Michigan AG Concedes Defeat On Enbridge Tunnel

Enbridge Energy won a major victory Wednesday when Attorney General Dana Nessel unexpectedly reversed course and declined to appeal a Court of Appeals ruling holding that a 2018 law setting up an authority to oversee the construction, maintenance and operation of a tunnel beneath the Straits of Mackinac to house the Line 5 oil pipeline was constitutional.

Enacted at the end of the former Governor Rick Snyder’s administration, Ms. Nessel sought to invalidate PA 359 of 2018 by contending it violates the Michigan Constitution’s title-object clause. In early 2019, she issued a formal legal opinion declaring the violation, and that prompted Ms. Whitmer to direct her administration to cease action on the tunnel and enforcement of the authority law.

Enbridge sued in the Michigan Court of Claims, which held the title of the act clearly contemplated the construction, maintenance and operation of a utility as well as the act’s general purpose. On June 11, the Court of Appeals affirmed that ruling.

Ms. Nessel’s office said after that ruling that it intended to appeal to the Supreme Court. It had 42 days to do so, but opted not to follow through on those plans and that period has now expired.

Nessel’s office declined to respond to inquiries about the decision, citing the continuing litigation in a separate case at the Ingham Circuit Court where Ms. Nessel is seeking to obtain a court order nullifying the easement that gives Enbridge access to the bottom of the Straits of Mackinac where the twin Line 5 pipeline now sits. It also would not comment on the change of mind regarding appealing.

Nessel spokesperson Ryan Jarvi told The Detroit News, which first reported the decision, that the Department of Attorney General had decided to focus its efforts on other litigation involving Line 5.

After the Court of Claims ruled in Enbridge’s favor, the Whitmer administration began carrying out their responsibilities under the law, Whitmer Press Secretary Tiffany Brown said.

While the decision not to appeal conflicted with the department’s past statements, it might have just prolonged the inevitable to appeal. The three-judge Court of Appeals panel was a conservative-leaning group consisting of three judges named to the bench by former Governor Rick Snyder. The Court of Claims decision was issued, however, by Judge Michael Kelly, something of an independent though with some Democratic roots.

At the Supreme Court, there is a decent possibility that Justice Elizabeth Clement would have recused herself because of her past legal work for Mr. Snyder. Even if Ms. Nessel could have persuaded the court’s three justices nominated by the Democratic Party to overturn the Court of Appeals, a necessary fourth vote from one of the other Republicans might have been elusive.

A 3-3 ruling would have let the Court of Appeals decision stand. Worse yet, given the court’s penchant for nonpartisan rulings of late, a possible unanimous ruling against the department would have been a major embarrassment after her own formal legal opinion declared the authority law was a clear violation of the title-object clause.

The legality of the tunnel authority also now suggests that Enbridge will be able to keep oil and propane flowing through the Straits of Mackinac for decades to come though there could be some type of stoppage depending on how the court’s handle the case involving the Line 5 easement.

Ryan Duffy, spokesperson for Enbridge, said the ruling not only upholds PA 359, but also the Tunnel Agreement and Third Agreement that the state and Enbridge reached in 2018 that allows Enbridge to continue to operate Line 5 while the tunnel to house a replacement section of Line 5 is permitted and constructed.

The company is in the permitting and approvals process for the tunnel and that process is on schedule, Mr. Duffy said.

“We look forward to working with the state to make a safe pipeline even safer,” he said in a statement. “We are investing $500 million in the tunnel’s construction – thereby further protecting the waters of the Great Lakes and everyone who uses them. Pending receipt of all permits and regulatory approvals, we anticipate completing construction of the tunnel in 2024.”

Nick Dodge of the Michigan League of Conservation Voters, however, said the tunnel is far from assured. He noted that it still needs approval and permits from several government agencies and that the Public Service Commission is overseeing permitting.

Further, he said the league believes it unlikely Enbridge would move forward with the tunnel if Line 5 was partially shut down during construction.