Will Biden shut down a Midwest pipeline? 4 issues to watch

By Hannah Northey, Niina H. Farah, Carlos Anchondo | 12/01/2021 07:23 AM EST

A section of Enbridge's Line 5 at a Mackinaw City, Mich., pump station.

A section of Enbridge's Line 5 at a Mackinaw City, Mich., pump station. AP Photo/John Flesher

This story was updated at 10:04 a.m. EST.

Michigan Democratic Gov. Gretchen Whitmer shifted her legal strategy yesterday to shut down the Line 5 pipeline in the Midwest, upending a fight that could shake up White House politics and the oil industry.

Whitmer moved to drop a lawsuit against developer Enbridge Inc. in federal court. By doing so, Whitmer, who is up for reelection next year, attempted to clear the way for a separate lawsuit that Michigan Attorney General Dana Nessel (D) filed in 2019 in state court that could shut down the pipeline, which crosses through the Great Lakes.

It’s the latest development in a complicated legal and regulatory battle that may rattle international trade relations, regional politics and the Biden administration’s vow to elevate and respect treaty rights. It also could force President Biden to take a definitive position on the pipeline.

“Today, I took further action to protect the Great Lakes from an oil spill and help us stay focused on getting the Line 5 dual oil pipelines out of the water as quickly as possible,” Whitmer said in a statement yesterday.

“I believe the people of Michigan, and our state courts, should have the final say on whether this oil company should continue pumping 23 million gallons of crude oil through the Straits of Mackinac every day,” Whitmer continued, referring to the waterways that run between the state’s Upper and Lower peninsulas.

Environmentalists backing Whitmer’s call to shutter the 68-year-old pipeline say the White House’s silence on the matter legally damaged Michigan’s push for the fight to remain in state court, where opponents had hoped for a faster and better outcome in their drive to close the pipeline. Earlier this month, a federal judge ruled that Whitmer’s now-abandoned lawsuit had to remain in federal court, a move that was seen as a win for Enbridge and a blow to tribal nations, environmental activists and the state of Michigan.

“I think the Biden administration’s silence hurt the state’s chances in federal court, and the result was a bad decision by the federal judge,” Andy Buchsbaum, an attorney for the National Wildlife Federation and a lecturer at the University of Michigan’s law school.

Even so, Enbridge applauded Whitmer’s move to drop the federal lawsuit and vowed to continue pursuing its case in federal court to affirm federal jurisdiction over Line 5.

“Enbridge will continue to deliver safe, reliable and affordable energy to Michigan and the region,” Michael Barnes, a spokesperson for the Canadian developer, said yesterday. “We will continue to pursue the Great Lakes Tunnel to house a replacement section of Line 5 so that it can continue to serve the region safely.”

The legal battle erupted last year when Whitmer filed a lawsuit to enforce her decision to revoke a 1953 easement that allows Enbridge to operate a 4.5-mile section of Line 5 crossing beneath the Straits of Mackinac. At the same time, Whitmer ordered the company to shut down the full 645-mile pipeline, which moves light crude oil and natural gas liquids from Superior, Wis., to Sarnia, Ontario.

That case, which landed in federal court, ramped up when the Canadian government waded in and filed an amicus brief with the court in support of Enbridge, arguing that any court-ordered shutdown would violate the 1977 Transit Pipelines treaty, which ensures crude oil will flow between Canada and the United States as long as the pipelines involved are compliant with various rules and regulations.

Canada had asked the judge to suspend the lawsuit until formal diplomatic negotiations with the Biden administration under the treaty are wrapped up.

During a press event last month, Canadian Prime Minister Justin Trudeau said he had asked Biden directly about “concerns” stemming from Line 5 at a trilateral summit, along with other issues frustrating the two countries’ trade relationship, but signaled that no agreement had been reached. Trudeau offered no details about his concerns or what was discussed.

While the Biden administration has not taken a legal position on Line 5, it said last month that it was not weighing a shutdown of the line, after suggesting it was studying the issue (Energywire, Nov. 10).

Regardless of where the Biden administration ends up, the president is facing increasing pressure on all sides. A chorus of industry voices and conservative lawmakers outside the court — from Enbridge to Republicans in the Midwest — are warning that any move by the White House or Whitmer to halt the project would send energy costs skyrocketing as winter nears.

“Line 5 is a vital supplier of propane, which many Michiganders use to heat their homes,” said Rep. Lisa McClain (R-Mich.), who represents a swath of eastern Michigan. “Without this propane, how will people survive the cold winter months ahead?”

The Biden administration “doesn’t seem to have a plan in place to get propane to Michigan without this pipeline,” McClain said via email, adding that the risks of Line 5 are “far less than the risks of putting thousands of trucks on icy winter roads” to move gas.

