Nessel calls for court-ordered emergency Line 5 shutdown

Mackinac Bridge | Susan J. Demas
Updated with comment from Enbridge, 8:20 p.m., 6/22/20

Citing violations of Canadian oil company Enbridge’s longstanding agreement with Michigan, Attorney General Dana Nessel on Monday called for a judge to put an emergency halt to Enbridge’s operation of the controversial Line 5 pipeline.

The motions for a temporary restraining order and preliminary injunction were filed in Nessel’s ongoing lawsuit against the Canadian oil company in Ingham County Circuit Court. Nessel requests that Judge James Jamo order a suspension of all pipeline operations “until the State of Michigan has conducted a full review of the information provided with the assistance of independent experts.”

Gov. Gretchen Whitmer signaled her support for Nessel’s action shortly after, saying in a statement that Enbridge’s “brazen disregard for the people of Michigan and the safety and well-being of our Great Lakes is unacceptable.”

The request for an emergency shutdown comes amidst a contentious back-and-forth with the state since late last week over Line 5. On Thursday, Enbridge revealed that significant damage to an anchor support propping up the pipeline had caused both legs of Line 5 to be shut down.

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Just hours earlier, Enbridge had also disclosed that it had been fined $6.7 million by the U.S. Environmental Protection Agency (EPA) for violating federal safety requirements on other pipelines.

“To date, Enbridge has provided no explanation of what caused this damage and a woefully insufficient explanation of the current condition and safety of the pipeline as a result of this damage,” Nessel said in a statement Monday. “We cannot rely on Enbridge to act in the best interests of the people of this State so I am compelled to ask the Court to order them to.”

In response to the new filings, Enbridge issued a statement Monday night defending the company’s actions and indicating that it will fight both of Nessel’s motions.

Enbridge believes the temporary restraining order and preliminary injunction sought by the Attorney General of Michigan is legally unsupportable, unnecessary, and will be vigorously opposed by Enbridge,” the statement reads.*

The disputed section of the 645-mile pipeline runs for roughly 4½ miles under the Straits of Mackinac, a particularly turbulent and environmentally sensitive area connecting Lake Michigan and Lake Huron. Line 5 splits into two 20-inch pipelines under the water.

Enbridge spokesperson Ryan Duffy said the anchor support damage is on the east leg of the pipeline, at a depth of approximately 230 feet “in the deeper part of the Straits near the middle.”

The company initially shut down both underwater segments of Line 5 after discovering the anchor support damage, but informed the state on Saturday at 1:59 p.m. that they would resume normal operation of the west leg by 2 p.m.

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In a letter to Enbridge CEO Al Monaco later that day, Whitmer said she was “taken aback” to learn that Enbridge had resumed operation without consulting state officials. She asked that Enbridge “immediately shut down the dual pipelines” until a full investigation is done and preventative measures are put in place.

Monaco did not directly respond to Whitmer’s request, and the west leg of Line 5 is still in operation. Duffy said operation on the east leg will not resume “without further discussion with the State of Michigan and approval from PHMSA [the Pipeline and Hazardous Materials Safety Administration].”

Enbridge said their authority to resume oil transport through the west leg came from federal regulators at PHMSA, who “had no objections” to the plan.

But although PHMSA has jurisdiction over most of the interstate pipeline, certain areas operate under different authorities. This includes the 4½-mile stretch under the Straits.

Enbridge’s primary authority to operate a pipeline on the bottomlands rests on the agreement made with the state of Michigan in 1953. That easement can be revoked by the state if Enbridge is found to have violated its requirements — but Enbridge is claiming that particular characteristics of the anchor support damage make it subject to PHMSA oversight, not that of Michigan’s.

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The judge-ordered shutdown would prevent Enbridge from transporting oil through the Straits portion of the pipeline, at least temporarily until more information about what happened becomes available.

Enbridge is likely to appeal if there is such an order, but the halt on operation would remain in place at least until an appeal from Enbridge goes through.

Dr. Ed Timm, a former senior scientist at Midland-based Dow Chemical who has been studying Line 5 since 2015, said in a telepresser Monday that numerous incidents over the years reveal the imminent threat Line 5 poses to the Great Lakes.

“I just believe that our governor needs to act and to put an end to all this engineering uncertainty that is warning us and warning us that there are problems with this thing,” Timm said. “There are unknowns with this thing, and if we ignore the warning, we’re going to have a disaster.”

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If granted, an emergency order from the judge is one of three courses of action the state can take to shut down Line 5 in its entirety — at least temporarily. The other two involve action from Whitmer.

Whitmer could order the Department of Natural Resources (DNR) to revoke Enbridge’s 1953 easement with the state, and/or join Nessel’s lawsuit against Enbridge to strengthen her case to decommission Line 5.

Whitmer spokesperson Tiffany Brown did not respond to an inquiry about whether the governor has plans to do either.