Michigan AG Dana Nessel files lawsuit to shut down Line 5 in Mackinac Straits

LANSING — Michigan Attorney General Dana Nessel filed a lawsuit on Thursday aimed at shutting down Enbridge Energy’s Line 5, the 66-year-old twin pipelines that transport oil and liquid propane through the Straits of Mackinac. 

The suit indicates Nessel has run out of patience waiting for Gov. Gretchen Whitmer, a fellow Democrat, to negotiate a settlement with the Canadian energy giant over the pipeline’s future. 

• Opinion | A defense of Enbridge, its environmental record and Line 5
• Opinion: Dana Nessel: Line 5 must close to protect all of Michigan

Filed in Ingham County Circuit Court, the lawsuit calls the pipeline “a continuing threat of grave harm to critical public rights in the Great Lakes,” and seeks to void a 1953 easement that allows Enbridge to run the pipelines across state-controlled bottomlands in the Straits. 

The filing calls for Line 5 to stop flowing “as soon as possible after a reasonable notice period” and to allow officials to permanently decommission the lines.

The move fulfils Nessel’s vow to kickstart a shutdown if Whitmer could not agree — after months of negotiation — on an expedited plan to remove Line 5 from the lake bed. 

“I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes,” Nessel said in a statement. “Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay.”

In a separate filing, Nessel asked the Michigan Court of Claims to dismiss a lawsuit Enbridge filed on June 6. The company has asked that court to uphold a series of agreements made last year with Gov. Rick Snyder — Whitmer’s Republican predecessor — to replace the Straits pipelines and bury new lines in a bedrock tunnel expected to cost Enbridge $500 million. 

Enbridge disputes that it was unwilling to negotiate with Whitmer and said her administration’s insistence on shutting down the current pipeline in two years was a non-starter. Enbridge last month said it could finish a Line 5 tunnel by 2024 at the earliest, shaving years off its previous timeline. 

“We are disappointed the State chose not to accept our offer to advance talks on the Straits tunnel, a project that would make a safe pipeline even safer,” Ryan Duffy, an Enbridge spokesman, said in a statement Thursday.

“Line 5 is critical infrastructure that Michigan residents depend on every day, and it would be irresponsible to shut it down. It is safe and well maintained, and we intend to continue to operate it for decades to come.”

The flurry of action opens a new chapter in a complicated, years-long controversy over the pipeline’s fate.

The pipeline transports up to 540,000 barrels of light crude oil and natural gas liquids per day from Superior, Wisconsin, to Sarnia, Ontario. That includes 547 miles across Michigan and 4.5 miles beneath the Straits, where it branches into two lines.  

Enbridge calls the pipeline crucial to delivering fuel across the region and argues a shutdown would particularly harm the Upper Peninsula, which draws much of its propane from the line. 

Environmentalists and other concerned citizens fear that a rupture, however slight the possibility, would create a catastrophe in the Great Lakes, and they applauded Nessel’s move. 

Conan Smith, president of the Michigan Environmental Council, a Lansing-based advocacy group, called the development a “step forward in the fight to protect our Great Lakes from the billions of dollars of damage that an oil spill would cause in the Straits of Mackinac.” 

“Michiganders are fed up with the threat of an oil disaster in our precious lakes, and AG Nessel’s action is one piece of what is needed to end the threat of Line 5 for good,” he said. 

Both Nessel and Whitmer campaigned on shutting down the pipeline, and they opposed the deal with the Snyder administration that was finalized during his final days in office. 

Enabled by legislation Snyder signed in December,  the deal involved burying a new Straits pipeline 100 feet below bedrock, to be overseen by a newly created Mackinac Straits Corridor Authority. Republicans, Enbridge, labor unions other supporters have called a tunnel the best way to protect the Straits while keeping energy flowing to the UP. 

The legislation’s passage, the board’s creation and its signed agreement with Enbridge came in a matter of days, leading to complaints from Democrats and environmentalists that language in the law and was poorly vetted, if lawmakers had any time to read it.

Critics also complained tunnel construction would take too long and keep oil flowing through the Straits in perpetuity. 

Whitmer halted work on the tunnel plan in late March after Nessel, in a legal opinion, found the law creating a tunnel oversight board unconstitutional. (A Michigan Court of Claims judge had previously flagged constitutional issues with the law, but allowed most of it to stand.)

Whitmer said repeatedly she hoped to avoid protracted litigation over the pipeline, but she said she could reach a deal with Enbridge before the company decided to go to court earlier this month.

“Her reasonable requirement has been that the dual pipelines through the Straits cease operation at a date certain, after allowing for a period of transition," Tiffany Brown, Whitmer’s press secretary, said in a statement Thursday. “Enbridge, however, has insisted that it be allowed to run oil through the Great Lakes indefinitely.” 

