Enbridge rebuts Nessel and Whitmer, argues for Line 5 shutdown case to be heard in federal court

Enbridge, Sti. Ignace | Susan J. Demas

As the state’s May 12 deadline for Canadian oil company Enbridge to shut down its Line 5 pipeline looms, Gov. Gretchen Whitmer’s lawsuit to enforce the shutdown still remains in flux while a federal judge decides which court will preside over the case.

On Tuesday, Enbridge filed nearly 50 pages of legal arguments in response to the state’s motion to remand State of Michigan v Enbridge back to the 30th Circuit Court. Attorney General Dana Nessel had filed that motion on March 16 in an effort to keep the lawsuit where it was originally filed and to keep the focus primarily on state law.

Enbridge attempted to remove the case to federal court soon after it was filed in November. If Judge Janet Neff rules in Enbridge’s favor, the company intends to lean heavily on federal statutes to win the lawsuit.

Whitmer’s notice of revocation and termination will still take effect in 12 days, even if the court case has not been concluded by then — which it most likely will not — but a court order will ultimately be needed to effectively enforce the shutdown, as Enbridge has made clear they will not do so voluntarily.

“As made clear in Enbridge’s filing, this case belongs in federal court as any attempt to shut down Line 5 has serious ramifications under an international treaty and raises substantial questions of federal law relating to interstate commerce and federal jurisdiction on pipeline safety issues,” Enbridge spokesperson Ryan Duffy said in a statement Thursday.

16 states, 4 tribes back Whitmer’s lawsuit over Line 5 shutdown

“The State argues that its lawsuit concerns only its administration of the 1953 Easement that authorizes the Dual Pipelines’ crossing of the Straits. But the lawsuit is much broader than that. A federal court is needed to uniformly apply federal law in a way that promotes the energy interests of the U.S. and is sensitive to U.S.-Canada foreign relations concerning critical infrastructure like Line 5,” Duffy continued. “Enbridge believes that it has presented ample reasons to allow the Court to conclude that the State’s lawsuit should remain in federal court.”

Duffy added that the state of Michigan and Enbridge continue to meet in mediation sessions, which is a commonplace practice.

“Given this case’s unavoidable foreign-affairs ramifications, federal jurisdiction is not merely permissible but necessary,” Enbridge’s attorneys argue in the Tuesday filing.

It cites four titles from federal statutory law to back up its arguments, including those pertaining to federal court jurisdiction, public lands, shipping and transportation.

The main crux of Enbridge’s argument to remand is that the Pipeline and Hazardous Materials Safety Administration (PHMSA), not the state of Michigan, has regulatory authority over Line 5; thus, only PHMSA could order the shutdown or decommissioning of the pipeline.

Nessel, Whitmer file argument to keep Line 5 shutdown suit in state court

The company lays out four main arguments. According to Enbridge:

  • Federal jurisdiction applies to a number of the state’s claims because they require the resolution of “substantial disputed issues of federal law”
  • The allegations in the state’s complaint implicate foreign policy concerns and interstate waters, thus making the action removable to federal court
  • The action is removable under the federal-officer removal statute (related to PHMSA)
  • The case falls within federal court jurisdiction because it “arises out of ostensible fears of damage from maritime commerce on navigable waters”

Whitmer and Nessel argue that the matter should be argued in state court, because the 1953 easement with Enbridge pertains specifically to state law, as does the state’s authority to revoke the easement.

The state’s reply to Enbridge’s response is due by June 2, nearly a month after Whitmer’s order is set to go into effect.

Laina G. Stebbins
Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).