Michigan signals intent to appeal decision keeping Line 5 dispute in federal court
Michigan's chief law enforcement officer isn't quite ready to give up on getting the dispute over the cross-border Line 5 pipeline remanded back to state court.
Attorney General Dana Nessel, whose strategy hinges on getting Gov. Gretchen Whitmer's bid to shut down the Enbridge-owned pipeline heard at the state level, wants to appeal last month's decision to keep it in federal court.
Michigan “believes that there is room for reasonable jurists to disagree with the court's holdings,” Nessel writes in a brief filed last week in support of her motion.
“Immediate interlocutory appeal is appropriate to advance the ultimate termination of the litigation.”
Those, according to Nessel's argument, are the primary conditions necessary for the court to certify an appeal order while the underlying case is still ongoing - a little-used procedure known as an interlocutory appeal.
At issue for Nessel is last month's decision by Michigan District Court Janet Neff to reject her request to send the current legal action back to the circuit court level, where it originated in 2019.
It was the second time that Neff rejected Michigan's argument, the first coming late last year in a separate but nearly identical case that Nessel promptly abandoned before repeating the process with the dormant 2019 file.
In her Aug. 18 decision, Neff made clear her disdain for Nessel's procedural tactics, describing the strategy as “the improper use of judicial machinery.”
But the motion and brief filed last week suggest Nessel's not taking that lying down.
“This order involves three controlling questions of law as to which there are substantial grounds for difference of opinion,” Nessel argues in the brief.
Those revolve around whether a 30-day deadline for removing a case to federal court should be considered mandatory, as well as the relevance - if any - of the facts and the findings of the original case, as well as Nessel's abandoning it.
“There are substantial grounds for difference of opinion regarding the court's suggestion that the decision denying remand in Whitmer v. Enbridge was unaffected by the voluntary dismissal of that case,” she argues.
“The voluntary dismissal of a case prior to the filing of an answer or a motion for summary judgment terminates the action and vacates the court's interlocutory orders.”
A pre-emptive appeal now, she continues, would also expedite the resolution of the dispute by ensuring that both parties don't end up relitigating the entire case in the event a state court disagrees with Neff's conclusions.
Line 5 ferries upwards of 540,000 barrels per day of crude oil and natural gas liquids across the Canada-U. S. border, crossing the Great Lakes by way of a twin line that runs along the bottom of the Straits of Mackinac.
Whitmer and environmentalists want it shut down, fearing that an anchor strike or technical failure would trigger a catastrophe in the ecologically delicate straits, which connect Lake Michigan to Lake Huron and separate Michigan's upper and lower peninsulas.
Proponents of Line 5 call it a vital source of energy, especially propane, for several Midwestern states, as well as a key source of feedstock for refineries north of the border that produce jet fuel for Canada's busiest airports.
Enbridge has argued that shutting down Line 5 would “defy an international treaty with Canada that has been in place since 1977.”
Line 5 talks between the two countries under that treaty, which deals specifically with the question of cross-border pipelines, have been ongoing since late last year, though little has been said publicly about the status of those talks.
Just nine days after Neff's Aug. 18 decision in Michigan, Foreign Affairs Minister Melanie Joly formally invoked the treaty again, this time in relation to a similar Line 5 court battle in Wisconsin.
There, the pipeline runs directly through the Bad River Reservation, more than 500 square kilometres of pristine wetlands, streams and wilderness that's home to the Bad River Band of the Lake Superior Chippewa.
The band has been in court with Enbridge for more than three years, alleging the Calgary-based company has violated the terms of the easements that allowed the pipeline to traverse the reservation beginning in 1953.
Enbridge, which argues that a 1992 agreement with the Bad River Band allows the pipeline to keep operating until 2043, is in the process of trying to reroute the pipeline around the reservation.
This report by The Canadian Press was first published Sept. 6, 2022.
CTVNews.ca Top Stories
BREAKING Monthly earnings rise, payroll employment falls: jobs report
The number of vacant jobs in Canada increased in February, while monthly payroll employment decreased in food services, manufacturing, and retail trade, among other sectors.
Doctors say capital gains tax changes will jeopardize their retirement. Is that true?
The Canadian Medical Association asserts the Liberals' proposed changes to capital gains taxation will put doctors' retirement savings in jeopardy, but some financial experts insist incorporated professionals are not as doomed as they say they are.
Remains from a mother-daughter cold case were found nearly 24 years later, after a deathbed confession from the suspect
A West Virginia father is getting some sense of closure after authorities found the remains of his young daughter and her mother following a deathbed confession from the man believed to have fatally shot them nearly two decades ago.
Something in the water? Canadian family latest to spot elusive 'Loch Ness Monster'
For centuries, people have wondered what, if anything, might be lurking beneath the surface of Loch Ness in Scotland. When Canadian couple Parry Malm and Shannon Wiseman visited the Scottish highlands earlier this month with their two children, they didn’t expect to become part of the mystery.
What do weight loss drugs mean for a diet industry built on eating less and exercising more?
Recent injected drugs like Wegovy and its predecessor, the diabetes medication Ozempic, are reshaping the health and fitness industries.
2 military horses that broke free and ran loose across London are in serious condition
Two military horses that bolted and ran miles through the streets of London after being spooked by construction noise and tossing their riders were in a serious condition and required operations, a British government official said Thursday.
'It was instant karma': Viral video captures failed theft attempt in Nanaimo, B.C.
Mounties in Nanaimo, B.C., say two late-night revellers are lucky their allegedly drunken antics weren't reported to police after security cameras captured the men trying to steal a heavy sign from a downtown business.
Fair in Ontario, flurries in Labrador: Weather systems make for an erratic spring
It's no secret that spring can be a tumultuous time for Canadian weather, and as an unseasonably mild El Nino winter gives way to summer, there's bound to be a few swings in temperature that seem out of the ordinary. From Ontario to the Atlantic, though, this week is about to feel a little erratic.
He replaced Mickey Mantle. Now baseball's oldest living major leaguer is turning 100
The oldest living former major leaguer, Art Schallock turns 100 on Thursday and is being celebrated in the Bay Area and beyond as the milestone approaches.