Senate Republican leaders on Thursday urged Whitmer to continue negotiating over a tunnel and condemned Nessel's lawsuit. 

“The Attorney General is slowing progress on a tunnel – not a penny of which will be paid for by taxpayers – that will ensure the continued safety of a vital energy conduit. If she has her way, Michiganders will pay significantly more for gas at the pump and for propane to heat their homes," said a joint statement from Majority Leader Mike Shirkey of Clark Lake, Sen. Wayne Schmidt of Traverse City and Sen. Ed McBroom of Vulcan. "And she will put at risk thousands of jobs that are directly related to the line, and thousands more that would be created by the tunnel project. Her actions today are ill-advised and dangerous."

Whitmer on Thursday directed the Department of Natural Resources to conduct a “comprehensive review” of the 1953 legal easement at issue in Nessel’s filing. 

“Although the governor remains willing to talk with Enbridge, her commitment to stopping the flow of oil through the Great Lakes as soon as possible – and Enbridge’s decision to sue the governor rather than negotiate – will at some point require her to take legal action, as well,” Brown said. 

Michigan does not regulate pipelines, but Line 5’s stretch along the state-controlled Straits lake bed offers some legal leverage. Michigan granted Lakehead Pipe Line company — now Enbridge — permission to use the space in a 1953 easement for a one-time payment of $2,450. 

Critics allege Enbridge has violated several stipulations in that document, including that the company exercise “due care” for the “safety and welfare of all persons and of all public property.” And in early negotiations between the state and Enbridge, former Nessel’s predecessor, Republican Bill  Schuette, scolded the company for violating requirements related to supports along the pipeline’s Straits section.

Nessel’s filing Thursday claimed the lease violates the common law “public trust doctrine” — the state’s obligation, upheld by courts, to “protect and preserve the waters of the Great Lakes and the lands beneath them for the public.”  

The common law doctrine strictly limits circumstances in which the state may convey properties such as Great Lakes bottomlands, Nessel argues, and the lease did not satisfy those conditions, making it “void from its inception.” 

The lease did not improve navigation or “another public resource,” nor could it be offered without harming the public trust, the filing states. 

Some experts say making the Straits pipeline-free is easier said than done.

Susan Sadler, a Bloomfield Hills-based energy and environment attorney who has represented industry and environmental groups, said Nessel’s success could depend heavily on the judge that oversees the dispute, and she’ll need to present an “incredible risk-based story” about the pipeline. 

“They’re going to pull out all the stops, and the judge is going to be just overwhelmed with data,” Sadler said of both parties, and the litigation will likely take years. 

Critics of Line 5 acknowledged the litigation could delay a speedy removal of the pipeline from the lake bed — all at a time of heightened fears over its vulnerability to ships’ anchor strikes, like the one that hit the pipeline in 2018. 

“But that only says to me, we should have started this process long ago,” said state Sen. Jeff Irwin, D-Ann Arbor. “This is the process that should have been started under the last attorney general.”

Enbridge says it has bolstered safety along Line 5 since another one of its pipelines, Line 6B, ruptured in the Kalamazoo River in 2010, spilling more than 1.2 million gallons of crude oil in one of the largest inland oil spills in U.S. history.

Line 5 has never leaked in the Straits, but it has elsewhere.

In a 2017 report based largely on federal data, the National Wildlife Federation estimated 29 known spills, ruptures and equipment failures along Line 5 had released more than 1 million gallons of oil and natural gas liquids since 1968. The most serious ones happened decades ago. 

How ditching Line 5 might affect gasoline or propane prices is not clear. 

Enbridge says about 30 percent of oil flowing through the pipeline stays in Michigan, but the company has not disclosed detailed data on the distribution. Some critics argue no more than 10 percent of the oil stays in Michigan.

The pipeline also transports enough natural gas liquids to meet 65 percent of the Upper Peninsula’s demand for propane, an essential fuel during bitter winters, the company says.

A 2017 study commissioned by the Snyder administration said doing so could increase Michigan gasoline prices by about 2 cents per gallon and hike UP propane prices 10 to 25-cents per gallon, though such impacts “will generally depend on broader North American market conditions at the time of impact.” 

The National Wildlife Federation commissioned a 2018 study suggesting UP propane prices would increase just 5 cents per gallon under the lowest-cost options to send the fuel by truck or rail from Superior. “This small price increase would be lost in the noise of typical propane price volatility," the study said. 

Earlier this month, energy analysts at S&P Global Platts said the propane-by-rail market “would likely have enough slack” to transport Line 5’s load to the UP under a shutdown.