Michigan Attorney General’s Appeal of Line 5 Ruling Denied

(February 12, 2020) — A ruling by the Michigan Court of Appeals has reaffirmed Enbridge Inc.’s (Calgary) right to proceed with tunnel construction to house the Line 5 pipeline beneath the Straits of Mackinac. The decision denied Michigan Attorney General Dana Nessel’s request to stay a lower court opinion. That ruling overruled her objections to an agreement that approved the $500-million tunnel construction project.

Despite losing two rounds in court, Nessel has filed new appeal arguments that seek to overturn an October ruling by Court of Claims Judge Michael J. Kelly. Kelly found that Enbridge’s tunnel construction agreement, entered into under the administration of former Republican Gov. Rick Snyder, was constitutional. However, Nessel contends in her latest litigation that Kelly relied on a “straw man” argument advanced by Enbridge. Earlier, Snyder’s successor, Michigan Gov. Gretchen Whitmer, a Democrat, used a legal opinion issued by Nessel to halt any state work on tunnel construction.

In her latest legal action, Nessel argues in a brief that the Snyder agreement is unconstitutional because it violates the title-object clause of the Michigan Constitution and involves two unrelated objects: the tunnel and the Mackinac Bridge. However, absent a court-ordered stay, the Michigan Court of Appeals ruling means Enbridge can move forward with the next steps of the project, at least for now.

“If Enbridge applies for permits needed for the construction of the proposed tunnel, state agencies have the responsibility to process the applications as provided by law. The potential unconstitutionality of Act 359 is not a basis at this time for declining to do so,” said Kelly Rossman-McKinney, a spokeswoman for Nessel.

Meanwhile, Enbridge completed about $40 million worth of work on the project in 2019. The company is expected to begin submitting applications for the next phase of construction in February or March. “It is clear from the court’s decision in October, its decision to reject the attorney general’s stay request, and now this decision that Enbridge’s 2018 agreements with the state are valid and constitutional,” said Enbridge spokesman Michael Barnes. “It is now time for Enbridge and the state to move forward together with the Great Lakes tunnel project.”

Environmental activists fear a spill from Line 5 under the Straits of Mackinac. The line transports up to 540,000 bbld of light crude oil and NGLs, including propane. Conversely, pipeline supporters have pointed to the impacts a shutdown would mean for the state’s Upper Peninsula, which relies heavily on propane.

Whitmer last year entered negotiations with Enbridge and sought to force a shortening of the tunnel construction period from five to two years. Enbridge cited the impossibility of that timeframe and negotiations broke down. The energy provider then filed a lawsuit in the Michigan Court of Claims seeking a ruling on the validity and enforceability of its agreements with the state. The suit was ultimately successful. Following Enbridge’s legal action, Nessel filed a lawsuit in Ingham County Circuit Court seeking the pipeline’s immediate shutdown, arguing it was a public nuisance and an environmental risk.

(SOURCE: The Weekly Propane Newsletter, February 10, 2020. Available by subscription.)