- The US Supreme Court heard arguments Tuesday in a yearslong legal dispute over the fate of the Line 5 pipeline
- Michigan Attorney General Dana Nessel has been pushing for years to shut the pipeline down, while Enbridge Energy contends she has no legal right to do so
- The dispute’s outcome may rest on the Supreme Court’s interpretation of a narrow question about court deadlines
It may seem like a dull procedural question: Which court — federal or state — should oversee a lawsuit over the fate of the Line 5 pipeline?
But the answer could make or break Michigan Attorney General Dana Nessel’s yearslong effort to shut down the controversial petroleum pipeline. It would also set a precedent for how closely courts must follow legal deadlines meant to avoid drawn-out cases and how much power states have to regulate the fossil fuel industry.
So the stakes were high on Tuesday as lawyers for Nessel and pipeline owner Enbridge Energy pleaded their case before the nation’s highest court.
The arguments stemmed from a lawsuit Nessel filed in the 30th Circuit Court in Ingham County in 2019, seeking to shut down a 4-mile stretch of the Canadian oil pipeline that runs through the Straits of Mackinac over fears it could cause a catastrophic oil spill in the Great Lakes.
Nearly two years later, Enbridge filed to move the case to federal court — long after the 30-day statutory deadline to do so.
That prompted a dispute over whether courts can grant exceptions to the deadline. The Supreme Court got involved after Enbridge appealed a lower court ruling that upheld the deadline.
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So why are the two sides so concerned about where the case lands?
In part because federal courts are considered more likely to sympathize with Enbridge’s argument that the pipeline should stay open, while state courts are more likely to sympathize with Nessel’s argument that the pipeline should shut down.
Indeed, a federal judge has already decided a separate shutdown dispute in Enbridge’s favor, ruling that federal pipeline safety laws preempt state laws, leaving Michigan with no “power to interfere” in Line 5 operations.
On Tuesday, Enbridge lawyers argued the 30-day removal deadline is malleable, while state lawyers argued it’s firm.
Pointing to other cases in which courts have used a legal principle known as “equitable tolling” to grant deadline extensions, Enbridge lawyer John Bursch urged the court to do the same in this case.
“There’s no need to break new ground here,” Bursch said. “We ask that you apply the court’s well-settled precedents.”
But state Solicitor General Ann Sherman contended that such extensions apply specifically to deadlines for filing cases — not efforts to swap courts years into an active case.
“Having missed Congress’s express mandatory 30-day removal deadline by over two years, Enbridge seeks an atextual escape hatch,” Sherman said.
The legal disputes follow years of tensions over the fate of Line 5, as the structure’s fans and foes battle over how best to reduce the risk of an oil spill from the 72-year-old pipeline that has been repeatedly struck by ships’ anchors as it crosses the open water of the Straits.
Environmentalists and Native American tribes contend the pipeline should be shut down immediately and permanently, while Enbridge and its allies in business and labor want to keep the current lakebottom segment running until it can eventually be moved into a concrete-lined tunnel deep beneath the lakebed.
Asked why Enbridge didn’t seek to move Nessel’s lawsuit to federal court earlier, Bursch contended that the federal implications of the case only became clear after a series of safety mishaps prompted Gov. Gretchen Whitmer to revoke a 1953 easement granting Enbridge access to the Straits in 2020.
That prompted a flurry of legal wrangling, including Canada’s invocation of a 1977 treaty that states “no public authority” in the US or Canada can impede the flow of petroleum products through cross-border pipelines.
Those developments “really changed the landscape,” Bursch said.
Enbridge successfully sued over Whitmer’s shutdown order in federal court, with US District Court Judge Robert Jonker ruling in December that federal pipeline safety law left Michigan no authority to order a shutdown. The state is appealing that decision.
Justices appeared to wrestle Tuesday with the complexity of Michigan’s dispute with Enbridge, with Justice Sonia Sotomayor wondering aloud about the implications of letting one case proceed in state court while another is active in federal court.
“Wouldn’t it avoid waste to have these two actions proceed together in the same court?” Sotomayor asked.
It’s not clear when the court will issue a ruling in the case.
While Enbridge and Michigan battle over the fate of the current pipeline, the company is still seeking permits to build the tunnel it first proposed in 2018.
The US Army Corps of Engineers is expected to make a long-awaited tunnel permitting decision within weeks. Alongside that process, the Michigan Department of Environment, Great Lakes and Energy is weighing whether to grant tunnel permits, with a decision expected in March.
Meanwhile, the Michigan Supreme Court is set to hear arguments on March 11 in a lawsuit challenging a separate tunnel permit the state already granted.
In that December 2023 decision, the Michigan Public Service Commission gave Enbridge permission to reroute Line 5 into the tunnel, if and when it is built. The decision prompted lawsuits from a coalition of four Michigan tribes and a Traverse City-based water advocacy group, both of which contend commissioners failed to fully consider the tunnel’s impacts on Michigan’s environment and public resources.
Noting that federal regulators regularly inspect Line 5 and have not raised issues with its safety, Enbridge spokesperson Ryan Duffy said efforts to shut the pipeline down raise “significant implications for energy security and foreign affairs.”
All of the legal wrangling shouldn’t overshadow the safety concerns at the heart of Michigan’s battle over Line 5, said Bay Mills Indian Community President Whitney Gravelle, whose tribe is a party to the lawsuit:
“We have the opportunity and responsibility to protect the Great Lakes for all of North America,” Gravelle said.
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