Updated, 1:40 p.m. and 5:39 p.m. with comments from Nessel, Whitmer and Enbridge
A circuit court judge on Thursday granted Attorney General Dana Nessel’s request for a temporary restraining order on Canadian oil company Enbridge’s operation of the Line 5 pipeline, effectively forcing the company to shut down both legs of the dual pipeline within the next 24 hours.
In the ruling, Judge James Jamo writes that Enbridge has not provided the state with sufficient documentation to prove that last week’s anchor support incident has not put the Great Lakes at risk.
“Plaintiff retains a duty to protect public trust lands, and it is currently unable to do so as a result of Defendants’ failures. Furthermore … the danger far exceeds the risk of financial loss to defendants if the west pipe of Line 5 is shut down pending hearing and further related court order,” Jamo’s decision reads, in part.
Nessel called for the court-ordered shutdown and preliminary injunction on Monday. She had cited the emergency situation brought on by significant damage to an anchor support near the center of Line 5’s east segment, and said Enbridge cannot be trusted to act in the best interests of Michiganders.
“Enbridge has failed to provide the State with information about the cause of this significant development involving Line 5, and so I’m very grateful for the Court’s decision today,” Nessel said. “While the fact that Enbridge reactivated one of the lines before consulting with the State is concerning, the fact that the company has failed to disclose the cause of this damage is equally alarming, considering the impact a breach in the pipeline could have to our state residents and economy. With the continued operation of this pipeline, the risk of severe and lasting environmental damage to Michigan’s most important natural resource continues to grow every day.”*
Gov. Gretchen Whitmer spokeswoman Tiffany Brown said her boss supports the judge’s decision.
“Enbridge’s decision to continue pumping crude oil through the Straits of Mackinac with so many unanswered questions was reckless and unacceptable,” Brown added. “Enbridge owes a duty to the people of Michigan and must answer to the state for how it treats our Great Lakes. The governor will continue working to keep our water safe.”*
Vern Yu, Executive Vice President and President of Liquids Pipelines at Enbridge, said in a statement Thursday evening: “Enbridge is disappointed in the court’s ruling as we believe that Life 5 is safe; however, the west leg of Line 5 has been shut down.”
Enbridge’s statement added that it will be providing the court with information it has requested regarding safety assessments of Line 5, including “restart planning” for the west leg.
The statement also warned that an extended Line 5 shutdown would threaten fuel supplies in Michigan and Ohio.*
Enbridge had initially shut down both legs of the underwater pipeline after discovering the damage Thursday, but resumed operation of the west line Saturday, despite objections from Gov. Gretchen Whitmer. The east line remains out of service.
As of Thursday afternoon, Enbridge is now prohibited from restarting operation of the east line until Jamo makes a determination on Nessel’s request for a preliminary injunction.
Jamo granted the same temporary restraining order for the west line, which is still in service. Enbridge must now cease operation of the line “immediately as possible upon receipt of this Order, but within no more than 24 hours.”
Enbridge has argued since last week that the west line is safe and not affected by the east line’s anchor support damage. But Jamo contends that the company has not done nearly enough to prove those assessments, and only provided a single internal report with limited information about the potential damage of and risk of operating Line 5.
“The Court is therefore unable to determine that Defendants have followed the usual necessary and proper procedures in restarting the West Line, or that Defendants are operating the West Line with due care as a reasonably prudent person would,” Jamo said.
Jamo also writes that Enbridge has failed to document the involvement of federal regulators “in any way beneficial” to the court’s review of the restraining order request.
Despite having a 67-year-old easement with the state of Michigan specifically pertaining to the underwater segments of Line 5, Enbridge has continued to argue that the pipelines ultimately fall under the jurisdiction of the Pipeline and Hazardous Materials Safety Administration (PHMSA), as the rest of the interstate pipeline does.
Jamo’s ruling states that the defendants have also failed, by their own admission, to provide requested information concerning their operation, integrity management, leak detection and emergency preparedness for Line 5.
This leaves the state of Michigan and the court “unable to assess the risk to state-owned bottomlands and the Great Lakes generally, as a public resource.”
“…The risk of harm to the Great Lakes and various communities and businesses that rely on the Great Lakes would not be only substantial but in some respects irreparable,” Jamo continued.
The court found that by Enbridge failing to comply with the terms of both the 1953 easement and the agreement made with former Gov. Rick Snyder in 2018, the state of Michigan “has and will suffer an immediate and irreparable injury.”
Both motions for temporary restraining orders a preliminary injunction were filed in Nessel v Enbridge Energy LP, et al., Nessel’s ongoing lawsuit against Enbridge in the Ingham County Circuit Court that seeks a permanent decommissioning of Line 5.
Nessel added that the ruling is “significant,” but “is only a short-term fix. If the lines are put back into operation, one mismanaged incident or accident would result in a historic catastrophe for our state. Work must continue toward complete removal of Line 5 from our waters.”*
Oral arguments on Nessel’s motion for preliminary injunction are scheduled to be held via Zoom Tuesday afternoon.
On Wednesday, the Michigan House passed House Resolution 282 in support of Enbridge’s Line 5 tunnel project. The tunnel, which Enbridge expects to be completed in 2024, will encase the pipeline in a large concrete tunnel under the lakebed.