Line 5 case returns to state court following US Court of Appeals decision

The Mackinac Bridge in the Straits of Mackinac, May 27, 2024 | Susan J. Demas

Michigan Attorney General Dana Nessel’s case to shut down the Enbridge Line 5 pipeline will resume in state court, following a decision from the Sixth Circuit Court of Appeals, according to a Monday announcement from the Department of Attorney General.

While the case was initially filed in Michigan in 2019, where it was litigated for more than a year, Enbridge later filed a motion to move the case out of state court to the U.S. District Court for the Western District of Michigan.

Although Nessel’s initial request to have the case sent back to state court was denied by federal Judge Janet Neff, Nessel appealed the decision and was granted interlocutory appeal, which would allow the Court of Appeals to determine whether the case belongs in state or federal court before it is fully litigated in federal court. 

The case has now been remanded to Michigan’s 30th Circuit Court in Ingham County where it is expected to resume before Judge James S. Jamo, according to the Department of Attorney General.

“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,” Nessel said. 

Nessel, alongside Michigan’s 12 federally recognized tribal nations and environmental advocates across the Great Lakes region, have long advocated for the pipeline’s shutdown. 

Line 5 runs for 645 miles from northern Wisconsin into Michigan’s Upper Peninsula, beneath the Straits of Mackinac, and through the Lower Peninsula into Sarnia, Ontario. It transports about 23 millions gallons of crude oil and liquid natural gas daily. 

When a coalition of 63 tribal nations from the U.S. and Canada submitted a brief in support of returning the case to state court, David Gover, managing attorney for the Native American Rights Fund said in a statement that a rupture in the pipeline would destroy the right to hunt, fish gather and continue living in land ceded by the Anishinaabe in 1836.

Christy McGillivray, legislative and political director for the Michigan chapter of the Sierra Club, cheered the Court of Appeals decision in a statement. 

“This is another step towards enforcing the permanent shut down of Line 5. We appreciate Attorney General Nessel’s persistence in the fight to protect our waters from a catastrophic oil spill in the heart of the Great Lakes,” McGillivray said. “Michiganders have every right to protect themselves from the most dangerous oil pipeline in America, and Attorney General Nessel is representing the will of the Michiganders she works for. It’s past time Line 5 was shut down once and for all.”

In an email to the Advance, Enbridge spokesperson Ryan Duffy said the company was disappointed in the Court of Appeals ruling, he said Enbridge remained confident the state court would find the attorney general cannot shut down the pipeline.

“Enbridge remains confident that the dispute can be fully resolved by the pending summary judgment motions in Enbridge’s separate lawsuit in Enbridge v. [Gov. Gretchen] Whitmer. That case remains in federal court and was recently reassigned to Federal District Judge Robert J. Jonker,” Duffy said. “Enbridge seeks a determination by the federal court that the State of Michigan cannot seek to shutdown Line 5 based on safety concerns associated with Line 5’s routing through the Great Lakes.”

The Canadian company will also focus on its Great Lakes Tunnel project, which would seek to alleviate concerns of the pipeline rupturing by relocating a section of the pipeline into a concrete lined tunnel below the bedrock in the Straits of Mackinac. 

While Enbridge has received permits from the Michigan Public Service Commission (MPSC) and the Department of Environment, Great Lakes and Energy (EGLE), Enbridge still needs approval from the U.S. Army Corps. Of Engineers (USACE) in order to proceed, with the USACE previously announcing it would delay a key step in reviewing the project. 

Additionally, the permits issued by EGLE and the MPSC have each been challenged in court by tribal nations and environmental groups. 

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