This article originally appeared in The Detroit News August 24 2022.
For the second time in under a year, a U.S. District Court Judge has ruled against Michigan Attorney General Dana Nessel. The federal court rejected Nessel’s argument that state actions to shutter the Line 5 pipeline should be considered in a state court, upholding the federal government’s jurisdiction over interstate and international pipelines.
Judge Janet Neff also took the unusual tactic of publicly upbraiding the attorney general’s office for its “improper use of judicial machinery.”
Enbridge’s Line 5 pipeline consists of dual 20-inch pipes that daily transfer 540,000 barrels of light crude oil and natural gas liquids through the Straits of Mackinac to refineries in Canada and across the American Midwest.
Operating since 1953, this pipeline was an early target for then-candidates Gretchen Whitmer and Dana Nessel during their 2018 campaigns for office. The pair claims the pipeline represents an unacceptable risk to the waters of the Great Lakes and they have engaged in consistent political and legal attempts to force its closure.
To reduce the risk of a possible leak into the Great Lakes, Enbridge and the state signed an agreement in 2018 that would allow the company to move the pipeline from the water, into a much more secure concrete-lined tunnel 100 feet below the lake bed. Enbridge was to cover the costs of constructing this new secure tunnel. But from their first days in office, both Whitmer and Nessel have worked to destroy that plan despite having no workable backup plan to supply energy.
Whitmer revoked Enbridge’s easement in November 2020, ordering all operations to be ceased by May 2021. Enbridge filed a federal court action, defending its legal rights, claiming the state did not have jurisdiction to order the pipeline’s closure. When the closure date arrived, Enbridge refused to cease operations unless a court ordered it to do so. Neither state nor federal courts have ordered Enbridge to cease operations, and the pipeline continues to transport essential fuels.
The Canadian government invoked the 1977 Transit Pipeline Treaty between the United States and Canada in October 2021, bolstering Enbridge’s argument that the case was a federal issue. That treaty precludes either country from unilaterally closing down pipelines involved with the transport of hydrocarbons.
Neff first rebuffed Whitmer and Nessel’s attempts to have the federal case moved to state courts in December 2021. Neff pointed out that the case was necessarily federal in nature, as “federal issues in this case are under consideration at the highest levels of this country’s government.”
Claiming that “state courts should have the final say,” Whitmer and Nessel dropped the state’s federal suit and publicly committed to focusing solely on a 2019 state court action. In that case, Nessel argued chronic non-compliance on the part of Enbridge had voided the terms of the easement and violated the public trust.
Enbridge disputed the state’s portrayal and responded, in part, by requesting the state case be sent to and considered by the federal court. Since that case was approximately two years old, Nessel attacked the company’s request as “an outrageous maneuver” and a “flagrant attempt to undermine” a federal rule, which requires that a request for removal be filed within 30 days.
In this latest ruling, Neff strongly disagreed with Nessel’s characterization of the issue. Neff’s 13-page ruling harshly critiqued Nessel and the state’s lawyers attempts to move the case back to state courts after her earlier ruling had clearly stated the case was a matter of federal jurisdiction.
Neff reprimanded the state for “engag[ing] in procedural fencing and forum manipulation.” Her ruling reproached the state for taking duplicative and inconsistent positions, as well as “engaging in gamesmanship” as their arguments claimed that Enbridge should have sought removal to a federal court immediately but that the federal court held no jurisdiction over the matter.
While it is not unusual for an attorney general to lose in court, it is unusual to see one rebuked in this way for “procedural fencing,” “forum manipulation,” “gamesmanship,” and pursuing “duplicative or piecemeal litigation.”
The judge concluded: “The extraordinary circumstances of this case, plaintiff’s conduct, equity, and the court’s regard for comprehensive and efficient administration of justice demand that this case remain in federal court."
Undeterred, however, Nessel’s office once again attacked the ruling. Nessel spokesperson Amber McCann critiqued Judge Neff’s ruling as a “mistaken characterization of both the law and the attorney general’s approach to this and related cases.”
This conduct mirrors a pattern in the Whitmer administration. First, issue an executive order that ignores the concerns of dissenting parties. Then, when those pronouncements are challenged in court, publicly pivot and try to achieve the same goal via some legal or regulatory trick.
This may be frustrating and deflating, especially during an election campaign, but claiming federal judges “mischaracterize” key aspects of important cases, or boldly asserting that “state courts should have the final say” despite federal rulings indicating otherwise, is not a convincing legal tactic.
The attorney general has been repeatedly rebuffed and have now been publicly dressed down by a federal judge for engaging in questionable legal tactics. It's now well past the time for Whitmer and Nessel to admit they’ve been wrong and get out of the way.
They need to cease their actions to impede the construction of the Line 5 tunnel and allow this essential infrastructure project to proceed.
Jason Hayes is the director of environmental policy at the Mackinac Center for Public Policy in Midland. Derk Wilcox is a senior attorney at the center.
Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.
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