Michigan Attorney General Dana Nessel (D) is touting amicus briefs filed this week supporting her efforts to litigate whether to shut down the Line 5 pipeline spanning the Straits of Mackinac.
Nessel last week filed a brief in the U.S. Court of Appeals for the Sixth Circuit, seeking once again to return the Line 5 case to state court.The appellate court granted Nessel permission to appeal last July.
Enbridge, the Canadian company that owns the pipeline, disagrees, noting the pipeline is regulated by the federal U.S. Pipeline and Hazardous Materials Administration. Enbridge and the Canadian government also assert a 1977 international treaty between Canada and the United States means any attempts to stymie operations belong in federal courts.
“We are confident that ultimately the Sixth Circuit Court will agree with Judge Neff’s decision from August 2022 that this case properly belongs in federal court,” Enbridge spokesman Ryan Duffy told The Midwesterner in an email.
“Judge Neff found that ‘such policy considerations as judicial economy, fairness, convenience, equitable administration, and consistent results as counseling for keeping this case in federal court.’”
A news release from Nessel’s office stated Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Washington, and the District of Columbia filed an amicus brief in support of Nessel’s efforts. The Ohio legislature, however, supports keeping the pipeline open.
Nessel and Gov. Gretchen Whitmer (D) have been attempting to shutter the five-mile stretch of Line 5 that has spanned the lakebed separating Michigan’s Upper and Lower Peninsulas for 70 years without a leak. The dual pipeline transports 540,000 barrels of hydrocarbons daily, supplying 55% of the state’s propane consumption. An anchor strike on one of the pipelines in 2020 prompted Whitmer and Nessel to seek permanent closure of the pipeline.
“We are confident that ultimately the Sixth Circuit Court will agree with Judge Neff’s decision from August 2022 that this case properly belongs in federal court,” Duffy wrote, noting U.S. District Court for the Western District Judge Janet T. Neff considered “such policy considerations as judicial economy, fairness, convenience, equitable administration, and consistent results as counseling for keeping this case in federal court.”
The governor and attorney general are also seeking to prevent Enbridge from building a $500,000 million replacement tunnel 100 feet beneath the lakebed to house the pipelines.
“Enbridge remains focused on building the Great Lakes Tunnel which will make a safe pipeline safer, assure long-term energy security and reliability, and support Michigan jobs and the economy,” Duffy said. “Placing the pipeline in the Great Lakes Tunnel better protects the Great Lakes.”
The Great Lakes Business Network, a consortium of 200 businesses that includes Bell’s Brewery, Patagonia, and Cherry Republic, also filed anamicus brief in support of Nessel. The Michigan Chamber of Commerce, however, supports keeping Line 5 in operation and champions the construction of the replacement tunnel.
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Last year, the Consumers Energy Alliance released a report concluding that the closure of Line 5 would cause Midwest gasoline and diesel prices to spike $5.9 billion annually, with a five-year projection of $23.7 billion in increased costs.
“The Attorney General continues to undermine these considerations through gamesmanship and forum shopping, while ignoring the substantial federal issues she has asserted against Enbridge that should properly be decided by a federal court,” Duffy said.
“This appeal has no effect on the Enbridge v. Whitmer case,which remains pending in federal court before Judge Neff,” he concluded. Enbridge has until October 18 to file a response to Nessel’s appeal. Afterwards, Nessel will be granted 21 days to reply. The Court of Appeals may entertain oral arguments or make a final determination based on information provided thus far.