Calgary-based Enbridge Inc scored a major victory in its Fifth Line dispute Tuesday as a Michigan judge rejected the state’s attorney general’s attempt to expel the transnational pipeline dispute from federal court.
U.S. Circuit Court Judge Janet Neff delivered a long-awaited written ruling late Tuesday, agreeing with Enbridge that her dispute with Michigan Governor Gretchen Whitmer’s administration includes “substantive federal issues.”
The decision resolves one of the central questions in the case – whether the Federal Court is the appropriate forum for it – and gives added weight to Enbridge’s argument that the standoff is an important bilateral issue with consequences for both countries, and it is for Canada and the UAE. United States to solve.
In her ruling, Neff said she is satisfied that the 5th line case includes a “substantial federal question” and that hearing it would not undermine Michigan’s right to resolve state cases.
“The Court finds that the Enbridge Parties have shouldered the burden of proving that this measure was properly removed [from state court],” she writes.
“The scope of property rights asserted by states parties necessarily shifts to the interpretation of federal law that overburdens those rights, and this court is an appropriate forum for adjudicating these contested and substantive federal issues.”
Great victory referee for Lanbridge
The ruling marks an important victory for Enbridge, which has sought to move from state court to primarily federal court, a move Michigan has been waging for 12 months.
“Enbridge is pleased with the decision and agrees that this case is in a federal court, as we have maintained throughout,” the company said in a statement. This is a matter of both federal and international law and the case will now be heard by the Federal Court.
A spokesperson for the Michigan Attorney General’s Office did not immediately respond to media inquiries on Tuesday.
Neff also agreed to accept two recent supplemental briefs submitted by the federal government in Ottawa detailing Canada’s decision to recall a 1977 treaty designed to ensure the continuous flow of energy across the border between the two countries.
These summaries show that planning for bilateral treaty talks on the Fifth Line is “in full swing”, and formal negotiations are expected to begin “soon”. If those negotiations fail, the next stage of the dispute resolution process will be binding international arbitration.
The decision comes at an opportune time for Prime Minister Justin Trudeau, who will be on the fifth line on his agenda when he meets Thursday with US President Joe Biden and Mexican President Andres Manuel Lopez Obrador at the White House.
Canada chose to formally invoke the 44-year-old treaty last month after talks that included a court-appointed mediator ended in what Neff on Tuesday called a “stalemate”.
Last November Whitmer rescinded the 1953 easement agreement that had allowed the Fifth Line to operate and ordered its closure for fear of environmental disaster in the Strait of Mackinac, the waterway through which the pipeline crosses the Great Lakes.
The White House has acknowledged that the US Army Corps of Engineers is conducting an environmental assessment of Enbridge’s plans to encapsulate the underwater portion of the twin pipeline in a deep, fortified underground tunnel.
But they seriously avoided judging Whitmer’s efforts, by all accounts, a close Biden ally who was once on the vice presidential shortlist, to shut down the streak entirely.
Line 5 transports more than 540,000 barrels per day of crude oil and natural gas liquids across the Canada-US border and the Great Lakes via a twin line that runs along the lake bed under the strait connecting Lake Michigan and Lake Huron.
Proponents describe it as a vital and indispensable source of energy—particularly propane—for many Midwestern states, including Michigan and Ohio. It is also a major source of feedstock for refineries on the northern side of the border, including those that supply jet fuel to some Canadian airports.
Critics want to close the line, arguing that it’s only a matter of time before an anchor strike or technical failure leads to catastrophic environmental disaster in one of the region’s most important watersheds.
They also point to a recent pipeline rupture off the coast of California, believed to be the result of an anchor strike, as an example of the fate that could befall the straits if Fifth Line operations continue.