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Michigan Attorney General: Line 5 Tunnel is “Unconstitutional”

Michigan Attorney General: Line 5 Tunnel is “Unconstitutional”
March 29, 2019 Gary Wilson
Image by enbridge.com

Enbridge disagrees, says company officials believe in tunnel’s benefits

Michigan’s new attorney general is raising the stakes in the fight over whether a tunnel under the Straits of Mackinac will replace the Enbridge Line 5 oil-and-gas pipeline.

Photo by michigan.gov

Dana Nessel, Michigan Attorney General, Photo by michigan.gov

In her first legal opinion since taking office, Attorney General Dana Nessel said the law that authorized the tunnel plan is “unconstitutional,” and that such status could be applied retroactively. The law is known as Public Act 359.

Nessel, who took office in January, issued the opinion at the request of Gov. Gretchen Whitmer, who in her election campaign stated that shutting down Line 5 was a priority.

Whitmer quickly followed Nessel’s Thursday opinion with an executive directive that ordered state agencies and departments “to halt any actions” related to Public Act 359.

“I agree with the conclusion reached by Attorney General Nessel,” Whitmer said in a statement. “The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law.”

Enbridge said in a statement it was “surprised and disappointed” after reviewing Nessel’s opinion and Whitmer’s directive.

“Enbridge worked in good faith with the Michigan government on the tunnel project,” said Chief Legal Officer Bob Rooney. “We disagree with the Attorney General’s opinion and continue to believe in the benefits of the tunnel.”

Enbridge said the tunnel project is “critical piece of infrastructure that supports the state, its communities and the environment” and that it would seek clarification from the Whitmer administration.

The tunnel law was passed by the Republican-majority legislature and signed by former Gov. Rick Snyder in a lame duck legislative session last December. Both Nessel and Whitmer are Democrats.

Snyder told Great Lakes Now in a December 2018 interview that it took until late in his term to properly study and act on a replacement for the existing Line 5.

Environmental groups including FLOW and Clean Water Action praised Nessel and Whitmer’s moves.

Referring to the legislative process authorizing the tunnel plan as a “backroom deal,”

FLOW executive director Liz Kirkwood said “the path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac.”

 “Persuasive authority”

An attorney general’s legal opinion generally has the force of law as it applies to state agencies, and it also provides “persuasive authority” to support the governor’s directive,  said environmental attorney Nick Schroeck.

Nick Schroeck, Director of Clinical Programs & Associate Professor of Law, Photo by udmercy.edu

“The legal opinion is not binding on courts and outside actors,” said Schroeck, who is a law professor at the University of Detroit Mercy. “There could be litigation challenging today’s decisions, but as a practical matter the state has hit the pause and restart button.”

For Whitmer, the Line 5 decision puts her at odds with the Republican legislature for the third time in her brief tenure.

Shortly after taking office she eliminated environmental review panels appointed by Gov. Snyder that could have usurped authority of the Department of Environmental Quality on issuing permits. The legislature voted to overturn her decision, and she reinstated the panels.

Her budget proposal to raise the gasoline tax by 45 cents per gallon to fix roads – her signature campaign pledge – has received a chilly reception from the Republican majority in the legislature.

And House Rep.Triston Cole (R-Mancelona) called Nessel’s Line 5 legal opinion “flimsy” and said the tunnel plan followed months of debate, public testimony and investigation.

“There were few issues discussed more publicly than constructing a tunnel for Line 5.” Cole said.

Featured Image: Line 5 Straits crossing Alternative Pipeline, Image by enbridge.com

To learn more about the history of Line 5 in the Great Lakes, watch Great Lakes Now‘s documentary “Beneath the Surface: The Line 5 Pipeline in the Great Lakes.”

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