Michigan drops lawsuit against Enbridge’s Line 5 to focus on the 2019 case in state court

Fresh nuts, bolts and fittings are ready to be added to the eastern part of the Enbridge Line 5 pipeline near St. Ignace, Mich., June 8, 2017.Dale G. Young / The Associated Press

Michigan Governor Gretchen Whitmer has abruptly abandoned her federal lawsuit with the intent of closing the cross-border Line 5 pipeline.

Instead, Attorney General Dana Nessel says Ms. Whitmer will concentrate the government’s efforts on a lengthy state lawsuit against pipeline owner Enbridge Inc., which was originally filed in 2019.

In a statement, Ms Nessel said the original case remains the “fastest and most viable route” to having line 5 permanently closed.

Michigan’s efforts suffered a blow earlier this month when a U.S. district court judge took Enbridge’s side and allowed Ms. Whitmer’s case to remain in federal court.

In November last year, Ms. Whitmer the 68-year-old easement that enabled Enbridge to operate the line, for fear of an environmental disaster in the Strait of Mackinac, where line 5 crosses the Great Lakes.

The National Wildlife Association cheered on the decision to abandon the lawsuit, calling line 5 a “ticking bomb” and supported Ms. Nessel’s proposal to reopen the 2019 operation.

“We’ve had enough of this Canadian company and the Canadian government themselves tying Michigan’s efforts to protect our great lakes from a catastrophic oil spill,” Regional CEO Mike Shriberg said in a statement.

“Line 5 is a ticking bomb, and this step to cut through Enbridge’s legal delay tactics is the best way to move forward to protect the Great Lakes.”

Ms. Nessel said she and Ms. Whitmer remains “in line with our commitment” to shut down the pipeline, “and this layoff today will help us advance that goal.”

“I fully support the governor in her decision to dismiss the federal lawsuit and instead focus on our ongoing lawsuits in state court,” Ms. Nessel said. “The state lawsuit is the fastest and most viable route to permanent closure of line 5.”

Canada said earlier this month that planning was “well under way” for bilateral treaty negotiations between Canada and the United States in the dispute over the pipeline, although the timeline for formal negotiations is still unclear.

The treaty is a 1977 agreement between the two countries aimed at avoiding disruption of cross-border energy flows, and which proved to be a key element in Enbridge’s strategy to convince the U.S. District Court that a bilateral dispute belonged in a federal court.

If formal negotiations fail, the next stage of the dispute settlement process will be binding international arbitration.

Canada formally chose to invoke the 44-year treaty last month after negotiations with a court-appointed mediator broke down between the two sides.

Enbridge welcomed Michigan’s decision to abandon the federal lawsuit and said in a statement that the company would continue to press for confirmation of federal jurisdiction over Line 5.

The White House has acknowledged that the U.S. Army Corps of Engineers is conducting an environmental assessment of Enbridge’s plans to encapsulate the submarine section of the twin pipeline in a deep, fortified underground tunnel. But they have resisted the pressure to get involved in the controversy itself.

Line 5 ferries up to 540,000 barrels a day of crude oil and natural gas fluids across the border between Canada and the United States and the Great Lakes using a twin line that runs along the lake bottom below the strait that connects Lake Michigan and Lake Huron.

Proponents call it a vital and indispensable source of energy – especially propane – for several Midwestern states, including Michigan and Ohio. They also say it is a major source of raw materials for critical refineries on the northern side of the border, including those that supply jet fuel to some of Canada’s busiest airports.

Critics want the line shut down, arguing that it is only a matter of time before an anchorage attack or technical failure triggers a catastrophic environmental disaster in one of the area’s most important watersheds.

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