Enbridge Energy raised the stakes last week in its ongoing tussle with Michigan Gov. Gretchen Whitmer over the fate of the Line 5 pipeline running through the Straits of Mackinac.
The parties had been negotiating a revision to the tunnel in a pipeline agreement to replace Line 5. The agreement was approved by the Republican majority Michigan legislature and outgoing Republican Gov. Rick Snyder in late 2018.
Enbridge filed with the Michigan Court of Claims “to establish the constitutional validity and enforceability” of the agreements signed last year, the company said in a statement. The court deals with civil actions brought against the state, including contracts and constitutional claims.
Enbridge said it took the action because “the new Administration has declared these agreements invalid and has offered no viable alternative because they have insisted that the Straits pipelines to be shut down within two years. This is a timeframe within which the tunnel cannot be completed,” Enbridge said.Immediately after taking office, Whitmer asked Attorney General Dana Nessel for an opinion on the legality of the agreements and Nessel responded that they were “unconstitutional.” Whitmer used that opinion as the basis to order all work stopped by state agencies working on the tunnel.
An attorney general’s opinion carries the weight of law related to the agencies but has no bearing on a court.
Whitmer’s office reacted immediately to Enbridge’s legal move.
“Enbridge walked away from the negotiating table with the governor, and has now chosen to pursue litigation rather than negotiate in good faith to find a reasonable solution that includes a date certain for decommissioning Line 5,” spokesperson Tiffany Brown told Great Lakes Now.
“It is now abundantly clear that Enbridge – which is responsible for the largest inland oil spill in American history in Marshall, Michigan – is only interested in protecting its bottom line,” Brown said.
Enbridge denied walking away from the negotiations in a statement and says it remains committed to work with the state “to execute on this plan which is the best plan for Michigan.”
Enbridge reiterated that it has safely operated Line 5 in the Straits of Mackinac for 65 years and the proposed pipeline in a tunnel “would reduce the risk at the Straits to virtually zero.”
Risk of unfavorable decision
Nessel’s office wouldn’t comment on Enbridge’s lawsuit as it hadn’t received it but indicated it looked forward to a resolution of the issues. “We look forward to seeing them in court,” spokesperson Kelly Rossman-McKinney said.Environmental attorney Nick Schroeck said Enbridge’s litigation is likely “more about asking the court to independently rule on the validity of the tunnel agreement Enbridge reached with the Snyder administration” than whether the agreement is constitutional.
Schroeck, a law professor at the University of Detroit Mercy, spoke to Great Lakes Now with the understanding that he had not seen Enbridge’s formal complaint.
But with litigation now in the mix, both Michigan and Enbridge face the risk of an unfavorable decision, according to Schroeck.
“If the court holds that the tunnel agreement is invalid, then Enbridge has significantly weakened their hand for negotiating with the state,” Schroeck said.
“But the same risk applies to the state, and it would take away the urgency for Enbridge to make a deal with the Whitmer administration to shut down the existing pipeline on an expedited schedule.”
One advantage Whitmer has, according to Schroeck, is that Nessel could act independently through a lawsuit to shut down Line 5. He cautioned that even that route has risk, “given uncertainties in the law.”
Asked by Great Lakes Now if Nessel is willing to accept the risk of an unfavorable decision, spokesperson Rossman-McKinney said “we don’t discuss our legal strategy.”
Whitmer has said she prefers that Line 5’s fate be settled without a protracted legal process.
“Hail Mary pass”
Environmental groups who have lobbied for a shutdown of Line 5 since 2013 expressed support for Whitmer and Nessel.
The National Wildlife Federation commended Whitmer and Nessel for “reportedly staying strong and doing what’s right for Michigan and the Great Lakes by insisting that Enbridge shut down Line 5,” said the federation’s pipeline specialist Beth Wallace.
Wallace said Enbridge’s legal move was “another bullying tactic.”“This is a Hail Mary pass,” said Dave Dempsey. “Enbridge sees the walls closing in, thanks to pressure from the governor and attorney general, and is turning to the courts in desperation.”
Dempsey is a senior adviser to the Traverse City non-profit For Love of Water (FLOW).
In a separate action on Friday, Gov. Whitmer issued an executive order that will create an Upper Peninsula (UP) energy task force to address the region’s energy needs in the event of a Line 5 shutdown.
Enbridge responded in a statement that “the Line 5 tunnel solution is the best long term opportunity to secure the energy needs of the State while making an already safe pipeline even safer.
Propane that travels through Line 5 is used by 25 percent of UP residents for home heating, according to Whitmer’s press release. The order calls for a UP propane plan to be submitted by March 31, 2020, “in the event of a Line 5 shutdown.”
The full report is scheduled for March 2021 completion.
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Featured Image: Enbridge Building, Photo by Mack Male via flickr.com cc 2.0