• Five years after Gov. Gretchen Whitmer ordered the Line 5 pipeline shut down, a federal judge ruled Wednesday she had no authority to do so
• Whitmer had ordered the shutdown citing the risk of a catastrophic oil spill in the Great Lakes
• US District Judge Robert Jonker called those ‘critical interests,’ but concluded Whitmer ‘lacks the power to interfere’

In a long-awaited decision released Wednesday, a federal judge ruled that federal pipeline safety law leaves Michigan no room to shut down the Line 5 pipeline in the Straits of Mackinac.

US District Judge Robert Jonker issued the ruling in response to a 2020 lawsuit brought by pipeline owner Enbridge Energy after Gov. Gretchen Whitmer ordered the company’s Line 5 petroleum pipeline shuttered following a string of safety mishaps.

While Jonker called pipeline safety and protecting the Straits “critical interests to be sure,” he wrote that, “when it comes to Line 5, they are the responsibility of the United States and Michigan lacks the power to interfere.”

Enbridge had defied Whitmer’s shutdown order for years while arguing in court that Michigan has no right to order a shutdown because the federal government has total control over pipeline safety issues.

The state had argued, among other things, that because Michigan’s 1953 easement granting Enbridge access to the Straits predates that federal law, it should carry legal weight.

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But in his order Wednesday, Jonker shut that argument down.

“The easement conditions are exactly the kind of state-imposed safety standards that the Pipeline Safety Act intended to preempt,” Jonker wrote.

He also gave deference to a 1977 treaty between the US and Canada, part of which says that “no public authority” in either nation can impede the flow of petroleum products through international pipelines.

“Congress expressly preempted State regulation of interstate pipeline safety through the Pipeline Safety Act of 1992,” he wrote. “Moreover, two sovereign nations—the United States and Canada—agree that Michigan’s attempt to shut down Line 5 interferes with their explicit federal foreign policy positions and trade relations.”

A spokesperson for Whitmer redirected questions about the case to Michigan Attorney General Dana Nessel.

Nessel spokesperson Danny Wimmer said the AG’s office is working with Whitmer and DNR Director Scott Bowen to review the opinion and determine next steps, including a possible appeal.

“From our own preliminary review, it appears this opinion is wrongly decided on the law and an affront to Michigan’s sovereign interests in managing the use and occupation of its submerged lands,” Wimmer wrote.

Enbridge spokesperson Ryan Duffy celebrated the ruling, saying Michigan’s shutdown effort was based on “unsupported” safety claims.

“Those who rely on Line 5 — including workers, refiners, and consumers — can be assured that this decision ensures the continued delivery of critical energy to Michigan and the region,” Duffy said.

The outcome of the case also casts new doubt on Nessel’s longstanding effort to secure a court-ordered shutdown.

Both Whitmer and Nessel campaigned for office on a vow to shut down the pipeline, which has been a source of anxiety and political debate for more than a decade over concerns about its potential to spill oil into the Straits.

The 70-year-old dual-span pipeline has long crossed the open water of the Straits with no secondary containment, transporting petroleum products from Wisconsin to Ontario.

Concerns about the safety of that arrangement hit a fever pitch in the mid-2010s, after another aging Enbridge pipeline – Line 6B – ruptured near Kalamazoo to create the nation’s worst-ever inland oil spill. A subsequent report from the National Wildlife Federation raised public awareness about the other aging Enbridge pipeline resting at the bottom of the Great Lakes.

In the waning days of former Gov. Rick Snyder’s administration, Enbridge struck a deal with the state to mitigate spill concerns by drilling a concrete-lined tunnel deep beneath the Straits and moving the pipeline into it. Originally projected to open in 2024, construction on the tunnel still has not begun.

Soon after taking office in 2019, Nessel filed a state-court lawsuit seeking a shutdown. The case remains pending in Ingham County Circuit Court as Enbridge continues a yearslong battle to have it heard in federal court, where all sides agree the oil giant has better odds.

The US Supreme Court is expected to rule on the jurisdiction battle in the coming months. Meanwhile, Whitmer has appealed to the court seeking to block Enbridge’s legal campaign against the shutdown order.

Enbridge is still awaiting permits to begin construction on the tunnel. The US Army Corps of Engineers is slated to decide next spring whether to grant two key permits, while the Michigan Department of Environment, Great Lakes and Energy is also deliberating. An already-granted permit from the Michigan Public Service Commission is being challenged in court.

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