By Liz Nass
Gongwer News Service
The debate over Enbridge Energy’s Line 5 tunnel project continued in front of a crowded Michigan Supreme Court on Wednesday, with attorneys debating the end game of ongoing lawsuits contributing to the delay in beginning the long-ago planned proposal.
Two lawsuits against the Public Service Commission heard arguments on separate claims of negligence in the permitting process as part of the project that hopes to house the dual pipelines within a tunnel beneath the lakebed of the Straits of Mackinac.
The project has been delayed for years as various court challenges play out on the federal and state level. The Michigan Supreme Court heard arguments Wednesday after the U.S. Supreme Court heard arguments on a different issue earlier this month.
In April 2025, the Court of Appeals ruled it found no reason to reverse the PSC’s decision to grant permit approval to Enbridge for the project, saying the commission provided a comprehensive opinion outlining its decision and acted reasonably.
Little Traverse Bay Band of Odawa Indians v MPSC (MSC Docket No. 168335-9) focuses on alleged violations of the Michigan Environmental Protection Act, claiming the commission did not consider environmental protections and if the Court of Appeals should have decided to look at the case anew, or de novo, rather than through deferential standard to uphold the lower court unless the decision is found erroneous or unreasonable.
In the For Love of Water v MPSC (MSC Docket No. 168346), the organization is focused on whether the commission abided by the common law public trust doctrine, arguing the process should be reviewed by the Department of Environment, Great Lakes and Energy as well.
The department is still in the permit application process for expired contracts throughout long legal battles.
Overall, Enbridge attorneys argue no matter what, the status quo will remain, which is keeping the pipeline in the Straits. The tunnel, however, would provide more protection. Additionally, attorneys argued, if the court decided to abandon the Court of Appeals’ decision it would just delay any movement for another five to six years, and return the project to the starting line.
In the Little Traverse Bay Band of Odawa Indians case, the attorneys called to send the permit decision back to the commission and allow development of gaps in their findings before. David Scott, one of their attorneys, called the previous decision “lopsided” and said the alternatives analysis was “fundamentally flawed.”
“They considered only the environmental harms within the footprint of the tunnel and compared that to environmental harms on different routes,” Scott said.
Justice Elizabeth Welch said the record with the commission is already “massive,” questioning the need to go back and find more evidence. Scott said there must be an independent review and analysis to create a full record.
Welch also questioned requiring a full review now of the entire pipeline, which may create an issue in the future. Enbridge claimed it would create a standard that whenever any portion of the pipeline needs to be repaired or replaced, it would need a full review, which could disincentivize companies from making repairs.
Welch also claimed they have heard from utilities this could create an issue for every electrical upgrade and their decision could impact many other segments of the utility infrastructure.
Adam Ratchenski, the other attorney for the Little Traverse Bay Band of Odawa Indians, said the argument was “overblown” and a “bit of a slippery slope,” because this case is not about maintenance, and there are arguments for certain replacements or repairs that would not need a full environmental report.
It seems like a hard line to draw, Welch said.
Another argument against the Little Traverse Bay Band of Odawa Indians was calling the case anew would require the court to be fact finder at this phase of the litigation. Scott said it would not require this; it would just be a different legal standard to a factual record of public health, safety and welfare already collected.
John Bursch, attorney for Enbridge, stressed alternatives for the pipeline are slim. Last December a federal court held the federal government alone can shut down an international pipeline like Line 5, and that the PSC has limited authority in what to consider.
He said the commission did exactly what it was supposed to do: analyze the conduct at issue.
To the argument the state can do nothing, raised by Welch, Ratchenski said it’s “a fatalist view” and that it is not the final word in the case, which is still being appealed.
Bursch did not contest there would be environmental impairment from the pipeline, but that “this court should reject appellant’s attempt to hinder a safer pipeline and instead allow the tunnel project to move forward expeditiously” for a more pro-environment option.
Ratchenski said his plaintiffs don’t think a solution to the issue looks like “the highest water pressure tunnel ever built in the world, and putting an oil pipeline into a concrete tunnel, which has never been done anywhere in the world” either.
Bursch also claimed there was a .001% chance there would be an anchor strike to the pipeline, that “the pipeline has the same integrity today as when it was approved back in 1953,” and it’s also the most heavily regulated pipeline in the nation.
Ratchenski debated this, saying it’s not true to say a segment can “operate forever” and “the idea that aging pipelines are not like your bones, it can go on forever, is just bizarre.”
Later, Bursch said the pipeline will age at some point, but then federal regulators will be knocking at the door to fix it anyway.
