Federal law prevents Michigan Gov. Gretchen Whitmer from shutting down a 540,000-gallon-a-day pipeline carrying Canadian oil through the state, a court ruled in a case that may see its final resolution at the U.S. Supreme Court.
The Pipeline Safety Act of 1992 preempts state safety regulations that Whitmer and state environmental officials cited to try to stop Enbridge Energy from operating its Line 5 across the Straits of Mackinac, U.S. District Judge Robert J. Jonker ruled.
Michigan officials “may be right in their policy judgments, but it was not their call to make,” the judge wrote in a Dec. 17 order.
A spokesman for Michigan Attorney General Dana Nessel said the ruling is “legally flawed and an affront to Michigan’s sovereign interests” over submerged lands. Line 5 is buried in the seabed under the four-mile Mackinac Straits.
The ruling doesn’t end the politically charged fight over the pipeline, which Whitmer vowed to close in her gubernatorial campaign. Another lawsuit is still pending in Michigan state court, although the U.S. Supreme Court has agreed to hear an appeal of the Sixth Circuit Court of Appeals decision that remanded the case there.
Soon after winning office in 2019, Whitmer ordered Enbridge to cease pumping oil across the straits, citing multiple safety violations she said were cause to terminate a 1953 easement agreement. Michigan officials also argued the easement was “void from its inception” under the public trust doctrine, which gives state governments the power to protect the public from environmental catastrophe.
Jonker rejected those arguments, saying the state was trying to enforce its own safety regulations in violation of the Pipeline Safety Act, which says states “may not adopt or continue in force safety standards for interstate pipeline facilities or interstate pipeline transportation.”
Michigan’s reasons for shutting down Line 5 were “exactly the kind of state-imposed safety standards that the Pipeline Safety Act intended to preempt,” the judge wrote. He also rejected the public trust doctrine argument, saying “under this doctrine, states could shut down pipelines when – in the state’s independent determination – the pipeline has safety issues that could affect the environment and threaten the public trust.”
Whitmer is supported by Indian tribes, environmental groups like the National Wildlife Foundation and a number of Democrat-run states. The Trump administration has weighed in on Enbridge’s side, however, as has the government of Canada. A 1977 treaty protects the international flow of oil between nations.
