Wisconsin Attorney General Supports Line 5 Shut Down

(December 13, 2019) — Wisconsin Public Radio (WPR) reports that two attorneys general are supporting Michigan’s legal moves to shut down Enbridge Inc.’s (Calgary) Line 5 pipeline that runs under the Straits of Mackinac. They include Wisconsin Attorney Gen. Josh Kaul and California’s Xavier Becerra. They join fellow Democrat Dana Nessel, Michigan’s attorney general, in support of a lawsuit asking a state court to rule that operation of Line 5 under a 1953 easement agreement with Michigan violates the public trust doctrine. Under the doctrine, states hold land or natural resources in trust for public benefit or use.

WPR notes that in a recent filing, the three attorneys general said Enbridge has no right to interfere with Michigan’s right to preserve its lands for public benefit under the public trust doctrine. They urged Ingham County Circuit Court Judge James Jamo to reject claims by Enbridge that the federal government’s authority through the Pipeline Safety Act and U.S. Coast Guard supersedes state authority.

If Enbridge’s position is accepted, Kaul told WPR, the case could set a precedent and potentially undermine protection of natural resources in Wisconsin. “That sort of precedent could have impacts not just for the case at hand, but for other cases where states were attempting to use their authority pursuant to their public trust doctrine,” he said. “So that would include here in Wisconsin.”

Kaul added that the state’s challenges with clean water and climate change underscore the need for states to maintain their authority. “Making sure that states can step up and play a role in protecting our natural resources is important to the state of Wisconsin,” he said. “It’s important for our economy. It’s important for our health, and it’s important for our quality of life.”

However, Kaul’s position doesn’t reflect everyone’s thinking in the Badger State, reports WPR. Among them is Scott Manley, executive vice president of government relations with Wisconsin Manufacturers & Commerce. “It just strikes me as really odd,” Manley said. “It almost smacks of political grandstanding that he would use state resources to participate in a legal controversy in another state that has nothing to do with how Wisconsin law should be interpreted by a court.”

The Sierra Club has also filed a brief in support of Michigan’s position. “The pipeline is sitting exposed at the bottom of the lake, and it’s an area where there’s a lot of ship traffic,” said club senior staff attorney Doug Hayes. “If a ship were to drop or drag an anchor, for example, it poses a real risk of a pipeline oil spill.”

Enbridge is asking Judge Jamo to dismiss the case. It argues Line 5 has operated safely for more than six decades under the terms of the easement agreement. “There is no change in the operating condition of the pipeline or change in law to support the [Michigan] attorney general’s position,” said Enbridge spokesman Ryan Duffy. “That said, we also know most Michigan residents recognize the tunnel is the best solution for making a safe pipeline safer, and we are committed to build it.”

As noted by WPR, Enbridge reached an agreement with the previous Michigan administration to build a $500-million tunnel at its own expense to house a new pipeline segment under the Straits of Mackinac. That agreement was subsequently ratified by state lawmakers. In a separate suit, Nessel issued an opinion in March that the bill authorizing the deal was unconstitutional. Her claim was rejected Oct. 31 by the Michigan Court of Claims, which ruled the tunnel agreement was consistent with the Michigan Constitution. Nessel issued an immediate appeal.

(SOURCE: The Weekly Propane Newsletter, December 9, 2019. Available by subscription)