Michigan Gov. Whitmer shifts her legal strategy in hopes of gaining an eventual Line 5 shutdown

Nov. 30—Michigan Gov. Gretchen Whitmer announced Tuesday she has shifted her legal strategy in hopes of gaining an eventual shutdown of Enbridge's controversial Line 5 pipeline, which flows beneath the Straits of Mackinac in what she considers an environmentally risky location.

Governor Whitmer's office said in a news release she is voluntarily dismissing a lawsuit she filed in federal court a year ago against Enbridge in hopes of having the eventual debate about the pipeline's future heard via a lawsuit Michigan Attorney General Dana Nessel had earlier filed in state court.

Ms. Whitmer's decision comes days after U.S. District Judge Janet Neff ruled the pipeline's fate is a matter that belongs in federal court, as the pipeline company had said itself.

At stake is the future protection for one of the world's most important bodies of fresh water, the Great Lakes, and the economic well-being of industries, including two Toledo-area refineries and one in Detroit, which provide thousands of high-paying jobs and produce much of the region's gasoline, propane, jet fuel, and other petroleum products. Several are dependent on Line 5.

"The governor's goal remains protecting the Great Lakes, which means shutting down the Line 5 dual oil pipelines in the Straits of Mackinac as soon as possible," the statement reads. "By clearing the way for the lawsuit filed by Attorney General Dana Nessel to go forward in Michigan state court, today's action seeks to protect the Great Lakes and our state's natural resources, which support 1.3 million jobs, including 350,000 jobs in Michigan, and generate $82 billion in wages annually."

Ms. Whitmer went on to say in the news release that while she disagrees with Judge Neff's decision, she believes "the people of Michigan, and our state courts, should have the final say on whether this [pipeline] company should continue pumping 23 million gallons of crude oil through the Straits of Mackinac every day."

Ms. Nessel's lawsuit was filed in June, 2019.

"I fully support the Governor in her decision to dismiss the federal court case and instead focus on our ongoing litigation in state court," Ms. Nessel said in a separate statement released moments later. "The state court case is the quickest and most viable path to permanently decommission Line 5. The Governor and I continue to be aligned in our commitment to protect the Great Lakes and this dismissal today will help us advance that goal."

Both Ms. Whitmer and Ms. Nessel campaigned for their respective offices on closing Line 5.

"Michigan state courts should have the right to determine what happens in our Great Lakes," Dan Eichinger, Michigan Department of Natural Resources director, said in a statement included in Ms. Whitmer's news release.

Enbridge should not "be able to dictate to Michiganders what happens in our sovereign lands and waters," he added.

"This dismissal ensures that the people of Michigan have a say in protecting our Great Lakes," Mr. Eichinger said.

Mike Shriberg, Great Lakes regional center director of one of America's largest environmental groups, the National Wildlife Federation, was quoted as saying in the governor's news release that his group "strongly supports Governor Whitmer's courageous and steadfast legal strategy to shut down Line 5 and protect Michigan's interest in the Great Lakes from interference by a Canadian oil company."

"Line 5 is an urgent threat to the Great Lakes and the Governor's move to cut through Enbridge's legal delay tactics is the best way to move forward toward what really matters: protecting the Great Lakes from a catastrophic oil spill," Mr. Shriberg said.

Also quoted was Lisa Wozniak, Michigan League of Conservation Voters executive director, who called Governor Whitmer's latest move "an important step to protect our Great Lakes from the ticking time bomb of a catastrophic oil spill by allowing the state's strong legal case to move forward and shut down the dangerous, aging Line 5 pipelines in the Straits of Mackinac."

Line 5 has existed in its current location since 1953. It was built to help prevent spills by ship, rail, or truck. Controversy emerged following an anchor strike during the former Snyder administration which damaged — but did not rupture — the pipeline.

Enbridge, which is expected to issue a statement later today, told the Snyder administration it wants to build a $550 million tunnel to secure the pipeline along the four miles it passes beneath the Straits.

The pipeline company said Tuesday afternoon it "is pleased by the State of Michigan's decision to drop its case" in federal court, but said it "will continue to pursue its case in federal court to affirm federal jurisdiction over Line 5."

"Earlier this year, Canada invoked the 1977 Transit Pipeline Treaty," Ryan Duffy, Enbridge spokesman said.

He added that Judge Neff took note that "the federal issues in this case are under consideration at the highest levels of this country's government."

"Enbridge will continue to deliver safe, reliable and affordable energy to Michigan and the region. We will continue to pursue the Great Lakes Tunnel to house a replacement section of Line 5 so that it can continue to serve the region safely," Mr. Duffy said.

A bipartisan coalition of public officials in Ohio have fiercely opposed Ms. Whitmer's plan to cease operation of Line 5, agreeing with refinery workers it would be catastrophic to their industry. Those in opposition include Ohio Gov. Mike DeWine, Ohio Lt. Gov. Jon Husted, Ohio Attorney General Dave Yost, Toledo Mayor Wade Kapszukiewicz, and many union leaders.

Scott Hayes, PBF Toledo Refining's health, safety, environmental and governmental affairs manager, said it "is baffling to us why the Governor continues to take actions that, if successful, would lead to even higher consumer costs at the pump, result in thousands of lost jobs, manufacturing feedstocks and fuels, and literally leave countless Michiganders and Ohioans out in the cold; not to mention creating a significant international incident with one of strongest allies and largest trading partners."

"If the Governor wants to help her citizens, especially those disproportionately disadvantaged by inflation, she should help expedite permitting and remove all barriers to advancing the tunnel project as quickly as possible," Mr. Hayes added.

Canadian Prime Minister Pierre Trudeau opposes Ms. Whitmer's efforts too.

In October, Mr. Trudeau took the unprecedented move of invoking a clause from the 1977 Transit Pipeline Treaty between the United States and Canada to force negotiations on the federal level. President Biden and Mr. Trudeau are planning a high-level summit to discuss the future of Line 5.

Kate Madigan, Michigan Climate Action Network executive director, called Ms. Whitmer's dismissal "a strategic change of direction, not an end to this fight."

"We always knew it was going to be difficult to take on an international oil transport company that has all lawyers and lobbyists money can buy," Ms. Madigan said. "Enbridge was able to sway an entire country to oppose our Governor's authority to revoke their easement in order to protect the Great Lakes. But the fight is far from over, and the facts are on our side.

"The bottom line is that this dangerous oil pipeline needs to be shut down and not replaced by a 99-year oil tunnel that would undermine state and international climate goals. We will continue to urge President Biden, Governor Whitmer, and Attorney General Nessel to do everything in their power to shut down Line 5 for good," she said.

First Published November 30, 2021, 1:50pm