Underwater pipeline shutdown initiative by Michigan challenges scope of American foreign policy, contends Trump Justice Department
The aging Line 5 pipeline, which has been in operation since 1953 and transports crude oil between Superior, Wisconsin, and Sarnia, Ontario, is at the centre of a protracted legal dispute.
In April 2020, Michigan Governor Gretchen Whitmer revoked the easement for the pipeline to operate beneath the Straits of Mackinac, a channel that links Lake Michigan and Lake Huron. This decision came after concerns about the pipeline's potential to cause a catastrophic spill in the environmentally sensitive area had been growing since 2017.
The Trump administration, however, fast-tracked the permit for the pipeline in the same month, citing expedited emergency permitting. The administration's arguments on the Line 5 pipeline case mirror those of Enbridge, the operator of the pipeline. The Trump administration's attorneys argue that only the federal government can regulate pipeline safety, and allowing states to enter that arena would lead to a patchwork of regulations.
Enbridge, in response to Whitmer's revocation, filed a federal lawsuit seeking to invalidate the order. The company has also proposed encasing the Straits of Mackinac segment in a protective concrete tunnel, with an estimated cost of at least $500 million.
Michigan Attorney General Dana Nessel plans to file a response in October, arguing that revoking the easement doesn't impose or continue any safety regulations and is a pipeline routing decision within the state's authority.
The legal dispute is not confined to Michigan. In Wisconsin, there is a dispute over part of Line 5 that runs across the Bad River Band of Lake Superior’s reservation. Enbridge has proposed rerouting the pipeline and has appealed the shutdown order to the 7th U.S. Circuit Court of Appeals.
Environmental groups and Native American tribes have also sued the Michigan Public Service Commission, arguing the panel didn't consider the overall need for the pipeline when weighing whether to grant the tunnel permits. The U.S. Supreme Court is considering whether Nessel's lawsuit seeking to void the straits easement belongs in federal or state court.
The Trump administration's Justice Department attorneys filed a brief in September 2021, arguing that Whitmer's order interfered with U.S. foreign policy and clashed with the federal government's goal of maintaining the flow of energy between the U.S. and Canada.
The U.S.-Canada treaty of 1977 prohibits authorities from impeding the flow of energy through pipelines running between the two countries. However, private parties such as Enbridge cannot bring a federal lawsuit to enforce the treaty, according to Michigan Attorney General Dana Nessel's filings.
Construction of the tunnel would eliminate the chance of another anchor rupturing the line, as concerns about the pipeline's safety persist. However, the U.S. Army Corps of Engineers has raised concerns about the tunnel's potential impact on wetlands and bat habitat.
Environmental groups and the Bad River Band have asked a judge to void state permits for the reroute, with hearings scheduled to stretch into October. The outcome of these legal battles could have significant implications for energy policy and environmental protection in the United States.
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