Supreme Court sides with Nessel in Line 5 jurisdiction dispute
By Kelly House, Bridge Michigan
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The US Supreme Court has unanimously sided with Michigan Attorney General Dana Nessel in a dispute over which court — state or federal — should oversee Nessel’s lawsuit to shut down the Line 5 pipeline.
The court’s nine justices ruled that Enbridge cannot move the state court case Nessel filed seven years ago to federal court, because the company missed a 30-day deadline to do so.
Jurisdiction matters because federal courts are considered more likely to sympathize with Enbridge’s argument that the pipeline should stay open, while state courts are more likely to sympathize with Nessel’s argument that it should close.
The ruling is the latest development in a yearslong dispute over the fate of the 72-year-old oil pipeline owned by Canadian oil giant Enbridge Energy, which crosses through the open water of the Straits of Mackinac as it transports petroleum products from Wisconsin to Ontario.
The aging pipeline has sustained damage multiple times in recent years, sparking fears that it could rupture and cause an oil spill in the Great Lakes.
Citing those fears, Nessel in 2019 filed a lawsuit in the 30th Circuit Court in Ingham County seeking to shut down the pipeline’s lakebottom segment. But two years into deliberations, Enbridge attempted to move the case into federal court — missing a 30-day statutory deadline to do so.
In a dispute that made its way to the nation’s highest court, the company argued it qualified for an exception to the deadline, while state lawyers accused the company of seeking “an atextual escape hatch.”
In an opinion authored by Justice Sonia Sotomayor, the justices concluded that Congress authorized limited exceptions to the 30-day deadline, none of which apply to the circumstances of this case.
“Enbridge’s counterarguments are not persuasive,” Sotomayor wrote.
The procedural ruling doesn’t settle the question of the pipeline’s fate. But it remands the case back to Ingham County, where deliberations are paused pending the outcome of a separate case.
In a statement, Nessel said the ruling “makes emphatically clear” that the case belongs in state court.
“For far too long, following years of Enbridge’s delay tactics, the fear of a catastrophic spill from Line 5 has haunted our state, threatening to turn our most vital natural resource into a man-made disaster,” Nessel said.
Enbridge spokesperson Ryan Duffy expressed confidence that the company will prevail in arguing that the line should remain open.
“The fact remains that the safety of Line 5 is regulated exclusively by the Pipeline and Hazardous Materials Safety Administration,” Duffy wrote. That agency is part of the US Department of Transportation.
In a ruling tied to a separate shutdown dispute between Gov. Gretchen Whitmer and Enbridge, US District Court Judge Robert Jonker ruled in December that federal pipeline safety laws preempt state laws, leaving Michigan with no “power to interfere” in Line 5 operations. The state is appealing the decision and Nessel’s state court case is paused pending the outcome of that appeal.
Prolonged battle
For years, fans and foes of the pipeline have been battling in Michigan and Wisconsin over fears that the pipeline could cause a catastrophic oil spill. Enbridge also owns the line 6B pipeline, which spilled into the Kalamazoo River causing among the worst inland oil spills in US history. Line 5 has been repeatedly struck by ships’ anchors, further heightening pipeline safety concerns.
In 2018, Enbridge pitched a plan to move the Straits section of the pipeline into a concrete-lined tunnel deep beneath the lakebed to alleviate spill concerns. But that plan, too, has been controversial, with some contending the best solution is to remove the pipeline entirely.
It’s a debate that revolves not only around spill risks, but concerns about land disturbances from tunnel construction, infringement on Native American treaty rights in the Straits and the climate implications of building infrastructure that would lock in decades of additional fossil fuel use.
The US Army Corps of Engineers and the Michigan Department of Environment, Great Lakes and Energy are both preparing to issue key permitting decisions tied to the tunnel plan.
Meanwhile, the Michigan Supreme Court is deliberating over a lawsuit challenging a separate tunnel permit the state already granted.
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