While the attorneys on the other side argued the pipeline may need to have modernized structural reviews that could lead to its ultimate end, Bursch said “there is no scenario that gets the pipes out of the water.”
“This whole thing is a bit of a nothing burger when it comes to the meat,” Bursch said.
On questions to the EGLE permit still in the air from Chief Justice Megan Cavanagh, Bursch said they are on the brink of receiving it, but if they did not, it would tank the whole project.
Bursch told reporters if the permit from EGLE were to be appealed, they would seek to expedite that appeal as quickly as they can.
“Our interest is to get the project started tomorrow, if we can,” Bursch told reporters. “We would have loved to have started it five years ago, if we could, but all the environmental groups who are supposedly trying to protect the environment are doing everything they can to stop the pro-environment option from happening. I don’t know exactly why that is. I think it’s some kind of gambit that if they can keep the pipeline in the water, then maybe someday they can get Line 5 shut down, because they don’t actually want this product shipped at all.”
Riyaz Kanji, representing For the Love of Water, said Enbridge is “holding the sword of Damocles” over the Great Lakes by claiming status quo is the only alternative to an aging pipeline.
“We all have to deal with this incredibly messy issue if history should not repeat itself because if the tunnel is authorized without appropriate consideration for public trust concerns, we could very well be handing to the next generation another catastrophe,” Kanji said.
Kanji argued the common law public trust doctrine holds “there cannot be a dedication of public trust resources, including Great Lakes bottomlands, to private use without due findings being made, public trust findings that there will be no impairment of the public trust,” therefore needing to be sent back through statute to EGLE for those findings.
Cavanagh said it seemed like offering that the PSC “outsource their duty to a different agency” and EGLE is fulfilling their role by doing their own permitting process. Kanji said it’s not outsourcing, it would be honoring public trust obligation by recognizing EGLE’s primary role.
The argument may put a lot of process and details under a statute that simply says the commission “shall determine public trust,” Cavanagh said.
It’s not about indefinite delay, Kanji said, but instead about getting the proper agency with “requisite expertise” to make that determination.
Daniel Sonneveldt, the PSC’s attorney, argued the commission stands that the public trust aspect has been fully considered and the commission cannot interpret common law in their proceedings.
Bursch also said public impairment standing in the way of continuation of projects indefinitely is just wrong and “nonsensical” because if you have an environmental improvement and it has any impact to the public trust whatsoever, then you can’t do it.
On the overall fate of the pipelines, Kanji said “if the tunnel project comes off the table, that forces a sober minded assessment, if not by Enbridge, by policymakers, including the government of Canada, which has been a major driver of keeping the pipeline open, as to whether one really in the same world wants the dual pipelines to continue indefinitely.”
Enbridge is compelled to keep it running “by the need of millions of people to have this fuel,” Bursch said.
“Keep in mind that if this gets shut down, half the fuel to the Detroit airport is out of commission,” Bursch said. “This would shut down almost all residents of the Upper Peninsula. Two-thirds of the residents in the upper Lower Peninsula will literally have no propane to heat their homes and to cook their food in Michigan winters.”
Bursch told reporters after the argument that there were other alternatives discussed rather than the two paths he highlighted, including putting rocks over the existing pipeline, which would prevent divers from being able to inspect it if needed, and moving all the propane to railway or boards, which he said would have many more environmental impacts.
Kanji pushed back on this to reporters saying Enbridge doesn’t like the idea because they would lose profits from taking the oil out of the waterborne pipeline.
In terms of the EGLE permit, Kanji said they would seek appeal if approved, but they have faith in EGLE making the right decision, and conducting a more thorough process.
At a press conference following the arguments with Oil and Water Don’t Mix, an activist organization against Line 5, Scott said he has never been in a courtroom so packed with people. Scott said the crowd shows how important the issue is, and he was impressed by the good questions from the justices during the hearing, saying it was clear they were taking it seriously.
In question to what another long delay in the process could mean if the court sides with them, Scott said they hope it will be sooner rather than later in regard to the five-to-six-year projection from Enbridge. He also said there is irony in the argument, claiming Enbridge will delay the project anyway in their construction period.
Kanji also said at the event Bursch did not spend much time talking about the actual law and that, “Enbridge is doing what Enbridge is very good at doing, which is shifting attention away from the real issues.”
Whitney Gravelle, president of the Bay Mills Indian Community, said the decision was important because of the cultural and natural resources at risk: ancestors buried along the shoreline, lake whitefish and lake trout.
“Our relationship with the land, with the water, with those natural resources that are protected under the public trust doctrine are very important to the continuation of our culture, of our language and of our people who have resided in the state of Michigan long before there was ever written history,” Gravelle said.
The court has until July 31 to decide the case.
