LANSING – The law creating the authority to oversee the construction of a tunnel beneath the Straits of Mackinac to house the Line 5 oil pipeline is constitutional, a Michigan Court of Claims judge ruled Thursday in a major victory for Enbridge.
After Attorney General Dana Nessel issued an opinion earlier this year that the law, signed at the end of 2018 by then-Governor Rick Snyder, violated the Michigan Constitution’s title-object clause, Governor Gretchen Whitmer ordered her administration to cease action on the tunnel and enforcement of the authority law. Enbridge filed suit in the Court of Claims to force the state to enforce the tunnel authority law.
Nessel said in a statement her office “always anticipated” the matter would be resolved in the appellate courts and is committed to continuing the fight. She said she would appeal the decision and Michigan will not rely on a foreign corporation to protect the Great Lakes.
Whitmer spokesperson Tiffany Brown agreed, saying: “The governor is committed to protecting the Great Lakes. The administration clearly disagrees with today’s ruling, and we plan to appeal.”
Judge Michael Kelly ruled in Enbridge v. State of Michigan (COC Case No. 19-000090) that the title of PA 359 of 2018 clearly contemplates the construction, maintenance and operation of a utility title as is the case for the act’s general purpose.
“Defendants argue that the specific tunnel agreement, with all of its precise parameters, should have been reflected in the amended title of PA 359,” Kelly wrote. “Defendants stress too narrow of an interpretation of art 4, § 24 and they purport to impose an exacting requirement on legislation that is not supported by caselaw. In the case at bar, the title of PA 359 stresses that
the Corridor Authority is to acquire and operate a utility tunnel across the Straits of Mackinac.
The precise parameters for how the same is to be accomplished need not be spelled out in painstaking detail in the act’s title.”
Kelly also rejected the state’s claim that the law embraces two different subjects in violation of the Constitution, the Mackinac Bridge and the underground utility title. Kelly said the state “takes too narrow of an approach to title-object review.”
“Two types of infrastructure spanning the same waterway cannot be said to be so diverse that they have no necessary connection to each other,” he wrote.
Kelly’s decision was praised by supporters of the tunnel.
“This is great news for thousands of Michigan’s families and our statewide economy,” said House Speaker Lee Chatfield (R-Levering), whose district includes the straits. “With this ruling, people will have peace of mind that they are not going to be left out in the cold this winter by political gamesmanship. We need these jobs. We need this tunnel. Let’s get it built.”
Ryan Duffy, with Enbridge, said in a statement the company is pleased with the Court of Claims ruling and may have further comment later.
“Enbridge remains fully committed to the Great Lakes tunnel project,” the statement said. “We continue to believe the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated during the period while the tunnel is being constructed. And we are committed to build it.”
Environmental groups said the decision still leaves the Great Lakes in jeopardy.
“We are tremendously disappointed that the Court of Claims allowed this lame duck law to stand and look forward to seeing the case go to the Michigan Supreme Court,” Sean Hammond, Michigan Environmental Council policy director, said in a statement. “Despite this ruling, we ask Gov. Whitmer and AG Nessel to continue to use every legal tool at their disposal to end the massive risk to our Great Lakes posed by Line 5 as soon as possible.”
This story was published by Gongwer News Service.