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State of Michigan receives significant support in Enbridge case, seeks to return case to state court

LANSING – 28 entities – including 16 states and the District of Columbia, four Native American Tribes, six environmental organizations and the Great Lakes Business Network – have submitted friend of the court briefs in support of Michigan Attorney General Dana Nessel’s motion to remand in State of Michigan, et al v Enbridge Energy, et al. The briefs support the State’s right to enforce its own laws in its own courts.

“We are grateful to the long list of Attorneys General, Governors, tribes, and organizations for their support in our fight to have this case tried where it belongs–in state court,” said Attorney General Nessel. “Gov. Whitmer and Director Eichinger took the necessary steps in November to address the grave threat posed by Enbridge’s unlawful operation of its pipelines in the Straits of Mackinac and we simply cannot continue to put our public waterways at risk.”

“The Line 5 dual pipelines that run through the Straits of Mackinac are a ticking time bomb that threaten the health and safety of Michiganders and our Great Lakes. Enbridge’s argument that the people of Michigan, having once said ‘Yes’ to a pipeline 68 years ago in 1953, have no further say in the matter is both absurd and antidemocratic,” said Governor Gretchen Whitmer. “I’m thrilled to have the support of so many other governors and attorneys general who recognize the important rights states have over the location of pipelines within their boundaries.”

In November 2020, the Attorney General filed a new lawsuit in Ingham County Circuit Court on behalf of Governor Whitmer and the Department of Natural Resources that seeks to enforce the State’s Notice to revoke and terminate the 1953 Easement granted by the State that allowed the construction and operation of the existing Straits Pipelines. The Notice revoked the Easement based on violation of the public trust doctrine and also terminated the Easement due to Enbridge’s persistent violations of the Easement terms and conditions. The lawsuit asks the Court to uphold those actions and enforce the Notice requirement that the Straits Pipelines permanently shut down by May 2021.

Enbridge filed a Notice of Removal in November 2020 that moved the lawsuit to the U.S. District Court for the Western District of Michigan. In response, the Attorney General filed the motion for remand requesting that the case be returned to state court where the jurisdiction is proper.

In its motion, submitted in March, the State argued that the U.S. District Court for the Western District of Michigan lacked subject matter jurisdiction and requested that the Court remand the case to the 30th Circuit Court in Ingham County. As explained in the motion and supporting brief the reasons include:

— The State lawsuit is based solely on state law, not, as Enbridge claims, federal law.

— Enbridge is not, as it claims, a “federal officer” or a person acting on behalf of such an officer under the federal statute that authorizes suits against “federal officers” to be removed to federal court. Enbridge is merely regulated by a federal agency- the Pipeline and Hazardous Materials and Safety Administration- but is not operating the Straits Pipelines on its behalf.

— The State lawsuit does not involve a vessel, or as Enbridge claims, otherwise fall within federal court admiralty jurisdiction.

The November lawsuit was the second legal action taken by the Department against Enbridge. In June 2019, Attorney General Nessel took the first step to decommission the 68-year-old dual pipelines by filing a lawsuit in Ingham County Circuit Court based on the public trust doctrine, the common law of public nuisance and the Michigan Environmental Protection Act. The lawsuit remains pending.

Joining in a friend of the court brief in support of the State’s motion to remand is a coalition of Attorneys General from California, Delaware, the District of Columbia, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Virginia, Washington, and Wisconsin; along with the Governors of Kentucky and Louisiana.

A copy of the coalition’s friend of the court brief is available here.

Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians and Nottawaseppi Huron Band of Potawatomi also submitted a friend of the court brief in support of the State’s motion to remand. A copy of the brief is available here.

The Great Lakes Business Network and six environmental organizations (the Environmental Law and Policy Center, the Michigan Climate Action Network, For Love of Water, the Great Lakes Law and Policy Center, the National Wildlife Federation, and the Straits of Mackinac Alliance) also submitted a friend of the court brief in support of the State’s motion to remand. A copy is available here.

Under the briefing schedule established by the Court in its February 18, 2021 order, Enbridge will be submitting a response to the State’s motion and the supporting friend of the court briefs by April 27, to be followed by friend of the court briefs supporting Enbridge’s position, and finally a reply brief from the State.

A copy of the Court’s order is available here.

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