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Court: Nessel can try again to return Line 5 lawsuit to state court

Line 5 image.jpg
Bridge Michigan
The Line 5 pipeline crosses the Straits of Mackinac -which connects Lake Michigan to Lake Huron- in a dual-span pipe that sits at the bottom of the lakebed.

A federal judge has given Michigan Attorney General Dana Nessel another chance to argue that her lawsuit seeking to shut down the Line 5 petroleum pipeline is best heard in state court.

The U.S. District Court for the Western District of Michigan, which last August shot down Nessel’s attempt to bring the case back to state court, on Tuesday made way for Nessel to appeal that decision to the Sixth Circuit Court of Appeals.

The issue of which court holds jurisdiction over the lawsuit has become a crucial detail in the legal battle over Enbridge Energy’s pipeline in the Straits of Mackinac. In general, legal scholars have said, Nessel is more likely to prevail if the case is heard in state court, while Enbridge is more likely to prevail in federal court.

That’s because federal courts are generally more supportive of federal oversight while state courts are more likely to uphold states’ authority. Federal courts also tend to lean more conservative, while Michigan’s highest court has a 4-3 majority of Democratic appointees.

Nessel first filed the lawsuit in Ingham County Circuit Court in 2019, arguing Enbridge is operating Line 5 in the straits in violation of Michigan’s public trust doctrine and the pipeline must be shuttered. It stayed there until December 2021, when Enbridge removed the case to the Western District federal court.

Lester Graham
Michigan Radio
Enbridge Energy's pumping station on the south side of the Straits of Mackinac.

Lawyers for Enbridge argue the state has no authority to order the pipeline closed over concerns that it could pose an oil spill hazard in the straits, because pipeline safety regulation is a federal matter best left up to the Pipeline and Hazardous Materials Safety Administration.

State lawyers counter that Enbridge missed a key deadline to shift the case out of Ingham County and that Michigan has a right to enforce state laws in state courts.

U.S. District Judge Janet Neff rejected that argument in an August order that chided state lawyers for attempting to “perpetuate a forum battle.”

That prompted Nessel’s push for an appeal.

In her Tuesday opinion, which certified her August order to make way for its appeal, Neff wrote that the dispute over jurisdiction is “exceptional” enough to allow Nessel to appeal her earlier decision.

In a statement, Nessel called Line 5 “a grave threat to Michigan and our Great Lakes,” and said she looks forward to “raising these important issues in the Sixth Circuit.”

Enbridge spokesperson Ryan Duffy accused Nessel of “gamesmanship and forum shopping” and said the company remains confident the case belongs in federal court.

Once state lawyers file for appeal, Sixth Circuit judges will decide whether to hear the appeal, or allow the case to proceed in federal district court.

A separate lawsuit over the fate of Line 5 remains in play before Neff. That case stems from Gov. Gretchen Whitmer’s November 2020 shutdown order, which Enbridge has defied. Instead, Enbridge sued the state in federal court, arguing Michigan can’t order the pipeline closed. Whitmer’s lawyers have asked the court to dismiss the suit.

Kelly House covers Michigan environmental issues for Bridge.
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