Judge denies motion to dismiss Enbridge v. Whitmer case over Line 5 easement • Michigan Advance

Enbridge’s case against Gov. Gretchen Whitmer will continue following a Friday order by U.S. District Judge Robert Jonker denying the governor’s motion to dismiss the case on sovereign immunity grounds.

In 2020, Whitmer ordered the Michigan Department of Natural Resources (DNR) terminate the Canadian company’s easement for the operation of the Line 5 pipeline in the Straits of Mackinac, citing concerns about the safety of the pipeline and the catastrophic impact a spill would have on the Great Lakes. In response, Enbridge filed a complaint against Whitmer and Daniel Eichinger, who was serving as DNR director at the time, arguing the state had no authority over pipeline safety.

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Line 5 — which runs from northern Wisconsin to Michigan’s Upper Peninsula, through the Straits of Mackinac, under the Straits of Mackinac and through Michigan’s Lower Peninsula to Sarnia, Ontario — transports about 23 million gallons of crude oil and natural gas liquids per day.

Tribal nations and environmentalists across the region have long advocated for the closure of the Line 5 pipeline over fears of a rupture, a concern that has intensified since Anchor strike damaged two pipelines in 2018.

Although the company has been ordered to cease operations by May 12, 2021, Enbridge CEO sent a letter to Whitmer and the DNR stating that the company will continue to operate the pipeline while it works to build the controversial tunnel, which aims to ease oil spill concerns by moving two pipelines to a concrete-lined tunnel embedded beneath bedrock in the Straits of Mackinac.

The state ultimately dropped its case to enforce the shutdown order against Enbridge after the company successfully requested that the case be heard in federal court. Whitmer’s office said the state is “shifting its legal strategy” to focus on Michigan Attorney General Dana Nessel’s 2019 lawsuit seeking to decommission the pipeline.

While Enbridge similarly requested that Nessel’s case be heard in federal court, Nessel successfully argued that the case should be heard in the countryand the case was sent back to the 30th District Court of Michigan in Ingham County, where it will likely be retried before Judge James S. Jamo.

In the previous email to AchievementEnbridge spokesman Ryan Duffy said the company is disappointed with the decision to return Nessel’s case to state court but remains confident the Line 5 dispute can be resolved by summary judgment in its own case against Whitmer, which was moved to Jonker on May 22.

“Enbridge is seeking a federal court determination that the state of Michigan cannot require the closure of Line 5 based on safety concerns related to Line 5’s route through the Great Lakes.”

Jonker denied the motion to dismiss, finding that Enbridge’s complaint fell within one of the exceptions to sovereign immunity that gives governments immunity from lawsuits.

However, Whitmer and current DNR Director Scott Bowen retain the right to immediately appeal the denial, which must be made before Enbridge can file a motion for summary judgment, Deputy Attorney General Daniel Bock wrote in a letter to the court.

Kimberly Bush, a spokeswoman for Nessel, said the department is reviewing Jonker’s order but can no longer publicly discuss litigation strategy on behalf of the governor or the DNR director.

The U.S. District Court for the Western District of Michigan is scheduled to hear Enbridge’s motion for summary judgment on July 31. The company argues that federal law prohibits the state from enforcing the Line 5 shutdown.