Download the amici brief [filed October 22, 2024]
Enbridge Energy, which owns the dual Line 5 pipelines, launched the 2020 federal lawsuit Enbridge v. Gov. Gretchen Whitmer in defiance of Governor Whitmer’s 2020 order revoking an easement for the Line 5 across the Straits of Mackinac bottomlands. FLOW and GLBN’s brief supports the appeal by the State of Michigan to reverse the July 5, 2024 order by Judge Robert J. Jonker of the U.S. District Court for the Western District of Michigan denying Gov. Whitmer’s motion to dismiss on sovereign immunity grounds. The denial, if upheld on appeal, would allow Enbridge to continue its litigation that absurdly asserts that federal law precludes the State of Michigan from enforcing its public trust rights and responsibilities regarding Enbridge’s dangerous operation of Line 5 on State-owned submerged lands at the Straits of Mackinac.
Built in 1953, Line 5 is a 71-year-old dual oil and gas pipeline exposed to fierce currents where Lake Michigan and Lake Huron meet. Ships’ anchors have repeatedly struck the pipelines and cables dragged by passing vessels have damaged the pipelines and their supports. A rupture could irreversibly harm the priceless national treasure of the Great Lakes, and cause billions of dollars of damage to the regional economy.
Not long after Enbridge filed its federal court lawsuit opposing the state’s authority to protect public trust waters, Governor Whitmer moved to dismiss the action, on the grounds that Michigan officials have immunity under the U.S. Constitution’s Eleventh Amendment from federal lawsuits that would encumber the State of Michigan’s ownership of, and jurisdiction over, submerged Great Lakes bottomlands, and interfere with Michigan’s ability to manage those lands in accordance with its public trust responsibilities. Judge Jonker held, we think wrongfully, that an exception applies allowing private parties to sue individual state officials in federal court if they are allegedly violating federal law.
In its amicus brief, FLOW and GLBN argue that Enbridge’s lawsuit against the state impairs state sovereign and public trust powers that are critical to the protection of the Great Lakes. The public trust doctrine, which was encoded in Michigan law over 100 years ago, holds that the waters and bottomlands of the Great Lakes within Michigan’s borders are held in trust by the State for the benefit of the people of Michigan, not for private interests. Long-standing legal principles that balance federal and state sovereign interests weigh in favor of states’ rights and jurisdiction over the public navigable waters and bottomlands of the Great Lakes to protect these precious resources.
As an advocacy organization committed to protecting precious state sovereign water resources, FLOW was granted permission to file a “friend of the court” or “amicus” brief, to provide the Sixth Circuit Court of Appeals with our unique perspective, knowledge, and experience regarding Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine.
The Great Lakes Business Network joins FLOW in this amici brief in support of the State of Michigan, asking the Sixth Circuit Court of Appeals to reverse the District Court and order dismissal of Enbridge’s unsupportable lawsuit.
THIS DANGEROUS AND UNSAFE PIPELINE NEEDS TO BE CLOSED DOWN **NOW** BEFORE UNTHINKABLE HORRIFIC PROBLEMS OCCUR TO MARINE LIFE, PEOPLE, THE GREAT LAKES, AND EVERYTHING IN ITS PATH!!
It’s difficult for me to grasp how we could allow a foreign government to dictate Michigan’s sovereignty. What’s next!?
You’re arguing Michigan has a right to protect its resources? Why isn’t that a given? If the Govenor has this, why is FLOW wasting time and money on it? You need to get some scientists to come up with solutions and prove why this is such a bad idea. That’s how the system works. The EPA, US Corp of Engineers, and EGLE are all SCIENCE-BASED agencies. They make their decisions based on science. Why don’t you use professional environmental consultants?
I think the point is that Enbridge is saying it’s NOT a given, that federal law says it’s not allowed, and that that’s why they’re taking Whitmer to court. They’re not arguing over whether the pipeline is a bad idea–they’re arguing over whether the governor has the power to say that she’s not allowing it, for any reason. The EPA and other federal organizations can’t weigh in on that. It’s out of their jurisdiction.