On Feb. 26, the U.S. Supreme Court heard arguments in a long-running legal fight over the Line 5 oil pipeline. The court is not deciding whether the pipeline should shut down. Instead, it is deciding whether Michigan Attorney General Dana Nessel’s lawsuit should be handled in state court or federal court.
Line 5 is a 645-mile pipeline that carries up to 540,000 barrels of oil and natural gas liquids each day from Superior, WI, to Sarnia, Ontario. A 4.5-mile section runs along the bottom of the Straits of Mackinac under a 1953 agreement with the State of Michigan.
The key question before the justices is whether Enbridge Energy, the company that owns Line 5, missed a 30-day deadline to move the case from state court to federal court. Their decision will determine where the lawsuit continues and how strictly courts must follow removal deadlines.
Nessel filed her lawsuit in 2019 in Ingham County’s 30th Circuit Court. She is seeking to cancel the 1953 easement and shut down the Straits’ section of the pipeline. She argues the 72 year-old pipeline poses a serious risk of an oil spill in the Great Lakes.
Enbridge Energy did not try to move the case to federal court within 30 days after being served. Instead, the lawsuit stayed in state court for more than two years. In 2021, after a related case involving Gov. Gretchen Whitmer moved to federal court, Enbridge filed to move Nessel’s case as well, 887 days after being served.
A federal district court allowed the late move, saying there were special circumstances, but the U.S. Court of Appeals for the Sixth Circuit later ruled that the 30-day deadline is strict and cannot be extended. The Supreme Court agreed to review that decision.
Concerns about Line 5 grew after a separate Enbridge pipeline spilled about 21,000 barrels of oil near Marshall in 2010. Cleanup costs exceeded $1 billion, and increased attention on pipeline safety in Michigan.
Since then, the state and Enbridge have made agreements to improve safety and plan for a tunnel beneath the Straits to hold a replacement pipeline. Enbridge is still seeking permits for that tunnel project.
Guy Meadows, Emeritus Director and Research Fellow at the Great Lakes Research Center (GLRC), provided background on Michigan Tech’s involvement with Line 5 monitoring in the Straits.
“Starting in 2013, Enbridge came to Michigan Tech asking for help to make the pipelines crossing the Straits as safe as possible,” Meadows said. “As a result of those discussions, Michigan Tech acquired an autonomous underwater vehicle (AUV), which we call IVER, to add to their two Remotely Operated Underwater Vehicles (ROVs),” he explained. “This allowed us to provide very detailed Side Scan Sonar images of the pipelines lying on the bottom of the Straits and identify any potential hazards near the lines.”
“Following that success, Enbridge and the State of Michigan together asked us to add two environmental research buoys to the Straits to measure flow rates through the Straits and incident wave heights,” he continued. In accordance with this, the State of Michigan and Enbridge entered into an agreement that still holds true today. The agreement forces Enbridge to shut down the line every time there are waves of eight feet or greater.
“Since the buoys need to be removed each winter, in October of 2021 we installed the first freshwater, current monitoring, High Frequency Radar stations to the Straits..These stations provide maps of the surface currents through the Straits every 60 min 24-7-365,” he said.
“In 2018, I led a team that conducted an Independent Risk Analysis composed of 41 researchers primarily from Michigan’s public universities with Michigan Tech taking the lead. Our report considered third-party damage as the most likely threat,” he said. Furthermore, following these events, a freighter anchor collided with Line 5, causing dents as well as cuts to several power cables.
Enbridge’s response to the incident was to install a marine intelligence system to verify and ensure anchors are securely attached for every large vessel passing through the Straits.
“I believe that the same threats that we considered in the [Independent Risk Analysis] are still valid. Throughout our investigations for the [Independent Risk Analysis], we discussed the situation in the Straits with both first responders and the US Coast Guard, unanimously their fears are not for the pipelines crossing the Straits, but again third party damage along the pipeline on land,” Meadows added.
The Supreme Court is expected to issue a decision before the end of its term this summer.
