Enbridge pumping station, Mackinaw City, Feb. 7, 2023 | Laina G. Stebbins

A federal judge has deemed Gov. Gretchen Whitmer’s move to revoke the Line 5 oil pipeline’s easement to operate within the Great Lakes unenforceable, determining that the move is barred by federal law.

Judge Robert Jonker of the United States District Court for the Western District of Michigan’s Southern Division issued an order Wednesday siding with Canadian pipeline company Enbridge in their case against Whitmer and the director of the Department of Natural Resources.

In his opinion, Jonker pointed to the Pipeline Safety Act of 1992, concurring with Enbridge’s assertion that the law preempts states from placing safety regulations on interstate pipelines. He also pointed to arguments from the government of the United States and Canada arguing that the state’s effort to shut down the pipeline violates a 1977 treaty between the two nations concerning the flow of oil and natural gas through pipelines across borders. 

Consequently, Jonker granted Enbridge’s request for summary judgment, barring the state from enforcing the order terminating the pipeline’s easement to operate in the Straits of Mackinac, where Lake Huron and Lake Michigan meet. 

“Pipeline safety generally, and protection of the Straits of Mackinac, are critical interests to be sure,” Jonker wrote in his opinion. “But when it comes to Line 5, they are the responsibility of the United States and Michigan lacks the power to interfere.”

Line 5 has long been a point of concern for tribal nations and environmental advocates within the Great Lakes, as Whitmer and Attorney General Dana Nessel each pledged to shut down the pipeline as part of their 2018 campaign. 

The 645-mile-long pipeline, which runs from northwestern Wisconsin to Sarnia, Ontario includes a four-mile-long segment, where a set of dual pipelines operates on the lakebed of the Straits of Mackinac.

Opponents of the pipeline point to a 2010 incident, where Enbridge’s Line 6B ruptured, spilling hundreds of thousands of gallons of oil into a tributary of the Kalamazoo river. Enbridge has also reported gaps in the protective coating in the segment running through the straits. These segments have also been damaged by anchor strikes, prompting the state to declare the region a “No Anchor” zone.

In a statement to the Michigan Advance on Wednesday, Enbridge Spokesperson Ryan Duffy said the company welcomes the ruling, arguing that state officials pursued a shutdown of the pipeline due to “unsupported” claims about its safety.

“Any dispute over its continued operation must be resolved through the 1977 Transit Treaty’s dispute resolution process, which Canada has already invoked,” Duffy said. “Today’s ruling makes clear that efforts by Michigan officials to permanently shut down Line 5 would interfere with U.S. foreign affairs – authority vested exclusively in the federal government.”

A spokesperson for Whitmer referred Michigan Advance to the Department of Attorney General, which is representing the governor and DNR Director Scott Bowen in the case.

Danny Wimmer, the attorney general’s press secretary, said they are consulting with the governor’s office and the DNR to review the opinion and determine their next steps, which could include an appeal of the ruling. 

“From our own preliminary review, it appears this opinion is wrongly decided on the law and an affront to Michigan’s sovereign interests in managing the use and occupation of its submerged lands,” Wimmer said. 

A separate case led by Nessel which aims to invalidate the pipeline’s easement remains pending in state court.

Attorneys for Whitmer and Bowen have also asked the U.S. Supreme Court to weigh whether the state is immune from legal action in the case, after two previous courts determined the matter fell within exceptions to sovereign immunity.