Judge won’t give Michigan immunity in Enbridge lawsuit

A federal judge has declined to give the state of Michigan immunity in a lawsuit filed by Enbridge Energy against the state’s effort to close its pipeline underneath the Straits of Mackinac. The ruling rebuffs the state, which asked the court to throw out the Enbridge suit.

The Canadian energy company filed the lawsuit after Gov. Gretchen Whitmer tried to shutter the Line 5 pipeline in 2020.

Gov. Gretchen Whitmer and her DNR director had said the state was shielded from the lawsuit by the doctrine of sovereign immunity. Judge Robert J. Jonker, in his July 5 order, said the Ex parte Young exception to the state’s sovereign immunity applied. As a result, the case will continue.

“Rather than seek the sweeping relief of a claimed owner of the bottomlands, Enbridge requests relief that would preclude state officials from shutting down ongoing operations of a pipeline that has been functioning under easement for the past 65 years,” the 11-page order says. “And the bases for that requested declaratory and injunctive relief are rooted in alleged violations of federal law, a paradigm Ex parte Young scenario.”

In 2020, Whitmer terminated the pipeline’s 1953 easement and sought to have the pipeline shut down within 180 days.

The 645-mile pipeline stretches from Superior, Wisconsin, to Sarnia, Canada, and it has carried 540,000 gallons of hydrocarbons daily across Lake Michigan’s lakebed since 1953.

The pipeline supplies 65% of the propane demand in the Upper Peninsula and 55% of Michigan’s statewide propane needs.

Enbridge argued that the shutdown order would violate the supremacy clause of the U.S. Constitution’s supremacy clause as well its interstate commerce clause. Enbridge also said the governor’s order conflicted with the Constitution’s foreign commerce clause and its foreign affairs doctrine.

The court has scheduled an oral argument on July 31 to hear Enbridge’s motion for summary judgment.

Enbridge spokesman Ryan Duffy said Michigan lacks authority under federal law to close the Line 5 pipeline.

“At the same time, we are pleased that the State’s motion to dismiss was denied, vindicating our decision to seek relief from the State of Michigan’s unwarranted efforts to force a critical international pipeline to close,” Duffy told CapCon in an email.

He said the 1977 treaty between Canada and the U.S. prohibits Michigan from shuttering the pipeline, which he called an “international energy delivery system.”

Duffy said the federal Pipeline and Hazardous Materials Safety Administration regulates Line 5 pipeline safety, and it has raised “no safety concerns regarding Line 5’s crossing of the Straits and the state should not be second-guessing PHMSA’s authority.”

“Enbridge is responsibly operating Line 5, providing critical energy to Michigan and the region that supports economic strength, mobility, jobs, and quality of daily life,” Duffy wrote. “We adhere to and comply with all safety and operational standards.”

Whitmer’s office hasn’t responded to a request for comment.

Enbridge’s recent win in federal court follows a loss in state court.

In June, the U.S. Sixth Circuit Court of Appeals remanded a different Line 5 lawsuit to state court. Since 2019, Attorney General Dana Nessel has sought to shutter the pipeline.

Enbridge attempted to move the lawsuit to federal court but lost.