Gongwer News Service
The debate over Enbridge Energy’s Line 5 tunnel project continued in front of a crowded Michigan Supreme Court on Wednesday, with attorneys debating the end game of ongoing lawsuits contributing to the delay in beginning the long-ago planned proposal.
Two lawsuits against the Public Service Commission heard arguments on separate claims of negligence in the permitting process as part of the project that hopes to house the dual pipelines within a tunnel beneath the lakebed of the Straits of Mackinac.
The project has been delayed for years as various court challenges play out on the federal and state level. The Michigan Supreme Court heard arguments Wednesday after the U.S. Supreme Court heard arguments on a different issue earlier this month.
In April 2025, the Court of Appeals ruled it found no reason to reverse the PSC’s decision to grant permit approval to Enbridge for the project, saying the commission provided a comprehensive opinion outlining its decision and acted reasonably.
Little Traverse Bay Band of Odawa Indians v MPSC (MSC Docket No. 168335-9) focuses on alleged violations of the Michigan Environmental Protection Act, claiming the commission did not consider environmental protections and if the Court of Appeals should have decided to look at the case anew, or de novo, rather than through deferential standard to uphold the lower court unless the decision is found erroneous or unreasonable.
In the For Love of Water v MPSC (MSC Docket No. 168346), the organization is focused on whether the commission abided by the common law public trust doctrine, arguing the process should be reviewed by the Department of Environment, Great Lakes and Energy as well.
The department is still in the permit application process for expired contracts throughout long legal battles.
Overall, Enbridge attorneys argue no matter what, the status quo will remain, which is keeping the pipeline in the Straits. The tunnel, however, would provide more protection. Additionally, attorneys argued, if the court decided to abandon the Court of Appeals’ decision it would just delay any movement for another five to six years, and return the project to the starting line.
In the Little Traverse Bay Band of Odawa Indians case, the attorneys called to send the permit decision back to the commission and allow development of gaps in their findings before. David Scott, one of their attorneys, called the previous decision “lopsided” and said the alternatives analysis was “fundamentally flawed.”
“They considered only the environmental harms within the footprint of the tunnel and compared that to environmental harms on different routes,” Scott said.
Justice Elizabeth Welch said the record with the commission is already “massive,” questioning the need to go back and find more evidence. Scott said there must be an independent review and analysis to create a full record.
Welch also questioned requiring a full review now of the entire pipeline, which may create an issue in the future. Enbridge claimed it would create a standard that whenever any portion of the pipeline needs to be repaired or replaced, it would need a full review, which could disincentivize companies from making repairs.
Welch also claimed they have heard from utilities this could create an issue for every electrical upgrade and their decision could impact many other segments of the utility infrastructure.
Adam Ratchenski, the other attorney for the Little Traverse Bay Band of Odawa Indians, said the argument was “overblown” and a “bit of a slippery slope,” because this case is not about maintenance, and there are arguments for certain replacements or repairs that would not need a full environmental report.
It seems like a hard line to draw, Welch said.
Another argument against the Little Traverse Bay Band of Odawa Indians was calling the case anew would require the court to be fact finder at this phase of the litigation. Scott said it would not require this; it would just be a different legal standard to a factual record of public health, safety and welfare already collected.
John Bursch, attorney for Enbridge, stressed alternatives for the pipeline are slim. Last December a federal court held the federal government alone can shut down an international pipeline like Line 5, and that the PSC has limited authority in what to consider.
He said the commission did exactly what it was supposed to do: analyze the conduct at issue.
To the argument the state can do nothing, raised by Welch, Ratchenski said it’s “a fatalist view” and that it is not the final word in the case, which is still being appealed.
Bursch did not contest there would be environmental impairment from the pipeline, but that “this court should reject appellant’s attempt to hinder a safer pipeline and instead allow the tunnel project to move forward expeditiously” for a more pro-environment option.
Ratchenski said his plaintiffs don’t think a solution to the issue looks like “the highest water pressure tunnel ever built in the world, and putting an oil pipeline into a concrete tunnel, which has never been done anywhere in the world” either.
Bursch also claimed there was a .001% chance there would be an anchor strike to the pipeline, that “the pipeline has the same integrity today as when it was approved back in 1953,” and it’s also the most heavily regulated pipeline in the nation.
Ratchenski debated this, saying it’s not true to say a segment can “operate forever” and “the idea that aging pipelines are not like your bones, it can go on forever, is just bizarre.”
Later, Bursch said the pipeline will age at some point, but then federal regulators will be knocking at the door to fix it anyway.
While the attorneys on the other side argued the pipeline may need to have modernized structural reviews that could lead to its ultimate end, Bursch said “there is no scenario that gets the pipes out of the water.”
