Sixth Circuit Court of Appeals remands Line 5 lawsuit to state court

The U.S. Sixth Circuit Court of Appeals has remanded the Line 5 lawsuit to state court, as requested by Attorney General Dana Nessel as she seeks to shutter the pipeline. If Nessel succeeds in forcing a closure, Michiganders might face higher energy bills because the pipeline supplies 65% of the propane demanded in the Upper Peninsula and 55% of Michigan’s statewide propane needs.

Nessel and Enbridge, the Canadian oil company that owns the Line 5 pipeline, have been in a legal battle since 2019, the year Nessel took office.

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

The three-judge panel unanimously ruled that Enbridge “failed to timely remove this case to federal court ... and there are no equitable exceptions to the statute’s deadlines for removal,” Judge Richard Griffin wrote in the 17-page opinion, joined by Judges Amul Thapar and John Nalbandian.

The ruling says Enbridge missed the 30-day window to move the case to federal court. Enbridge litigated the case in state court before it succeeded in having the case moved to federal court in 2021.

In March, Nessel asked the Sixth Circuit to remand the case to state court. In its recent ruling, the Sixth Circuit remanded the case to the 30th Circuit Court in Ingham County, where it is expected to resume before Judge James S. Jamo.

The Canadian government has opposed shuttering the Line 5 pipeline.

Nessel welcomed the ruling.

“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.”

Enbridge spokesman Ryan Duffy said the company is disappointed in the ruling.

“Enbridge believes that the case should remain in federal court given the clear and substantial questions of federal law raised by the Attorney General’s complaint,” Duffy wrote in a statement.

Duffy said Line 5’s safety is regulated by the Pipeline and Hazardous Materials Safety Administration, under the U.S. Department of Transportation. It also is subject to the 1977 Transit Treaty between the U.S. and Canada.

In Enbridge v. Whitmer, a separate case in federal court, Duffy said, Enbridge seeks a ruling that the state of Michigan can’t shut down Line 5 based on perceived safety concerns.

Duffy said that Enbridge believes the pending motion for summary judgment in Whitmer’s federal case must be resolved before Nessel’s case can proceed in state court.

“While we remain confident that the Michigan state court will ultimately find that the Attorney General cannot shut down Line 5, we are focused on building the Great Lakes Tunnel which will make a safe pipeline safer and protect the waters of the Great Lakes, the environment, and people while assuring long term energy security and reliability, and supporting Michigan jobs and the economy,” Duffy said in a statement.