CINCINNATI – The fate of a 70-year-old oil pipeline that runs through the Straits of Mackinac was debated in court on Thursday, March 21.
The hearing was over which court -- federal or state -- will hear Michigan’s case to have the Canadian-owned pipeline shut down. It’s been a battle for five years before Thursday when a federal judge heard arguments on both sides of the issue over where the Enbridge Line 5 case should be heard.
Related: Does Line 5 put Michigan’s Great Lakes at risk for a ‘catastrophic’ oil spill?
The court case was heard in the Sixth Circuit Court of Appeals in Cincinnati. Michigan Attorney General Dana Nessel argued that the case should be sent back to state court, where it was originally filed and litigated for more than a year.
A crowd in favor of keeping the case in Michigan gathered outside the Ohio courthouse.
Nessel said the shutdown of Line 5 is a Michigan issue.
“This is a violation of public trust,” Nessel said of the 645-mile oil pipeline. “It’s a public nuisance. It violates the Michigan Environmental Protection Act. Those are all state laws.”
Concerns over the 70-year-old pipeline led the state to issue a shutdown order in 2019. Enbridge ignored the shutdown order, so Nessel filed a suit in state court. More than a year later, Enbridge had the case moved to federal court and Nessel appealed.
“And in the event that we’re not successful, I don’t know what the point is about having state courts and state laws in the first place if everything could just be litigated in federal court instead,” Nessel said.
The Michigan Attorney General’s Office said it could take months before the federal court’s decision is issued.
Enbridge released the following statement:
“We are confident that ultimately the Sixth Circuit Court will agree with the lower court’s decisions from August 2022 and November 2021 that this dispute—which has generated a US foreign policy controversy—properly belongs in federal court.
The district court properly found exceptional circumstances warranting this case being heard in federal court. First, the dispute raises important foreign affairs issues that are embedded in the Attorney General’s action and that properly belong in federal court. The August 2022 decision states, “Considering the motion in the proper context and totality, the Court again points to the important federal interests at stake in having this dispute heard in federal court.”
Also, as the district court explained, the Attorney General was setting up a forum battle between federal and state courts. The Court said that it “...will not accept the State’s invitation to undermine its previous decision and perpetuate a forum battle.”
In her appeal, the Attorney General continues to seek to undermine these considerations and promote gamesmanship and forum shopping, while ignoring the substantial federal issues that are properly decided in federal court and not state court. Not surprisingly, Enbridge’s case has been supported by several different amici groups including organized labor, business, and energy.
This appeal has no effect on the summary judgment issues presented in Enbridge v. Whitmer case, which remains pending in federal court.
Enbridge remains focused on building the Great Lakes Tunnel which will make a safe pipeline safer and protect the waters of the Great Lakes, the environment, and people while assuring long-term energy security and reliability and supporting Michigan jobs and the economy.
As we proceed with this modernization project, Enbridge also is investing in renewables, developing cleaner oil and natural gas solutions, and transporting and delivering these energy resources safely and sustainably.”
Enbridge