LANSING – Michigan Attorney General Dana Nessel on Thursday went to court seeking to decommission the 66-year old twin pipelines underneath the Straits of Mackinac, arguing the continued operation of the Enbridge pipeline is “likely to cause pollution, impairment or destruction of the water and other natural resources of the Great Lakes.”
The lawsuit seeks declaratory judgments that the 1953 easement granted by the state violates the public trust and is therefore void, that the continued operation of the pipeline unreasonably interferes with rights common to the public. The lawsuit seeks to shut down the pipeline as soon as possible after a reasonable notice period to allow orderly adjustments by affected parties.
Enbridge Line 5 location in Red
Specifically, the lawsuit, filed in Ingham County Circuit Court, argues the pipeline violates the public trust doctrine, environmental laws and is a common law public nuisance.
While Nessel filed her lawsuit in the Ingham County Circuit Court and responded in the Court of Claims to Enbridge’s challenge of her earlier formal opinion holding unconstitutional the lame-duck law allowing the Canadian company to build a tunnel to enclose the pipeline, Governor Gretchen Whitmer‘s office asked the Department of Natural Resources to begin a comprehensive review of the company’s compliance with the 1953 easement and other factors affecting its validity.
“Although the governor remains willing to talk with Enbridge, her commitment to stopping the flow of oil through the Great Lakes as soon as possible – and Enbridge’s decision to sue the governor rather than negotiate – will at some point require her to take legal action, as well,” Whitmer spokesperson Tiffany Brown said in a statement. “The 1953 easement created the terms and conditions under which Enbridge could operate the dual pipelines on the bottomlands of the Great Lakes. Possible violations of the easement are just one of several grounds by which the state could seek to shut down the pipelines, some of which the attorney general has already invoked today.”
Ryan Duffy, a spokesperson for Enbridge said the company is still evaluating the filing. Duffy also said it is disappointed the state did not accept its offer to advance talks on the tunnel project but is still open to discussions with Whitmer.
Nessel’s move brought praise from environmental groups and concern from legislative Republicans.
“We applaud Attorney General Nessel for taking legal action to shut down Line 5 once and for all. Canadian oil company Enbridge Energy has proven time and again it cannot be trusted and today’s move by our attorney general is a much needed first step toward protecting our Great Lakes from an oil spill,” Lisa Wozniak, executive director of the Michigan League of Conservation Voters, said in a statement. We urge Governor Whitmer to work with AG Nessel to shut down Line 5 as soon as possible.”
“The attorney general is slowing progress on a tunnel – not a penny of which will be paid for by taxpayers – that will ensure the continued safety of a vital energy conduit. If she has her way, Michiganders will pay significantly more for gas at the pump and for propane to heat their homes. And she will put at risk thousands of jobs that are directly related to the line, and thousands more that would be created by the tunnel project. Her actions today are ill-advised and dangerous.”
House Speaker Lee Chatfield (R-Levering) said the people of Michigan – particularly in the Upper Peninsula – need the resources transported by the tunnel to live their lives.
“Our state government should be working overtime to find ways to get the tunnel underway and finally resolve that issue, not make moves that create even greater environmental risks and cause energy prices to soar,” Chatfield said in a statement.
Brown said Whitmer has never viewed litigation as the best solution, but said Enbridge walked away from negotiations, which the company has denied.
“The governor’s primary goal has always been and remains to get the Line 5 dual pipelines out of the Straits of Mackinac as soon as possible,” Brown said. “The risk of a catastrophic oil spill in the Great Lakes, and the harm that would follow to Michigan’s economy, tourism, and our way of life, is far too great to allow the pipelines to continue to operate indefinitely. As a recent National Transportation Safety Board report documented, any doubt as to the risk posed by Line 5 was erased in April 2018 when a barge dragging a 12,000-pound anchor nearly caused disaster.”
Nessel’s lawsuit argues that transporting millions of gallons of petroleum products through the pipeline that lies exposed at “a uniquely vulnerably location in busy shipping lanes,” cannot be reconciled with the state’s duty to protect public trust of the lakes.
“Continued operation of the straits pipelines presents an extraordinary, unreasonable threat to public rights because of the very real risk of further anchor strikes to the pipelines, the inherent risks of pipeline operations and the foreseeable, catastrophic effects if an oil spill occurs at the straits,” the lawsuit says.
