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.

The Bad River in Mellen, south of the Bad River Band's reservation. (Henry Redman | Wisconsin Examiner)

The Bad River Band of Lake Superior Chippewa filed a lawsuit Tuesday against the U.S. Army Corps of Engineers, challenging the corps’ decision to grant a permit allowing the oil company Enbridge to reroute its Line 5 pipeline around the tribe’s reservation in northern Wisconsin

The lawsuit, filed in the Washington D.C. federal circuit court, is another step in the long legal history of the Enbridge pipeline and the company’s effort to move it from its current route through the tribe’s land. The tribe is asking that the permit approval be vacated. 

In October, the corps approved Enbridge’s permit to reroute the pipeline off the reservation despite significant public opposition. 

The new route moves the pipeline south but it still runs across land on three sides of the reservation and crosses the Bad River upstream of the reservation. The permit was approved as the administration of President Donald Trump has moved to more aggressively support oil and natural gas projects. Earlier in the year, the corps approved a fast-tracked permitting process for Enbridge to construct a tunnel across the Straits of Mackinac so Line 5 can cross from Michigan’s Upper Peninsula to its Lower Peninsula. 

The tribe’s lawsuit alleges that the corps violated the National Environmental Policy Act, Clean Water Act and the Administrative Procedure Act by not properly conducting required environmental reviews or following the proper procedures. 

“For hundreds of years, and to this day, the Band’s ancestors and members have lived, hunted, fished, trapped, gathered, and engaged in traditional activities in the wetlands and waters to be crossed by the Project,” the lawsuit states. “The Project would encircle the Reservation on three sides and damage areas the Band highly values for their ecological and cultural significance. The Corps’ failure to properly review and address the Project’s environmental impacts to wetlands and waterways harms the Band’s interest in maintaining its Reservation homeland and resources in the ceded territory.”

The lawsuit alleges that the corps violated the NEPA by not giving proper consideration to the “environmental effects of construction, maintenance, and operation of the Project,” including how it will harm the health of resources on and near the reservation. 

Under the Clean Water Act, the corps cannot approve permits until the state or tribal government responsible for water quality in the project area certifies the project won’t harm the local water. While the Wisconsin Department of Natural Resources did previously approve the state permits for the Line 5 reroute, those permits are currently being challenged in a separate legal process. 

The tribe alleges in the lawsuit that the corps should not have moved forward with its permits until after the state process is complete.  

[The corps] violated the Clean Water Act by issuing the Permit without ensuring that construction and maintenance of the Project would not adversely affect Wisconsin and the Band’s water quality,” the lawsuit states. “This includes issuing a … permit while the required … state water quality certification is not yet final, pending state administrative proceedings; without addressing the inadequacies the Band identified with Wisconsin’s Water Quality Certification; or ensuring compliance with the Band’s water quality standards.” 

The lawsuit also states the permit approval does not address how the project construction will affect the tribe’s “ability to exercise treaty-protected rights to hunt, fish, trap, and gather in ceded territory,” “failed to evaluate the risks and impacts of oil spills along the pipeline route” and “failed to evaluate the risks and impacts of blasting as a construction method.” 

In a statement, tribe chairwoman Elizabeth Arbuckle said the tribe would do whatever it can to protect the health of the Bad River, Lake Superior and surrounding watersheds. 

“For more than a decade, we have had to endure the unlawful trespass of a dangerous oil pipeline on our lands and waters,” Arbuckle said. “The reroute only makes matters worse. Enbridge’s history is full of accidents and oil spills. If that happens here, our Tribe and other communities in the Northwoods will suffer unacceptable consequences. From the Bad River to Lake Superior, our waters are the lifeblood of our Reservation. They have fed and nurtured our Tribe for hundreds of years. We will do everything in our power to protect them.”

Enbridge spokesperson Juli Kellner said in an email that while the Army Corps made an initial permit decision, it has not been signed by the corps or the company and therefore isn’t a final decision that can be challenged in court. She said the company would intervene in the lawsuit to defend the permit approval. 

“Enbridge submitted permit applications to state and federal regulators in early 2020 to build a new segment of pipeline around the Bad River Reservation,” she said. “Enbridge’s permit applications are supported by thorough and extensive environmental analysis and modeling by leading third-party experts confirming project construction impacts will be temporary and isolated, with no adverse effect to water quality or wetlands.”