A judge spent nearly four hours Monday listening and sorting through arguments on the future of the state’s effort to shut down a 4.5-mile segment of an Enbridge petroleum pipeline that runs along the bottom of the Straits of Mackinac.
Ingham County Circuit Judge James Jamo’s first decision is whether it is his job to make a decision. If the answer is yes, then Jamo will decide whether the state has the authority to revoke an easement that allows Enbridge to operate Line 5 on the bottom of the Great Lakes.
The case in Ingham County is one of a jumble of state and federal lawsuits over the continued operation of the pipeline in the environmentally sensitive juncture of Lake Huron and Lake Michigan, even as Enbridge moves ahead with plans to encase it in a tunnel under the lakebed. “This is about public safety under the common law public trust doctrine,” argued Assistant Attorney General Dan Bock during the online arguments before Ingham County Circuit Judge James Jamo.
This six-year-long challenge is part of the hodgepodge of legal actions surrounding Line 5 and Enbridge’s efforts to allay concerns with a project to encase the line in a concrete tunnel.
Enbridge has been trying to move the arguments to federal courts, where its chances are arguably better than state courts presided over by judges selected by Michigan voters.
“Enbridge has deliberately caused years of delay through procedural tactics, attempting to block Michigan courts from deciding a critical issue that directly impacts its residents,” Nessel said in a statement released by her office following the arguments.
But Enbridge argues the case has national and international implications that are bigger than one state’s parochial interests. Enbridge runs a sweeping network of energy pipelines. Line 5 runs through Michigan and Wisconsin on the U.S. side of an international border and into Ontario and Quebec on the Canadian side and portions of the pipeline go through tribal lands.
“We believe these are federal issues that take precedence, and this has become really an international controversy at this point,” said Enbridge spokesman Ryan Duffy. Enbridge’s attorney also argued the state has no standing since it is only arguing prospective future harm.
Enbridge’s pipeline network could be part of the solution to resolve moving petroleum products without using a line that in a worst-case scenario would spill hundreds of thousands of gallons of petroleum product into the Great Lakes, said Andrew Buchsbaum, an attorney who filed an amicus brief on behalf of the National Wildlife Federation and the Great Lakes Business Network.
But, he said, first the court would have to agree the state has shown the potential for an environmental catastrophe is enough to establish standing to sue.
“Once a court makes that finding, then procedurally, the next phase of the case is, what’s the remedy?” said Buchsbaum. “That is, is it an immediate shutdown? Is it a shutdown over time to allow Enbridge to try to find some other way of rerouting the oil and gas around the straits or around Michigan?”
Judge Jamo said he will issue a written opinion soon, but did not give a specific timeline. Whatever Jamo decides can be appealed to a higher court.