“This whole thing is a bit of a nothing burger when it comes to the meat,” Bursch said.
On questions to the EGLE permit still in the air from Chief Justice Megan Cavanagh, Bursch said they are on the brink of receiving it, but if they did not, it would tank the whole project.
Bursch told reporters if the permit from EGLE were to be appealed, they would seek to expedite that appeal as quickly as they can.
“Our interest is to get the project started tomorrow, if we can,” Bursch told reporters. “We would have loved to have started it five years ago, if we could, but all the environmental groups who are supposedly trying to protect the environment are doing everything they can to stop the pro-environment option from happening. I don’t know exactly why that is. I think it’s some kind of gambit that if they can keep the pipeline in the water, then maybe someday they can get Line 5 shut down, because they don’t actually want this product shipped at all.”
Riyaz Kanji, representing For the Love of Water, said Enbridge is “holding the sword of Damocles” over the Great Lakes by claiming status quo is the only alternative to an aging pipeline.
“We all have to deal with this incredibly messy issue if history should not repeat itself because if the tunnel is authorized without appropriate consideration for public trust concerns, we could very well be handing to the next generation another catastrophe,” Kanji said.
Kanji argued the common law public trust doctrine holds “there cannot be a dedication of public trust resources, including Great Lakes bottomlands, to private use without due findings being made, public trust findings that there will be no impairment of the public trust,” therefore needing to be sent back through statute to EGLE for those findings.
Cavanagh said it seemed like offering that the PSC “outsource their duty to a different agency” and EGLE is fulfilling their role by doing their own permitting process. Kanji said it’s not outsourcing, it would be honoring public trust obligation by recognizing EGLE’s primary role.
The argument may put a lot of process and details under a statute that simply says the commission “shall determine public trust,” Cavanagh said.
It’s not about indefinite delay, Kanji said, but instead about getting the proper agency with “requisite expertise” to make that determination.
Daniel Sonneveldt, the PSC’s attorney, argued the commission stands that the public trust aspect has been fully considered and the commission cannot interpret common law in their proceedings.
Bursch also said public impairment standing in the way of continuation of projects indefinitely is just wrong and “nonsensical” because if you have an environmental improvement and it has any impact to the public trust whatsoever, then you can’t do it.
On the overall fate of the pipelines, Kanji said “if the tunnel project comes off the table, that forces a sober minded assessment, if not by Enbridge, by policymakers, including the government of Canada, which has been a major driver of keeping the pipeline open, as to whether one really in the same world wants the dual pipelines to continue indefinitely.”
Enbridge is compelled to keep it running “by the need of millions of people to have this fuel,” Bursch said.
“Keep in mind that if this gets shut down, half the fuel to the Detroit airport is out of commission,” Bursch said. “This would shut down almost all residents of the Upper Peninsula. Two-thirds of the residents in the upper Lower Peninsula will literally have no propane to heat their homes and to cook their food in Michigan winters.”
Bursch told reporters after the argument that there were other alternatives discussed rather than the two paths he highlighted, including putting rocks over the existing pipeline, which would prevent divers from being able to inspect it if needed, and moving all the propane to railway or boards, which he said would have many more environmental impacts.
Kanji pushed back on this to reporters saying Enbridge doesn’t like the idea because they would lose profits from taking the oil out of the waterborne pipeline.
In terms of the EGLE permit, Kanji said they would seek appeal if approved, but they have faith in EGLE making the right decision, and conducting a more thorough process.
At a press conference following the arguments with Oil and Water Don’t Mix, an activist organization against Line 5, Scott said he has never been in a courtroom so packed with people. Scott said the crowd shows how important the issue is, and he was impressed by the good questions from the justices during the hearing, saying it was clear they were taking it seriously.
In question to what another long delay in the process could mean if the court sides with them, Scott said they hope it will be sooner rather than later in regard to the five-to-six-year projection from Enbridge. He also said there is irony in the argument, claiming Enbridge will delay the project anyway in their construction period.
Kanji also said at the event Bursch did not spend much time talking about the actual law and that, “Enbridge is doing what Enbridge is very good at doing, which is shifting attention away from the real issues.”
Whitney Gravelle, president of the Bay Mills Indian Community, said the decision was important because of the cultural and natural resources at risk: ancestors buried along the shoreline, lake whitefish and lake trout.
“Our relationship with the land, with the water, with those natural resources that are protected under the public trust doctrine are very important to the continuation of our culture, of our language and of our people who have resided in the state of Michigan long before there was ever written history,” Gravelle said.
The court has until July 31 to decide the case.
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