Enbridge Inc. Wins Latest Court Dispute Over Line 5 Pipeline

The international dispute over Line 5 belongs in federal court, a Michigan judge declared Thursday, dealing a critical blow to Gov. Gretchen Whitmer’s attempt to shut down the controversial cross-border oil and gas pipeline.

It is the second time in nine months that District Court Judge Janet Neff has ruled in favor of the pipeline owner Enbridge Inc., who wanted the dispute elevated to the federal level.

The first decision last November led Michigan Attorney General Dana Nessel, believing her only path to victory was in state court, to drop the original case, turning instead to a separate, dormant circuit court case. and almost identical to try again.

Neff’s disdain for that tactic was palpable throughout Thursday’s ruling.

“The court finds that plaintiff’s motion should fail, based on … plaintiff’s attempt to gain an unfair advantage through improper use of the judicial machinery,” Neff wrote.

“The court’s decision … is supported by the plaintiff’s desire to engage in procedural hurdle and forum manipulation.”

The response Thursday night from Amber McCann, Nessel’s director of communications, was even fiercer.

Nessel “remains steadfast in his commitment to protecting Michigan’s natural resources from the potentially devastating impact of an environmental disaster,” McCann said.

“The department strongly disagrees with the judge’s mischaracterization of both the law and the attorney general’s approach to this and related cases.”

The office is reviewing the decision and “considering the next steps in the litigation,” it added.

Judge sides with #Enbridge Inc. in #Michigan’s latest effort to stop the #Line5 pipeline.

Whitmer is a Democrat and close ally of President Joe Biden whose political fortunes depend on the support of environmental groups in the state. She ordered the closure of Line 5 in November 2020.

He cited the risk of ecological disaster in the Straits of Mackinac, the environmentally sensitive passageway between Lake Michigan and Lake Huron, where the pipeline runs underwater between the state’s upper and lower peninsulas.

Enbridge strongly rejected the original circuit court case, arguing that its core elements of energy security, cross-border trade and international relations required a hearing at the federal level, a move Nessel vigorously sought to resist.

Late last year, Neff sided with Enbridge, prompting Whitmer and Nessel to drop the lawsuit and try again, this time with a similar case in circuit court that had been dormant since 2019.

This time, Nessel hoped to avoid Enbridge’s jurisdictional argument on a technicality: Under federal law, cases can only be transferred to federal jurisdiction within 30 days of filing a complaint.

But Neff didn’t buy it, citing the precedent she herself set in 2021 when she governed for Enbridge for the first time.

“It would be an absurd outcome for the court to remand the present case and sanction a forum battle,” Neff wrote.

“The 30-day rule in the removal statute is intended to aid in the equitable administration of justice and prevent gambling on federal jurisdiction, but here, it is clear to the court that (the) plaintiff is the one engaged to the game”.

The Line 5 pipeline transports more than 540,000 barrels per day of crude oil and natural gas liquids across the Canada-US border and the Great Lakes via a twin line that runs through the lake bed.

Critics want the line closed, arguing that it is only a matter of time before an anchor or technical failure causes a catastrophe in one of the area’s most important watersheds.

Proponents of Line 5 call it a vital and indispensable power source, especially propane, for several Midwestern states, including Michigan, Ohio and Pennsylvania. It is also a key source of raw material for Canada’s refineries, including those that supply jet fuel to some of Canada’s busiest airports.

In a statement, Enbridge described Thursday’s decision as “consistent with the court’s November 2021 ruling that the state’s earlier lawsuit against Line 5 belonged in federal court.”

That, the company said, is the right forum for “important federal questions” about interstate commerce, pipeline safety, energy security and foreign relations.

The statement goes on to say that closing Line 5 “would defy an international treaty with Canada that has been in place since 1977.”

Line 5 talks between the two countries under that treaty, which specifically deals with the issue of cross-border oil pipelines, have been ongoing since late last year.

“Enbridge looks forward to a prompt resolution of this case in federal court.”

This report from The Canadian Press was first published on August 18, 2022.

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