State pushes back against Enbridge’s request to pause Line 5 suit during Canada treaty talks

Enbridge sign, St. Ignace | Laina G. Stebbins
Updated, 8:58 a.m., 7/23/21, with comment from Enbridge

In a court filing Friday, Attorney General Dana Nessel shot back against Canadian oil company Enbridge’s “legally unfounded suggestion” that State of Michigan v Enbridge should be put on pause while Canadian and U.S. officials discuss the possibility of a Line 5 closure.

Arguing on behalf of the state of Michigan, Nessel challenged the notion by writing, “There is nothing remarkable, legally, or otherwise, about officials for two countries communicating on a topic of shared interest such as Line 5.”

Michigan and Enbridge are currently awaiting a decision from a federal judge on which court — state or federal — will preside over the state’s lawsuit to enforce Gov. Gretchen Whitmer’s Line 5 shutdown order.

That order took effect on May 12, but Enbridge has refused to comply unless the state wins a court order.

On June 21, the Canadian government’s counsel asked the court that the suit be held in abeyance as talks play out between Canadian and U.S. officials regarding the 1977 Treaty between the two countries.

Enbridge then submitted a motion for leave to file a supplemental brief, arguing along the same premise and citing Canada’s letter to the court.

State, Enbridge to conclude mediation in Line 5 lawsuit by late August

But “regardless of what gloss of formality is now used in presenting those communications to the Court, the fact remains that no bilateral process exists to resolve this dispute that does or should inhibit this Court from ruling on this matter,” Nessel wrote Friday.

The brief also notes that counsel for the Canadian government itself has acknowledged that the 1977 Treaty’s dispute resolution mechanism has not been formally invoked.

“In essence, this is a request for this Court to keep this case and delay its progress indefinitely without even deciding whether the Court has proper jurisdiction over it in the first place,” Nessel writes on behalf of the state. “It is unsurprising Enbridge would favor this suggestion, given how it effectively presumes Enbridge’s substantive position is correct.

“And it is likewise unsurprising that neither Enbridge nor the Canadian government has offered any legal support for this suggestion. None exists.”

Enbridge spokesperson Ryan Duffy said in an email that the treaty talks should impact the court proceedings, as it believes the lawsuit is “much broader” than the state argues it is.

“As made clear in Enbridge’s filings, 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,” Duffy said.

“…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.”*

There are no remaining deadlines or hearings in the case. It is unclear when Judge Janet Neff will make a ruling, but mediation between the two parties is expected to conclude by or around the end of August.

If Neff rules in the state’s favor, State of Michigan v Enbridge will be sent back to the 30th Circuit Court and Whitmer, Nessel and the Department of Natural Resources (DNR) will be more likely to win a court order.

If Neff rules in Enbridge’s favor, the lawsuit will be heard in federal court, which would be favorable to the oil company.

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