“Heart of the Turtle” international Indigenous gathering in opposition to oil pipelines, Mackinaw City, May 14, 2022 | Laina G. Stebbins
Attorneys for Michigan Gov. Gretchen Whitmer and the State’s Department of Natural Resources are once again seeking to dismiss legal challenges from Canadian energy company Enbridge, arguing in the U.S. Sixth Circuit Court of Appeals on Tuesday that the state should hold immunity from a suit brought by the business in 2020.
Whitmer previously ordered the Department of Natural Resources to revoke the permit allowing Enbridge to operate its dual pipelines within the Straits of Mackinac, where Lake Huron and Lake Michigan meet, raising concerns about the pipelines’ safety and the catastrophic impact a spill would have on the Great Lakes.
However, Enbridge challenged the decision, arguing the governor and the Department of Natural Resources have no authority over pipeline safety matters as it aims to prevent a shutdown of the pipeline.
While Whitmer previously sought to have the case dismissed on the grounds of sovereign immunity, which grants governments immunity from lawsuits, U.S. District Judge Robert Jonker determined the case would move forward, as Enbridge’s complaint fell under an exception to the state’s immunity.
However, Assistant Attorney General Dan Bock told Judges Karen Nelson Moore, Rachel S. Bloomekatz and Raymond M. Kethledge the complaint should be dismissed under the 11th Amendment of the U.S. Constitution, which bars federal courts from hearing certain lawsuits against states.
Enbridge’s claims are barred by the 11th amendment, as it allows them to functionally claim ownership of state-owned submerged lands and seeks to compel the state into a specific performance of a contract, Bock said.
He further argued that federal courts should abstain from wading into the case while “identical claims” are being heard in state court, Bock said, in reference to Michigan Attorney General Dana Nessel’s case arguing the 1953 permit for Line 5 was never valid, as it was issued in violation of several state policies.
While Kethledge, Moore and Bloomekatz questioned whether Enbridge’s complaint was truly similar to a quiet title action — a lawsuit brought to settle property disputes — with the company seeking to continue operating on the bottomlands of the Straits of Mackinac, Bock argued the pipeline company was effectively seeking the right to permanently maintain a structure on state owned land.
“I would say the right to permanently maintain a structure on someone else’s property without regard for permission or operation of state law effectively does take away all rights of ownership from that piece of property,” Bock said.
“Enbridge is asserting that the Michigan officials do not have the right to reject someone they view as a trespasser from state land. That is the functional equivalent of a quiet title action,” Bock said.
In its complaint, Enbridge argued the state’s move to revoke its permit to operate within the straits was an attempt to regulate the pipeline with attorney Mark Savignac telling the court that the Federal Pipeline Safety Act and the 1977 transit pipelines treaty with Canada bar the state from taking action to shut down the pipeline, similar to the arguments offered in the Nessel case in January.
When asked if the same issues were present in the attorney general’s case at the state level, Savignac said they were, in a sense, but that this case had been brought to enforce its federal rights after its permit was revoked.
However, Bloomekatz said Enbridge’s requested injunction was “extraordinarily broad,” asking Savignac to outline what rights the state would retain over the bottomlands where Line 5 is permitted should Enbridge get their way.
While the state owns the land, and can regulate the land subject to federal law, it cannot try to shut down the pipeline or stop it from operating by imposing its own safety standards, Savignac said.
“That sounds like they don’t have any power,” Moore noted, pointing to the state’s concerns about oil pollution within the Straits.
Moore further interrogated Savignac under which rights the state retains to the easement, saying it does not sound like the state retains any rights.
“The easement gives Enbridge certain limited rights to do things basically to operate this pipeline. It’s true that federal law prohibits them from taking that right away, but it is just an easement to move these products over their land just like any other easement. It doesn’t mean that we own the land,” Savignac said.
“It’s just the same that if I have an easement as a member of the public to walk across the side of your beach house to get down to the lake, you can’t stop me from doing that but you’re still the owner of the land. It’s not substantially all the benefits of ownership and control,” Savignac said.
On rebuttal, Bock noted that the 1977 treaty expressly preserves the right of appropriate government officials to take action for environmental protection and to enforce contracts, further arguing the federal courts should abstain from acting on the case as the Nessel case proceeds at the state level.
The three judge panel submitted the matter for consideration but did not indicate when a decision would be made.
For more than a decade, environmental advocates and Native American tribes from across the Great Lakes region have called for a shutdown of the pipeline, with a study from the University of Michigan calling the Straits the “worst possible place” for a Great Lakes oil spill.
Ahead of the case, Whitney Gravelle, president of the Bay Mills Indian Community released a statement saying the pipeline remains a clear and present danger to the Great Lakes, urging action to protect the state’s waterways.
“Research has shown that this Canadian pipeline can be decommissioned with minimal impact on Michigan residents. We cannot afford to repeat the mistakes of the past, like the devastating Kalamazoo spill or the anchor strikes on Line 5. The Bay Mills Indian Community stands with the State of Michigan in its efforts to shut down Line 5 and safeguard our natural resources for future generations,” Gravelle said.
Enbridge spokesperson Michael Barnes said the company would continue to defend its right to continue to operate the pipeline under federal law, arguing the state has “deliberately and aggressively sought to prevent Enbridge from operating Line 5 by attempting to usurp federal authority for the regulation of Line 5 interstate and international energy pipeline.”
“Enbridge is responsibly operating Line 5, providing critical energy to Michigan and the region that supports economic strength, mobility, jobs, and quality of daily life. We adhere to and comply with all safety and operational standards,” Barnes said.
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