Court of Appeals rules Enbridge tunnel deal is constitutional

A sign in Mackinaw City supporting Enbridge's Line 5 tunnel | Susan J. Demas
Updated with comment from Nessel’s office, 11:28 a.m., 6/12/20

In another legal win for Canadian oil company Enbridge, a Michigan Court of Appeals panel ruled Thursday that Enbridge’s plan to build a new tunnel-encased oil pipeline under the Straits of Mackinac is constitutional. 

Attorney General Dana Nessel issued a legal opinion last year that it was not.

Enbridge originally launched the lawsuit against the state last June after negotiations with Gov. Gretchen Whitmer fell through. Whitmer had wanted a fixed timeline to shut down the aging Line 5 pipeline, but Enbridge insisted on continued oil transport through the old pipes until the tunnel project wraps up in 2024.

The company’s subsequent lawsuit sought a ruling from the Court of Claims that would legally enforce Enbridge’s deal with Republican former Gov. Rick Snyder for the tunnel project. That deal (Public Act 359 of 2018) had been pushed through the GOP-led state Legislature at the end of Snyder’s term, and was meant to tie the hands of the incoming Whitmer administration from reversing it.

AG argues in court to shut down Line 5, oil company accuses her of pushing political agenda

Thursday’s decision affirms a previous ruling from a lower court in October that upheld Enbridge’s right to move forward on the tunnel project.

The majority opinion Thursday was written by Appeals Court Judge Thomas Cameron and joined by Judges Mark Boonstra and Anica Letica. All three are Snyder appointees.

Notably, Boonstra is the same judge who attached his own 13-page partisan rant about Gov. Gretchen Whitmer’s “tyrannic” orders onto an appeals court decision last month that blocked Whitmer’s vaping products ban.

The rant, which had little to do with the vaping case at hand besides what Boonstra described as “governmental overreach,” cites right-wing fringe media and conspiracy theory-laden articles in calling Whitmer a dictator with a “tyrannical soul” for closing down businesses during the COVID-19 outbreak.

The Line 5 case, Enbridge Energy v State of Michigan, will be appealed to the Michigan Supreme Court.

While we are disappointed by the Court of Appeals decision, we stand by our position that Act 359 is unconstitutional. We intend to ask the Michigan Supreme Court to review this important matter,” said Nessel spokesperson Courtney Covington.*

Gaps identified in Line 5 protective coating, Enbridge says pipeline remains safe

Enbridge spokesperson Ryan Duffy said in a statement that the ruling “once again confirms that Act 359 is constitutional and that Enbridge’s agreements with the State of Michigan are valid and enforceable.

“This includes the Tunnel Agreement and the Third Agreement, which allows for Enbridge to continue to operate the Dual Pipelines under the Straits of Mackinac while a tunnel to house a replacement section of Line 5 is permitted and constructed.”

Duffy said the $500 million tunnel project will make Line 5 safer and is expected to be completed in 2024.

Sean McBrearty, campaign coordinator for the anti-Line 5 Oil & Water Don’t Mix coalition, said in a statement Thursday that the ruling “highlights the fact that the people of Michigan must continue to be on the frontlines of protecting the Great Lakes from the Canadian corporation’s dangerous Line 5 oil pipelines.”

McBrearty added that the ongoing People of Michigan v Enbridge court case is “far more significant.” That countersuit brought against Enbridge by Nessel last June focuses on the environmental risks of Line 5’s presence in the Great Lakes.