GRAND RAPIDS, Mich. (Legal Newsline) - Michigan Gov. Gretchen Whitmer will keep trying to shut down the Line 5 pipeline despite a court ruling in July against her.
On July 18, Whitmer filed her notice of appeal to the U.S. Court of Appeals for the Sixth Circuit, about two weeks after Grand Rapids federal judge rejected her motion to dismiss the lawsuit filed against her by Enbridge.
The company says Whitmer has no authority to upset the complicated federal regulation that permits Enbridge from transporting oil through the pipeline, as it has done for decades without incident.
Enbridge also argues Whitmer's claims the pipeline isn't safe are without merit. The company has transported oil since a 1953 easement was granted through the pendency of the case.
Whitmer said sovereign immunity protected her from suit, an argument Judge Robert Jonker rejected.
"(T)he relief here does not request Michigan's specific performance of the 1953 Easement," Jonker wrote. "In fact, it does not request any affirmative action of any kind by the State of Michigan.
"Enbridge seeks only an order prohibiting Defendants' actions of shutting down the Line 5 pipeline in alleged violation of federal statutory and constitutional law. This relief, if granted, certainly protects continued operation of the 1953 Easement against termination based on violations of federal law."
Finding the case falls in an exception to sovereign immunity, Jonker wrote Enbridge is neither asserting ownership over state lands nor seeking to compel performance of a state contract.
Years ago, Whitmer issued an order to stop the flow of oil within 180 days. She claims Enbridge violated an easement granted by the State in 1953 below the Straits of Mackinac to run the Line 5 pipeline.
Attorney General Dana Nessel sued the company in state court to back Whitmer’s notice. Enbridge tried to fight the suit in federal court, but the U.S. Court of Appeals for the Sixth Circuit recently found the case belongs in state court in Ingham County.
“The Straits of Mackinac is a fragile and unique ecosystem that must be defended from those who would risk it, and the way of life for hundreds of Michigan communities in the north, for continued fossil fuel profits," Nessel said.
"Line 5 is no safer than it was when I first sued Enbridge in 2019. It is still old, dangerous, and worsening. And I am still committed to doing everything in my power to shut down its passage through the Straits.”
Enbridge says it has spent significantly on Line 5 projects to appease the State like a new crossing under the St. Clair River. A disruption would create a propane shortage and higher energy prices for consumers, the company claims.
That shortage would make 14 million gallons of gasoline and other transportation fuels unavailable on a daily basis to consumers in Wisconsin, Indiana, Ohio, Pennsylvania, Ontario and Quebec, the company says.
It says Whitmer and Nessel are out of line.
“Defendants’ November 13 Shutdown Order reflects a local policy that, on its face, interferes with the comprehensive federal regulation of pipeline safety, impermissibly burdens and discriminates against interstate and foreign commerce, and hinders the United States’ ability to ‘speak with one voice’ with respect to transboundary shipments by pipeline,” Enbridge’s 2020 lawsuit says.
“If enforced by judicial ruling, the Shutdown Order would create a disturbing precedent whereby other jurisdictions could take copycat actions and thereby impede interstate and international commerce in petroleum and other products.
“Only the Federal Government may determine, taking into account competing interests within the Nation as a whole, whether safety or other local conditions warrant the shutdown of Line 5.”