No End in Sight for Line 5 Conflict

Local environmental groups, the Michigan Attorney General, and Enbridge continue legal back-and-forth over the oil pipeline’s future

By Victor Skinner | July 13, 2024

In mid-June, Michigan Attorney General Dana Nessel’s efforts to shut down Enbridge’s crude oil and natural gas pipeline through the Straits of Mackinac secured a big win from the Sixth Circuit Court of Appeals.

A three-judge appeals court panel on June 17 remanded the case to Ingham County’s 30th Circuit Court to begin proceedings on the merits of shutting down what Nessel describes as an “aging and dangerous oil pipeline” that carries 22 million gallons of oil and gas from Canada through the state each day.

“This case never should have left state court in the first place, and after this long delay caused by Enbridge’s procedural manipulations, we’re elated to welcome Nessel v. Enbridge back to its rightful judicial venue,” Nessel said in a statement. “The State has an obligation and imperative to protect the Great Lakes from the threat of pollution, especially the devastating catastrophe a potential Line 5 rupture would wreak upon all of Michigan. As we’ve long argued, this is a Michigan case brought under Michigan law that the People of Michigan and its courts should rightly decide.”

Two Cases, Two Sides

The ruling was celebrated by For The Love of Water (FLOW)—a Traverse City-based nonprofit that filed briefs in the case and others and has worked tirelessly with other groups toward shutting down the pipeline—as well as aligned Native American tribes that want the same.

“FLOW is confident that at a trial on the merits, the AG will demonstrate the monstrous and unacceptable threat the 70-year-old Line 5 poses to the precious clean water resources of the Great Lakes, and achieve the shutdown remedy she and Governor [Gretchen] Whitmer have so vigilantly pursued,” the nonprofit wrote in a statement following the Sixth Circuit Court of Appeals decision.

Whether the case ever gets to that point remains to be seen.

Enbridge points to ongoing litigation in a separate case that could render the June ruling moot, and the company is forging ahead with plans to construct a tunnel 200 feet below the lakebed to protect the pipeline from anchor strikes or other problems that could cause a failure all agree would be catastrophic for the Great Lakes.

“Even though the Attorney General’s case has been remanded to Michigan state court, Enbridge remains confident that the dispute can be fully resolved by the pending summary judgement motions in Enbridge’s separate lawsuit in Enbridge v. Whitmer,” Ryan Duffy, spokesman for the Canada-based Enbridge, writes in an email to Northern Express.

That case, which remains in federal court overseen by District Judge Robert J. Jonker, argues the state lacks the authority to shut down Line 5 based on safety concerns about routing through the Great Lakes.

“If the federal district court rules in Enbridge’s favor on those motions, Enbridge is hopeful that those rulings will fully resolve the Attorney Generals’ action,” Duffy writes.

On July 5, Jonker rejected a motion made by the Whitmer administration to dismiss the case. The case will go before Jonker again July 31.

An International Battle

The two cases are among scores of others in Michigan and Wisconsin in the years-long saga over the pipeline and the future of fossil fuels.

While Enbridge has focused on boosting the safety of the pipeline through improved monitoring and plans for the new tunnel, environmentalists with FLOW and other groups argue Line 5 poses too big of a risk at a time when the country is focused on shifting away from fossil fuels.

“This is an international battle, and Canadians, Americans, and indigenous leaders really should be working on an overarching plan to decommission Line 5,” says Liz Kirkwood, FLOW’s executive director.

In December, the Michigan Public Service Commission disagreed and granted Enbridge its second of three permits required to begin its tunnel under the straits, last estimated at $500 million.

FLOW is now appealing the permit approval, along with the Native American Rights Fund (NARF) representing the Bay Mills Indian Community, Earthjustice, and the Michigan Climate Action Network. FLOW argues the MPSC improperly limited the scope of its review to the stretch of Line 5 through the Straits and failed to look at “the feasible and prudent alternatives.”

“They didn’t ask that fundamental question: Is Line 5 necessary as critical infrastructure?” Kirkwood says. “The answer is no.”

FLOW points to testimony in a separate case that’s forcing Enbridge to reroute the pipeline around the Bad River Tribe’s northern Wisconsin reservation. In that case, experts predicted a minimum price disruption if Line 5 shut down and suggested existing pipelines and railroad routes the company could use in its absence.

NARF attorney David Gover says the Bay Mills tribe partnered with Earthjustice and three other tribal nations—Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and Nottawaseppi Huron Band of the Potawatomi—to challenge the MPSC decision “because a lot of our issues are similar and overlapping.”

NARF, FLOW, and others are also challenging a previous permit for the tunnel granted by the Michigan Department of Environment, Great Lakes, and Energy in 2021, and are arguing against a third permit needed from the U.S. Army Corps of Engineers, which is currently preparing an environmental impact statement on the project.

The MPSC, Gover says, made procedural errors when commissioners “excluded a lot of tribal information … relating to the public need for Line 5” and potential impact from an oil spill.

On the federal level, NARF has also filed briefs on behalf of Bay Mills in Nessel’s case against Enbridge in an effort to protect treaty rights.

“At the end of the day, it’s an effort to protect who they are and their rights under the treaty, which includes rights to natural resources,” Gover says. “That’s where their history, the center of their spiritual beliefs are.”

The MPSC appeal is expected to result in a hearing this fall or early winter, while the timeline in the federal cases is less clear.

Will It Be Built?

While those cases and others proceed, Enbridge is “committed to the tunnel project and we’re moving it forward and advancing it every day,” Duffy says.

“We’ve been pursuing these permits for construction since 2020,” he says. “So we’re waiting on the permit from the U.S. Army Corps of Engineers with a timeline [for construction] for 2026.”

In late April, Enbridge announced a partnership with Barnard Construction Company and Civil and Building North America to lead the tunnel construction, and the company is now working with them on survey work and ordering a custom, 300-foot tunnel boring machine.

In Wisconsin, Enbridge is also working to gain a necessary permit from the state to reroute Line 5 around the Bad River reservation, where it has already secured leases from landowners, according to Duffy.

“Right now, it’s with an appeals court to decide how things move forward and timelines,” he says of the Wisconsin case. “We’ll just have to wait and see.”

As all of the legal wrangling plays out, both sides continue to make their case to the public on Line 5, with Enbridge collecting resolutions from dozens of counties in support as it touts the benefits of maintaining affordable energy, and FLOW working with aligned groups, lawmakers, and local leaders to counter that message.

“We’re seeing around 70 percent support,” Duffy says. “Some of the groups opposing it, that’s just maintaining the status quo. The longer some of these delays take, Line 5 will continue to operate on the lake bed” exposed to anchor strikes.

In the last year, FLOW has hosted two major Line 5 webinars with legal and policy experts the group has posted to its YouTube channel, and is planning another for August.

“We also launched a Line 5 Citizen Action Toolkit and published a new Line 5 Fact Sheet,” says Megan Kelto, FLOW’s director of public engagement. “In our blog, we’ve been turning a critical lens on Enbridge’s denial, disinformation, and doublespeak and its PR tactics.”

The bottom line, Kirkwood says: “We believe Line 5 is unsafe to operate and needs to be shut down. It’s the right thing to do because we have existing pipelines and alternatives.”

Pictured: Michigan Attorney General Dana Nessel at a March 21 rally.