Biden’s stated goal of boosting tribal consultations and rights is also at stake. Line 5 supporters are opposed to a push from Great Lakes tribes, environmental groups and some bipartisan lawmakers who have repeatedly called on Biden to pull a cross-border permit for the pipeline.

Michigan’s 12 federally recognized tribes in a letter last month called on Biden to support Whitmer’s call to decommission the pipeline, citing tribal fishing and hunting rights in the same region as the pipeline dating back to an 1836 treaty.

“During your campaign, you promised that you would heed our concerns and act to protect our fundamental interests,” they wrote. “We view Line 5 as an existential threat to our treaty-protected rights, resources, and fundamental way of life as Anishinaabe people of the Great Lakes, and we ask that your Administration take the following concrete steps to ensure that the pipeline is decommissioned.”

Asked about the tribes’ letter, Barnes, the Enbridge spokesperson, said the company “supports tribal sovereignty and treaty rights,” as well as the restoration of treaty rights.

Here are four issues to watch as the pipeline fight plays out around the White House:

1. Ongoing court battles

In the 2019 lawsuit, Nessel sued Enbridge in Ingham County Circuit Court and asked Judge James Jamo to shut down the dual pipeline and rule that Line 5’s right-of-way easement through the Straits of Mackinac was void (Energywire, June 28, 2019).

At the time, Nessel said she took legal action after talks between Enbridge and Michigan about replacing the pipeline in a tunnel beneath the lake bottom broke down.

A circuit court judge in Michigan had placed the state-level case on hold at the request of the state of Michigan and Enbridge, according to a note this week from research firm ClearView Energy Partners LLC. The firm said that whether the judge would restart the state case "remains to be seen."

Still, the judge has scheduled a “non-public status conference” for early January regarding the June 2019 complaint, ClearView also said.

While Whitmer has moved to drop the federal lawsuit, Judge Janet Neff of the U.S. District Court for Michigan, a George W. Bush appointee, has not yet ruled to approve voluntary dismissal of that case.

Neff has blocked Whitmer’s demands before, as evidenced by the ruling that the legal fight around Line 5 must remain in federal court.

Enbridge argued that the legality of the notice to terminate the easement — which the state of Michigan originally approved for Line 5 in 1953 — should play out in federal court. Neff also allowed Enbridge to file the brief detailing the Canadian government’s notice that it’s invoking a dispute resolution clause of the Transit Pipelines treaty, a move the state of Michigan had opposed.

As that legal fight plays out, Enbridge has continued to operate the line in defiance of Whitmer’s May 12 deadline to close the dual oil lines.

Buchsbaum with the National Wildlife Federation said the lawsuit that Nessel filed in 2019 would be more difficult to move to federal court because the window for such a move has already closed. “Maybe Enbridge tries to move the case, but that shouldn’t happen,” he said.

2. ‘Incredibly complicated’ politics

The pipeline fight hasn’t always cut across clean partisan lines, putting members of both parties in uncomfortable positions.

Some Michigan Republicans have joined their Democratic colleagues in the past, for example, in introducing legislation in the state Legislature that would require Line 5 to be shut down if it were found to be a threat to the Great Lakes. Some prominent Michigan Democrats like Sen. Gary Peters have called for the pipeline to be shut down. Sen. Debbie Stabenow (D-Mich.) has raised safety concerns about the line in the past, but her office did not return a request for comment last month.

At the same time, supporters of the pipeline, including in the labor movement, say it’s important for jobs. In an online video, the United Steelworkers says shutting down Line 5 would be "devastating" for the economy.

“The politics of this are incredibly complicated,” said James Coleman, a law professor at Southern Methodist University.

“Gov. Whitmer and the president are close political allies. There’s been … a presumption they’ll end up on the same side of this, but it’s possible they could disagree,” Coleman said.

A spokesperson for Whitmer did not respond to questions about her office’s communication with Biden or if she’s counting on his support for her reelection bid.

In an interview with E&E News, Rep. Fred Upton (R-Mich.) said Line 5 needs to be replaced because it is aging. Enbridge signed a series of agreements in 2018 with Michigan with former Republican Gov. Rick Snyder (R) to build a tunnel to house the section running through the Straits of Mackinac as it’s replaced.

Upton, whose district encompasses Michigan’s southwest corner, said he’s concerned that the lengthy legal battle in federal court pitting Whitmer against Enbridge will delay work on the tunnel and replacement project, which he advanced alongside Snyder.

An environmental review of the proposed tunnel project, announced by the Army Corps of Engineers in June, could also delay the project, according to developers (Energywire, June 24).

