The Michigan Court of Appeals upheld the constitutionality of a law allowing the construction of a replacement Enbridge oil pipeline tunnel under the Straits of Mackinac.
The three-judge panel affirmed a lower-court decision finding the law under which the pipeline was approved was constitutional.
Enbridge’s line 5 pipeline, part of a much larger network of pipelines Enbridge operates, is a 645-mile, 30-inch-diameter pipeline that was first brought into operation in 1953. Connecting to other Enbridge pipelines, Line 5 originates in Superior, Wisconsin, travels through Michigan’s Upper and Lower Peninsulas, and terminates in Sarnia, Ontario, Canada. Beneath the Straits of Mackinac, Line 5 splits into two 20-inch-diameter, parallel pipelines that are buried onshore and deep underwater, crossing the Straits west of the Mackinac Bridge for a distance of 4.5 miles.
State Sues to Block Replacement
Under Public Act 359 (2018), Enbridge requested Michigan’s approval to replace the aging pipeline with a newer one.
At the request of Gov. Gretchen Whitmer, Michigan Attorney General Dana Nessel sued to block replacement.
In a March 2019 opinion, Nessel argued Public Act 359 violated the Michigan Constitution’s title-object clause, which requires that each law portray its contents accurately, because “its provisions go beyond the scope of what was disclosed in its title.”
In the initial trial, Michigan’s Court of Claims ruled the law was constitutional, as it amended a 1952 law under which the original pipeline was approved.
The appellate court, composed of Judges Thomas C. Cameron, Mark T. Boonstra, and Anica Letica, agreed, ruling the 2018 law did not violate the title-object clause of the Michigan Constitution.
“Defendants’ argument that the Court of Claims improperly considered extraneous material is unsupported,” Cameron wrote in the opinion. “We conclude that the title of 2018 PA 359 does not address objects so diverse that they have no necessary connection.”
Good for Jobs, Environment
In response to the ruling, Enbridge released a statement saying the company will continue to operate the two existing Line 5 oil lines while the tunnel is being built.
“We look forward to working with the State to make a safe pipeline even safer,” an Enbridge spokesperson said in the statement. “We are investing $500 million in the tunnel’s construction—thereby further protecting the waters of the Great Lakes and everyone who uses them.”
The court’s ruling recognizes the importance of finding environmentally sound solutions to the region’s energy needs, John Walsh, president of the Michigan Manufacturers Association, told The Detroit News.
“Replacing the portion of Line 5 beneath the Straits with the Great Lakes Tunnel is the safest, most reliable, affordable, and environmentally sound energy solution for Michigan’s citizens and businesses,” Walsh told The Detroit News. “That’s why the tunnel is supported by Democrats and Republicans, business and labor.
“We’re glad the court rejected the latest stall tactic and are excited about next steps in the development process,” said Walsh.
Ongoing Pipeline Challenges
This is the second legal challenge to the construction of Line 5 Enbridge has overcome in June. In a lawsuit brought by the National Wildlife Federation to block the pipeline earlier in the month, the U.S. Sixth Circuit Court of Appeals overturned a lower court judge’s decision that Enbridge’s Line 5 spill response plan was inadequate. The Court of Appeals ruled the plan met all requirements for a legally adequate, environmentally safe response plan.
Two other cases challenging the construction of the Line 5 replacement and the continued operation of the existing Line are pending in Michigan. In one case, before the Ingham County Circuit Court, Nessel is challenging the continued operation of the existing pipeline, arguing the pipeline’s 1953 easement violates the Michigan public trust doctrine and should be shuttered as an environmental hazard.
Nessel claims the potential threat of a leak from the 67-year-old pipeline line poses a threat to wildlife and water quality and, as part of the infrastructure allowing the continued use of fossil fuels, is contributing to dangerous global climate change.
In a case pending before the state’s administrative court system, Enbridge’s permits for anchor supports on the replacement Line 5 are being challenged by tribes and some northern Michigan property owners.
Additionally, the Michigan Public Service Commission is considering Enbridge’s request to validate its existing authority to re-site its pipeline under bedrock, per the commission’s original approval of the Line 5 site back in 1953.
The Attorney General’s office has indicated it will appeal the appeals court’s decision to the Michigan Supreme Court.
“While we are disappointed by the Court of Appeals decision, we stand by our position that Act 359 is unconstitutional,” Nessel spokesperson Courtney Covington said in the statement. “We intend to ask the Michigan Supreme Court to review this important matter.”
If Enbridge receives all the necessary permits and regulatory approvals, the company says it expects to complete construction of the Line 5 tunnel in 2024.
Emma Kaden (EKaden@heartland.org) is an assistant editor at The Heartland Institute.