Judge denies request to dismiss Enbridge’s case against Whitmer over Line 5 easement

Mackinac Bridge on May 28, 2024 (Photo: Anna Liz Nichols)

Enbridge’s case against Gov. Gretchen Whitmer will advance following a Friday order from District Judge Robert Jonker rejecting the governor’s request to dismiss the case on the grounds of sovereign immunity.

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

Line 5 — which runs from northern Wisconsin into Michigan’s Upper Peninsula, through the Straits of Mackinac, under the straits of Mackinac through Michigan’s lower peninsula into Sarnia, Ontario — transports about 23 millions gallons of crude oil and liquid natural gas daily.

Tribal nations and environmental advocates across the region have long advocated for Line 5’s shutdown out of concerns that the pipeline will rupture, concerns that were exacerbated when an anchor strike damaged the dual pipelines in 2018 .

While the company was ordered to cease operations by May 12, 2021, an Enbridge executive sent a letter to Whitmer and the DNR saying the company would continue to operate the pipeline as it works to construct its controversial tunnel project, which seeks to alleviate concerns around an oil spill by relocating the dual pipelines into a concrete-lined tunnel, embedded beneath the bedrock in the Straits of Mackinac.

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

While Enbridge similarly requested Nessel’s case be heard in federal court, Nessel successfully argued the matter should be heard in the state , and the case was remanded to Michigan’s 30th Circuit Court in Ingham County where it is expected to resume before Judge James S. Jamo.

In a previous email to the Advance , Enbridge spokesperson Ryan Duffy said the company was disappointed in the decision to return Nessel’s case to state court, but remained confident that the Line 5 dispute could be resolved through summary judgment in its own case against Whitmer, which was reassigned to Jonker on May 22.

“Enbridge seeks a determination by the federal court that the State of Michigan cannot seek to shutdown Line 5 based on safety concerns associated with Line 5’s routing through the Great Lakes.”

Jonker denied the motion to dismiss the case, finding that Enbridge’s complaint fell under one of the exceptions to sovereign immunity, which provides governments immunity from lawsuits.

However, Whitmer and now-Director of the DNR Scott Bowen retain the right to an immediate appeal of the denial, which must be decided before Enbridge’s request for summary judgment, Assistant Attorney General Daniel Bock wrote in a letter to the court.

Kimberly Bush, a spokesperson for Nessel, said the department is reviewing Jonker’s order, but cannot further publicly discuss litigation strategy on behalf of the governor or DNR director.

The Western District Court of Michigan is scheduled to hear Enbridge’s motion for summary judgment on July 31, with the company arguing that federal law bars state officials from enforcing a shutdown on Line 5.

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