Trump adminstration intervenes in Line 5 Straits pipeline lawsuit, taking Enbridge's side

• The U.S. Justice Dept. has filed a “statement of interest” in Enbridge’s lawsuit against Gov. Gretchen Whitmer over attempts to revoke Enbridge’s easement to operate Line 5 in the Straits of Mackinac.
• The Justice Dept. is siding with Enbridge’s contentions that Michigan’s attempts to revoke its Line 5 easement interfere with federal regulation of pipelines, and U.S.-Canadian treaties.

President Donald Trump’s Justice Department has intervened — and taken the side of Canadian oil and gas transport giant Enbridge — in Enbridge’s federal lawsuit attempting to stop Gov. Gretchen Whitmer from revoking the company’s 72-year-old easement to operate the Line 5 underwater oil and gas pipelines on the Straits of Mackinac lake bottom.

The U.S. Justice Department’s Environment and Natural Resources Division and Civil Division announced its filing of a “statement of interest” in a lawsuit filed by Enbridge against Whitmer and Michigan Department of Natural Resources Director Scott Bowen in U.S. District Court in Lansing.

The Justice Department is agreeing with Enbridge’s assertion in the suit that the Michigan action improperly attempts to override federal authority on interstate pipeline regulation, and federal foreign affairs authority as the pipeline from Alberta, Canada, is subject to U.S.-Canadian treaties.

“The federal government already comprehensively regulates pipeline safety, but Michigan is trying to usurp the Department of Transportation’s statutory authority,” Acting Assistant Attorney General Adam Gustafson said in a statement.

“President Trump has made clear that the United States will not tolerate state overreach that interferes with American energy dominance.”

Michigan Attorney General Dana Nessel’s Office did not immediately respond to a Free Press request for comment.

Enbridge spokesman Michael Barnes, in an emailed statement to the Free Press, noted the 1977 Transit Pipelines Treaty between the United States and Canada “expressly prevents public authorities such as the State of Michigan and courts from unilaterally shutting down the pipeline.”

“We will continue to protect and defend Line 5’s continued operations consistent with federal law, interstate commerce, and international treaty agreements, all of which recognize the critical role Line 5 plays in providing for the region’s energy needs and its economic strength,” he said.

Built in 1953, Enbridge’s Line 5 moves 23 million gallons of oil and natural gas liquids per day east through the Upper Peninsula, splitting into twin underwater pipelines on the Straits of Mackinac bottom, before returning to a single transmission pipeline through the Lower Peninsula that runs south to Sarnia, Ontario. Many have expressed concern about the aging pipes over several years, as anchor strikes, missing pipeline supports and loss of protective pipeline coating have been discovered.

A 30-inch oil transmission line also owned by Enbridge ruptured in July 2010 in Marshall, spilling more than 1.1 million gallons of oil, fouling 38 miles of the Kalamazoo River and prompting a cleanup that took four years and more than $1 billion. Many fear a similar pipeline mishap on the Straits bottom, where Great Lakes Michigan and Huron meet, would be greatly more devastating.

Whitmer in November 2020 announced her intention to revoke Enbridge’s 1953 easement with the state to use state-controlled Great Lakes bottomlands for the Straits pipeline. Whitmer’s office at the time cited Enbridge’s “persistent and incurable violations of the easement’s terms and conditions” related to safety and maintenance.

“Enbridge has routinely refused to take action to protect our Great Lakes and the millions of Americans who depend on them for clean drinking water and good jobs,” Whitmer said at the time. “They have repeatedly violated the terms of the 1953 easement by ignoring structural problems that put our Great Lakes and our families at risk.”

Enbridge officials have countered that the Line 5 pipeline in the Straits has always remained safe and cite recurring inspections by the federal Pipeline and Hazardous Materials Safety Administration, or PHMSA, affirming its contention.

In its filing, the Justice Department notes that the federal government took “decisive action” in three environmental events described in Whitmer’s notice to revoke the Enbridge easement, including an April 2018 anchor strike that dented the outer Straits pipelines and the discovery of significant damage to a pipeline support in June 2020. Following the 2018 anchor strike, Congress amended federal pipeline safety laws, and PHMSA issued an interim final rule to protect the Great Lakes and connecting waters, the Justice Department’s filing states.

“By revisiting these same incidents to impose different standards and different results, Michigan is not only thwarting Congressional intent to promote a nationally uniform safety program but also is creating an unworkable patchwork of state standards for interim pipelines,” the Justice Department states in its court filing.

The Justice Department filing also declares the Michigan action infringes upon “significant interests of the United States in its conduct of foreign affairs,” adding the United States has a significant interest in an “affordable and reliable domestic supply of energy” that the state easement revocation attempt threatens.

Enbridge proposes to build a 21-foot diameter, 3.6-mile tunnel underneath the bed of the Straits of Mackinac to house a new, 30-inch diameter pipeline to move the oil and natural gas liquids. The tunnel pipeline would replace the twin pipes currently on the Straits bottom.

Michigan Supreme Court allows tribes to appeal MPSC approval of Line 5 tunnel

In other litigation related to Line 5, on Friday, Sept. 19, the Michigan Supreme Court granted an appeal by multiple Michigan Native American tribes and nonprofit environmental groups to challenge the Michigan Public Service Commission’s approval of the Line 5 tunnel.

The Supreme Court is allowing a review of whether the state Court of Appeals erred in providing weight to earlier lower court rulings rather than considering on its own whether the proposed tunnel “will pollute, impair, or destroy the air, water or state’s other natural resources or the public trust in these resources.” The high court will also consider whether the MPSC should have excluded “evidence of the history and risk of oil spills along the entire length of Line 5” as it approved the tunnel.

“The tunnel project and the dual pipelines are just two versions of one terrible idea that threatens to destroy our clean water, our fishing, and our way of life for the sake of Canadian profits,” said Bay Mills Indian Community President Whitney Gravelle. “Our choice is not between the dual pipelines and the tunnel. Our choice is between an oil spill in the Great Lakes and a clean water future for our children and grandchildren to enjoy. We simply want government officials to consider the safest, cheapest, and most commonsense alternative: Decommission Line 5.”

Barnes said a tunnel allowing for a new oil and gas pipeline under the Straits of Mackinac “makes what has always been a safe pipeline even safer.”

Contact Keith Matheny: kmatheny@freepress.com.