The U.S. Supreme Court on Wednesday handed Michigan’s Democratic Attorney General Dana Nessel a victory, offering a unanimous decision that laid to rest a yearslong debate over whether her case to shut down Enbridge’s Line 5 pipeline should be heard in state or federal court. 

In an 14-page opinion penned by Justice Sonia Sotomayor, the court held that Enbridge had missed its 30-day window to have the case removed to federal court, with the Canadian energy company making its request 887 days after receiving Nessel’s initial complaint. 

The company’s Line 5 pipeline has been a long-running concern for tribal nations and environmentalists in the region, with Nessel calling it a “ticking time bomb” for the Great Lakes.

Running from northwestern Wisconsin into Sarnia, Ontario, the 645-mile long pipeline passes through Michigan’s Upper Peninsula, with a four-mile segment of dual pipelines running through the Straits of Mackinac, where Lake Huron and Lake Michigan meet. The pipeline carries up to 23 million gallons of crude oil and natural gas liquids through the straits each day.

“Today’s decision honors the truth that the Straits of Mackinac are not a bargaining chip and reaffirms what Tribal Nations have always known – we have the right and the responsibility to protect the Great Lakes,” Bay Mills Indian Community President Whitney Gravelle said in a statement. “The Supreme Court saw through Enbridge’s delay tactics and upheld the rule of law. This is a victory for our waters, our treaty rights, and the next seven generations who depend on the Great Lakes for life itself.”

In an emailed statement, Enbridge spokesperson Ryan Duffy noted that Nessel’s case has been stayed, awaiting the results of an appeal in another court case, which Enbridge filed against Michigan Gov. Gretchen Whitmer and the director of the Michigan Department of Natural Resources after they revoked the company’s easement to operate Line 5 in the Straits of Mackinac.

The United States District Court for the Western District of Michigan in December ruled that the move was unenforceable, with the Pipeline Safety Act of 1992 preempting states from placing safety regulations on interstate pipelines. Whitmer has appealed the decision.

“Setting aside the procedural decision, the fact remains that the safety of Line 5 is regulated exclusively by the Pipeline and Hazardous Materials Safety Administration,” Duffy said, noting that the agency has not identified any safety issues that would warrant its shutdown.

During a nearly four-hour hearing Thursday at the Bayfield County Courthouse in the city of Washburn, Wisconsin, Bayfield County Circuit Judge John Anderson consistently pressed lawyers petitioning for and against a stay or stoppage of work to reroute the Enbridge Line 5 pipeline in northern Wisconsin on the standard he should use in determining the likelihood of success of a judicial review.

Environmental groups and the Bad River Band of Lake Superior Chippewa Indians have applied for a stay of the Enbridge project based on their petition for review of an administrative court judge’s decision in February to approve permits to go forward with a 41-mile pipeline project. The plan is to reroute the pipeline around the Bad River reservation, after a court finding that the existing pipeline is illegally trespassing on tribal land.

Pipeline opponents argued that the judicial review would ultimately be successful, in part because the Department of Natural Resources (DNR) had inappropriately applied a state statute governing navigable waterways, and that ongoing pipeline work before the review is completed would result in irreversible harm. Even though the new route does not cross the reservation, it endangers water that the tribe depends on, Bad River representatives and environmental groups argue.

The legal counsel for the DNR and Enbridge pushed back, noting that there had been extensive work and public scrutiny of Enbridge’s permit application, and that there wasn’t a high likelihood of the judicial review succeeding.

Judge Anderson said after he received briefs from all parties by April 27, he will decide on the stay, depending on whether he is “convinced” the judicial review would “not go further.”

He framed his future decision on the negative chances of the review.

Arguments for the stay

“The Band has a significant interest,” said John Petoskey, an Earthjustice attorney representing Bad River. “It has an interdependent relationship, and it’s the only homeland it has ever had. The natural landscape is far more than a resource. It’s a way of life. That way of life requires a sustainable environment. It’s undisputed that the project will cause an impact.”

