By James McCarten | January 18th 2022
An aboveground section of Enbridge's Line 5 at the Mackinaw City, Mich., pump station. THE CANADIAN PRESS/John Flesher
WASHINGTON — Enbridge Inc. and the state of Michigan are renewing their legal hostilities over the future of the controversial Line 5 pipeline — and their latest court battle looks an awful lot like the last one.
Attorney General Dana Nessel and Gov. Gretchen Whitmer were dealt a setback last November when District Court Judge Janet Neff granted Enbridge's request that the case be removed to federal court, a decision that prompted Michigan to abandon that particular challenge.
Instead, the state is focusing its efforts on a separate but similar circuit court action filed in 2019 that spent last year in a state of suspended animation, and which Enbridge is once again arguing should be heard by a federal judge because it comprises an important foreign policy question.
Too late, Nessel argues in her latest tract of court documents, filed Friday with the very same judge who heard the original arguments.
"The present action was pending in state court for nearly two and a half years before (Enbridge) removed it to this court," she says. Federal law makes it clear that cases can only be removed to federal jurisdiction within 30 days of a complaint being filed, the documents note.
"It is more than two years too late, and federal courts do not condone this type of gamesmanship and abuse of the removal statutes."
By Nessel's logic, Enbridge knew perfectly well it could have petitioned to have the case removed when it was originally filed but opted not to do so until now — a "remarkably dilatory" act based on an argument that "defies the facts, the law and basic common sense."
Enbridge has yet to file a response to Nessel's latest brief. However, the company has repeatedly indicated it has no plans to shut down Line 5 voluntarily and will continue to fight in court to keep it running.
The overarching question — whether a dispute over the lawful operation of an international, cross-border pipeline should be heard by a federal judge or at the state court level — is a carbon copy of the battle the two sides fought in front of Neff for the better part of last year.
The clash first erupted in November 2020, when Whitmer abruptly revoked the 68-year-old easement that had long allowed Calgary-based Enbridge to operate the line. She cited the risk of environmental catastrophe in the Straits of Mackinac, where Line 5 crosses the Great Lakes.
"If Enbridge's gamesmanship is successful, it would allow Enbridge to circumvent Michigan's ability to protect the Great Lakes and to tie the case up in federal court by months, if not years, leaving the Great Lakes in great danger." #Line5
The pipeline ferries upwards of 540,000 barrels per day of crude oil and natural gas liquids across the Canada-U.S. border and the Great Lakes by way of a twin line that runs along the lake bed beneath the straits linking Lake Michigan and Lake Huron.
Proponents call Line 5 a vital and indispensable source of energy, especially propane, for several Midwestern states, including Michigan and Ohio. It is also a key source of feedstock for critical refineries on the northern side of the border, including those that supply jet fuel to some of Canada's busiest airports.
Enbridge and its allies, including the federal Liberal government, insist that the pipeline is too vital an energy artery to both countries for it to be suddenly shut down, and the question of its continued safe operation is one to be settled between Ottawa and the White House.
Central to that argument is a 1977 bilateral treaty that was conceived to avoid disruptions to the cross-border flow of energy, one that proved to be a key element in Enbridge's strategy to convince Neff that the controversy should be adjucated by a federal judge.
Canada said late last year that planning was "well underway" for bilateral treaty talks between Canada and the United States in the dispute over the pipeline, although the timeline for formal negotiations has never been publicly disclosed.
Last year, lawyers for the federal government also filed a statement in court expressing support for Enbridge's argument, known in legal parlance as an amicus brief. It was not immediately clear Tuesday whether Ottawa expects to do so again.
The White House has acknowledged that the U.S. Army Corps of Engineers is conducting an environmental assessment on Enbridge's plans to encase the underwater portion of the twin pipeline in a deep, fortified underground tunnel. But they have so far resisted pressure to get involved in the dispute itself.
Critics want the line shut down, arguing it's only a matter of time before an anchor strike or technical failure triggers a catastrophic environmental disaster in one of the area's most important watersheds. Michigan has every right to take whatever steps are necessary to protect it, the National Wildlife Federation said in a statement.
"This motion is critical because if successful, it will allow the state courts to consider for the first time whether the risks of a rupture of Line 5 in the Great Lakes justify the continued operation of the pipeline," said federation attorney Andy Buchsbaum.
"If Enbridge's gamesmanship is successful, it would allow Enbridge to circumvent Michigan's ability to protect the Great Lakes and to tie the case up in federal court by months, if not years, leaving the Great Lakes in great danger."
This report by The Canadian Press was first published Jan. 18, 2022.
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