Last Thursday, Michigan Attorney General Dana Nessel asked the Sixth Circuit U.S. Court of Appeals to decide whether her lawsuit against Enbridge will remain in federal court or go back to state court. The case was litigated in a Michigan state court for over a year before Enbridge removed the case to federal court.
This case was originally filed in the Michigan Circuit Court for the County of Ingham in 2019. After Enbridge successfully removed a related 2020 lawsuit filed by Governor Gretchen Whitmer to federal court from state court, Enbridge then removed Nessel’s case as well. The deadline to file such a request had expired nearly two years before Enbridge removed this case, and extensive litigation had already taken place in the state court. In fact, in the summer of 2020, the state court ordered that the pipelines be temporarily shut down due to external impacts from anchors or other objects. The parties had also filed and argued motions for summary disposition, with each side asking the state court to decide the case in their favor without a trial. Because of the delay caused by Enbridge’s untimely removal, those motions remain undecided approximately three years later.
The attorney general filed a motion to remand her lawsuit back to state court, arguing that the removal was untimely, and the federal court lacked jurisdiction. In August 2022, the district court denied that motion to remand, and in response the attorney general filed a motion with the district court asking the court to certify the decision for interlocutory appeal. The matter was pending for over 5 months.
On February 17, 2023, the attorney general filed a petition for a writ of mandamus in the Sixth Circuit Court of Appeals, arguing that the district court made clear legal errors and abused its discretion. She asked the court of appeals to send the case back to state court. On February 21, 2023, the federal trial court granted the attorney general’s motion to certify the denial, which opened the door to the attorney general to appeal this matter to the federal court of appeals. In it, the attorney general argued that the federal trial court’s decision to keep the case contains multiple legal rulings about which there is substantial ground for difference of opinion. In particular, the attorney general argued that the federal court’s decision effectively snatched the case away from the state court after substantial litigation had taken place in the state court, and while the parties were awaiting a final decision from the state court. The attorney general believes that the federal trial court clearly erred when it refused to send the case back to state court.
“This pipeline poses a grave threat to Michigan and to our Great Lakes,” said Nessel. “Enbridge initially agreed that this case belonged in state court and waited two years to move it to federal court. I am grateful that the district court has now recognized that an appeal is appropriate, and I look forward to raising these important issues in the Sixth Circuit.”
Previously, 28 entities – including 16 states, the District of Columbia, four Native American tribes, six environmental organizations, and the Great Lakes Business Network – submitted friend of the court briefs in support of Nessel’s motion to remand in State of Michigan, et al v Enbridge Energy, et al. The briefs support the state’s right to enforce its own laws in its own courts.
Enbridge has 10 days to file an answer to the petition. The federal court of appeals will then decide whether to take the case. No timeline has been set for the court’s decision.
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