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Energy and Resources Enbridge asserts Line 5 plan’s constitutionality as Michigan seeks to shut down underwater pipeline

Legislation in 2018 passed by Michigan's then-Republican legislature to facilitate Enbridge's replacement of a pipeline under the Straits of Mackinac is being challenged by the state's recently elected Democratic government.

Dale G. Young/The Canadian Press

Enbridge Inc. insists the plan to replace a part of its Line 5 crude oil pipeline approved by Michigan’s previous state government was constitutional, as the company tries to fend off the new administration’s attempts to shut down an underwater section of the pipeline.

Upholding the agreement would allow Enbridge to bore a tunnel underneath the Straits of Mackinac to house a new section of pipe, replacing the section that’s underwater.

The state’s Attorney-General, Dana Nessel, had argued the tunnel agreement wasn’t properly surmised by its title, making it unconstitutional.

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In an Aug. 1 court filing, Enbridge said the legislation approving the tunnel project followed the rules because the document’s title adequately reflected its contents, and it gave the public and Michigan’s legislature fair notice of what to expect from the project.

“We believe that the most effective path forward is to work expeditiously toward permitting and construction of the tunnel, rather than through the courts,” Enbridge spokesperson Ryan Duffy said in a statement summarizing the company’s filing.

The section of pipeline in the straits has been the subject of concern for environmentalists and Michigan’s Democrat government that took power in January. They’re worried about the risk of an oil spill in the Great Lakes, and the concerns were amplified when a boat’s anchor struck the pipe in 2018, damaging but not puncturing it.

Last week, the Associated Press also reported that erosion has created a gap between Line 5 and the lake bed that’s wider than is allowed under Enbridge’s land-use agreement with the state. Ms. Nessel said that was another reason to get the pipeline out of the water.

Negotiations broke down earlier this summer between Enbridge and state officials who were trying to reach a deal for taking the existing pipeline out of service. After that, Enbridge filed litigation with the Court of Claims to have its previous tunnel-project agreement upheld and Michigan sued Enbridge to have the existing pipeline shut down.

Michigan Attorney-General Dana Nessel, seen on March 18, 2019, initiated a legal challenge to Enbridge's proposed Line 5 pipeline replacement – a project climate activists and the state's Democratic government have said puts the Great Lakes at risk.

Paul Sancya/The Associated Press

The Calgary-based energy transportation company has said it could complete the replacement tunnel by 2024, a timeline that Michigan’s administration thinks is too long. The state’s Governor, Gretchen Whitmer, wants the section in the straits out of the water within two years.

But Mr. Duffy said there’s no way a replacement could be complete within two years, and that shutting down the pipeline in the meantime would cause “a lot of disruption.”

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Line 5 transports 540,000 barrels a day of crude oil from Alberta to refineries in Sarnia, Ont., passing through Wisconsin and Michigan en route. It also delivers fuel to the Detroit airport, picks up oil from northern Michigan producers and carries propane used to heat 65 per cent of homes in Michigan’s Upper Peninsula.

Mr. Duffy said it would take about 2,500 tanker trucks a day driving over the Straits of Mackinac bridge to deliver enough oil to meet Michigan’s needs if the pipeline were shut down before a replacement section was ready.

Ms. Nessel’s office declined to comment for this story, citing pending litigation. However, the Attorney-General plans to file a further response on Thursday.

During an Aug. 2 earnings call, Enbridge president and chief executive Al Monaco told investors he hopes the company could reach “positive outcomes … in the near term” regarding Line 5′s legal troubles.

“We believe we have a strong case,” Mr. Duffy said, adding the court process needs to play out.

In the meantime, Enbridge is continuing with US$40-million in preconstruction tunnel work they already have permits for. Lately, Enbridge has been using a ship called the Highland Eagle to drill for rock samples that will tell engineers how to design the tunnel that could eventually lie 30 metres underground.

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