Judges return Line 5 case to Michigan court, hand Dana Nessel win

• Attorney General Dana Nessel wants to shut down the Line 5 petroleum pipeline in the Straits of Mackinac
• On Monday, an appeals court buoyed Nessel’s lawsuit seeking a shutdown by remanding the case to state court
• Legal scholars say Nessel has better chances there; Enbridge is considering an appeal

In a procedural win for Attorney General Dana Nessel, a federal appeals court has remanded her lawsuit aiming to shut down the Line 5 petroleum pipeline back to state court. 

In an opinion published Monday, a three-judge panel in the Sixth Circuit Court of Appeals directed a federal district court to return the case to state court, where Nessel originally filed it shortly after taking office in 2019.

Nessel applauded the decision, saying in a statement that the case she filed against Canadian oil giant Enbridge Energy “never should have left state court in the first place.”

“The state has an obligation and imperative to protect the Great Lakes from the threat of pollution, especially the devastating catastrophe a potential Line 5 rupture would wreak upon all of Michigan,” Nessel said.

Related:

• Judge keeps Enbridge Line 5 suit in federal court, a loss for Dana Nessel
• Michigan regulators approve key permit for Enbridge Line 5 tunnel
• Five years into Line 5 fight, Nessel fears having to ‘start all over again’

An Enbridge spokesperson said the company is disappointed with the decision and “believes the case should remain in federal court.” Asked whether Enbridge will appeal the decision, spokesperson Ryan Duffy said the company is “evaluating its next steps.”

“While we remain confident that the Michigan state court will ultimately find that the Attorney General cannot shutdown Line 5, we are focused on building the Great Lakes Tunnel, which will make a safe pipeline safer and protect the waters of the Great Lakes, the environment, and people while assuring long term energy security and reliability, and supporting Michigan jobs and the economy,” Duffy said.

Monday’s decision marks a shift in the lawsuit’s momentum after a series of setbacks for Nessel, who campaigned on a promise to shut down the petroleum pipeline that crosses the open water of the Straits of Mackinac as it transports petroleum products from Wisconsin to Ontario.

A series of strikes from ships’ anchors have exacerbated longstanding fears that the 71-year-old pipeline could rupture in the Straits, causing a catastrophic spill. 

Enbridge hopes to allay those fears with a plan to encase the pipeline in a concrete tunnel deep beneath the lakebed, while the company’s opponents, including Nessel, want the pipeline to cease operations entirely.

Legal scholars have previously said Nessel faces better odds of winning in state court than federal court, in part because the case could eventually make its way to a Michigan Supreme Court composed of primarily Democratic appointees. Beyond that, state courts tend to be more receptive to arguments rooted in state law, while federal courts are more likely to favor federal policies when they conflict with state law.

Nessel first filed her lawsuit in 2019 seeking to shut down Line 5 over safety concerns, contending Enbridge is operating the pipeline in the Straits in violation of Michigan’s public trust doctrine. In 2021, Enbridge removed the case to federal court, arguing that pipeline safety issues are a federal matter.

U.S. District Judge Janet Neff denied Nessel’s attempt to return the case to state court in 2022, prompting Nessel’s successful appeal to the Sixth Circuit.

Nessel argued that Enbridge had missed a key 30-day deadline to remove the case to federal court.

In an opinion written by Judge Richard Griffin, a three-judge panel including Griffin, Amul Thapar and John Nalbandian agreed.

“There are no equitable exceptions to the statute’s deadlines for removal,” Griffin wrote. “Thus, under these circumstances, this case belongs in Michigan state court.”

The case now returns to the 30th Circuit Court in Ingham County, where Judge James Jamo was originally overseeing it. Before Enbridge removed the case, Jamo was considering dueling motions by Nessel and Enbridge that asked him to decide the case in their favor.

“Line 5 is no safer than it was when I first sued Enbridge in 2019,” Nessel said Monday. “It is still old, dangerous, and worsening. And I am still committed to doing everything in my power to shut down its passage through the Straits.” 

Duffy, the Enbridge spokesperson, noted that the company is pursuing a separate lawsuit in federal court, which it filed after Gov. Gretchen Whitmer ordered Line 5 shut down in November 2020. 

Enbridge has defied that order, instead suing the state on a claim that Michigan has no legal grounds to seek a shutdown. The case is pending before U.S. District Judge Robert Jonker.