Whitmer, Nessel push back on Snyder’s Line 5 plan

Mackinac Bridge. Courtesy of Wikipedia

A day after being inaugurated, Gov. Gretchen Whitmer is pushing back against Republican efforts to keep oil flowing through the Great Lakes.

Whitmer has asked Michigan Attorney General Dana Nessel, a fellow Democrat, to issue a formal opinion on the legality of a new law creating a panel of officials appointed by Republican Gov. Rick Snyder that rubber-stamped a deal last month to keep oil flowing through the Straits of Mackinac.

Gretchen Whitmer | Wikipedia Commons

The agreement forged between Snyder and Canadian energy company Enbridge would allow a plan to mover forward keeping oil flowing through the 65-year-old Line 5. This was one of the former governor’s top priorities in the Lame Duck session.

The pipeline carries about 23 million gallons of oil and some natural gas through the Straits of Mackinac each day. Environmental researchers have said a spill could devastate Great Lakes shoreline, despite assurances from Enbridge that the pipeline is safe.

The company argues Line 5 has operated safely for 65 years and says the risk of oil spilling into the Great Lakes will fall to virtually zero with a new buried pipeline.

Nessel will now weigh whether the new law creating the Mackinac Straits Corridor Authority (PA 359) is legitimate. The panel has already approved Enbridge’s plan to construct the new pipeline and tunnel.

Rick Snyder

“There are serious and significant concerns regarding PA 359, which the previous governor and legislature initiated and passed without the care and caution one would expect for an issue that will have a monumental impact on our state,” Nessel said in a statement today.

“Governor Whitmer has rightly — and immediately — raised important questions about the legality and statutory underpinnings of this Act and my office is prepared to tackle her request for an opinion immediately,” Nessel continued.

The new attorney general said the new law creating the independent pipeline authority “raises serious legal concerns.” She added that Enbridge should not rely on it “to move forward unless and until these matters have been resolved.”

Nessel’s office did not say when the opinion will be issued, but said it is a top priority. Whitmer and Nessel both vowed to shut down Line 5 during their campaigns.

To avert that, Snyder created a panel of handpicked officials to oversee the construction of a 500 million project to build a new Enbridge tunnel 100 feet beneath Great Lakes bedrock and retire the current pipeline.

Dana Nessel

Environmentalists immediately praised the new leaders’ actions today.

“Public Act 359 and the agreements negotiated by Snyder are not a solution to the problem of Line 5 pipelines in the Mackinac Straits,” said Anne Woiwode in a statement for the Michigan chapter of the Sierra Club.  “They actually increase the likelihood of a pipeline rupture by leaving Line 5 in place for 10 years or more with a weak inspection system that relies on Enbridge’s consistently unreliable assurances.”

Lisa Wozniak, executive director of the Michigan League of Conservation Voters, praised Whitmer for being an “unabashed champion of our Great Lakes” and called Snyder’s plan “a backroom deal … to keep oil flowing through our Great Lakes despite the well-documented risks and widespread opposition from Michigan residents, businesses and experts.”

1 COMMENT

  1. Unfortunately, in this situation the old adage of “Haste makes waste” probably
    applies…. to PA 359 of 2018, to Gov. Snyder’s efforts to secure Line from from
    threats from anchor strikes, to Gov. Whitmer’s and AG Nessel’s approach to
    Line 5 matters and to Enbridge who operates Line 5.

    What is coming is a series of multiple party and issue disposition stand-offs:

    1. Whitmer/Nessel probably have a good case for showing that PA 359 of
    2018 was unlawful and unconstitutional. However, that doesn’t mean that
    Enbridge cannot turn around and merely apply for tunnel construction without
    it being under the aegis of a public agency authority.

    2. Nothing done with the present Whitmer/Nessel move extinguishes the
    contractual agreements between Michigan and Enbridge adopted before
    passage of PA 359 of 2018 to promote construction of a tunnel for the
    purposes of re-routing the Mackinac Strait segments.

    3. Whitmer/Nessel have not advanced their planned state court litigation in
    the Michigan Court of Claims for Day Number 1 in office to shut down Line 5.
    Their campaign proclamations raised unrealistic expectations of a Line 5 shutdown
    that will likely haunt them during their entire reign in office. The problem is
    that Line 5 is an interstate pipeline and federal law prevents the state from
    enforcing safety and operational standards on such pipelines. The planned
    Whitmer/Nessel state court litigation for Line 5 shut down would be rapidly
    removed to federal court by Enbridge where that litigation by Whitmer/Nessel
    on behalf of the State of Michigan would be dismissed (see 49 USC Sec. 60104(c))
    and the case of Olympic Pipeline v. Seattle [state pipeline easement agreements
    are not enforceable]:
    https://caselaw.findlaw.com/us-9th-circuit/1058087.html

    4. Both Gov. Whitmer and AG Nessel will soon be hearing from divergent parts of
    the Michigan Democratic Party, with diametrically opposite opinions on the proposed
    tunnel project — environmentalists opposed and organized labor & construction unions
    adamantly supporting union construction and Teamsters jobs on the project. Whitmer
    accepts over a half million in campaign contributions from unions that support the tunnel
    project. The best prospect for a political settlement is probably a Gov. Whitmer/AG Nessel
    opportunity to renegotiate and restructure the entire Line 5 tunnel deal, but this will not
    satisfy the environmental lobby which is out for a Line 5 shutdown — without any realistic
    prospect of achieving that.

    5. Gov. Whitmer and AG Nessel can almost certainly maneuver and impede construction of
    the tunnel on multiple issue fronts [including MPSC re-routing permission, permits for geo-technical
    investigation, permits for real-estate occupancy of state lands underground], but Line 5 will
    continue to operate on the bottom in the Mackinac Straits and be
    vulnerable to anchor strikes, even as Enbridge has acknowledged that problem.

    6. If Gov. Whitmer and AG Nessel nullify contracts between Enbridge and the State of Michigan,
    they will also be nullifying provisions in those contracts designed to reduce risks from anchor
    strikes, to terminate operation during heavy wave conditions and to reduce risk from Line 5’s
    other water crossings throughout its route — all provisions which Enbridge agreed to voluntarily
    which cannot be forced through any kind of state requirement….as the state is prohibited from
    regulating safety on interstate pipelines.

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