Michigan Governor Gretchen Whitmer’s legal battle to shut down Enbridge pipeline Line 5, a vital petroleum conduit for Central Canada, is attracting public support from leading Democratic allies in more than a dozen states, a sign of the challenges U.S. President Joe Biden could face in trying to intervene on the matter.
Canadian politicians have been urging Prime Minister Justin Trudeau to ask Mr. Biden to resolve the impasse, but to date the White House has not stepped in.
Democratic attorneys-general in 14 states and the District of Columbia, as well as two Democratic governors, recently joined forces to file an amicus brief in the court fight over Line 5. All are backing the Michigan governor’s legal bid to have the matter transferred to state court from U.S. federal court, a change of venue that analysts say might favour the governor’s case.
Support comes from right across the country: attorneys-general from California, Delaware, Illinois, Minnesota, Maryland, Massachusetts, New Mexico, New York, New Jersey, Pennsylvania, Virginia, Rhode Island, Wisconsin, Washington and the District of Columbia signed the brief. The Democratic governors of Kentucky and Louisiana also signed.
Last November, to fulfill a campaign promise, Ms. Whitmer announced that she would revoke an easement granted in 1953 that allows Line 5 to cross the Straits of Mackinac, a waterway in her state. Her order takes effect May 12. Line 5 has never leaked but she cited the risk of an oil spill. Enbridge has challenged Ms. Whitmer’s order in court and the two sides are in court-ordered mediation now.
Christopher Sands, director of the Canada Institute at the Woodrow Wilson International Center, said Mr. Biden is regarded as a one-term president within his party and does not have a lot of political capital available for spending.
He said the show of support for Ms. Whitmer from leading Democratic politicians indicates the support she has.
“It makes it much more of an internal partisan power struggle and I think more difficult for Biden to navigate because he doesn’t have a lot of control of his party’s energetic activists whose intense focus on climate action probably will prevent him from wanting to risk much by intervening,” Mr. Sands said.
Line 5, which carries Western Canadian petroleum through Great Lakes states before it re-enters Canada at Sarnia, Ont., is a crucial energy conduit for Ontario and Quebec. Its shutdown could drive up fuel prices for businesses and consumers and force more environmentally risky transportation of petroleum by other means.
Canada’s consul-general in Detroit, Joe Comartin, has said he does not foresee a Line 5 shutdown next week. To be enforced, the governor’s order would require a “confirmatory court order” granted by a judge at the state or federal level, Mr. Comartin said, adding that he has not seen evidence this has been set in motion.
Meanwhile, briefs from interested parties, known as amicus briefs, are being filed for the Michigan-Enbridge battle in U.S. federal court. Some remain confidential but others have been released, including the brief from 16 states and the District of Columbia. Ohio’s Republican attorney-general has filed a brief in support of keeping Line 5 open.
“State courts are the appropriate forum to determine claims by states that seek to vindicate their rights under their respective state public trust doctrines related to state-owned submerged lands, even if those claims involve the siting and location of a federally regulated pipeline,” the D.C. and state representatives say in their filing.
Moving the Line 5 case to Michigan state court would likely help Ms. Whitmer. Mr. Sands said there is a feeling that federal courts, after four years of judicial appointments under former president Donald Trump, have shifted more to the right in terms of legal jurisprudence
“Democrats feel that often it’s at the state-court level where state-court judges are elected that there is more ability to have political influence on outcomes,” he said. Plus, litigating in state court could buy more time for opponents of Line 5 because any appeals would first to go the Michigan Supreme Court. “In these pipeline cases it’s a war of attrition; they are trying to wear down the opponent,” Mr. Sands said.
Toronto trade lawyer Mark Warner said he thinks Mr. Biden will eventually intervene, but not at this point in his presidency while he is busy with many other issues from immigration to infrastructure to COVID-19.
“I think he’s going to get there but he’s not going to do it on Canada’s timetable. … If you box an American president into taking a position before they are ready to take it on their own domestic timetable, they might say no.”
Earlier this week, Ms. Whitmer’s office said she remains determined to see Line 5 shut, calling it a “ticking time bomb” and that Calgary-based operator Enbridge Inc. would be breaking the law if it doesn’t shut it down next week as she has ordered.
“As of that date, Enbridge’s continued operation of the Line 5 pipelines in the Straits of Mackinac would be unlawful,” press secretary Bobby Leddy said in the May 5 statement.
Ms. Whitmer’s announcement last fall followed a campaign promise during her 2018 gubernatorial race to shut down the pipeline, which is currently submerged as it crosses the straits, carrying up to 540,000 barrels a day. Enbridge has proposed building an underground tunnel to better protect the pipeline as it crosses the Straits of Mackinac, but this will take several years.