Line 5 tunnel fight hits Michigan Supreme Court

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LANSING, Mich. — The Michigan Supreme Court is weighing whether a state agency properly considered the environmental impacts of Line 5 when it approved a plan to relocate a new segment of the pipeline inside a yet-to-be-constructed tunnel beneath the Straits of Mackinac.

The seven justices heard arguments for about 90 minutes Wednesday regarding the approvals awarded by the Michigan Public Service Commission to Canadian oil giant Enbridge Energy in December 2023.

The groups challenging the approvals ― several Native American tribes and the environmental group For Love of Water ― argued that the commission should have done a more comprehensive environmental review under the Michigan Environmental Protection Act and public trust doctrine. That review, they argued, should have included the environmental effects of the complete line, not just the Line 5 segment that runs through the Straits of Mackinac.

The state court fight is one of several legal battles that Enbridge is engaged in at the state and federal levels over the future of the dual pipeline. Just last month, the company argued before the U.S. Supreme Court in a separate case.

The irony of those court battles, Enbridge attorney John Bursch said, is that the longer they proceed, the longer the pipeline sits on the lakebed under the Straits of Mackinac, a reality that prompted environmental concerns and the planned tunnel construction in the first place. He told justices that if the Michigan Public Service Commission approvals are not upheld, the pipeline would sit in the water for another five to six years.

“The question here isn’t, ‘Does Line 5 operate or not?’“ Bursch said. “The question is ‘Does the pipeline operate on the Straits lakebed or in a tunnel?’“

But Riyaz Kanji, an attorney for For Love of Water (FLOW), argued Bursch was providing a false ultimatum and that the purpose of the commission’s review was supposed to be to explore other alternatives because of the potential environmental risks of the tunnel.

“We are not talking about indefinite delay before getting to a public trust determination,” Kanji said. “But what we are talking about is the proper agency with the requisite expertise making that determination.”

The Michigan Public Service Commission in December 2023 ruled that the relocation of Enbridge Energy’s Line 5 oil pipeline from the lakebed of the Straits of Mackinac to a yet-to-be-constructed tunnel beneath the lakebed was the “best option” to improve safety while still securing the “public need” for fossil fuels.

But environmental groups argued the commission’s review should have delved deeper into the potential environmental effects of the line’s continued operation, taking in the whole of Line 5 and not just the segment crossing the Straits and considering more alternatives than the binary choice between the status quo and a tunnel.

But the justices voiced some concerns about the implications of such a broad approach on other utilities seeking relocation approvals from the state. Would any utility seeking to relocate a power line or utility pole have to go through a full review of its statewide infrastructure? Justice Elizabeth Welch asked.

“Obviously, our decision could impact many other segments of the utility infrastructure,” Welch said.

Attorney Adam Ratchenski, representing the tribes, argued the circumstances are so unique that it likely wouldn’t have an effect on other utility requests. The Michigan Environmental Protection Act was not in existence when the state granted Enbridge an easement for the line in 1953 and other utilities don’t have the same amount of pending litigation questioning the safety of their continued operation.

Chief Justice Megan Cavanagh asked several questions about the limits of the Michigan Public Service Commission’s responsibilities in assessing the relocation request and where those responsibilities crossed with the Department of Environment, Great Lakes and Energy’s responsibilities in a separate tunnel permit request.

“If the EGLE permit is denied, does that tank the whole project?” Cavanagh asked.

“It would tank the whole project, and then the status quo would continue,” Bursch said of Line 5’s current location on the lake bottom. “But we expect that to be granted.”

Various agencies are reviewing different environmental issues, Enbridge’s attorney says

Bursch argued the status quo is being protected by a series of federal decisions that have established the pipeline’s operation and safety as falling wholly under the federal Pipeline and Hazardous Materials Safety Administration. So far, PHMSA has upheld the safe operations of the pipeline, allowing it to continue into the future.

Bursch also argued that some of the same environmental concerns that opponents are arguing the Michigan Public Service Commission didn’t review ― such as fishery effects ― are also being addressed through a six-year environmental review led by the U.S. Army Corps of Engineers.

“It’s not that no one is considering these things,” Bursch said. “It’s that they’re being considered by agencies that should be considering them.”

Cavanagh and attorneys for Line 5’s opponents argued that the Public Service Commission still has some authority to assess environmental issues that is not trampled by federal regulators. The commission, Kanji argued, has a responsibility to investigate the environmental concerns raised, not passively file them away in the case docket.

“Chief Justice Cavanagh, you asked about, ‘What is it that the MPSC has to do with the public trust determination?’“ Kanji said. “The easy answer to that is it is not at all like what they’ve done thus far.”