Two Major Line 5 Legal Battles Go to the Supreme Court
LANSING — The Michigan Supreme Court is set to decide whether to allow a key permit appeal in the ongoing Line 5 pipeline dispute, while the U.S. Supreme Court has declined to review Michigan's sovereign immunity claim in the case against Enbridge Energy.
The state's highest court heard arguments in March on a challenge to a permit Enbridge needs to complete a tunnel project that would house a new segment of the controversial pipeline under the Straits of Mackinac. A ruling on the permit appeal is pending.
Meanwhile, the U.S. Supreme Court rejected Michigan's appeal on a separate question: whether the state has sovereign immunity from Enbridge's lawsuit challenging the pipeline's operations.
U.S. Supreme Court Rejects Michigan's Sovereign Immunity Claim
The federal Supreme Court denied the state's petition for a writ of certiorari on Tuesday, meaning they will not weigh in on the appeal filed by Michigan Attorney General Dana Nessel's office.
"We are disappointed by the Supreme Court's decision not to review this important issue of state sovereignty," said Danny Wimmer, a spokesman for Attorney General Dana Nessel's office. "We will continue to fight for the people of Michigan on these vital issues concerning the Line 5 pipelines in the Straits."
The state lost in lower courts and the Supreme Court's decision makes those decisions the final word on that question, which allows Enbridge to sue Michigan for attempting to use its regulatory power to scuttle Line 5.
Lower courts ruled that Enbridge's lawsuit can proceed because it alleges violations of federal law, an exception to sovereign immunity. The state argued it has immunity under the doctrine of sovereign immunity, but the Sixth Circuit Court of Appeals panel said Enbridge's lawsuit against the state fell within an exception to sovereign immunity that allows a suit to continue if it alleges a violation of federal law or the U.S. Constitution.
Sovereign immunity only applies, the lower courts said, when the litigation would "divest the state of full ownership and eliminate all regulatory power over the submerged lands."
Enbridge's spokesperson Ryan Duffy said in a statement that it agreed there was no need to review lower court rejections of Michigan's sovereign immunity plea.
"The Sixth Circuit made clear that Enbridge's suit falls within the exception to sovereign immunity," Duffy said.
Michigan Supreme Court to Decide on Permit Appeal
In the Michigan Supreme Court, the seven justices heard arguments earlier this month on a challenge to a permit Enbridge needs to build a tunnel to house a new segment of Line 5 in the straits. A ruling on whether the appeal can proceed is pending.
The proposed tunnel, roughly four miles long, would be under the Straits of Mackinac not far from the Mackinac Bridge. The project would replace the existing dual-pipeline infrastructure in the Straits of Mackinac with a tunnel housing a new segment buried under the lakebed.
Enbridge Energy submitted its geotechnical baseline report on the project to state permitting agencies in early March. The report itself is from 2022 and contains data that Enbridge says was already available publicly.
The report lays out potential geologic risks a contractor might encounter during construction, including weak bedrock, high water pressure and dangerous gases beneath the Straits. Pipeline opponents say these concerns underscore the dangers of the proposed tunnel.
"The report raises serious concerns about whether it is possible to safely build a tunnel in the Straits of Mackinac," said Debbie Chizewer, managing attorney with the legal nonprofit Earthjustice, which is involved in litigation against Line 5.
Brian J. O'Mara, a geological engineer with the consultant group Agate Harbor Advisors LLC, said the report confirms his concerns around poor rock quality, suggesting that much of the bedrock won't be stable for tunneling and could lead to construction equipment failing.
"The report is silent on the risks related to fire, explosions, floods, sinkholes, tunnel collapse and a full-bore rupture release of oil and gas liquids from the pipeline," O'Mara wrote in an email.
He had written in legal filings to permitting agencies about his concerns on the report's baseline data as early as 2023.
Enbridge's spokesperson Ryan Duffy said in an email that the geology beneath the Straits is not known to have gas, and that "the question has been thoroughly investigated by Enbridge and independent experts responding to Michigan regulators."
Duffy said the "sole purpose" of the report was to inform and negotiate business deals with construction contractors.
"The reality is that the new pipeline replacement at the Straits crossing is designed specifically to prevent potential risks to the Great Lakes and its communities," Duffy said.
