The Supreme Court on Tuesday considered a hypertechnical question that could help determine the fate of the Line 5 oil pipeline in Michigan.
During oral argument in Enbridge v. Nessel, the justices did not clearly indicate whether they thought a federal judge had the ability to waive a 30-day deadline for Enbridge to file a request to transfer a lawsuit related to its pipeline from state to federal court. The lawsuit stems from Michigan’s effort to shut down Line 5 due to oil spill risks in the Great Lakes.
However, at least one conservative justice questioned how moving the case might affect the sovereign interests of the state of Michigan.
“Here it’s a state that would be suffering, to the extent [Enbridge’s] complaint is allowed to go forward,” said Chief Justice John Roberts, adding that Michigan’s sovereignty might be a point in favor of keeping the Line 5 lawsuit in state court.
John Bursch, a private attorney and former Michigan solicitor general representing Enbridge, argued that it would be wrong to assume that Congress wanted to “handcuff federal courts so that they couldn’t exercise equity.”
“You need a clear command or some other really compelling statement to strip federal courts of that,” Bursch said.
The dispute arrived in the courts after Michigan Gov. Gretchen Whitmer, a Democrat, ordered the shutdown of Line 5 beneath the Straits of Mackinac, due to concerns that the aging oil pipeline would spill into the Great Lakes. Attorney General Dana Nessel, also a Democrat, initially filed the suit defending the order in state court. Enbridge did not attempt to remove the case to federal court until nearly two years later.
A federal judge in Michigan waived a 30-day deadline for Enbridge’s transfer request, but that ruling was later struck down by a federal appellate court.
Whitmer has filed a separate Supreme Court petition challenging another Enbridge lawsuit filed in federal court that remains pending.
During Tuesday’s arguments, more than one justice expressed qualms about one Line 5 case proceeding in federal court, while the other works its way through state court. The justices also questioned the ability of the state court to properly address some of the issues raised in Nessel’s case.
“It seems to me if they were going to be removed in that way, they would have been removed in pairs,” said Justice Clarence Thomas.
Bursch said it wasn’t clear initially that Nessel’s challenge was a federal case.
However, circumstances changed after the Canadian government warned that Whitmer’s order violated a 1977 pipeline transit treaty between the United States and Canada. The terms of the treaty bar state and local officials on either side of the border from blocking operation of the pipeline.
Justice Sonia Sotomayor asked Michigan Solicitor General Ann Sherman whether she would be willing to commit, if the state prevails in state court, to staying the lawsuit until the case brought by the governor is resolved in federal court.
Sherman demurred, stating she would have to discuss that strategy with her client.
Justice Brett Kavanaugh asked Bursch at one point in the hearing whether Enbridge thought it would not get a “fair shake” in state court.
When Bursch, the attorney for the company, responded that state courts haven’t dealt with foreign affairs, Kavanaugh replied that federal district courts don’t often deal with those claims either.
But Justice Samuel Alito appeared swayed by the argument, noting the consequences of a pipeline shutdown for U.S.-Canada relations and the economic risks of halting the oil supply.
He also referred to Bursch’s argument that if a state court issued a preliminary injunction, it would take a long time before the issue of treaty rights could be addressed by the Supreme Court.
“The state’s position is these are state law claims,” Sherman replied. “If something goes really awry in state court, this court can review that and can fix that, but we trust state courts to do their job and to have concurrent jurisdiction.”
She added that Congress designed strict removal deadlines “out of respect” for state courts.
Meanwhile, some of the Supreme Court’s liberal justices appeared skeptical of Enbridge’s claims that the justices could extend the removal deadline under what is known as equitable tolling, which allows a court to stretch a statute of limitations deadline in certain circumstances to allow a party to pursue a case they would otherwise have been unable to file.
“I have trouble understanding what right you are losing,” Sotomayor said to Bursch. “There is still a forum for your claim.”
Her concerns were later echoed by Sherman, who said in cases with a statute of limitations “the courthouse door closes for that litigation.”
“In this case, one door might close, but there is another door open,” Sherman said.
Bursch suggested the court could resolve the case in an opinion that was 160 pages less than the Supreme Court’s 170-page decision last week that nixed President Donald Trump’s tariffs on imported goods.
“Well that’s certainly a goal to aim for,” quipped Alito, who noted that neither he nor Sotomayor wrote opinions in the complex ruling. All seven of their colleagues wrote either a majority, concurrence or dissent in the case.
“I felt very left out in the tariffs case,” Alito said.
