Dem AGs in Wisconsin, Minnesota back Nessel's Line 5 lawsuit

Beth LeBlanc | The Detroit News

Lansing — Democratic attorneys general in California, Minnesota and Wisconsin weighed in Tuesday on the state’s legal spat with Enbridge over the continued operation of Line 5, arguing a state’s public trust of natural resources extends to submerged lands.

The U.S. Coast Guard’s general authority in navigable waters and the federal oversight of pipelines fail to preempt the state’s authority over the bottom lands of the Straits of Mackinac, where the dual spans of Line 5 reside, they said.

“…the authority includes the power to reject uses of these lands previously allowed by a state,” the filing said.

The states filing the brief “have an interest in preserving their long-standing authority over submerged lands, and they submit this memorandum in support of Michigan’s argument that there has been no federal preemption of the public trust doctrine in this case.”

The Tuesday filing comes a day prior to filings from Attorney General Dana Nessel and Enbridge Energy in Ingham County Circuit Court, where Enbridge is asking the judge to dismiss Nessel’s case.

Nessel asked the court in June for an order to shut down and decommission Enbridge’s 66-year-old pipeline, arguing that the pipeline is a public nuisance and violates public trust and environmental laws.

The lawsuit came after years of environmental concerns that a break in the pipeline would yield catastrophic effects in the Great Lakes, similar to a 2010 Enbridge spill near Marshall, Michigan.

Republican former Gov. Rick Snyder’s administration reached an agreement with Enbridge last year to build a $500 million tunnel to house the pipeline and protect the straits in the event of a spill. Nessel earlier this year opined the agreement was unconstitutional, but Michigan Court of Claims Judge Michael J. Kelly rejected her technical argument by saying it "misses the mark."

When negotiations between the company and Gov. Gretchen Whitmer broke down, Enbridge asked for a ruling on the constitutionality of the agreement while Nessel counter-sued in the Ingham court for the pipeline’s shutdown.

Nessel argued Wednesday that Kelly's ruling had no bearing on the Ingham County lawsuit.

“This case involves entirely distinct issues that were neither considered by the Court of Claims nor affected by its decision,” she said.

Enbridge has maintain that its pipeline has complied with its 1953 easement and operating safely for 66 years. The company has continued with preliminary work on the tunnel, committing $40 million this year to pre-construction work.

“There is no change in the operating condition of the pipeline or change in law to support the attorney general’s position,” Enbridge spokesman Ryan Duffy said Wednesday. “We know most Michigan residents recognize the tunnel as the best solution for Michigan and we are committed to build it.”

The amicus brief from Minnesota Attorney General Keith Ellison, Wisconsin Attorney General Joshua Kaul and California Attorney General Xavier Becerra supports Nessel’s argument that the state has a duty to protect natural resources that are in the public trust. The filing rejects Enbridge’s argument that that role is already filled by the U.S. Coast Guard and federal pipeline regulators.

“Michigan is free to exercise its public trust powers to determine whether pipelines may cross its sovereign lands and, if so, where that may occur,” the filing said. That responsibility is different from the federal jurisdiction overseeing navigable waters or the construction and operation of the pipeline.

Enbridge Energy has contested pipelines or pipeline replacement projects in both Minnesota and Wisconsin. The Bad River Band of Lake Superior Chippewa is suing the company in an attempt to get Line 5 off of their Wisconsin reservation and Enbridge’s Line 3 replacement in Minnesota has brought on its own spate of litigation.

Enbridge has no operations in California, Duffy said.

eleblanc@detroitnews.com