Campaigners in Michigan planned two days of “eviction” events today and tomorrow, Governor Gretchen Whitmer threatened to seize Enbridge Inc.’s profits if the Calgary-based pipeliner ignored her closure order, and the Trudeau government filed a legal brief in the company’s defence as today’s deadline loomed to shut down operation of the 68-year-old Line 5 pipeline.
As the hours ticked down this week, Whitmer’s office said she “stands by her decision” to cancel the decades-old easement that allowed one of Enbridge’s predecessor companies to build the pipeline in the 1950s, while company spokesperson Ryan Duffy said defying the governor’s order is exactly what the company has in mind, Michigan Radio reports.
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“We will not stop operating the pipeline unless we’re ordered by a court or our regulator, which we think is highly unlikely,” he said.
That has Michigan Attorney General Dana Nessel considering the “punitive measures” her office can pursue, once courts have resolved the parties’ dispute on whether the issue should be decided at the state or federal level.
“As the deadline looms, parties on all sides of the debate are bracing for drama in the Straits as activists protest Enbridge’s defiance, while acknowledging that at least for now, it appears likely that Line 5’s fate will be decided over months or even years, in distant courtrooms or administrative proceedings,” Michigan Radio writes.
Whitmer’s threat to seize Enbridge’s profits came in a letter to Vern Yu, the company’s executive vice president for liquids pipelines. She asserted that continued operation of the pipeline after today “constitutes an intentional trespass,” adding that the company would ignore her November 13 closure order “at its own risk,” The Associated Press reports.
“If the state prevails in the underlying litigation, Enbridge will face the prospect of having to disgorge to the state all profits it derives from its wrongful use of the easement lands following that date,” the governor wrote.
In an amicus (friend of the court) brief filed yesterday in U.S. District Court, Canada’s Natural Resources Minister Seamus O’Regan called for further mediation between the state and the company, adding that the case should ultimately be heard in federal court. “We are very concerned about the possible closure of Line 5,” Prime Minister Justin Trudeau said yesterday.
The court documents “mark Canada’s formal entry into the legal dispute,” and warn that closing Line 5 could deal a “massive and potentially permanent” blow to Canada’s economy and energy security, The Canadian Press writes.
“A hastily and unduly imposed shutdown would undermine the confidence in reciprocal, enforceable commitments and cross-border cooperation that lies at the heart of the United States-Canada relationship,” the court documents add.
CP has details of the Canadian government position.
Enbridge maintains the U.S. Pipeline and Hazardous Materials Safety Administration has authority over interstate pipelines. Duffy maintained the line “is operating safely, reliably and is in compliance with the law,” despite years of concerns about damage and environmental risk along the twinned pipeline through the Straits of Mackinac, between Lakes Michigan and Huron.
“The facts are that Line 5 has been neglected, is not critical infrastructure for Michigan, and this location is the worst possible place for an oil pipeline,” National Wildlife Federation Great Lakes campaign manager Beth Wallace said this week.
“A spill from Line 5 at the Straits of Mackinac could deliver a blow of over US$6 billion in impacts and natural resource damages to Michigan’s economy,” added Oil & Water Don’t Mix campaign coordinator Sean McBrearty.
Whitmer has called the pipeline a “ticking time bomb”, while former International Joint Commission chair Lana Pollack warned Canada’s opposition to the closure “flies in the face of science,” in a recent Toronto Star op ed. “The danger of a breach of this age-compromised pipeline spanning a major shipping lane in the world’s largest freshwater body increases with every passing day,” she wrote.
Earlier this week, the Indigenous Environmental Network announced that Honor the Earth co-founder Winona LaDuke will be the keynote speaker at a two-day series of “eviction” events hosted today and tomorrow by MackinawOde (Heart of the Turtle), an Indigenous-led water protection group, along with the Great Lakes Water Protector Group and Oil & Water Don’t Mix. IEN has details of the two-day program.
“Everyone knows this is probably the most critical moment we’ve ever had with Line 5. And this could go either way,” MackinawOde member Nathan Wright, a citizen of the Sault Ste. Marie Tribe of Chippewa Indians, told Michigan Advance. “We have to put—I don’t want to say ‘pressure,’ but we have to bring awareness, not only to our state and tribal leaders, but also to the community about this issue right now, to get more people involved.”
Oil & Water Don’t Mix spokesperson David Holtz said Enbridge can expect to receive his group’s eviction notice on Thursday, Day 181 after Whitmer’s closure order. “We are going to continue holding Enbridge accountable,” he told local radio. “There has to be a consequence for ignoring the law.”
“What might that be?” Michigan Radio asks. “Whitney Gravelle, an attorney and chairperson of the Bay Mills Indian Community, has a few ideas: She wants Michigan to seek an emergency order to shutter the pipeline until a judge issues a final ruling, like the one Nessel obtained last year after Enbridge discovered ‘significant damage’ to one of Line 5’s underwater spans. Or, Gravelle said, the state could start issuing fines.”
All 12 federally-recognized Native American tribes in Michigan oppose a pipeline that crosses waters that feature prominently in Anishinaabe creation stories, Michigan Radio adds.
“To compare it to other spiritualities, the Straits of Mackinac is our Garden of Eden,” Gravelle said.
They’re also treaty-protected fishing waters for several tribes, the radio outlet adds, and a team of citizen scientists revealed last year that Enbridge had ignored 10,000-year-old artifacts in its haste to secure approval for a protective tunnel to protect the pipeline from further damage (physical, political, or both).
Michigan Radio has a long read on the arguments back and forth leading up to the closure deadline. The Alpena News looks at the risks to local shorelines and economies in the event of a spill, while CBC News focuses on the Canadian job fears a closure would trigger.
Meanwhile, the Globe and Mail says Whitmer is getting strong support from Democratic attorneys-general in 14 states plus the District of Columbia, as well as the Democratic governors of Kentucky and Louisiana. Ottawa has been urging U.S. President Joe Biden to intervene in support of the pipeline. But the amicus briefs from the AGs of California, Delaware, Illinois, Minnesota, Maryland, Massachusetts, New Mexico, New York, New Jersey, Pennsylvania, Virginia, Rhode Island, Wisconsin, Washington, and the District make that a less likely prospect, said Chris Sands, director of the Canada Institute at the Woodrow Wilson Center in Washington, DC.
“It makes it much more of an internal partisan power struggle, and I think more difficult for Biden to navigate, because he doesn’t have a lot of control of his party’s energetic activists whose intense focus on climate action probably will prevent him from wanting to risk much by intervening,” he told the Globe.
Sands said moving the case to state court would help Whitmer’s case, after four years of judicial appointments under Donald Trump. “Democrats feel that often it’s at the state court level where state court judges are elected that there is more ability to have political influence on outcomes,” he told the Globe.
In their amicus brief, the 15 attorneys-general and two governors say there’s a legitimate reason to decide the case at the state level. “State courts are the appropriate forum to determine claims by states that seek to vindicate their rights under their respective state public trust doctrines related to state-owned submerged lands, even if those claims involve the siting and location of a federally regulated pipeline,” they write.