Nessel’s lawsuit argues that given the history of anchor strikes on the pipeline, the location of the pipeline and shipping patterns shows an extreme vulnerability for a “catastrophic oil spill,” which even with regulations to reduce the risk of anchor strikes, cannot eliminate the likelihood.
“It would be extremely difficult to deliberately arrange a more ill-advised setting for exposed pipelines than the Straits of Mackinac,” the lawsuit says. “The straits are not simply a ‘busy shipping lane,’ as described in (a 2017 report). They are a point of convergence for multiple lanes of high-volume domestic and international shipping traffic, concentrating that traffic into a dense procession and funneling daily across a narrow saddle of lake bottom between two of the largest, deepest and most heavily trafficked lakes in the world.”
Even without potential anchor strikes, the pipeline presents risks, the lawsuit argues. It says the water currents in the straits are unusually strong, complex and variable. And oil spilled in the straits could end up impacting hundreds of miles of shoreline in either Lake Michigan or Lake Huron, the lawsuit says.
“It is now apparent that the continued operation of the straits pipelines presents a substantial, inherent risk of an oil spill and that such a spill would have grave ecological and economic consequences, impairing public rights in the Great Lakes and its resources. Given the magnitude of the threatened harm, continuation of oil transport through the straits pipeline is fundamentally unreasonable and inconsistent with the state’s perpetual duty to protect the inalienable public trust.”
On public nuisance, the lawsuit argues by continuing to transport oil through the pipelines and the risk it creates, Enbridge is maintaining a public nuisance. Similarly, on the lawsuit’s alleged violations of the Environmental Protection Act, the continued operation of the pipeline is “likely to cause pollution, impairment or destruction of the water and other natural resources of the Great Lakes, and the public trust in those resources.”
Duffy with Enbridge said shutting down the line would affect the pocketbooks of residents, the competitiveness of the state and could lead to job losses for those working at refineries.
“Line 5 is a critical source of 540,000 barrels per day of propane and crude oil supply for Michigan and surrounding areas and shutting it down would lead to a serious disruption of the energy market,” the statement said. “Line 5 serves an estimated 55 percent of the state’s propane needs, including approximately 65 percent of the propane used in the Upper Peninsula and northern Michigan, for which no viable alternatives exist.
“Line 5 also supplies Michigan and regional refineries that provide the state with various fuels its residents rely on in their day-to-day lives. Refineries served by Line 5 supply a large percentage of the aviation fuel at Detroit’s Metropolitan Airport, an important contributor to the state’s economy,” the statement said.
Nessel, in a video-recorded statement, said as attorney general, it is her role to protect and preserve the health, safety and welfare of the state’s residents, and with this lawsuit, she is upholding that responsibility. She said the lawsuit seeks to shut down the pipeline in a responsible and orderly fashion.
“This is part of the commitment I made to the people of this state when I was elected to this office,” she said. “I have consistently stated that Enbridge’s pipelines in the straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes, the largest freshwater system in the world, and the economic wellbeing of our state’s residents.”
Nessel also filed, on behalf of the state, including Whitmer, a defense of her opinion holding PA 359 of 2018 unconstitutional and a request that the Court of Claims dismiss the lawsuit from Enbridge. The filing also requests an oral argument to be scheduled on the matter.
“Haste makes waste,” the filing says. “This case arises from the frantic efforts by the administration of former Governor Rick Snyder, Enbridge and their legislative allies following the November 6, 2018 election, to enshrine in Michigan law a specific policy outcome – perpetuating the operation of unreasonably risky oil pipelines in the Straits of Mackinac for at least several years until they could be replaced in a newly constructed tunnel – that had been opposed by the newly elected governor and attorney general before they took office on January 1, 2019.”
The filing says “in their haste” the proponents relied on a legislative strategy that ran afoul of long-established requirements of the Constitution. The filing says Enbridge complaint fails to state a claim upon which relief can be granted.
Nessel’s earlier opinion said the law passed in 2018 violated the title object clause of the Constitution and was unenforceable. Whitmer acted on the opinion and halted all state agency work related to the tunnel.
This story was published in Gongwer News Service.