Michigan signals intention to appeal decision to keep Line 5 dispute in federal court


Michigan’s law enforcement chief isn’t quite ready to give up on sending the Line 5 cross-border pipeline dispute to state court.

Attorney General Dana Nessel, whose strategy is to ensure that Governor Gretchen Whitmer’s offer to close the Enbridge-owned pipeline is heard at the state level, wants to appeal last month’s decision of the stand in federal court.

Michigan “believes it is possible that reasonable jurists would disagree with the court’s decisions,” Nessel wrote in a brief filed last week in support of its motion.

“The immediate interlocutory appeal is appropriate to advance the ultimate end of litigation.”

According to Nessel’s argument, these are the main conditions necessary for the court to certify an appeal order while the underlying case is still pending – a little-used procedure known as an interlocutory appeal.

At issue for Nessel is Michigan District Court Janet Neff’s decision last month to deny his request to return the pending lawsuit to the circuit court level, where it originated in 2019.

It was the second time Neff had dismissed Michigan’s argument, the first coming late last year in a separate but nearly identical case that Nessel quickly dropped before repeating the process with the dormant 2019 case.

In his Aug. 18 decision, Neff made clear his contempt for Nessel’s procedural tactics, describing the strategy as “the misuse of the legal system.”

But the motion and brief filed last week suggest Nessel doesn’t take that into account.

“This order involves three determinative questions of law on which there are substantial grounds for difference of opinion,” Nessel explains in the brief.

These revolve around whether a 30-day deadline to return a case to federal court should be considered mandatory, as well as the relevance – if any – of the facts and findings of the original case, as well as the abandonment of Nessel.

“There are substantial grounds for difference of opinion regarding the court’s suggestion that the decision denying removal in Whitmer v. Enbridge was not affected by the voluntary dismissal of this case,” she said.

“The voluntary dismissal of a case before an answer or motion for summary judgment is filed terminates the action and voids the court’s interlocutory orders.”

A preemptive appeal now, she continues, would also expedite the resolution of the dispute by ensuring that both parties do not end up re-litigating the entire case in the event that a state court disagrees. Neff’s conclusions.

Line 5 transports more than 540,000 barrels per day of crude oil and natural gas liquids across the Canada-US border, crossing the Great Lakes by way of a twin line that hugs the bottom of the Strait of Mackinac.

Whitmer and environmentalists want it closed, fearing an anchor strike or technical failure could trigger a disaster in the environmentally sensitive strait, which connects Lake Michigan to Lake Huron and separates Michigan’s upper and lower peninsulas .

Proponents of Line 5 call it a vital energy source, particularly propane, for several Midwestern states, as well as a key feedstock source for refineries north of the border that produce jet fuel for Canada’s busiest airports.

Enbridge argued that closing Line 5 “would violate an international treaty with Canada that has been in effect since 1977.”

Line 5 talks between the two countries under this treaty, which specifically addresses the issue of cross-border pipelines, have been ongoing since late last year, although little has been said publicly about the deal. status of these talks.

Just nine days after Neff’s Aug. 18 decision in Michigan, Foreign Secretary Melanie Joly again formally invoked the treaty, this time in connection with a similar Line 5 court battle in Wisconsin.

There, the pipeline runs directly through the Bad River Reservation, more than 500 square kilometers of pristine wetlands, streams and wilderness that are home to the Bad River Band of Lake Superior Chippewa.

The band has been in court with Enbridge for more than three years, alleging the Calgary-based company breached the terms of easements that allowed the pipeline to cross the reservation from 1953.

Enbridge, which claims a 1992 agreement with the Bad River Band allows the pipeline to continue operating until 2043, is trying to reroute the pipeline around the reservation.

This report from The Canadian Press was first published on September 6, 2022.