Judge retains jurisdiction in Enbridge pipeline lawsuit

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By JOHN FLESHER, AP Environmental Editor

TRAVERSE CITY, Mich. (AP) — A federal judge on Thursday upheld jurisdiction over a lawsuit to shut down an oil pipeline that crosses a section of the Great Lakes, rejecting Michigan’s efforts to send the case to state court.

U.S. District Judge Janet Neff sided a second time with Enbridge Energy, which argues that regulating its Line 5 is a federal matter and federal courts should deal with legal arguments over whether it should proceed. to operate.

“The Court reinforces the importance of a federal forum to decide the contested and substantive federal issues at stake, with uniformity and consistency,” Neff said in a written decision.

Grand Rapids-based Neff came to the same conclusion last year after Governor Gretchen Whitmer sued to enforce her order to decommission the 69-year-old pipeline. The judge’s decision on Thursday related to a separate 2019 case by Michigan Attorney General Dana Nessel, also seeking a stay.

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Line 5 is part of a network that transports Canadian petroleum and natural gas liquids used in propane to refineries in both countries. It stretches 645 miles (1,038 kilometers) between Superior, Wisconsin, and Sarnia, Ontario, crossing northern Wisconsin and Michigan’s Upper Peninsula.

Whitmer and Nessel, both Democrats, agree with environmental groups and Indigenous tribes that a 4-mile (6.4 kilometer) segment under the Strait of Mackinac poses an unacceptable spill risk to the waterway connecting Lake Huron and Lake Michigan. The governor demanded a 2020 shutdown, which the Calgary, Alberta-based company rejected.

Enbridge is backed by the Canadian government, which invoked a 1977 treaty with the United States guaranteeing the cross-border flow of oil and natural gas. The Biden administration is discussing the matter with Canadian officials.

Whitmer dropped his case after Neff retained his jurisdiction. Nessel’s lawsuit and another brought by Enbridge to have the governor’s shutdown order thrown out are now pending before the judge.

Nessel is challenging a 1953 easement granted by Michigan to run a section of the pipeline through state-owned bottomlands, saying it violates the common law “public trust” doctrine requiring the state protects the waters of the Great Lakes.

Neff’s ruling criticized the attorney general for repeating arguments in favor of state law enforcement that the judge had previously rejected. It would be “absurd” to have a Line 5 case in state court and another in federal court, she said, accusing Nessel’s team of “manipulation … procedural closure and manipulation of the forum”.

Spokeswoman Amber McCann said Nessel’s office is reviewing the decision and considering her options.

Nessel “remains steadfast in its commitment to protecting Michigan’s natural resources from the potentially devastating impact of environmental catastrophe,” McCann said. “The department strongly disagrees with the judge’s mischaracterization of the law and the Attorney General’s approach to this and related cases.”

In a statement, Enbridge said Neff’s decision “underscores that the state’s attempts to shut down this critical energy infrastructure raise significant federal issues of interstate commerce, exclusive federal jurisdiction over pipeline safety, and serious ramifications. for energy security and foreign affairs”.

The judge’s decision “unfortunately prevents the state court from hearing the merits of the case,” said Mike Shriberg, director of the National Wildlife Federation’s regional office. “While we don’t agree with the decision, it doesn’t change the fact that Line 5 is a ticking time bomb for the Great Lakes and needs to be closed immediately.”

Enbridge insists that the subsea segment of Line 5, which consists of two parallel pipes, is in good condition, but wants to replace it with a new pipe that would be housed in an underground tunnel to be drilled under the strait. The company applies for state and federal permits.

The US Army Corps of Engineers is developing an environmental impact study of the proposal, which could take several years. The Corps announced a 60-day comment period on Monday, with Detroit District Commander Lt. Col. Brett Boyle promising an “open, transparent and public” process.

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