U.S. Supreme Court denies Whitmer’s appeal in Enbridge Line 5 case

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In Brief:

• U.S. Supreme Court denies Michigan‘s sovereign immunity appeal.
• Sixth Circuit rules Enbridge suit falls under immunity exception.
• Michigan AG Dana Nessel vows to continue fighting pipeline issues.

The U.S. Supreme Court has rejected an appeal from the state of Michigan that argues Gov. Gretchen Whitmer has sovereign immunity from a lawsuit filed by Enbridge Energy to maintain operations of the Line 5 oil pipeline.

The justices on Tuesday denied the state’s petition for a writ of certiorari, meaning they will not weigh in on the appeal filed by the state.

“We are disappointed by the Supreme Court’s decision not to review this important issue of state sovereignty,” said Danny Wimmer, a spokesman for Attorney General Dana Nessel’s office. “We will continue to fight for the people of Michigan on these vital issues concerning the Line 5 pipelines in the Straits.”

Enbridge said in a statement that it agreed there was no need to review lower court rejections of Michigan’s sovereign immunity plea.

“The Sixth Circuit made clear that Enbridge’s suit falls within the exception to sovereign immunity,” said Ryan Duffy, a spokesman for Enbridge.

Nessel’s office filed the petition with the U.S. Supreme Court in November after the district and appellate courts ruled the state did not have 11th Amendment sovereign immunity to shield it from Enbridge’s lawsuit.

A 6th Circuit Court of Appeals panel last year said Enbridge’s lawsuit against the state fell within an exception to sovereign immunity that allows a suit to continue if it alleges a violation of federal law or the U.S. Constitution. Sovereign immunity only applies, the lower courts said, when the litigation would “divest the state of full ownership and eliminate all regulatory power over the submerged lands.”

“Enbridge does not seek to extinguish the state’s ability to exercise its regulatory and sovereign authority over the disputed lands entirely,” Circuit Judge Rachel Bloomekatz, an appointee of President Joe Biden, wrote in the April 23 opinion. “Enbridge seeks only to bring the state’s regulatory activities into compliance with federal law and the Constitution.”

Whitmer and Nessel had sought a final ruling from the U.S. Supreme Court on the issue of sovereign immunity, but Tuesday’s denial forecloses that avenue of relief.

The U.S. District Court in December sided with Enbridge in the case filed by the Canadian oil giant against Whitmer, ruling that federal law governing pipeline safety preempts the state’s multi-year effort to shutter the line.

A separate case questioning the jurisdiction of the Line 5 legal fight is pending before the U.S. Supreme Court. The justices heard arguments in February over whether a separate lawsuit filed by Nessel seeking to shut down the pipeline was properly removed to federal court.

In the Michigan Supreme Court, the seven justices heard arguments earlier this month on a challenge to a permit Enbridge needs to build a tunnel to house a new segment of Line 5 in the straits.

The state has been in a years-long battle over the future of Line 5 as the underwater twin span running through the Straits of Mackinac has raised concerns about the potential for a catastrophic pipeline failure at the nexus of Lakes Michigan and Huron.

Whitmer and Nessel campaigned on promises to shutter the more than 70-year-old pipeline and initiated litigation between 2019 and 2020 after negotiations to speed up the construction of a tunnel to house the line failed.

In 2020, Whitmer revoked Enbridge’s 1953 easement that allows the operation of the twin 20-inch underwater pipelines on the bottom of the Lake Michigan side of the Straits of Mackinac, west of the Mackinac Bridge. That revocation prompted Enbridge to file suit in federal court seeking an order to keep the pipeline running.

In late 2018, then-Gov. Rick Snyder entered into an agreement with Enbridge, in which the Calgary, Alberta-based company promised to build a tunnel under the Straits of Mackinac to house a new segment of Line 5 and protect it from potential anchor strikes or other disturbances. Enbridge has secured most of its state permits for the tunnel, but is waiting on the completion of a federal review before it can begin construction.

Aside from the lawsuits filed in relation to the pipeline, Canada in 2021 invoked a never-before-used 1977 treaty that prevents either country from taking actions in relation to a pipeline that may harm the energy supply in either country. Those negotiations are ongoing.