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Line 5 Goes to Court: Enbridge raises stakes in pipeline tussle

Line 5 Goes to Court: Enbridge raises stakes in pipeline tussle
June 10, 2019 Gary Wilson
Photo by Mack Male via flickr.com cc 2.0

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.

But, with deadlines looming and no agreement in place, the Canadian energy supplier announced it was taking legal action.

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.

Photo by michigan.gov

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

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.

Photo by Great Lakes Now

Nick Schroeck, Environmental Law Professor, University of Detroit Mercy, Photo by Great Lakes Now

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.”

Dave Dempsey, FLOW Senior Adviser

“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.

Read more Great Lakes Now articles on the Line 5 situation:
Anchor Awareness: Michigan Gov. Whitmer issues emergency order after video of Line 5 damage is released
Pipeline Footage Sparks New Concerns: Read up on updates and history of Enbridge’s Line 5
Enbridge pipelines remain an issue in Great Lakes region

Featured Image: Enbridge Building, Photo by Mack Male via flickr.com cc 2.0

3 Comments

  1. Alex Sagady 4 months ago

    This is another Great Lakes Now workproduct with evidence of
    inferior fact-checking and journalistic verification…..like GLN’s
    coverage of ‘Detroit zip 48217 is most polluted’ hoax claims with
    absolutely no science justification of such claims.

    >>>>>”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.”

    What was claimed in the article never happened.

    What happened was that Governor Whitmer asked AG Dana Nessel
    for an attorney general opinion on the constitutionality of Public Act 395 of 2018
    establishing the so-called “Mackinac Corridor Authority” that was rushed
    through the 2018 lame duck session of the Michigan Legislature:
    https://www.michigan.gov/documents/whitmer/Governor_Whitmer_Letter_to_AG_Nessel_re_2018_PA_359_642447_7.pdf

    None of the 6 legal issues raised in Gov. Whitmer’s request ask about the
    legality or constitutionality of agreements between Enbridge and the State of
    Michigan.

    AG Nessel responded with her legal opinion that certain aspects of PA 395 of 2018 were
    unconstitutional; nothing in Nessel’s opinion dealt with the legality of any agreements
    between Enbridge and the State of Michigan:

    https://www.michigan.gov/documents/ag/7309_-_SIGNED_650660_7.pdf

    >>>>>“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.
    This statement declaring that Enbridge’s release at Marshall, MI was the “largest inland oil
    spill in American history” is false. The largest inland oil spill in U.S. history was in 1991
    at Grand Rapids, Minnesota:
    https://incidentnews.noaa.gov/incident/6793
    https://www.apnews.com/2d06afe9e6c0712a86b91309d7c4932b

    >>>>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.”

    There is no basis for Attorney General to file a lawsuit for shut down of Line 5, even under the theory of revocation of the 1953 Easement Agreement. Under well known Michigan case law, the revocation of permits, licenses and considerations, such as the Easement Agreement, require that a notice or finding of violation be issued by the State of Michigan and then there is a requirement for an administrative hearing known as a “Rogers hearing.” AG Nessel is not entitled to waive these required elements of Michigan civil procedure short of filing litigation. MDEGLE has issued no such notice or finding of violation to Enbridge and has never conducted a Roger’s hearing on the matter of the Easement revocation. As such, there is no basis for Nessel to file litigation seeing Line 5 shut down in the absence of such findings and hearings.

    >>>>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 article fails to mention that the 25% claim on propane is disputed by UP propane distributors and by Enbridge, who all claim the majority of UP propane originates from Line 5. The article fails to explain how a report to be issued in March 31, 2020 will be capable of protecting Upper Peninsula propane customers if Attorney General Nessel is able to prevail in her immediate shut down efforts as she claims. Nessel’s response did not provide any elucidation on that count:

    https://www.michigan.gov/ag/0,4534,7-359-92297_92299-499360–,00.html

    Great Lakes Now, as a publicly funded journalistic endeavor, should institute better editing, quality control and fact checking to ensure that it does not publish false facts like those occurring in this coverage of the Line 5 matter.

    • Adam 4 months ago

      The details in this article have some errors, but the general story is correct. For the most part, your critiques are valid, if a little misleading. The Grand Rapids, Minn. oil spill was also from Enbridge’s Lakehead pipeline system. Thus, Enbridge is responsible for both of the largest inland oil spills in U.S. history, which looks even worse on them. The spills also share some common traits: 1.) Enbridge did not perform required maintenance on either line 3 or line 6, despite numerous deficiencies found over several decades. 2.) The response to both spills were delayed and clumsy. 3.) Enbridge attempted to claim that only a small amount spilled in both cases, which was quickly found false by state investigators, but resulted in inadequate initial cleanup responses.

      Line 5 is following a similar pattern, with a lack of required maintenance, damages from anchor strikes, and not installing the proper number of lakebed supports for the pipeline. I really don’t much care if they build a tunnel or shut it down completely, though I lean toward the latter. Line 5 doesn’t provide many Michigan jobs or energy resources, presents high-cost risk scenarios to the state, and further investments in fossil fuel infrastructure delay the advancement of cheaper, more efficient, zero-emissions energy sources such as wind, water, solar, and biodiesel.

  2. Debra 4 months ago

    I didn’t find any discussion regarding climate breakdown caused in large part from fossil fuels such as the deadly cargo carried by Line 5. The latest U.N. report warns that unprecedented action is needed to limit — not avoid — catastrophe. We need to reduce greenhouse gas emissions by 45% in less than 12 years and achieve net zero by 2050. The industry knows exactly what is going on. How much pain and death are needed before we are willing to act? The threat Line 5 poses to water as a source of life is obvious. We all need to do a better job of pointing to the real solution which is clean energy. With clean energy, people who live near refineries no longer need to watch their loved ones sicken and die from poor air quality. People who live downstream from the tar sands mining can have clean, fresh water. And our kids and grandkids can have the future they deserve.

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