Judge doesn’t grant Michigan immunity in Enbridge case – Michigan Capitol Confidential

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Court plans oral hearing for July 31

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A federal judge has refused to grant the state of Michigan immunity in a lawsuit brought by Enbridge Energy against the state’s efforts to shut down its pipeline under the Straits of Mackinac. The ruling rebuffs the state’s request to the court to dismiss Enbridge’s lawsuit.

The Canadian energy company filed the lawsuit after Governor Gretchen Whitmer attempted to shut down the Line 5 pipeline in 2020.

Governor Gretchen Whitmer and her DNR director had argued that the state was protected from the suit by the doctrine of sovereign immunity. Judge Robert J. Jonker explained in his July 5 ruling that the ex parte Young exception to the state’s sovereign immunity applied. As a result, the case will proceed.

“Instead of seeking comprehensive compensation from an alleged owner of the Shire, Enbridge seeks compensation that would prevent state agencies from stopping ongoing operations of a pipeline that has operated under easement for 65 years,” the 11-page order states. “And the basis for the requested declaratory relief and injunctive relief lies in alleged violations of federal law, a paradigmatic ex parte Young scenario.”

In 2020, Whitmer terminated the pipeline’s 1953 easement and called for the pipeline to be shut down within 180 days.

The 645-mile pipeline stretches from Superior, Wisconsin, to Sarnia, Canada, and has transported 540,000 gallons of hydrocarbons across the bottom of Lake Michigan every day since 1953.

The pipeline supplies 65% of the Upper Peninsula’s propane gas needs and 55% of the state of Michigan’s propane gas needs.

Enbridge argued that the shutdown order violated the U.S. Constitution’s Supremacy Clause as well as the Interstate Commerce Clause. Enbridge also said the governor’s order violated the Constitution’s Foreign Commerce Clause and its Foreign Policy Doctrine.

The court has scheduled a hearing for July 31 to hear Enbridge’s motion for summary judgment.

Enbridge spokesman Ryan Duffy said Michigan does not have the authority under federal law to shut down the Line 5 pipeline.

“At the same time, we are pleased that the state’s motion to dismiss the lawsuit was denied. This validates our decision to seek protection from the State of Michigan’s unjustified efforts to force the closure of a critical international pipeline,” Duffy said in an email to CapCon.

He said the 1977 Canada-US treaty prohibits Michigan from closing the pipeline, which he called an “international energy delivery system.”

Duffy said the U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) regulates the safety of the Line 5 pipeline and that there are “no safety concerns about Line 5 crossing the strait and the state should not question PHMSA’s authority.”

“Enbridge operates Line 5 responsibly, providing Michigan and the region with vital energy that promotes economic strength, mobility, jobs and quality of life,” Duffy wrote. “We adhere to and meet all safety and operational standards.”

Whitmer’s office did not respond to a request for comment.

Enbridge’s recent victory in federal court followed a loss in state court.

In June, the U.S. Court of Appeals for the Sixth Circuit remanded another lawsuit involving Line 5 to state court. Attorney General Dana Nessel has been trying to shut down the pipeline since 2019.

Enbridge attempted to take the case to federal court but lost.