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A Traverse City-based environmental nonprofit group has weighed in on a lawsuit between Michigan’s attorney general and the Canadian company Enbridge, which owns and operates the Line 5 pipeline that transports oil and natural gas liquids from Wisconsin through Michigan to Canada.
In 2019, Michigan Attorney General Dana Nessel sued Enbridge in Ingham County Circuit Court to void an easement allowing the company to run a section of the pipeline along the bottom of the Straits of Mackinac, saying it posed the risk of an oil spill. Enbridge successfully pushed to send the case to federal court. Nessel appealed, and it was sent back to state court earlier this year.
The group “For Love of Water,” or FLOW, is among those supporting Nessel’s argument in the original lawsuit — that the state has authority to void Enbridge’s easement. Now, FLOW has filed a joint amicus brief along with the Great Lakes Business Network and the Sierra Club, opposing Enbridge’s motion for summary disposition, which would let the court resolve the case without a trial.
In their brief, the groups focus on the 1977 Transit Pipelines Treaty between the United States and Canada. That treaty guarantees the flow of hydrocarbons — like oil and natural gas liquids — between the two countries.
Enbridge and other parties, like the government of Canada, have argued that the treaty and the foreign affairs doctrine, which can limit state power in dealings between countries, shield Line 5 from shutdowns.
But FLOW argues that the treaty gives states the authority to regulate pipelines that cross the border when it comes to environmental protection. They say this is a states' rights issue, and that because this section of pipeline falls in Michigan’s sovereign territory, the state should be able to determine what happens.
“The foreign affairs doctrine is pretty limited, and we don't see that it applies here, because the treaty has some plain language about how states are still allowed to regulate based on environmental protection,” said Carrie La Seur, FLOW’s legal director. “That's exactly what Michigan has done here.”
This is a decision on the law, rather than the substance of the original arguments, La Seur said.
Enbridge spokesperson Ryan Duffy said in an email that amicus briefs have been filed in support of the company by chambers of commerce, industry groups like the North America’s Building Trades Unions (NABTU), and the government of Canada.
Duffy said Nessel’s case deals with the safety of the pipeline, and that authority for that falls exclusively to the federal Pipeline and Hazardous Materials Safety Administration.
“Every year PHMSA reviews the safety compliance of Line 5 across the Straits of Mackinac,” Duffy wrote on behalf of Enbridge. “Line 5’s unimpeded operation is also protected by the bi-lateral 1977 Transit Treaty entered between the United States and Canada.”
That argument is similar to Enbridge’s stance in a Wisconsin case, where the Bad River Band of Lake Superior Chippewa is suing to shut down Line 5 on its reservation because of issues including trespass and the threat of an oil spill.
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