Gongwer News Service
Ingham Circuit Judge James Jamo said Monday he will issue a written opinion in the coming months regarding whether Enbridge Energy’s Line 5 pipeline beneath the Straits of Mackinac should be decommissioned or possibly rerouted.
Jamo made the announcement from the bench after he heard oral arguments in Nessel v. Enbridge (Ingham Docket No. 19-474) and the parties issued motions for summary disposition in the matter that has bounced between the state court and the federal district court over the past few years.
The oral arguments commenced before Jamo following the 6th U.S. Circuit Court of Appeals unanimously ruling the case belonged before the Ingham Circuit Court.
Attorney General Dana Nessel and others have long maintained that the state’s arguments for shutting down the pipeline might fare better in state court.
Arguing for the state was Assistant Attorney General Dan Bock, who said the pipeline violates Michigan’s sovereignty and public trust laws, noting the 1953 easement that allowed the pipeline to exist on the bottomlands of the straits was invalid. Bock further argued that the easement was now invalid due to a lack of required public trust findings.
Bock said the federal Pipeline Safety Act does not preempt state property or common law remedies in the matter, and a federal treaty between the U.S. and Canada protecting the pipeline does not bar state action.
Bock argued Enbridge’s assertion that the act preempts state regulation of the pipeline should be rejected by the court, as two cases of court precedent support the state’s authority.
Supporting the state’s argument, Bock said, was the fact that the Great Lakes and their submerged bottomlands are owned by the people of Michigan, not the state itself, based on the equal footing doctrine. In that instance, the government holds these resources in trust for the people, with a duty to protect and manage them accordingly.
Although Enbridge argues it has the right to pump oil through what Bock described as an aging pipeline that could eventually fail, regardless of whether it has a valid easement, Bock said the argument was an affront to the people of Michigan and is controverted by both federal laws and case law.
One of those cases is Bad River Band v. Enbridge, which addressed the very preemption arguments presented by Enbridge before Jamo. The federal district court in that case ordered a shutdown of Line 5 around the Bad River Band’s land.
Specifically, the native tribe argued the company’s easement had expired and that reasoning was analogous to Nessel’s claims.
In terms of federal law, the Pipeline Safety Act does not preempt state property or contract and leaves pipeline routing and locational decisions to the state that houses the pipelines. Although Enbridge has argued that the pipeline became preempted under federal law after routing and locational decisions were made, the company has conceded that the 1953 easement decision was in fact one of routing and location.
As to violations of the public trust, Bock said the public trust doctrine was not a pipeline safety standard, as described in the federal act. To the contrary, Bock said the doctrine arises from constitutional protections for the people’s right to use the Great Lakes and submerged lands. To that end, Enbridge has failed to argue it would not be a public or environmental nuisance, nor one that would be exacerbated by a line breach from decay or a possible anchor strike, that preempts enforcement under the Pipeline Safety Act.
Overall, Bock said Enbridge’s interpretations of federal law and the treaty itself are overly broad and should be rejected by Jamo.
In response, Enbridge argued the treaty also preempts any state or local authority from shutting down a transit oil pipeline, but the Bad River Band case was one where the courts held the treaty did not preempt actions like the ones now taken by Nessel. Bock said that it was bolstered by Article IV of the treaty, which preserves the rights of governmental authorities to enforce local or state rules.
It has been said that the U.S. and Canadian governments have been in negotiations over what to do with the pipeline and the administration of recently inaugurated President Donald Trump could complicate those negotiations, as it may have a different tack in the talks as opposed to former President Joe Biden. Canada is also in the midst of selecting a new prime minister after outgoing Prime Minister Justin Trudeau recently announced his resignation.
Bock said the decision before Jamo should no longer be delayed nor stayed pending resolution of the international dispute over the pipeline, as it would allow Enbridge to continue operating in violation of state law.
Phillip DeRosier, representing Enbridge, countered by saying the Pipeline Safety Act and the treaty, which was signed in 1977 and well after the easement agreement was reached 20 years earlier, does in fact preempt the state from taking the kind of drastic action it has in regard to Line 5.
Overall, DeRosier said the state cannot bypass on its own the federal laws protecting Line 5 and that the state was in the wrong for suing to shut down the existing pipeline.
The treaty itself protects the uninterrupted flow of hydrocarbons between Canada and the U.S., and Canada under Trudeau invoked Article IX of the treaty in response to Michigan’s attempts to shut down the pipeline.
DeRosier said the treaty specifically prohibits a permanent shutdown of pipelines like Enbridge’s and that because there is now an international aspect to the existential question of Line 5, those negotiations should be able to play out and to let the decision inform the court – not the other way around.
Aside from federal law and the treaty, DeRosier also argued the Foreign Affairs Doctrine preempts state actions that interfere with a national government’s conduct in foreign relations, again pointing to the agreement between the U.S. and Canada.
A court-ordered shutdown of Line 5 would conflict with U.S. foreign policy and could significantly damage relations between U.S. and Canada, he argued.
At one point, Jamo made a quip about the parties agreeing that Canada was a foreign sovereign nation and not a state within U.S. territory, a sly nod to Trump’s insistence that the U.S. should make the whole of Canada a U.S. state in a bid to exert dominance in international affairs. The moment brought laughter from all parties before DeRosier continued.
DeRosier cited past court precedent, which held state actions are indeed preempted when they directly conflict with federal foreign policy.
To the easement argument, Enbridge held that easement is still valid and that it was granted properly more than 70 years ago. Michigan Supreme Court precedent regarding state control over public lands from 1960 does not apply retroactively to the 1953 easement, as the state asserts, because it was granted for a public use and satisfies the requirements laid out in that decision.
DeRosier said Nessel’s challenge to the easement should therefore be dismissed.
The public trust question and the state’s Environmental Protection Act also insufficiently show Line 5 is an imminent risk or harm to the environment, and those claims should similarly be dismissed because they fail to meet the standard of a substantial risk under Michigan law, DeRosier added.
He further argued that the risk as a public nuisance was purely speculative and did not meet the strict requirements of the injunction requested. DeRosier said the past precedent also dictates that a court cannot prevent conduct from a company that does not explicitly rise to a level of environmental risk outlined by state law and should be dismissed.
Through various agencies and special commissions, the state has already created a remedy that works with Enbridge and keeps the pipeline flowing, and that is the tunnel Enbridge seeks to build to protect it from leaks, anchor strikes and other potential disruptions.
DeRosier asked Jamo to grant summary disposition in the case to Enbridge.
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