Any geotechnical information pertinent to permitting decisions has already been made available to the relevant permitting agencies, Duffy added.
Years-Long Battle Over Line 5
The U.S. Army Corps of Engineers reviewed the geotechnical report when it developed the tunnel project's Environmental Impact Statement, said agency spokesperson Brandon Hubbard.
A spokesperson for the Michigan Department of Environment, Great Lakes and Energy (EGLE) said the agency requested the geotechnical report from Enbridge in late 2018.
Enbridge has secured most of its state permits for the tunnel, but is waiting on the completion of a federal review before it can begin construction. The project was supposed to be completed in 2024, but permitting delays have tacked on another year-and-a-half to the timeline. Construction won't begin until 2026 at earliest, assuming the project gets needed permits.
The state lost in lower courts and the Supreme Court's decision makes those decisions the final word on that question, which allows Enbridge to sue Michigan for attempting to use its regulatory power to scuttle Line 5 and stop the company from going forward with a project to encase the line in a tunnel under the straits.
The company says the pipeline is already safe, but the tunnel will make Line 5 an even safer means of transporting crude oil and natural gas liquids through the region.
"Line 5 is operating in accordance with federal law, interstate commerce regulations, and international treaty obligations," said Enbridge spokesperson Ryan Duffy in an email to Michigan Public Radio. "These frameworks recognize the essential role Line 5 plays in meeting the energy needs of the Great Lakes region and supporting its economic vitality."
The state has been in a years-long battle over the future of Line 5 as the underwater twin span running through the Straits of Mackinac has raised concerns about the potential for a catastrophic pipeline failure at the nexus of Lakes Michigan and Huron.
Whitmer and Nessel campaigned on promises to shutter the more than 70-year-old pipeline and initiated litigation between 2019 and 2020 after negotiations to speed up the construction of a tunnel to house the line failed.
In 2020, Whitmer revoked Enbridge's 1953 easement that allows the operation of the twin 20-inch underwater pipelines on the bottom of the Lake Michigan side of the Straits of Mackinac, west of the Mackinac Bridge. That revocation prompted Enbridge to file suit in federal court seeking an order to keep the pipeline running.
In late 2018, then-Gov. Rick Snyder entered into an agreement with Enbridge, in which the Calgary, Alberta-based company promised to build a tunnel under the Straits of Mackinac to house a new segment of Line 5 and protect it from potential anchor strikes or other disturbances.
Canada invoked a never-before-used 1977 treaty in 2021 that prevents either country from taking actions in relation to a pipeline that may harm the energy supply in either country. Those negotiations are ongoing.
What's at Stake
The two parallel pipes running along the bottom of the Straits of Mackinac pose what Michigan officials say is too big a risk to continue operating within the environmentally sensitive juncture that connects Lake Michigan and Lake Huron.
The proposed tunnel project would encase Line 5 in a tunnel under the straits, making it an even safer means of transporting crude oil and natural gas liquids through the region.
The company says the pipeline is already safe, but the tunnel will make Line 5 an even safer means of transporting crude oil and natural gas liquids through the region.
The Supreme Court heard arguments in February on a separate dispute over whether the case belongs in state or federal courts. A separate case questioning the jurisdiction of the Line 5 legal fight is pending before the U.S. Supreme Court.
The Michigan Supreme Court, the seven justices heard arguments earlier this month on a challenge to a permit Enbridge needs to build a tunnel to house a new segment of Line 5 in the straits.
The state has been in a years-long battle over the future of Line 5 as the underwater twin span running through the Straits of Mackinac has raised concerns about the potential for a catastrophic pipeline failure at the nexus of Lakes Michigan and Huron.
Whitmer and Nessel campaigned on promises to shutter the more than 70-year-old pipeline and initiated litigation between 2019 and 2020 after negotiations to speed up the construction of a tunnel to house the line failed.
In late 2018, then-Gov. Rick Snyder entered into an agreement with Enbridge, in which the Calgary, Alberta-based company promised to build a tunnel under the Straits of Mackinac to house a new segment of Line 5 and protect it from potential anchor strikes or other disturbances.
Canada invoked a never-before-used 1977 treaty in 2021 that prevents either country from taking actions in relation to a pipeline that may harm the energy supply in either country. Those negotiations are ongoing.