Three states file amicus brief supporting state authority over public trust waters
In conjunction with Michigan Attorney General Dana Nessel filing a response in her lawsuit against Enbridge, the attorneys general of Minnesota, Wisconsin and California filed an amicus brief supporting her argument that the state has the obligation and authority to protect the public’s rights in public trust waters.
“It is rare to have the amicus support of other state attorneys general in a state case but the attorneys general for two of our fellow Great Lakes states and the state with one of the longest coastlines in the country clearly recognize the severity and the magnitude of this issue and the important role states play in protecting the public trust,” said Nessel. “We are grateful that the Minnesota, Wisconsin, and California Attorneys General have joined forces with us to put the protection of our freshwater lakes over corporate profit.”
Nessel filed her response to Enbridge’s motion for summary disposition in the case she filed against Enbridge in Ingham County Circuit Court. In that case, Nessel seeks an order decommissioning Line 5, arguing that the continued operation of Line 5 in the Straits of Mackinac, under the 1953 easement, violates the public trust doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution impairment and destruction of water and other natural resources.
Under a schedule entered by the court, the attorney general and Enbridge filed motions for summary disposition in late September and both parties filed their responses to those motions yesterday. In her response, the attorney general again focused on the role of the attorney general and the courts in protecting the environment, and on the continuing vitality of the common law – through legal principles like the public trust and public nuisance – as tools to protect the public’s interest in navigable waters and a healthy environment.
Minnesota, Wisconsin, and California helped drive home those points, highlighting the importance of the public trust doctrine from their perspective. The amicus brief focused
specifically on Enbridge’s argument that federal law preempted the states’ from protecting their bottomlands and navigable waters.
Finally, the court recently ordered both parties to address the relevance of the recent Court of Claims’ decision in Enbridge’s lawsuit against the State concerning the
constitutionality of 2018 PA 359. The attorney general’s response laid out why that decision has no bearing on her lawsuit against Enbridge.
The attorney general and Enbridge will have opportunity to file reply briefs on December 10th. After those briefs are filed, Ingham County Circuit Court Judge James Jamo will determine whether he hears oral argument before he issues a decision.
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