3. White House authority

While the Biden administration has not taken a firm stand in court, Upton said the president could be forced to make its position known, given that Canada has invoked the Transit Pipelines treaty.

Canada had argued that any court-ordered shutdown would interfere with the treaty, a legally binding agreement with the United States that prevents interference with certain cross-border oil and gas projects (Energywire, Oct. 5).

“Ultimately, with the treaty, they’ve got to announce what their position is,” said Upton. “It’s a three-member arbitration board: We know where Canada is; there’s going to be one neutral party. We have yet to hear where the administration is,” said Upton. “I’m sure they’re scrambling somehow. … I’ll be anxious to hear.”

Buchsbaum with the National Wildlife Federation noted that Canada invoked the 1977 treaty shortly after mediation between Enbridge and Michigan broke down, and that the United States has said it will negotiate with Canada and make its position on Line 5 clear.

But Buchsbaum also said there’s no formal process laid out, nor is there a timeline. Groups like the National Wildlife Federation have heard from administration officials that they are in the process of formulating a position to take within that negotiation process, and that environmental advocates are pushing hard for the White House to support closing Line 5.

“They’re feeling it out as they go, as far as I know,” he said. “There’s not a formal process to point to. We know the State Department and the White House are involved in formulating the position on the U.S. side.”

Along with asking Biden to revoke a 1991 presidential cross-border permit for Line 5, Great Lakes tribes are asserting that Enbridge has for years violated safety conditions of the 1953 easement and has “repeatedly concealed those violations from the State, all the while putting the Great Lakes in significant jeopardy.”

In a request to Biden, Michigan’s federally recognized tribes that make up the Three Fires Confederacy of the Ojibwe, Odawa and Potawatomi asked the president to intervene and shut down the pipeline, arguing that there is a reasonable risk of a spill given the history of anchor strikes to the pipeline that have already occurred. The tribes also pointed to Enbridge’s track record, noting that the company was at the center of a spill that polluted the Kalamazoo River watershed more than a decade ago, a disaster that’s still being remediated today.

Although the White House said earlier this month that it’s not considering a shutdown of the line, one industry source confirmed that the State Department is gathering information about what parties are affected by the oil conduit’s ongoing operation. But the source said the agency’s questions provided little evidence of which way the administration was leaning.

The White House did not immediately respond to a request for comment.

4. Which treaties apply?

While Canada is invoking the 1977 treaty with the United States, tribes around the Great Lakes region say even older rights apply.

Specifically, tribes of Michigan in their letter to Biden asked for a seat at the table if negotiations ensue with Canada, pointing to their intimate knowledge of the Great Lakes. They cited a treaty from the 1800s critical to their fishing and hunting rights.

“The fight to decommission Line 5 is critical to our communities,” they wrote. “Five of our Tribal Nations reserved fishing, hunting, and gathering rights in the Straits of Mackinac in the 1836 Treaty of Washington. These were among the most precious of the rights our ancestors insisted upon when forced to make massive land cessions to the United States, as the ability to take fish, game, and plants was and remains central to our people’s way of life and very survival.

Maryscott Greenwood, CEO of the Canadian American Business Council, said the Biden administration understands that Line 5 is governed by the 1977 treaty and that the line affects the entire Midwest.

“Hopefully the State of Michigan and pipeline operators can find a path forward that enhances environmental protection of the Great Lakes while also meeting the energy needs of people in that part of the country,” Greenwood said in an email, noting that the group supports the continued operation of Line 5 and Enbridge’s proposal to build a tunnel under the Straits of Mackinac to house a partial replacement of the line.

“It is critical to modernize infrastructure to ensure that precious watersheds including the Great Lakes are protected for generations to come,” said Greenwood of the planned tunnel project.

Diana Tan, a spokesperson for the Embassy of Canada, said Canada anticipates that "formal negotiations" will begin soon with the United States around the 1977 pipelines treaty.

"Canada strongly supports the continued safe operation of Line 5 and is committed to protecting the Great Lakes," Tan said in a statement, later adding, "The section under the Straits of Mackinac has never had a single spill. Canada, in partnership with the U.S., has spent decades investing in and improving the health of the Great Lakes."

Barnes, the Enbridge spokesperson, said the company is thankful for “continued efforts from the government of Canada and for their commitments to keep Line 5 open,” as well as its desire to “advance the timely construction of the Great Lakes Tunnel Project.”

"There are millions of people and thousands of businesses on both sides of the border who are dependent on Line 5 to provide the fuel they need for heating, manufacturing, airplanes, roads and automobiles," Barnes said in a statement.

“Line 5 is vital energy infrastructure on a daily basis to Michigan, other states in the region, and Canada’s two largest provinces,” he added.