Judge Anderson questioned how to determine “irreparable” or “irreversible” damage.

Petoskey responded that destroying a wetland that has not been damaged in 100 years would mean the area will never be the same.

“When wetlands are destroyed, they don’t clean water or control floods and no longer provide services that help the tribe,” he said.

Petoskey also said the reroute will create a “belt” of restricted area around the reservation, where if tribal members go, they could be charged with a felony. However, later, Enbridge lawyer Eric Maassen, said Enbridge would recognize the rights of all tribal members who had a legal right to be on the land.

Robert Lee, representing the Sierra Club, League of Women Voters and 350 Wisconsin, expressed concern about at least 72 waterways the pipeline is supposed to cross.

He argued that under statute 30.12, only the riparian owners (landowners whose property adjoins or contains a natural waterway, and who therefore have the right to reasonable use of the water) can apply for permits for the waterways, and noted that Enbridge is not the riparian owner but a “co-applicant” with the riparian owners.

“Enbridge has the ability to acquire land,” he said, adding that all the company had obtained were easements with property owners.

“Under our view, that is unlawful if they are not the riparian owner,” he said.

Lee also noted that Enbridge had not been specific about what and where it would remove substances from navigable waters, and said under statute 30.20 the DNR had to know specifically what is to be removed to make a decision on a permit. He also noted that Enbridge said some bedrock would be destroyed but wasn’t specific where that would occur.

“If they don’t know the waters where blasting is to take place then public interest is not met,” he said.

Representing Clean Wisconsin, Evan Feinauer said, “They can’t build a pipeline and not do irreparable harm.”

Judge Anderson responded, “Can’t you say that about any project? Where is the line?

Feinauer responded, “Environmental resources will never be the same, even under the best-case scenario.”

Feinauer claimed the DNR didn’t have all the information in front of it when it issued permits, and Judge Anderson asked, “Whose fault was that?” Feinauer said Enbridge didn’t provide needed information on all the potential waterway crossings, including wetlands Enbridge had failed to include in its project proposal.

“I can’t think of a more important question than which wetlands,” said Feinauer.

Arguments against the stay

DNR counsel Gabe Johnson-Karp  said the factors Judge Anderson should consider in issuing a stay are “irrevocable harm” and “success on the merits” of winning the judicial review.  

“I have to consider the likelihood of success,” said Judge Anderson. “How do I do that if I don’t have the record yet?”  Anderson added that he does not intend to read all 113,000 pages of submitted documents.

Johnson-Karp also said the petitioners had failed to provide a “factual showing” of harm and had only addressed a “generalized harm.”

Anderson asked why the parties were even in court if four major waterway permits had not yet been issued. Johnson-Karp acknowledged a lot more work on the pipeline could be done before the four permits are issued.

Regarding the right to cross a navigable waterway and whether the application is solely the riparian owner’s responsibility, Johnson-Karp said the DNR has had a consistent practice of using a “co-applicant approach,” such as Enbridge is using, where Enbridge has an easement with owners.

Maassen also noted there were only four permits being pursued on the project, and he anticipated that they would be opposed.

Maassen said Enbridge has a “high confidence” it could lawfully work on the permit sites, and added, “Just because there are wetlands and forest doesn’t mean you don’t do infrastructure.”

If a three-month stay were issued, Maassen said, in actuality, it would be more likely to delay the project by six months as workers who had been assigned to the project would have left and more time would be needed to hire others.

Maassen also argued that Enbridge didn’t need to be the riparian owner on property it would only be working on in some cases for 24-48 hours.

And he contested the characterization that the blasting of bedrock is not in the public interest as a “woeful miscategorization.”

“If they can’t convince me there is a likelihood on the merits, does it end there?” Judge Anderson asked Maassen about the success of the judicial review and the request for a stay, and Maassen responded, “It does.”

Maassen added that if the pipeline didn’t proceed, it would increase the “threat to energy security” and place up to 700 union jobs at risk.

