Michigan Court Must Evaluate Easement for Controversial Enbridge Pipeline

On November 13, 2020, Michigan Governor Gretchen Whitmer filed a legal complaint to shut down the Enbridge Line 5 pipeline. Enbridge is a Canadian petroleum transportation company. One of its pipelines, Line 5, runs from Western Canada through Wisconsin and Michigan’s upper and lower peninsulas into Ontario, where the oil is used in refineries and petrochemical plants. The major controversy surrounding Line 5 is operation at the point where the pipeline splits into two pipelines and crosses underwater between Michigan’s upper and lower peninsula, where Lake Michigan and Lake Huron connect. This area, called the Straits of Mackinac, is a major shipping channel in an important freshwater ecosystem.

The Enbridge Line 5 pipeline is over 65 years old. Enbridge was granted an easement in 1953 that gave the company the right to construct and operate two pipelines in the Straits of Mackinac. Enbridge has operated Line 5 since construction began in 1953, and the pipeline currently transports 20 million gallons of petroleum and crude oil and natural gas each day. Supporters of the pipeline point to the need for Line 5 to transport petroleum products through Michigan. Without Line 5, the pipeline would have to be re-routed around Michigan and could negatively impact upper peninsula energy suppliers. Others warn of the danger if an oil spill were to happen at the Straits of Mackinac. The Straits of Mackinac are the “heart of the largest freshwater seas in the world,” with the Great Lakes containing more than 90% of the freshwater of the United States. An oil spill in the Straits of Mackinac could quickly spread and pollute large portions of the Great Lakes.

Controversy has swirled around Enbridge operations for quite some time. Throughout the operation of Line 5, numerous critics have called on state and federal agencies to prohibit Enbridge from continuing operations in the Straits of Mackinac. For example, the Bad River Band of the Lake Superior Tribe of Chippewa Indians filed a nuisance suit against Enbridge and, separately, the Bay Mills Indian Community asserted the pipeline tunnel construction would violate their fishing rights.

Line 5 is just one of many pipelines Enbridge operates throughout the Midwest and Canada. In July of 2010, an Enbridge pipeline ruptured and spilled over a million gallons of tar sands into the Kalamazoo River. Following this spill, concerns rose about the possibility of an oil spill from Line 5. Such fears are not unfounded. In June of this year, Enbridge reported that an anchor had scraped one of the Line 5 pipelines. Fortunately, the pipe itself did not suffer enough damage to lead to an oil leak and Enbridge resumed operations in September.

In December 2018, weeks before former Governor Rick Snyder left office, the Michigan Legislature passed Act 359. Act 359 authorized Enbridge to build a large tunnel below the lake bottom as part of a utility corridor. Within the new tunnel, Enbridge will construct a new pipeline to replace the part of Line 5 that runs through the Straits of Mackinac. Under the agreement authorized by Act 359, Enbridge would hold a 99-year lease and be responsible for maintaining the tunnel. Supporters saw Act 359 as an acceptable compromise to balance the need for energy with efforts to upgrade Line 5 and protect the Great Lakes. However, critics focused on the fact that Act 359 would allow Enbridge to continue operating Line 5 for another decade while the tunnel was constructed.

Weeks after Act 359 was passed, newly elected Governor Whitmer took office. She directed her administration, and the Michigan Attorney General, to review the legality of Line 5. After review, the Michigan Attorney General issued an opinion stating that Act 359 was unconstitutional. Enbridge disagreed and filed a challenge in the Michigan Court of Claims seeking a declaration that Act 359 was constitutional. The state claimed Act 359 was unconstitutional because it violated the title-object and title-body clause of Michigan’s constitution. These clauses prohibit a law from containing more than one object in the title and prohibit the content of a law from exceeding the scope of the title. The purpose of these constitutional clauses is to prevent the legislature from passing laws that are misunderstood, contain surprise provisions, or do not give adequate notice to the public. The State of Michigan argued Act 359 violated the Title-Object Clause because it addressed two different objects – a bridge and a utility tunnel. The state also argued Act 359 violated the Title-Body Clause because the Act’s body authorized the Mackinac Bridge Authority to acquire and operate a utility corridor, but the Act’s title only referenced acquiring a utility corridor. The court disagreed with the state’s argument and found a connection between operation of the utility tunnel and a bridge. Therefore, the Court held that Act 359 was constitutional and no further challenges against Act 359 have been brought.

On November 13, Michigan Governor Whitmer filed a complaint to revoke Enbridge’s easement and stop operations of the pipeline within 180 days. The complaint alleges the grant of the original easement was a violation of the public trust doctrine and also claims that Enbridge is not complying with the conditions of the easement.

When Michigan became a state and entered the union, it gained title to the land beneath all navigable waters under its jurisdiction. This includes the Straits of Mackinac. Under the public trust doctrine, Michigan holds these lands in trust for the benefit of the public and has a duty to protect public uses of these lands and waters. Public uses can include fishing, hunting, and boating for commerce or pleasure. The Governor’s complaint alleges that the 1953 easement violated the public trust doctrine when it was first issued in 1953 and is therefore invalid. The complaint asserts that the state never made two critical findings required by law: that the easement would improve a public trust interest and that the easement would not impair a public trust use.

Additionally, the complaint alleges Enbridge has not satisfied the conditions of the easement. The 1953 easement requires Enbridge to exercise “due-care” when maintaining and operating the pipeline. The complaint argues that Enbridge has failed to exercise due-care and specifically highlights a lack of inspection, previous oil spills from other pipelines, and failure to properly add pipeline supports. The Governor’s complaint requested the court to declare that the state had properly revoked the 1953 easement granted to Enbridge for Line 5. Additionally, the Governor requested that the Court require Line 5 pipeline operations to stop within 180 days.

Enbridge maintains it has exercised due care and continues to inspect and maintain the pipeline. Enbridge will likely file a response to the Governor’s complaint, and the viability of the pipeline operations may ultimately be determined by the courts. It may be many months before there is a court decision ruling on the merits of the Governor’s complaint. While the Michigan court reviews the legal arguments regarding the easement, Enbridge is moving ahead in its efforts to obtain state and federal permits for updating Line 5. The company has also filed a complaint in the United States District Court for the Western District of Michigan seeking an injunction to stop the State of Michigan from taking any steps to prevent the operation of Line 5, so it is likely that the pipeline’s fate will ultimately be decided by the courts.