Instead, experts, Democratic leaders and even key opponents of Line 5 say the battle over the pipeline’s future is largely in federal courts and the negotiating rooms of international diplomats.
On the subject:
Here’s what to know about the pipeline battle as Michigan prepares for a change of political power in January.
All views on the courts
Gov. Gretchen Whitmer and Attorney General Dana Nessel pledged during their first election campaign that shutting down Enbridge’s Canadian Line 5 pipeline would be a top priority.
Both have tried, but so far their efforts have failed to stop the 69-year-old pipeline from transporting oil through the straits. Recent court developments bode well for Enbridge.
Nessel filed a lawsuit to stop the job shortly after taking office, but Enbridge has since persuaded a judge to take the case to federal court, dealing a blow to the state’s legal strategy after the case had already gone through lengthy trials in Ingham County District Court.
And after Enbridge reported in June 2020 “significant damage” to one of the spans of the two-span pipeline in the straits, Whitmer ordered Enbridge to cease work in the straits by May of the following year and filed suit in state court. Enbridge challenged that order and successfully fought Whitmer’s lawsuit, again successfully arguing that it should be taken to federal court, prompting Nessel to drop the suit.
Enbridge’s countersuit remains in effect, with the company arguing that Michigan does not have the legal authority to shut down the pipeline because the federal government has sole oversight of the pipeline’s safety.
“The state’s attempts to shut down this critical energy infrastructure raise important federal questions about interstate commerce, exclusive federal jurisdiction over pipeline safety, and the serious implications for energy security and foreign affairs if the state and the U.S. government violate an international treaty with Canada. it has been in place since 1977,” Enbridge spokesman Ryan Duffy said in an email to Bridge.
Nessel’s team still hopes to take its original suit back to state court, where the state’s chances of winning on the state Supreme Court, where most justices are nominated by Democrats, are better than those on the federal courts, which are made up of more conservative judges.
She told Bridge in October that her team is appealing the August ruling by U.S. District Judge Janet Neff solution to leave the case in federal court, saying it was “confused” by the ruling.
Nessel said the removal “sets an incredibly dangerous precedent” for parties sued by states to suddenly take cases to federal court when the state court proceedings “are not going so well” for them.
Campaigning for her second term, Whitmer acknowledged that the fight for Line 5 is now largely out of her hands, while arguing that “we have to blow this out of the water.”
Sean McBrearty, coordinator of the anti-Line 5 campaign Oil & Water Don’t Mix, told Bridge it’s unlikely the new Democratic majority in the Legislature will take any action to help the fight to shut down Whitmer and Nessel.
“There was a time when the Legislature was an appropriate forum for this discussion,” McBrearty said, but with the cases now tied up in federal court, “that time has long passed.”
Future leaders of the House and Senate have expressed no desire to get involved in pipeline politics.
A spokesman for Sen. Vinny Brinks, the incoming Senate Majority Leader, said the lawmaker “has no comment on line 5 at this time.” Rep. Joe Tate, who will become speaker of the House Jan. 1, did not respond to a request for comment.
Nick Schrock, an environmental law expert at the University of Detroit Mercy, said there could be other ways lawmakers can pressure Enbridge, from imposing new insurance requirements on Enbridge to strengthening infrastructure siting requirements that apply to pipelines.
The political will to make such changes is another matter, he said, noting that unions, usually staunch Democratic allies, have generally supported Enbridge’s efforts to build the Straits of Mackinac tunnel, putting them at odds with environmental groups.
“(Democrats) got a majority, but a small one,” Schruck said. “And I’m sure there will be pressure from unions and other stakeholders.”
Any action to preserve the pipeline or accelerate its elimination could alienate a key base of Democratic voters, making Democratic candidates in tight races more vulnerable in 2024.
Politically, Schruck said, that makes it advantageous for future Democratic leaders in Lansing to have the pipeline battle tied up in court.
Diplomats also hold cards
With action in Lansing unlikely, Line 5 opponents are pressuring the Biden administration to shut down the pipeline, while supporters are pressing to keep it open.
Enbridge’s fight to keep Line 5 open was based on the argument that federal regulators, not state officials, are responsible for regulating pipeline safety issues.
McBrearty, of the campaign against Line 5, said he believes regulators at the U.S. Pipeline and Hazardous Materials Administration have sufficient grounds to order a shutdown on the grounds that Enbridge is violating Michigan law and trespassing on Indian land in Wisconsin.
In the Wisconsin case, a federal judge ruled in September that Enbridge appears to violate boundaries on land owned by the Bad River Band of Upper Chippewa Lake, but refused to close the section of the pipeline that crosses the tribe’s reservation.
The Biden administration has so far been reluctant to speak publicly about the pipeline fight, instead meeting privately with Canadian officials who have twice invoked the 1977 treaty that governs transboundary pipelines in response to Whitmer’s cease-and-desist order and the Bad River Band’s lawsuit.
Canadian Foreign Affairs Minister Melanie Joly said in August that attempts to shut down the pipeline would cause “widespread and significant” disruption to Canada’s economy and energy.
Representatives of the US State Department declined to answer specific questions about the negotiations. In an emailed response to Bridge’s questions, a department spokesman praised the US government’s close relationship with Canada, promising to “engage constructively in Treaty negotiations.”
Despite the federal government’s apparent hesitation to pick a side, McBrearty said he sees reason for optimism among pipeline opponents.
“We’re closer now than we’ve been,” McBrearty said. “We’ve gotten to the point where it’s become an international issue.”
Pressure on the tunneling process
While the fate of the existing pipelines remains uncertain, supporters and opponents of Enbridge are putting pressure on US regulators to decide whether the company can replace the existing pipeline with a new span buried in a concrete tunnel under the straits, as the energy company has proposed.
Enbridge hailed the tunnel project as a solution to fears of a spill from Line 5, arguing that moving the pipeline out of the open water of the strait would make it safer.
“With the state’s support and assistance, the permits needed to build the Great Lakes Tunnel can be secured on time and we can bring Michigan merchants to work on this state-of-the-art infrastructure,” said Duffy, the Enbridge spokesman.
Whitmer has shied away from publicly commenting on the tunnel, saying state and federal regulators will decide whether Enbirdge qualifies for several permits needed to begin construction.
This process is expected to drag on for at least another two years.
Members of the Michigan Public Service Commission, which regulates oil pipelines, said in July they needed more evidence of safety, engineering and fire and explosion risks before deciding whether Enbridge could move Line 5 into the tunnel. That extends the timeline for a decision until at least next spring.
And the U.S. Army Corps of Engineers, which is studying the tunnel’s potential impact on the straits while deciding whether to approve permits for the tunnel project, does not plan to make a decision on applications until the fall of 2024.
While regulators deliberate, propane suppliers in the Upper Peninsula are developing contingency plans if the existing line goes offline, eliminating a transportation option that now supplies about 65 percent of the UP’s propane, said Derek Dalling, executive director of the Michigan Propane Association.
“They’re preparing for other options,” Dahling said, “and I think we’ll continue to plan that way.”