Updated, 11:31 a.m., 1/18/19
Michigan Attorney General Dana Nessel is not backing down from her legal argument against oil company Enbridge’s plan to build a tunnel around the Line 5 pipeline.
A legal brief filed by Nessel in the Court of Appeals Thursday seeks a decision that would reverse an earlier Court of Claims ruling, which upheld the constitutionality of Enbridge’s 2018 agreement with former Gov. Rick Snyder to go forward with their tunnel project.
Nessel argues that the law behind that agreement, Public Act 359, violates a clause in the Michigan Constitution. On those grounds, she seeks a ruling that would void the law.
In the December 2018 Lame Duck session, Snyder pushed through and signed legislation that shored up Enbridge’s tunnel proposal by creating a panel with the authority to green-light the plan. PA 359 was designed in such a way that the incoming Gov. Gretchen Whitmer administration would have little power to reverse the agreement.
As planned, once PA 359 was enacted, state agencies took a series of actions on the tunnel project based upon the law’s authority – despite having explicit disapproval from the new Whitmer administration. This included rock and soil sampling in the Straits of Mackinac over the summer, which resulted in September equipment collapse and a 40-foot steel rod being lodged in the lakebed with no plans by Enbridge to remove it.
In March 2019, Nessel’s first legal opinion concluded that PA 359 is unconstitutional and the Snyder-Enbridge agreement based upon it should therefore be considered void.
Three months later, after negotiation attempts between Whitmer and Enbridge fell through, the oil company filed a lawsuit against the state in an effort to uphold the constitutionality of PA 359 in court. The Court of Claims eventually ruled in Enbridge’s favor at the end of October, thus validating the tunnel agreement with Snyder.
Nessel appealed the ruling soon after. On Tuesday, a Court of Appeals panel denied Nessel’s request to that Enbridge delay construction on the tunnel until litigation wraps up.*
Her Thursday filing is another action by the attorney general to challenge this ruling.