Michigan attorney general argues Line 5 lawsuit should be sent back to state court

The Michigan Attorney General’s Office argued Thursday in a federal appellate court that its lawsuit to shutdown the Line 5 oil pipeline should be returned to a Michigan court.

Line 5, a 645-mile oil and natural gas pipeline owned by Enbridge, a Canadian energy company, moves oil across Canada through Michigan and Wisconsin, with a segment of the pipeline running under the Straits of Mackinac.

Before oral arguments in Nessel v. Enbridge, Michigan Attorney General Dana Nessel spoke with climate activists, as well as members of Michigan’s tribal communities outside the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio.

“Our environment, our natural resources are counting down towards their expiration date. We do not have time to continue along the way we’ve been going,” Nessel said. “Line 5 runs along the bottom lens of the Straits of Mackinac at depths of up to 270 feet below the surface. And that is to say that this over 70-year-old pipeline is situated smack dab in the middle of one of the most fragile, unique, precious ecosystems in not just the state of Michigan, but I would argue all of the United States of America.”

During her first attorney general race in 2018, Nessel, a Democrat, ran on the promise that she would seek to decommission Line 5, filing legal action against Enbridge in the Ingham County Circuit Court in June 2019. 

Democratic Gov. Gretchen Whitmer ordered Enbridge to cease operations of the portion of the pipeline that runs through Michigan waters in November 2020, but Enbridge has not complied amid court action.

Although attempts by Michigan officials to shut down Line 5 have failed over the last five years, Nessel is trying to breathe new life into her original lawsuit filed in Ingham County. She’s seeking to bring the case back to Michigan after a federal judge in 2022 sided with Enbridge and said the suit will be heard in federal court. 

Enbridge is shopping around for the most favorable court for its cause, Nessel said before oral arguments. 

“This is a Michigan case brought in state court under state law on behalf of the good people of the state of Michigan,” Nessel said. “Unfortunately, Enbridge has managed to delay justice for over three years by playing procedural games.”

Enbridge spokesperson Ryan Duffy said to the contrary, it is Nessel who is forum shopping by disregarding the lower court’s decision. 

“The district court properly found exceptional circumstances warranting this case being heard in federal court … as the district court explained, the Attorney General was setting up a forum battle between federal and state courts,” Duffy said on Thursday. “Ignoring the substantial federal issues that are properly decided in federal court and not state court. Not surprisingly, Enbridge’s case has been supported by several different amici groups, including organized labor, business and energy.”

Enbridge has said in its defense that a 1977 treaty between Canada and the United States allows for the pipeline to operate so long as it is in compliance with the other county’s environmental standards. 

Duffy at the time said that the decision, “properly keeps the Michigan Attorney General’s lawsuit in federal court,” and the state’s attempts to shut down “this critical energy infrastructure,” raise “important federal questions of interstate commerce, exclusive federal jurisdiction over pipeline safety and the serious ramifications for energy security and foreign affairs if the State and the U.S. government were to defy an international treaty with Canada that has been in place since 1977.” 

Michigan Assistant Attorney General Daniel Bock told the U.S. Court of Appeals Thursday that there are three major legal arguments that the case should be returned to the Ingham County Circuit Court: Enbridge didn’t abide by the required timeline to qualify for removal to federal court, Enbridge constructively waived its right to remove the case and there is a lack of federal subject matter jurisdiction.

In order to qualify to remove a case up to federal court for a variety of reasons, the petitioning party typically has to file to do so within 30 days of the start of the case, Bock said.

“Enbridge filed its notice of removal in this case 887 days after it received the complaint, ” Bock said. “There are several things that are wrong with their order. What Enbridge actually argued in its brief is that the 30-day clock does not begin running until it is certain that a case is unambiguously removable. … The fact of the matter is based on the law and facts of this case, Enbridge’s clock began running when they were served with a complaint.”

One month before Enbridge removed Nessel’s case in a lower court in 2021, Enbridge filed a motion to remove a separate lawsuit from Whitmer, which led to Whitmer dropping the case.

Enbridge’s defense asserts the result of the Whitmer case gave the certainty needed by the company to file the removal to federal court in Nessel v. Enbridge, and effectively began the 30-day clock.

The federal issues and foreign affairs disputes that arose in reaction to Whitmer’s case sparked new action from Enbridge and the timeline for filing was reasonable, attorney Alice Loughran, who was representing Enbridge, told judges.

“The governor’s action generated a significant foreign affairs controversy that came out subsequent to both complaints and was a partial basis for the district court’s order, saying that there were significant issues,” Loughran.

Line 5 has been controversial for years, with members of Michigan’s and Wisconsin’s tribal communities expressing public outrage over the pipeline’s threat to the surrounding natural areas. Andrea Pierce, Little Traverse Bay Bands of Odawa Indians citizen and Michigan Environmental Justice Coalition policy manager, spoke after Nessel ahead of the arguments which could monumentally impact the future of the pipeline. 

“They are trespassing on our lands and our water. They are trespassing and they’re still operating making all this money illegally,” Pierce said. “Is that what we want? Do we want to be a shortcut for Canadian profits? … We’re going to protect and make sure the water is safe. The woods are safe, my community is safe, our communities are safe, our water is safe, and how do we do that? We’re gonna have to get rid of Enbridge.”