Michigan wants to ‘have its cake and eat it too’ on Line 5: Chambers of Commerce

Michigan wants to 'have its cake and eat it too' on Line 5: Chambers of Commerce

WASHINGTON — Business leaders from the United States and Canada are once again wading into the fray on Line 5, accusing the state of Michigan of dragging its feet to ensure the controversial cross-border pipeline remains in a vacuum state legal as both countries grapple with a looming energy crisis.

In a new joint amicus brief, the Canadian Chamber of Commerce, its American counterpart and the chambers of Michigan, Ohio, Pennsylvania and Wisconsin reiterate their concern that the closure of the Enbridge pipeline Inc. would have “enormous negative consequences” on both sides of the border. .

“Such a shutdown would limit an already disrupted energy supply, a particularly problematic development given recent decisions regarding the import of petroleum products from Russia,” reads the brief, a copy of which was obtained by The Canadian Press.

Gasoline prices have soared in the United States and Canada, a combination of production and supply chain pressures created by the COVID-19 pandemic and exacerbated by Russian energy import bans , part of the global effort to sanction Russia for its continued invasion of Ukraine.

The dispute over Line 5 has raged since November 2020, when Governor Gretchen Whitmer – citing the risk of a spill in the environmentally sensitive Strait of Mackinac, where the line crosses the Great Lakes – abruptly revoked the easement that had allowed it to operate . since 1953.

Enbridge insists the pipeline is safe and has already received some level of state approval for a $500 million concrete tunnel under the strait that would house the line’s twin pipes and protect them from blows of anchor. The company has repeatedly insisted that it will not voluntarily shut down the pipeline.

However, the dispute has less to do with pipeline safety and environmental impact than with legal jurisdiction. Whitmer and Michigan Attorney General Dana Nessel tried to have the case heard in state court, while Calgary-based Enbridge successfully argued that it was up to a federal judge.

Enbridge won that argument last fall, prompting Michigan to drop that challenge, instead taking up a separate case that was still at the county court level. This case again comes before the identical issue of whether the dispute should be brought in federal court.

Their tactics suggest that “state officials are trying to have their cake and eat it too,” Chambers claim in their latest filing.

“The governor abandoned his efforts to enforce the shutdown order – for the explicit reason of avoiding resolution of these arguments in federal court.”

The fact that the shutdown order remains in place, even if not enforced, “does real harm to Enbridge and the businesses that depend on the interstate and international energy economy to function properly,” they say. .

With the order still in effect, Michigan regulators, as well as the U.S. Army Corps of Engineers, may be required to review Enbridge’s applications for the tunnel project as if the original pipeline did not exist. . Arguments to this effect have already been made before the Michigan Civil Service Commission.

In other words, “the question of whether the project is beneficial to the environment is a more complicated analysis if government agencies have to analyze a fictional reality in which resources are no longer flowing through pipelines”.

The federal government in Ottawa has already submitted its own amicus briefs, the latest of which makes it clear that Canada and the United States are engaged in talks to resolve the dispute under a 1977 bilateral treaty designed to ensure the continuous flow of energy between the two countries.

Proponents of the pipeline say Line 5 provides more than half of the propane and heating oil consumed in Michigan and is also a vital source of energy for Ohio and Pennsylvania, not to mention Ontario and Quebec.

Shutting down, they say, would be an environmental disaster in itself, leading to gasoline shortages, price spikes and some 800 extra oil-laden wagons and 2,000 tanker trucks a day on railways and highways in central Canada and the American Midwest.

“It’s time for the Federal Court to resolve the question of the legality of the governor’s shutdown order,” said Mark Agnew, senior vice president of policy and government relations at the Canadian Chamber of Commerce.

In a statement, Agnew described the case as a “litmus test” for North American energy security – which could have a major impact on consumers on both sides of the Canada-U.S. border amid the ongoing transition. towards more sustainable forms of energy.

“Reliable access to energy commodities (is) necessary to create predictable market and political conditions that support our transition to net zero in the years to come, and that is why the Line 5 lawsuit is so important.”

Environmental groups, however, are not giving up the fight.

A new brief filed this week by a nonprofit known as For Love of Water argues that Michigan is obligated to shut down any “non-public trust uses” that pose a threat to public trust uses such as as shipping and fishing – and also to revoke authorization for such use where public trust is breached.

The group argues that when another Enbridge pipeline in Michigan, Line 6B, ruptured and polluted the Kalamazoo River in 2010, state authorities were forced to reconsider the easements. business.

The resulting investigation found that Enbridge had “flouted” the terms and conditions of the easement “for decades” and altered its pipeline operations without state permission.

“Based on these collective findings, the state has fulfilled its obligation under the doctrine of public trust to revoke and terminate the 1953 easement.”

©2022 The Canadian Press