DETROIT – Enbridge Energy lost its battle for a re-hearing in the U.S. Court of Appeals.
The company is locked in a legal battle with Michigan, which sued to shut down the Line 5 pipeline, citing environmental concerns. The state wants the case heard in state court and Enbridge believes it belongs in federal court.
The Sixth Circuit Court of Appeals denied Enbridge’s request for a rehearing, upholding the decision that Nessel v. Enbridge Energy will be heard in state court.
Attorney General Dana Nessel has continued to argue that the fight over Line 5 belongs in a state court. A federal appellate ruled in June that the case would be heard in a state court, rather than federal. On Friday, Aug. 16, the Sixth Court Court of Appeals denied Enbridge Energy’s request to have the appellate panel hear the case again.
Related: Does Line 5 put Michigan’s Great Lakes at risk for a ‘catastrophic’ oil spill?
Line 5 is the oil pipeline owned by Canadian company Enbridge Energy, it carries crude oil from Northwest Wisconsin, through Michigan, to Sarnia, in Ontario, Canada.
Nessel has been fighting for the shutdown of Line 5 since she took office in 2019. The pipeline is 70 years old, and crosses from the Upper Penninsula to the Lower Penninsula through the Mackinac Straits. Native Americans, environmentalists and others say a pipeline rupture in the Great Lakes would be catastrophic.
Nessel has argued that Line 5 is a Michigan issue. Enbridge says it’s a federal issue, and the company had Nessel v. Enbridge Energy moved to federal court. Nessel appealed that decision and the Sixth Circuit Federal Court of Appeals sided with Nessel – who believes she has a stronger case here in Michigan, where she says Enbridge is in violation of state environmental law.
Friday’s decision is not about whether Line 5 should be shut down; it’s about where the case will be heard.
There’s currently no word on when the case will be heard, but it will be heard in the 30th Circuit Court in Ingham County before Judge James S. Jamo.
Enbridge released the following statement:
“We are disappointed that the U.S. Court of Appeals for the Sixth Circuit has denied our petition for rehearing. Enbridge believes that the case should remain in federal court given the clear and substantial questions of federal law raised by the Attorney General’s complaint.
The Attorney General seeks to shutdown Line 5 based on perceived safety concerns, but Line 5’s safety is exclusively regulated by the Pipeline and Hazardous Materials Safety Administration (PHMSA). Every year PHMSA reviews the safety compliance of Line 5 across the Straits of Mackinac. Line 5’s unimpeded operation is also protected by the bi-lateral 1977 Transit Treaty entered between the United States and Canada. In Enbridge’s view, these federal issues should have weighed in favor of the case remaining in federal court. Even though the Attorney General’s case has been remanded to Michigan state court, Enbridge remains confident that the dispute should be fully resolved by the pending summary judgment motion in Enbridge’s separate lawsuit in Enbridge v. Whitmer.
If the federal district court rules in Enbridge’s favor on the summary judgement motion, that ruling should fully resolve the Attorney General’s action. For this reason, Enbridge believes that the pending motions for summary judgment should be resolved by the federal court before the Attorney General’s case proceeds in Michigan state court.
While the case is being remanded back to Michigan state court, we remain confident the Michigan state court will ultimately find that the Attorney General cannot shutdown Line 5 in light of PHMSA’s exclusive regulation of pipeline safety and the 1977 Transit Treaty.
We are 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. Given the benefits of the Great Lakes Tunnel, Enbridge’s cases with the State of Michigan have been supported by different amici groups including both chambers of commerce and organized labor.
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 Energy