Nessel v. Enbridge: Oral arguments in the U.S. Court of Appeals for the Sixth Circuit

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Traverse City, Mich.— Today, March 21, the U.S. Court of Appeals for the Sixth Circuit heard oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.

Both before and after Nessel’s suit, the Straits pipelines have been repeatedly struck by anchors or cables dragged by passing vessels, and two anchors have been found lying on the lakebed near the pipelines. “The threat of rupturing the aging pipeline and causing a catastrophic oil spill in the Great Lakes is a clear and ever-present danger,” stated FLOW Executive Director Liz Kirkwood. “The largest fresh surface water system in the world is at great risk.”

The Attorney General filed her lawsuit in Michigan state court in 2019 to force shutdown of Line 5. Since then, Enbridge, following Big Oil’s playbook of delay, has thrown up numerous procedural roadblocks to try to derail the lawsuit, including removal of the case to federal court. The Attorney General challenged that removal on the grounds that Enbridge’s tactic came way too late, and the federal courts lacked jurisdiction over the state law-based claims in the complaint originally filed in state court.

In 2023, the federal district court sitting in Grand Rapids sided with Enbridge, and the Attorney General appealed. Today, Assistant Attorney General Dan Bock argued to the Sixth Circuit that by waiting more than two years to remove the case to federal court, Enbridge’s removal was untimely and must be rejected. Mr. Bock also argued that, timing issues aside, the federal court misapplied the law when it ruled that the case belongs in federal court rather than state court. The Attorney General argued that yanking the case out of state court simply because Enbridge prefers a federal forum violates the State’s right to have state claims resolved in state court.

Enbridge’s attorney Alice Loughran argued that the removal to federal court was timely, and should remain in federal court because federal issues dominate the case. Those issues include the effect of the 1977 U.S. – Canada transnational pipelines treaty, the federal Submerged Lands Act, and the extensive federal regulation of oil pipelines. Enbridge essentially argued that Michigan’s sovereign rights and responsibility to protect the clean waters of the Great Lakes from another Enbridge oil pipeline disaster are not enforceable in state court and must yield to the need for continuous crude oil delivery through Line 5. In short, the protection of commerce and Enbridge’s Line 5 profits (roughly $2 million per day) are federal issues that must take precedence.

The arguments were presented to a three-judge panel of the Sixth Circuit Court of Appeal: Judges Griffin, Thapar and Nalbandian. The questioning by the judges reflected deep skepticism of Enbridge’s argument that the district court was correct when it excused the company from compliance with the time requirements for removal of the case from state court to federal court. On the question of jurisdiction, the judges seemed divided on whether the federal Submerged Lands Act or the pipelines treaty with Canada provide a sufficient basis for the exercise of federal court jurisdiction. At the conclusion of the arguments the case was taken under advisement. While no timeline was given, we expect the court to issue its ruling this spring.

FLOW filed an amicus curiae (friend of the court) brief in support of the Attorney General. In its brief, FLOW argued that removal of the case to federal court upset the traditional balance of responsibilities between the federal and state judiciaries. In particular, an affirmance of removal would deprive the State of Michigan and the Attorney General of well-established rights under Michigan law and U.S. Supreme Court precedent to assert the public trust doctrine to prevent the use of state-owned Lake Michigan bottomlands for private, commercial gain. FLOW also argued that Enbridge’s reliance upon the so-called “foreign affairs doctrine” to shield it from state remedies for violation of the public trust, nuisance law, and enforcement of the Michigan Environmental Protection Act is a gross distortion of federal-state relations under our federal system of government guaranteed by the U.S. Constitution. Mr. Bock acknowledged FLOW’s arguments during his presentation to the court.

FLOW strongly supports Attorney Nessel’s effort to return this case to state court and proceed to a trial on the merits of her claim that Line 5 is unreasonably dangerous, and that the threat of an enormous environmental disaster must be terminated without further delay.

13 comments on “Nessel v. Enbridge: Oral arguments in the U.S. Court of Appeals for the Sixth Circuit

  1. Tom Reed on

    This Line 5 Pipeline has served out the design life expectancy of its material. At two million gal/ day rate this tar sands slurry if very likely to be abrasive , any change in direction of the flow may very well be eroding the inside of the pipeline.

    • Rita on

      Oil flow in Line 5 is 23 million gallons per day. That’s close to 1 million gallons per hour.

      A question for FLOW: does the protection of the State’s bottomlands apply to the other lakes, streams and wetlands through which Line 5 is placed?

    • Scott on

      I live in northern lower Michigan on the east side. In Tawas City we rely a lot on tourism. We have beautiful sandy beaches awesome walleye fishing and other water activities. A oil spill would devastate are community. Shut down line 5 before it is too late. It is way past its life span and it is just a matter of time before they have a catastrophic accident in the Great Lakes

  2. Jim Limbach on

    Enbridge’s record of lies, cover ups & irresponsibility is clear. They care not for the health of the Water and thus the health of the People of Michigan. Line 5 must be shut down now.

  3. Bonnie Nussbaum on

    I whole-heartedly support the efforts of Attorney General Nessel, Assistant Attorney General Bock, FLOW, Oil and Water Don’t Mix, the Bad River Indian Tribe and all others working so diligently to put an end to the atrocity that is Line 5. We absolutely cannot afford to have this disaster-in-the-making continue any longer. Too many lives will be irrevocably damaged when this pipeline fails.

  4. Mary Weber on

    Enbridge has wasted enough time, made more than enough excuses, and still had a faulty pipeline under some of the most beautiful waters in the Great Lakes!!! With the strong currents that go through that area, a pipeline leak, or rupture would spell not only disaster for the creatures that live in those waters, but the people who rely on this natural resource. It would also spread like wildfire to adjoining Great Lakes, and connecting bodies of water, it would be totally uncontrollable/ uncontainable!!!
    Enbridge needs to be responsible for ending this treat now. Oil companies need to take responsibility for not keeping things, like pipelines in good working order, but responsible for any life they may change due to their own negligence……… oil companies are way overdue in taking responsive actions, therefore need strict regulations!!

  5. leonard page on

    REMOVAL of an action from state to federal court has historically been a tightly regulated procedural right of a defendant who is required to act rather quickly (within 30 days of service) to move the case to federal court–on the basis that the complaint could and should have been filed there. understand –at its core the Nessel complaint seeks enforcement of both the Michigan public trust doctrine, and Michigan Environmental Protection Act concerning a Michigan contract covering Michigan land and waters. does this sound like a matter for a federal court? in addition, the 30 day limit is imposed so that the litigation is not delayed and the defendant cannot play the forum shopping game to find a friendlier judge. Here the case was litigated for almost 2 years before state judge Jamo who had issued a partial shutdown order in 2020 and was considering cross motions for summary disposition. so now here we are 5 years later still arguing which court has jurisdiction in a matter where there is a serious question of an imminent threat to the public and the environment. hard to fathom a stronger case against removal. I am cautiously optimistic that Judge Jamo will soon be getting this case back. there is no fact dispute that the state of michigan never made a public trust policy analysis prior to signing the 1953 easement. without a legal easement – Enbridge is a trespasser in the straits and line 5 can be evicted as in the Bad River Band case now pending at the 7th circuit… .


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