U.S. Supreme Court Denies Whitmer's Appeal in Line 5 Pipeline Lawsuit
LANSING — The U.S. Supreme Court has rejected an appeal from the state of Michigan that argues Governor Gretchen Whitmer has sovereign immunity from a lawsuit filed by Enbridge Energy to maintain operations of the Line 5 oil pipeline.
On Tuesday, the high court denied the state's petition for a writ of certiorari, meaning they will not weigh in on the appeal filed by the state. This decision allows Enbridge to continue its federal lawsuit against Michigan over its efforts to shut down the controversial pipeline in the Straits of Mackinac.
"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."
Enbridge 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," said Ryan Duffy, a spokesman for Enbridge.
The Legal Battle Over Sovereign Immunity
Nessel's office filed the petition with the U.S. Supreme Court in November after the district and appellate courts ruled the state did not have 11th Amendment sovereign immunity to shield it from Enbridge's lawsuit.
A Sixth Circuit Court of Appeals panel last year 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 does not seek to extinguish the state's ability to exercise its regulatory and sovereign authority over the disputed lands entirely," Circuit Judge Rachel Bloomekatz, an appointee of President Joe Biden, wrote in the April 23 opinion. "Enbridge seeks only to bring the state's regulatory activities into compliance with federal law and the Constitution."
State Efforts to Shut Down Line 5
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.
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 Pipeline Controversy
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.
The proposed tunnel, roughly four miles long, would be under the Straits of Mackinac not far from the Mackinac Bridge. Enbridge wants to replace the aging Line 5 with a new pipeline inside a tunnel beneath the lakebed.
"Line 5 is operating in accordance with federal law, interstate commerce regulations, and international treaty obligations," said Enbridge spokesperson Ryan Duffy in an e-mail 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."
Multiple Legal Battles Remain
While the sovereign immunity issue has been resolved, multiple legal battles remain both on the substantive questions of law and the safety of the pipeline project.
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.
That case stems from the Michigan Public Service Commission's December 2023 approval of Enbridge's proposal to reroute a 4-mile segment of the controversial petroleum pipeline out of the open water and into a tunnel.
That decision prompted outcry from pipeline opponents, who have argued the 72-year-old pipeline should be shut down rather than merely rerouted.
A coalition of four Michigan tribal nations and a Traverse City-based environmental group responded with two separate lawsuits, triggering a legal dispute that reached Michigan's highest court.
The tribes — the Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Band of Odawa Indians and Nottawaseppi Huron Band of the Potawatomi — joined by the Environmental Law and Policy Center and the Michigan Climate Action Network, argue the commission should have considered possible environmental impacts such as oil spill risks along the length of the 645-mile pipeline.
Traverse City-based Flow Water Advocates argues the commission inadequately considered the tunnel project's impact on the Great Lakes as a public trust resource.
Federal Court Ruling
A U.S. District Court in December sided with Enbridge in the case filed by the Canadian oil giant against Whitmer, ruling that federal pipeline safety law leaves Michigan no authority to order a shutdown.
Judge Robert Jonker ruled that the Clean Water Act preempts Michigan's ability to shut down Line 5, stating that federal law governing pipeline safety takes precedence over state regulatory efforts.
The state is appealing that decision, but the Michigan Supreme Court case argued Wednesday is one of several ongoing regulatory and judicial deliberations that could seal the fate of the controversial pipeline.
Ongoing Treaty Negotiations
Canada in 2021 invoked a never-before-used 1977 treaty 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 This Means Going Forward
The U.S. Supreme Court's denial forecloses that avenue of relief for Michigan's sovereign immunity argument. The state must now pursue other legal avenues or accept that Enbridge can continue to sue Michigan for attempting to use its regulatory power over the pipeline.
The Michigan Supreme Court will soon decide whether state regulators acted properly when they granted key permits for the proposed Line 5 tunnel. The court's current term ends July 31.
Meanwhile, Enbridge is still waiting for permits from federal and other state agencies for the proposed tunnel project. The U.S. Army Corps of Engineers reviewed the geotechnical report when it developed the tunnel project's environmental impact statement, and the Michigan Department of Environment, Great Lakes and Energy is continuing to evaluate the application that was submitted.
A decision from EGLE on the permit is expected no later than mid-July.
The Bigger Picture
The Line 5 case represents one of the most significant environmental and economic disputes in recent Michigan history. The pipeline has been a central issue in Governor Whitmer's platform, and shutting it down has been a campaign promise she has repeatedly emphasized.
At the same time, Enbridge has invested billions in the pipeline and tunnel project, arguing that it is the safest way to transport crude oil and natural gas liquids through the region.
The resolution of these legal battles will have profound implications for Michigan's relationship with Canada, the energy needs of the Great Lakes region, and the environmental protection of the Straits of Mackinac.
The U.S. Supreme Court's decision doesn't end the controversy, but it does remove one potential legal avenue for Michigan to pursue. The state and its officials must now find new strategies to protect the Great Lakes and their communities from the risks associated with Line 5.
As the various legal challenges continue to unfold, Michigan residents will continue to watch closely as their state and federal courts deliberate over the fate of this controversial pipeline.