline.

In 2016 the federal Pipeline and Hazardous Material Safety Administration found that no locations required additional attention in the east or west segments of Line 5 in the Straits of Mackinac. Still, if the 65-year-old pipeline did burst, the results would be catastrophic. A pipeline within a utility tunnel buried 100 feet below the lakebed has even less likelihood of leaking into the Great Lakes.

While the 2010 rupture of Enbridge’s Line 6B in Marshall has left a black mark on the company for many in Michigan, pipelines are still a much more environmentally-friendly and safe alternative to shipping oil and gas using freight trains and fuel tanker trucks.

The attorney general and governor should take this opportunity to clear up any questions surrounding the legality of the Mackinac Straits Corridor Authority quickly, instead of trying to score political points in a game where they, and Michigan’s residents, will likely lose.

Evan Carter lives in Metro Detroit and frequently contributes to Michigan Capitol Confidential.