After bouncing back and forth between federal and state court, attorneys presented their arguments on Monday involving a case that could lead to the shut-down of Line 5 in the Mackinac Straits.
WCMU’s Rick Brewer spoke with environmental reporter Teresa Homsi, who tuned into the four-hour-long hearing. Editor's note: This transcript has been lightly edited for clarity and length.
Rick Brewer: Teresa, can you give a bit of background on this case, please?
Teresa Homsi: The case stems from a lawsuit filed in 2019 by Michigan Attorney General Dana Nessel, and the intention was to void a 1953 easement that allowed Enbridge (then known as the Lakehead Pipe Line Company) to run the dual pipelines across the bottom of the Straits of Mackinac.
When Nessel had initially filed that lawsuit, she made the case that Line 5 poses a catastrophic threat of an oil spill in the Great Lakes, and it would have detrimental effects on the environmental, cultural and economic resources.
So in the most recent hearing, Assistant Attorney General Dan Bock argued the 1953 easement — that granted permission to use the the bottomlands of the Straits — was never valid because findings necessary to award the easement did not happen. He said that there wasn't sufficient considerations under Michigan's public trust doctrine, which allows the state to manage natural resources for the public's use and enjoyment.
RB: So what was Enbridge's defense in this hearing?
Well, one of the main arguments, through most of the hearing made by Enbridge is that Michigan is overstepping its jurisdiction with this lawsuit. Attorney Philip DeRosier, who represented Enbridge, repeatedly referred to the Pipeline and Hazardous Materials Safety Administration or PHMSA, which is the federal authority that regulates pipelines.
Pipelines also often fall under interstate commerce since they're traversing through many state lines, and in this case, Line 5 crosses over international borders between Canada.
So DeRosier argues that any issues with the Line 5's operation are subject to federal regulation and that Michigan can't just shut down Line 5 preemptively because it's worried about oil spills, and that if they have safety concerns, they need to take those to PHMSA instead.
DeRosier also pointed out that the U.S. and Canada are working toward a resolution on an international treaty that's related to Line 5, so a shutdown could hurt diplomacy between the countries and even interfere with U.S. foreign policy, according to DeRosier.
RB: So what was the state's response to that argument?
TH: Well, Bock said that federal regulations on pipelines allow states to be involved in the routing and location of pipelines. And from the state's perspective, the issue here is the placement of Line 5 in the lakebed in the Straits. Bock said that Michigan has a say over that. Once again, the basis for this case is that the easement to use that land which belongs to the state of Michigan and by extension the people, was never officially granted to Enbridge, according to Bock.
So he also said that Enbridge's attorney was falsely inflating the federal government's role in pipeline safety issues with environmental hazards, and that environmental concerns are not necessarily pipeline safety issues. So he mainly reiterated that Michigan does have the right to ensure that its state environmental laws are being followed.
RB: So what's next for this case?
That's a little bit of an uncertain space right now. Judge James Jamo with the Ingham Circuit County Court said that he will make a written decision and he'll put out a statement, but he didn't give any kind of timeline as to when he would make that ruling.
So we're not sure when the ruling will be, but that is something that we do plan to cover. There's going to be more developments on this case, but there is also another case related to the proposed Line 5 tunnel, which is also active that we'll be covering.
