Enbridge wins another round over Dana Nessel in Michigan Line 5 tunnel fight

LANSING — Enbridge Energy Inc. can proceed as planned with construction of an underwater tunnel beneath the Straits of Mackinac to house a replacement for the dual Line 5 oil pipelines after the Michigan Court of Appeals this week declined to suspend a prior ruling.

A three-judge panel on Tuesday denied Attorney General Dana Nessel’s request to delay construction pending final resolution of ongoing litigation over the late 2018 law that paved the way for the $500 million tunnel project. 

Nessel filed new appeal arguments Thursday seeking to overturn an October ruling by Court of Claims Judge Michael J. Kelly, who she contends relied on a “straw man” argument advanced by Enbridge, the Canadian energy giant that sued to spur state action. Michigan Gov. Gretchen Whitmer had initially used a legal opinion by Nessel to halt any state work on the tunnel project.

This week’s 2-1 ruling by the Michigan Court of Appeals means Enbridge can “move forward” with next steps on the project, including permit requests that will be necessary for construction —  at least “for now,” said Nessel spokeswoman Kelly Rossman-McKinney. 

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Enbridge spokesman Michael Barnes said the ruling shows “it’s time for Enbridge and the State to move forward together with the Great Lakes Tunnel Project.” He was not immediately able to say when the company will begin applying for permits.

Enbridge recently completed the “geotechnical phase” of the project and spent $40 million on the effort in 2019, reflecting “our deep commitment to building the tunnel and to being part of Michigan’s future,” Barnes said in a statement. “We believe the tunnel is the best way to protect the community and the Great Lakes while safely meeting Michigan’s energy needs.”

Nessel campaigned in 2018 on a pledge to shut down Line 5, citing fears the 67-year-old dual pipeline could cause massive damage to the Great Lakes should it rupture or fail. The first-term Democrat continues to fight the pipeline and legislation that former Gov. Rick Sndyer and the Republican-led Legislature approved to enable the tunnel replacement project. 

The tunnel law sought a specific policy outcome, Nessel argued in a Thursday brief: “The perpetuation of the operation of unreasonably risky oil pipelines in the Straits of Mackinac for at least several years until they could be replaced in a newly-constructed tunnel.”

And in their rush to enact the law while the GOP maintained full control of state government, Snyder, Enbridge and Republican allies in the Legislature “relied upon a legislative strategy that ran afoul of long-established requirements of Michigan’s Constitution,” Nessel claimed.

The attorney general effectively argues the law was unconstitutional because it did more than it said in its title, which authorized the existing Mackinac Bridge Authority to acquire a utility tunnel. As amended and approved, it instead created a new authority to authorize a tunnel agreement. Nessel has questioned whether lawmakers knew what they were voting on. 

Kelly rejected that contention in his October ruling, calling the law’s contents “well known, as evidenced by the strong policy-based reactions the Act has drawn.” 

“Regardless of whether the Court agrees with defendants about the lack of tidy draftsmanship, the argument advanced by defendants misses the mark,” Kelly wrote. 

Court of Appeals Judges Michael Gadola and Patrick Meter did not explain their decision to deny Nessel’s requested “stay” in the case while they consider her full appeal. The decision was rendered as a one-sentence ruling. 

Judge Amy Ronayne Krause, the only Democratic appointee on the panel, said she would have granted the stay. She noted Nessel issued an attorney general’s opinion finding the tunnel authority law unconstitutional, but the trial court found the statute valid. “Both seem very well-reasoned and a stay should be granted until the appeal on this issue in this Court is resolved,” she wrote. 

Nessel filed a separate lawsuit in June that seeks to shut down Line 5 by voiding the 1953 easement that allowed Enbridge to run the dual pipeline across the bottom of the Straits, which is controlled by the state. A status conference in that case is set for Jan. 31 before Ingham County Circuit Court Judge James Jamo.