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Line 5 Agreement Upheld: Michigan court says Enbridge tunnel project is constitutional

Line 5 Agreement Upheld: Michigan court says Enbridge tunnel project is constitutional
November 1, 2019 Natasha Blakely
Image by enbridge.com

The Michigan Court of Claims on Thursday ruled that legislation allowing Enbridge to construct a tunnel under the Straits of Mackinac for a new section of pipeline is constitutional.

Public Act 359, approved by Gov. Rick Snyder’s administration in late 2018, would allow Enbridge to build a tunnel to house a new section of its Line 5 pipeline to replace the section of pipeline currently going through the straits.

 Photo by michigan.gov

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

Michigan Attorney General Dana Nessel issued an opinion in March calling the agreement “unconstitutional.” Gov. Gretchen Whitmer quickly followed the opinion with an executive directive that ordered state agencies and departments “to halt any actions” related to Public Act 359.

On June 6, Enbridge then filed a lawsuit with the court to “establish the constitutional validity and enforceability of previous agreements signed between the Company and the State of Michigan,” the company announced at the time.

Part of the conflict comes from the current administration’s insistence that the pipeline in the straits be shut down within two years, while Enbridge claims that the soonest the company could construct the tunnel and shut down the tunnel is 2024.

Nessel and Whitmer both said they will appeal the ruling by Judge Michael Kelly.

“We appreciate Court of Claims Judge Michael Kelly’s quick decision as this case moves forward through the court system,” Nessel said in a statement. “We have always anticipated that this matter would be resolved in the appellate courts and we are more resolved than ever to continue this fight on behalf of the people of Michigan.”

Learn more about Line 5

Enbridge said in a statement that the company “remains fully committed” to the tunnel project and continues to “believe the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated during the period while the tunnel is being constructed.”

Mike Shriberg, the Great Lakes executive director for the National Wildlife Federation who served on Gov. Snyder’s Pipeline Safety Advisory Board, issued a statement on Kelly’s ruling, calling it “scary for the Great Lakes.”

Photo courtesy of nwf.org

Mike Shriberg, Great Lakes regional executive director of the National Wildlife Federation, courtesy of nwf.org

“The lame-duck tunnel scheme rushed through last year lacked a timeline for decommissioning the existing Line 5, providing a free pass for Enbridge to use the Great Lakes as a shortcut for as long as it wants while it purports to study the tunnel,” Shriberg said.

Nessel in her statement cited ‘An Analysis of the Enbridge Financial Assurances Offered to the State of Michigan’, a 120-page report prepared by American Risk Management Resources Network.

The report claims that Enbridge misrepresented its financial holdings when it made the agreement with the Snyder administration.

“In the event of a catastrophic oil spill, the people of the state of Michigan could be left holding the bag for more than a billion dollars in unfunded liability,” Nessel’s statement said. “The most chilling finding of the report specifically states that any ‘contribution of funds under an indemnity agreement made with a subsidiary would appear to be a purely voluntary endeavor for Enbridge, Inc.’”

Nessel has a lawsuit to decommission Line 5 that is currently in Ingham County Circuit Court, with responses due Nov. 12 and replies due Dec. 10.

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

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