A lawsuit over the Line 5 petroleum pipeline that runs through the Straits of Mackinac will be heard in Michigan courts.
A three-judge panel for the U.S. Court of Appeals for the Sixth Circuit Friday shot down an effort from the pipeline’s owner to keep the case before federal judges.
Sean McBrearty is director for the Michigan branch of the environmental group Clean Water Action. McBrearty said he believes this settles a years-long back-and-forth about whether the case belongs in state or federal court.
“These are critical issues that need to be heard in our Michigan courts, not in a federal court, which, frankly, just doesn’t have the right kind of jurisdiction or understanding around these particular state law issues,” he said.
Earlier this summer, the federal appellate court judges remanded the case back to Michigan’s 30th Circuit Court in Ingham County. But Enbridge, the Canada-based company that owns Line 5, had requested a rehearing before the entire U.S. Court of Appeals.
Friday’s denial closes the door on that happening.
“We are disappointed that the U.S. Court of Appeals for the Sixth Circuit has denied our petition for rehearing. Enbridge believes that the case should remain in federal court given the clear and substantial questions of federal law raised by the Attorney General’s complaint,” Enbridge spokesperson Ryan Duffy said in a written statement.
The case first arose in 2019, when Michigan Attorney General Dana Nessel moved to shut down Line 5. In 2020, Governor Gretchen Whitmer launched her own action to shut down the pipeline.
Enbridge succeeded in moving the Nessel case to federal court, where Whitmer voluntarily withdrew her complaint, leaving the case with the state attorney general’s office.
But Enbridge is countersuing, asking the federal court in that case for a blanket ruling in its favor, arguing for a summary judgment to dismiss the case.
The company said it believes it would be wrong for a state court to rule before that motion gets decided.
“If the federal district court rules in Enbridge’s favor on the summary judgement motion, that ruling should fully resolve the Attorney General’s action,” part of Duffy’s statement read.
Nessel’s office, however, said it’s an important matter for the state to decide.
“It is a critical responsibility of the State to protect our Great Lakes from the threat of pollution. Our state claims, brought under our state law, will continue to be heard in a state court, and I am grateful we are one step closer to resolving this case on behalf of the state of Michigan,” Nessel said in a press release.
Enbridge said the dispute belongs in federal court because the line is under the jurisdiction of both federal regulators and international agreements.
“The Attorney General seeks to shutdown Line 5 based on perceived safety concerns, but Line 5’s safety is exclusively regulated by the Pipeline and Hazardous Materials Safety Administration (PHMSA). Every year PHMSA reviews the safety compliance of Line 5 across the Straits of Mackinac," Duffy's statement said.
Line 5’s unimpeded operation is also protected by the bi-lateral 1977 Transit Treaty entered between the United States and Canada. In Enbridge’s view, these federal issues should have weighed in favor of the case remaining in federal court. Even though the Attorney General’s case has been remanded to Michigan state court, Enbridge remains confident that the dispute should be fully resolved by the pending summary judgment motion in Enbridge’s separate lawsuit in Enbridge v. Whitmer," the statement continued.
