Michigan court hears arguments in case seeking to shut down Enbridge’s Line 5

An attorney for the state of Michigan told a judge Monday the Line 5 pipeline should be shut down in the Straits of Mackinac because Enbridge doesn’t have a valid easement to operate in the Great Lakes.

In 2019, Michigan Attorney General Dana Nessel sued to shut down Line 5, which runs under the Straits of Mackinac that links Lakes Michigan and Huron.

Michigan officials allege a 1953 easement for the pipeline’s operation violated the state’s public trust doctrine and should be revoked. The pipeline runs 645 miles and carries up to 23 million gallons of oil per day from Superior to Sarnia, Ontario.

During arguments in Michigan state court, Assistant Attorney General Dan Bock told Judge James Jamo it’s the state’s duty to protect the public’s rights from the threat of a spill.

“We’re talking about the people’s rights in the most precious natural resource that Michigan has: the Great Lakes,” Bock said.

Bock argued the easement is invalid because no findings were ever made under the public trust doctrine that the pipeline would enhance, or at least do no harm, to the public’s rights to use the waters and lake bottom. He said the pipeline violates the Michigan Environmental Protection Act, adding it’s a public nuisance because it interferes with the public’s rights. The 72-year-old pipeline has been damaged by anchor strikes in recent years. 

Enbridge attorney Phillip DeRosier argued the easement is valid, adding the state’s claims are preempted or prevented under the federal Pipeline Safety Act. He said Michigan officials are trying to regulate the pipeline’s safety, which is exclusively overseen by the Pipeline and Hazardous Materials Safety Administration.

“Once a pipeline like Line 5 is built, only the federal regulators can order a shutdown if there’s an imminent hazard,” DeRosier said.

Bock disputed the company’s claims that the state is trying to enforce safety standards. He said a federal court rejected similar arguments in a Wisconsin tribe’s case against Enbridge. In 2019, the Bad River Band of Lake Superior Chippewa sued the company to shut down and remove the aging pipeline from its lands.

“The Western District of Wisconsin, federal court, ordered a shutdown of Line 5 specifically because Enbridge did not have a valid easement to operate and locate Line 5 on a federally recognized Indian tribe’s land,” Bock said.

In that case, a federal judge ordered Enbridge to shut down or reroute Line 5 around the tribe’s reservation by June of 2026. DeRosier downplayed the role that ruling may have on Michigan’s case, noting an appeal of the decision is still pending.

Enbridge says international treaty bars state’s claims

Bock said the state is arguing that the easement is about the pipeline’s location in the Straits — not safety.

Even so, Enbridge’s attorney argued a 1977 treaty between the U.S. and Canada also bars state officials from interfering with the flow of oil across the border or permanently shutting down the pipeline. Canada has invoked the treaty to fight the shutdown of Line 5.

“Canada and the United States are now engaged in negotiations to address the A.G.’s actions,” Enbridge spokesperson Ryan Duffy said in a statement. “And because her effort to shut down Line 5 has such serious ramifications for the flow of energy between the United States and Canada, it violates the treaty and the well-established legal doctrine that reserves foreign affairs matters for the federal government.”

Bock disputed that anything in the treaty prevents state courts from deciding cases while those negotiations continue. He said it’s a “breathtaking” claim that pipeline operators could trespass with impunity and the only resolution would be for the federal government to initiate talks with Canada “to ask the pipeline company to stop trespassing.”

Unlike the Bad River case, Enbridge’s attorney noted there’s no trespass claim in Michigan’s lawsuit. Even so, the Bad River tribe’s lead attorney Riyaz Kanji said similarities exist between both cases.

“Ultimately, both cases boil down to whether sovereigns, the Bad River Band in one case and the state in the other,  have the ability to enforce their sovereign rights in protecting their lands and waters,” Kanji said.

Kanji called Monday’s arguments a significant step forward after Enbridge had previously sought to move Michigan’s case from state court to federal court. The company made that request more than two years after Nessel sued, long after a deadline for requesting any change in venue. Last year, a federal appeals court panel sent the case back to state court since the company missed the deadline.

Enbridge said federal regulators have not raised any safety concerns with the pipeline’s operation in the Straits. The company wants to build a $750 million tunnel to house Line 5. In late 2023, Michigan officials approved Enbridge’s plan, but environmental groups and tribes are challenging that decision.

Monday’s arguments before Judge Jamo took place in Ingham County Circuit Court in Michigan. Jamo said he would issue a written opinion, although he did not give a timeline.

Enbridge also faces legal challenges with Line 5 in Wisconsin

In Wisconsin, the company is seeking to reroute Line 5 about 41 miles around the Bad River tribe’s reservation.

In November, the Wisconsin Department of Natural Resources granted key permits for the Line 5 reroute just days after another Enbridge spill in Jefferson County, which has released around 69,000 gallons of oil. The Bad River tribe and environmental groups have mounted legal challenges over permits issued for the project. 

Supporters of the Line 5 reroute in Northern Wisconsin say it will create 700 jobs during construction and a roughly $135 million economic impact. Opponents note Line 5 has had around 30 releases on land, spilling about 1 million gallons of oil.

Enbridge is also responsible for a 2010 spill that released more than 1.2 million gallons of oil into the Kalamazoo River in Michigan, as well as four aquifer breaches on the Line 3 replacement in Minnesota that released hundreds of millions of gallons of groundwater.

Enbridge has said Line 5 has never spilled in the Straits or in the Bad River on the tribe’s reservation.