Michigan Line 5 case to remain in state court, a setback for Enbridge Energy

The Sixth Circuit Court of Appeals denied Enbridge Energy’s request for the Line 5 lawsuit Nessel v. Enbridge to receive a rehearing in federal court, returning the case to state court.

The court Enbridge had missed the 30-day deadline after Nessel filed the lawsuit in June 2019 to appeal moving the case to federal court, and that it relied on improper arguments when doing so.

“Our lawsuit to shut down Line 5 belongs in state court, as the federal court of appeals ruled in June, and affirmed today,” said Nessel in response to the Sixth Circuit’s decision. “It is a critical responsibility of the state to protect our Great Lakes from the threat of pollution. Our state claims, brought under our state law, will continue to be heard in a state court, and I am grateful we are one step closer to resolving this case on behalf of the state of Michigan.”

The Canadian company had proposed boring a tunnel under the Straits of Mackinac to house the pipeline more than five years ago. Nessel’s case seeks to void a 1953 exception to environmental rules which allowed that section of the pipeline to operate, arguing the environmental risks posed by the pipeline are too great.

Enbridge Energy said in a statement that it is “disappointed” in the decision.

“The Attorney General seeks to shutdown Line 5 based on perceived safety concerns, but Line 5’s safety is exclusively regulated by the Pipeline and Hazardous Materials Safety Administration,” Enbridge Energy said in a statement. “Line 5’s unimpeded operation is also protected by the bi-lateral 1977 Transit Treaty entered between the United States and Canada. In Enbridge’s view, these federal issues should have weighed in favor of the case remaining in federal court.”

But the company said it still “remains confident” that a separate case in federal court regarding Line 5’s continued operation will end in favor of the pipeline and thereby resolve the state level dispute.

Judge James Jamo of the 30th Circuit Court in Ingham County will make the ultimate decision on the state case.