That clause “applies to Line 5, which has transported hydrocarbons since 1953 from Western Canada to Central Canada via Wisconsin and Michigan,” the brief continues, and applies “to any measures instituted by a ‘public authority in the territory of either party’ — which includes the state of Michigan and its officials.”
Until those talks reach an agreement or head to arbitration, it’s vital that the court not grant Michigan’s request that the line — which crosses the Great Lakes beneath the environmentally sensitive Straits of Mackinac — be unilaterally shut down, the brief argues.
READ MORE: Line 5: Enbridge seeks to have oil pipeline case decided in U.S. federal court
Trending Stories
Security experts concerned about possible ‘threat financing’ tied to trucker convoy
Alberta First Nation calls attention to ‘blatant disparity’ in response to Coutts protests
Unless a solution were to emerge through other means, the documents note, “giving full effect to the 1977 treaty would entail ensuring that no compelled shutdown occurs” before the treaty talks have a chance to end the dispute.
Story continues below advertisement
“In the context of this case, that would mean entering injunctive relief prohibiting Michigan from proceeding to shut down Line 5 while the process is ongoing. Canada respectfully submits that that would be an appropriate order in this case.”
Michigan Gov. Gretchen Whitmer, a Democrat and close ally of President Joe Biden whose political fortunes depend on the support of environmental groups in the state, ordered the shutdown of Line 5 back in November 2020, fearing an ecological disaster in the straits.
Enbridge pushed back hard, arguing that Whitmer and state Attorney General Dana Nessel had overstepped their jurisdiction and that the case needed to be heard in federal court. Late last year, District Court Judge Janet Neff agreed with Enbridge on the issue of jurisdiction.
That’s when Whitmer and Nessel abruptly withdrew their complaint, opting instead to concentrate on a separate but similar circuit court case dormant since 2019. Enbridge is now making the same arguments in that case that they did throughout last year — that it needs to be heard by a federal judge.
Nessel is hoping to head off that argument on a technicality: under federal law, cases can only be removed to federal jurisdiction within 30 days of a complaint being filed.
READ MORE: Planning for Canada-U.S. treaty talks on Line 5 ‘well underway,’ Ottawa says
The Line 5 pipeline ferries upwards of 540,000 barrels per day of crude oil and natural gas liquids across the Canada-U.S. border and the Great Lakes by way of a twin line that runs along the lake bed beneath the straits linking Lake Michigan and Lake Huron.
Story continues below advertisement
Critics want the line shut down, arguing it’s only a matter of time before an anchor strike or technical failure triggers a catastrophe in one of the area’s most important watersheds.
Proponents call Line 5 a vital and indispensable source of energy, especially propane, for several Midwestern states, including Michigan, Ohio and Pennsylvania. It is also a key source of feedstock for critical refineries on the northern side of the border, including those that supply jet fuel to some of Canada’s busiest airports.
In a separate amicus brief also filed this week, lawyers for several prominent international unions and labour groups, including the United Steelworkers and the North American Building Trades Unions, spelled out the potential economic impact of a Line 5 closure.
“Enbridge estimates that if Line 5 ceases operation, the refineries in Michigan, Ohio, Ontario, Quebec and Pennsylvania will lose 40 per cent of their crude supply and, with that reduction in product, will either close completely or become significantly less competitive,” the brief says.
“In either case, the impact on workers who depend on Line 5 for their employment would be dramatic.”
A third brief filed by an array of state and national energy associations further makes the point that allowing Michigan to shut down Line 5 would create a striking precedent.
“It would not only terminate operation of a vital interstate pipeline, but also significantly undermine the exclusive federal regulatory authority over interstate pipeline safety,” they argue.
Story continues below advertisement
“Such a novel ruling would open the door to a spate of similar claims from other states for other interstate pipelines that could create the patchwork of varying and potentially conflicting pipeline safety regulations and closures that Congress expressly precluded.”
© 2022 The Canadian Press
