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Enbridge Line 5 Litigation
The rupture of another Enbridge pipeline near Marshall Michigan in 2010, which resulted in the largest inland oil spill in U.S. history focused new scrutiny on Line 5, especially on the four-mile segment crossing the Straits.
Line 5’s dual pipelines are literally in the Great Lakes, and lie exposed in a busy shipping channel, where especially strong and varying currents could carry an oil spill far along the shores of Lakes Michigan and Huron.
Independent analyses of alternatives to and the risks of the Straits Pipelines show that the pipelines are vulnerable to damage by anchor strikes and inherent operational risks and that because of the ecological sensitivity of the location a spill could cause grave environmental and economic harm.
In June 2019, after Enbridge refused to enter an agreement with Governor Whitmer to decommission Line 5, AG Nessel filed suit against Enbridge in Ingham County Circuit Court, asking the court to declare that Enbridge’s continued operation of the Straits pipelines violates the public trust, is a common law public nuisance, and violates the Michigan Environmental Protection Act.
The suit seeks an injunction requiring Enbridge to permanently shutdown Line 5 after a reasonable notice period. Underscoring the importance of the legal issues presented in this case, the states of California, Minnesota and Wisconsin took the unusual step of filing an amicus curiae [friend of the court] brief supporting the ability of a state to protect its waters and submerged lands under the public trust doctrine.
The parties to the case have filed and argued cross-motions for summary disposition that are awaiting decision by the court.
In June 2020, after Enbridge revealed that both of the Straits pipelines had been struck by cables or other objects, resulting in serious damage to a pipeline support structure, AG Nessel filed motions for a temporary restraining order (TRO) and preliminary injunction (PI) requiring Enbridge to temporarily shutdown the pipelines and to disclose to the State all information about the causes of the impacts, the effects on the pipelines, and measures to prevent such impacts. The court granted both the TRO and PI
Subsequent reports showed that while the specific areas of the pipelines that were impacted did not suffer damage to pipeline integrity, the most likely source of the impacts were vessels operated by Enbridge contractors.
In November 2020, after completing a detailed review by the Department Natural Resources of Enbridge’s compliance with the 1953 Easement that allowed Enbridge to construct the pipelines, Governor Whitmer and DNR Director Eichinger issued a Notice revoking the Easement based on the public trust doctrine (using the essentially same grounds as AG Nessel’s 2019 lawsuit) and terminating the Easement based on Enbridge’s repeated violations of its requirements.
The Notice requires Enbridge to cease operation of the pipelines within 180 days (May, 2021). At the same time, AG filed a second lawsuit on behalf of the Governor and the DNR asking the Ingham County Circuit Court to uphold and enforce the Notice.