He also noted that there is a stay of a judgment in the U.S. Court of Appeals for the Seventh Circuit for Enbridge to stop using the existing Line 5 on the reservation by June 16. If  that judgement does not remain stayed, he said, it could negatively impact 10 refineries and cut off most of the propane supply for Michigan.

“There are no alternatives to this line,” said Maassen. “Some refineries will have to shut down, resulting in hundreds of millions of losses.

Lastly, Maassen said Enbridge is also requesting that the petitioners post a $49 million bond if a stay is ordered and Enbridge incurs a loss from the delay.

Petoskey, the Bad River lawyer, said the court did not have to consider economic factors when making decisions about wetlands, and he also noted courts have rejected requests for a bond when the litigants are seeking to protect environmental resources.

Lee, arguing for the Sierra Club, said the court has a responsibility to follow the “letter of the law to have riparian ownership,” and challenged the DNR’s use of “co-applicants” as a “made-up” application of the statute.

Asked by Anderson on the standard of success to be used in issuing a stay, Lee responded, “50-50 probability of success; that is sufficient.”

“I don’t think there is a reasonable likelihood of success,” countered Johnson-Karp on the chance the judicial appeal would succeed.

Anderson asked why Enbridge shouldn’t be the riparian owner or require Enbridge to buy the land? Maassen responded, “The whole notion that being a co-applicant is inappropriate I think is a bad argument.”

Anderson asked all the lawyers to submit briefs within 10 days, with specific attention on the issues he had raised during the hearing.

This report has been updated to reflect that Anderson is a Bayfield County circuit judge.

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The Trump administration on Wednesday issued a presidential permit for Enbridge’s Line 5 pipeline crossing at the St. Clair River, renewing federal authorization for the decades-old infrastructure as part of a broader push to bolster cross-border oil transport.

The permit replaces a 1991 authorization for the Michigan crossing near Marysville in St. Clair County and allows the Canadian company to continue operating and maintaining the existing pipeline facilities at the international boundary. It applies only to the St. Clair River border crossing and does not apply to Enbridge’s separate proposal to build a tunnel beneath the Straits of Mackinac, which remains under review by state and federal regulators.

Similar permits issued the same day by Trump also cover several Enbridge pipeline operations in North Dakota, part of a wider effort to streamline energy infrastructure between the U.S. and Canada.

In the White House order, the administration said the permit authorizes the transport of crude oil and petroleum products across the border and requires the company to comply with all applicable federal, state and local regulations. It also mandates that the pipeline be maintained in “good repair” and holds the company responsible for environmental damages tied to its operation.

Sean McBrearty, coordinator for the environmental advocacy group Oil & Water Don’t Mix, said the move benefits Enbridge without addressing consumer costs or environmental risks. 

“Calling this ‘energy relief’ is a smokescreen. This permit won’t lower prices by a single cent. It’s a subsidy for Enbridge and paid for with continued Great Lakes risk,” McBrearty said.

Enbridge, meanwhile, welcomed the permit authorization.

“This important action enables Enbridge’s existing cross-border pipeline network, moving more than 3 million barrels a day, to continue safely and reliably delivering the energy that is foundational to both U.S. and Canadian economic competitiveness and security,” Enbridge spokesperson Ryan Duffy said.  

The Line 5 pipeline, built in 1953, stretches from northwestern Wisconsin through Michigan into Sarnia, Ontario, carrying 540,000 barrels of light crude oil, light synthetic crude and natural gas liquids a day.

The permit comes as legal disputes continue over Michigan’s attempt to shut down the pipeline and as tribal nations press treaty-based claims against the project.

McBrearty argues the administration’s action is part of a broader strategy to expand fossil fuel infrastructure.

“This is a political decision, not an energy solution,” McBrearty said. “Trump’s pipeline won’t lower gas prices. It won’t protect the Great Lakes. It will pad Enbridge’s bottom line and leave Michigan holding the risk.”