Federal Court Victory for Enbridge as High Court Declines to Review Whitmer Appeal

The U.S. Supreme Court has rejected Michigan's final legal effort to use sovereign immunity to block Enbridge Energy's federal lawsuit challenging Governor Gretchen Whitmer's 2020 order revoking Line 5's easement to operate beneath the Straits of Mackinac.

The justices declined to hear the state's appeal, leaving in place lower court rulings that allow Enbridge's lawsuit to proceed. Michigan Attorney General Dana Nessel's office expressed disappointment with the decision, saying it limits the state's ability to assert its sovereignty in ongoing litigation.

What the Decision Means

The dispute centers on whether Michigan is shielded by the Eleventh Amendment from being sued in federal court. Federal courts have previously ruled that Enbridge's lawsuit can move forward because it alleges conflicts between Michigan's actions and federal law governing pipeline operations.

A Sixth Circuit panel determined the case does not strip the state of its regulatory authority, but instead seeks to ensure that state actions comply with federal law and the U.S. Constitution.

Years-Long Battle Over Pipeline

Whitmer and Attorney General Nessel have sought to shut down Line 5 over environmental concerns, including the risk of a catastrophic spill in the Great Lakes at the nexus of Lake Michigan and Lake Huron.

Enbridge has fought to keep the line operational, which has been in service for more than 70 years. The company is pursuing plans to replace the underwater segment with a tunnel to protect it from potential anchor strikes or other disturbances.

Timeline of the Legal Fight

• 2020: Whitmer revoked Enbridge's 1953 easement that allows the operation of the twin 20-inch underwater pipelines on the bottom of the Lake Michigan side of the Straits of Mackinac
• 2020: Enbridge filed suit in federal court seeking an order to keep the pipeline running
• 2021: Canada invoked a never-before-used 1977 treaty that prevents either country from taking actions in relation to a pipeline that may harm the energy supply
• 2026: U.S. Supreme Court denies Michigan's appeal, allowing lower court rulings to stand

Tunnel Project Status

Enbridge has secured most of its state permits for the tunnel project, but is waiting on the completion of a federal review before it can begin construction. The proposed tunnel, roughly four miles long, would be under the Straits of Mackinac not far from the Mackinac Bridge.

State Response

"Enbridge does not seek to extinguish the state's ability to exercise its regulatory and sovereign authority over the disputed lands entirely," Circuit Judge Rachel Bloomekatz wrote in the April 23 opinion. "Enbridge seeks only to bring the state's regulatory activities into compliance with federal law and the U.S. Constitution."

Whitmer and Nessel had sought a final ruling from the U.S. Supreme Court on the issue of sovereign immunity, but Tuesday's denial forecloses that avenue of relief.

Ongoing Litigation

The decision is part of a larger, multi-year legal battle over the future of the 70-year-old pipeline. A separate case questioning the jurisdiction of the Line 5 legal fight is pending before the U.S. Supreme Court. The justices heard arguments in February over whether a separate lawsuit filed by Nessel seeking to shut down the pipeline was properly removed to federal court.

In the Michigan Supreme Court, the seven justices heard arguments earlier this month on a challenge to a permit Enbridge needs to build a tunnel to house a new segment of Line 5 in the straits.

Environmental and Economic Implications

The state has been in a years-long battle over the future of Line 5 as the underwater twin span running through the Straits of Mackinac has raised concerns about the potential for a catastrophic pipeline failure at the nexus of Lakes Michigan and Huron.

Enbridge says the pipeline is already safe, but the tunnel will make Line 5 an even safer means of transporting crude oil and natural gas liquids through the region.

"This is the latest development in one of the most significant legal and environmental battles of our time," said Michigan Public Radio senior correspondent Rick Pluta. "The outcome will affect energy security across the Great Lakes region for decades to come."