Michigan wants ‘to have its cake and eat it too’ on Line 5: chambers of commerce

Business leaders from the United States and Canada are again wading into the fray over Line 5, accusing the state of Michigan of dragging its heels to ensure the controversial cross-border pipeline remains in a state of legal limbo even as both countries contend with a looming energy crisis.

In a new joint amicus brief, the Canadian Chamber of Commerce, its U.S. counterpart and chambers in Michigan, Ohio, Pennsylvania and Wisconsin reiterate their concern that shutting down the Enbridge Inc. pipeline would have “tremendous negative consequences” on both sides of the border.

“Such a shutdown would constrain an already disrupted energy supply, an especially problematic development given recent decisions related to importation of petroleum products from Russia,” reads the brief, a copy of which obtained by The Canadian Press.

Gasoline prices have been spiking across the U.S. and Canada, a combination of production and supply-chain pressures created by the COVID-19 pandemic and exacerbated by bans on imports of Russian energy, part of the global effort to sanction Russia over its ongoing invasion of Ukraine.

The dispute over Line 5 has been raging since November 2020, when Gov. Gretchen Whitmer — citing the risk of a spill in the ecologically sensitive Straits of Mackinac, where the line crosses the Great Lakes — abruptly revoked the easement that had allowed it to operate since 1953.

Enbridge insists the pipeline is safe and has already received a level of state approval for a $500-million concrete tunnel beneath the straits that would house the line’s twin pipes and protect them from anchor strikes. The company has repeatedly insisted it would not shut down the pipeline voluntarily.

The court dispute, however, has less to do with pipeline safety and environmental impact than it does with legal jurisdiction. Whitmer and Michigan Attorney General Dana Nessel have been trying to get the case heard in state court, while Calgary-based Enbridge has argued successfully that it belongs before a federal judge.

Enbridge won that argument last fall, prompting Michigan to abandon that challenge, instead taking up a separate case that was still at the county court level. That case is once again seized with the identical question of whether the dispute should be elevated to federal court.

Their tactics suggest “state officials are trying to have their cake and eat it too,” the chambers argue in their latest filing.

“The governor abandoned efforts to enforce the shutdown order — for the explicit reason of avoiding resolution of these arguments by the federal court.”

The fact that shutdown order remains in place, albeit unenforced, “carries real harm to Enbridge and to businesses that depend on the interstate and international energy economy to function smoothly,” they argue.

With the order still in place, Michigan regulators, as well as the U.S. Army Corps of Engineers, may be required to consider Enbridge’s applications for the tunnel project as if the original pipeline didn’t exist. Arguments to that effect have already been made before the Michigan Public Service Commission.