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Mary Annette Pember
Indian Country Today

Michigan Gov. Gretchen Whitmer abandoned a federal lawsuit Tuesday aimed at shutting down an oil pipeline that runs through part of the Great Lakes but said the state would continue pursuing a separate case with the same goal.

Whitmer’s legal maneuver followed a federal judge’s decision earlier this month to retain jurisdiction over the suit brought by Enbridge Energy after the state revoked an easement allowing Line 5 to cross the Straits of Mackinac.

It further complicates a lengthy dispute over the 68-year-old pipeline, raising the possibility of simultaneous federal and state court cases alongside political negotiations involving Michigan, the Biden administration and the Canadian government.

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Enbridge contends Line 5 is a federal matter, raising questions of U.S. law and commerce between the two nations. Whitmer’s administration says the key issue is Michigan’s right to protect the Great Lakes, much of which are within its boundaries.

“No oil company should be able to dictate to Michiganders what happens in our sovereign lands and waters,” said Dan Eichinger, director of the state Department of Natural Resources.

Line 5 moves 23 million gallons daily of crude oil and natural gas liquids between Superior, Wisconsin, and Sarnia, Ontario, passing through northern Wisconsin and Michigan’s Upper Peninsula. It’s part of a network transporting Canadian crude to refineries in both nations.

A four-mile section is divided into two pipes running along the bottom of the Straits of Mackinac, where Lake Michigan and Lake Huron connect.

Whitmer revoked the 1953 easement for that segment last year, agreeing with Indigenous tribes, environmentalists and tourist businesses that it risks a devastating spill. State Attorney General Dana Nessel filed a state lawsuit to enforce Whitmer’s action.

Enbridge, based in Calgary, Alberta, responded with a federal suit. The company says the line is safe and rejected the Democratic governor’s May 12 shutdown deadline.

Canada’s government supports Enbridge and has invoked a 1977 treaty barring official actions in either country that would impede cross-border “transmission of hydrocarbons.” Both sides are pressuring the Biden administration to take a position. The White House has promised discussions with Canada.

Nessel initially sued in state court for a Line 5 shutdown in 2019, arguing its continued operation violates the public trust and the Michigan Environmental Protection Act. The judge, James Jamo, has delayed action because of the subsequent litigation over Whitmer’s easement revocation in November 2020.

Whitmer’s office said her easement withdrawal remains in effect. But her team hopes that dropping the lawsuit to enforce it will enable Nessel’s separate 2019 case to move forward, even as the Enbridge suit remains in federal court.

Whitmer said the strategy was intended to “help us stay focused on getting the Line 5 dual oil pipelines out of the water as quickly as possible.”

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Enbridge will continue pursuing its court case “to affirm federal jurisdiction” over the line, spokesman Ryan Duffy said.

The company will continue seeking state and federal permits for that project “so that it can continue to serve the region safely,” Duffy said.

Environmental and tribal groups supported Whitmer’s move, saying state courts should determine Line 5′s fate.

Water protectors in Mackinaw City, Michigan, protest Enbridge's Line 5 on May 13, 2021. (Photo courtesy of Whitney Gravelle)

On Nov. 4, Michigan’s 12 federally recognized tribes sent a letter to President Joe Biden urging him to lend unequivocal support to the efforts to decommission the Enbridge Line 5 pipeline.

Aaron Payment, chairman of the Sault Ste. Marie Tribe of Chippewa Indians, said he hopes the governor’s strategy will increase the likelihood of the state winning the case.

Tribes in the area oppose Line 5 and the tunnel project, saying both violate their treaty-granted fishing rights.

According to Payment, the 1836 Treaty, signed by five Michigan tribes, guarantees hunting, fishing and gathering rights into perpetuity and includes a shared legal responsibility with the state and federal government to care for the health of these resources.

Tribes have been reticent to jump toward a lawsuit protecting treaty rights because of the cost.

“We may be coming to a point where we realize we (tribes) have to take a step further,” Payment said. “During the White House Tribal Nations Summit, the president issued an executive order calling for protection of our sacred sites, treaty rights and our Mother Earth. So it looks like we’re moving in the right direction as a country.

“If we all work together, with tribes as partners with the state rather than constituencies, I think we can beat back Enbridge,” he said.

The legal battle is separate from Enbridge’s plan to run a replacement section of Line 5 through a tunnel that would be drilled beneath the Straits of Mackinac.

The Associated Press contributed to this article. 

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