Lawyers sparred in court Tuesday over Attorney General Dana Nessel’s request for a preliminary injunction against Enbridge Energy.
The state is requesting a 14-day freeze on operations along Line 5 in the straits of Mackinac in order to review pipeline safety.
Attorney General Dana Nessel requested the injunction on June 22 after Enbridge announced it had resumed operating the western leg of the Line 5 pipeline following the announcement of “significant damage” to the eastern portion of the line.
Over a nearly five-hour hearing attorneys for Enbridge argued the western leg of the pipeline was safe to operate and the state lacked the authority to shut down the pipeline for any length of time.
Enbridge said the expert opinion of both their engineers and the federal government found no problems with the operation of the west leg of the line.
“I find it troubling to be here in front of you,” said Attorney for Enbridge William Hassler to Judge James Jamo. “I think the parties together can do better. An injunction is not needed.”
As for when the damage to the line took place, the company noted that the damage to the anchor support on the eastern leg of the line occurred sometime between June of 2019 and June 18, 2020.
Enbridge said an investigation is still ongoing into what caused the damage to the Eastern pipeline but that it was “probably” from a vessel dragging a “thin, light” object over the pipeline. Attorney Hassler said he believed it was “not an anchor strike.”
“Whatever blow struck the screw anchor is only a tiny fraction of what would be needed to impact the pipeline,” Hassler said.
David Coburn, another attorney representing Enbridge, argued there was no precedent for a state shutting down an energy pipeline due to safety concerns.
He also argued the attorney general has made clear she wants to close the pipeline permanently and the injunction might ultimately allow for that.
“Despite the fear-mongering we hear from the attorney general these are not high impact events,” Coburn said. “We may never know the exact vessel at the exact time but there is no likelihood that the state could show we have not exercised due care.”
“If you want safety, stop litigating and start supporting the tunnel agreement,” Coburn concluded.
Judge Jamo questioned how Enbridge could believe the state had no regulatory authority over the pipeline given that the company needed approval from the state to place anchors over the pipeline. Enbridge attorneys pushed back arguing the state regulates the bottomlands but does not have authority over the pipeline itself.
Enbridge repeatedly deferred to the federal authority of the Pipeline and Hazardous Materials Safety Administration (PHMSA) in arguing it could safely operate the line without the state’s oversight.
Judge Jamo noted that the PHMSA approval seemed to come from Enbridge’s own analysis that the west line could be operated safely. “Where is it documented that PHMSA undertook any kind of analysis and reached an independent determination?” Jamo asked.
Enbridge responded that since the initial determination, PHMSA has reviewed ROV footage of the line.
Assistant Attorney General Robert Reichel noted the idea PHMSA alone has the authority to regulate the line does not make sense. Reichel argued a consent decree between Enbridge and the EPA over pipeline operations shows that PHMSA does not have sole oversight.
Judge Jamo pressed the state on what would happen after the state has time to review documents from Enbridge. Particularly if it can’t be determined what struck the line.
The state’s attorney responded that they would like to have the same data PHMSA has into what impacted the line. If they couldn’t mount an argument against PHMSA’s assessment that the line should reopen, then it could reopen.
An attorney for Enbridge said the line should not be shut down while an accounting of what happened takes place.
Separately, the Michigan Public Service Commission announced it would not grant Enbridge’s request for a declaratory ruling on the company’s plan to build a tunnel to house the Line 5 pipeline.
The company had requested a quick approval of the project but the Commission ruled the project differed “substantially” from the Line 5 pipeline approved under the 1953 easement and requires a full hearing process.