Nessel
WASHINGTON - Enbridge Energy waited too long to try to remove a lawsuit by the Michigan attorney general to federal court, the U.S. Supreme Court ruled, potentially breathing new life into the state’s efforts to shut down a 540,000-barrels-a-day-pipeline under the Mackinac Straits.
Michigan still faces an uphill fight, however, since a federal judge has ruled in a companion lawsuit that federal law preempts state regulations over pipeline safety. Michigan Gov. Gretchen Whitmer made shutting down Enbridge’s Line 5 pipeline a central theme of her election campaign.
Enbridge, in a statement following the Supreme Court decision, said “the fact remains that the safety of Line 5 is regulated exclusively by the Pipeline and Hazardous Materials Safety Administration.” The state-court case at issue in the Supreme Court decision had been stayed by agreement of both sides while Gov. Whitmer pursues an appeal of the federal court decision before the Sixth Circuit Court of Appeals.
Michigan AG Dana Nessel sued in state court in June 2019 to have the 1953 easement allowing Enbridge to operate Line 5 declared void. A year later, Gov. Whitmer sued Enbridge, and the company removed that case to federal court.
Enbridge argued both sides agreed to hold the first Michigan lawsuit in abeyance while they litigated Whitmer’s case in federal court. But that doesn’t matter, the Supreme Court ruled: Federal law states a notice of removal “shall be filed within 30 days,” and courts have no power to modify or waive that deadline.
Settling a split among federal districts, a unanimous Supreme Court said Congress had made specific exceptions to the 30-day deadline in the removal statute, such as for lawsuits against foreign nations, fatal accidents and certain intellectual property disputes. In all other cases the deadline is mandatory, the court ruled.
Last December, the judge hearing the Whitmer case ruled federal law prevents Michigan from shutting down the Enbridge pipeline. The Pipeline Safety Act of 1992 preempts state safety regulations that Gov. Whitmer and state environmental officials tried to invoke to halt operations, U.S. District Judge Robert J. Jonker ruled.
Michigan officials “may be right in their policy judgments, but it was not their call to make,” the judge wrote in a Dec. 17 order.
If Michigan loses its appeal of the federal court ruling, it may attempt to win in state court. But Enbridge downplayed that possibility.
“As the Supreme Court recognized in its decision today, a federal court has already concluded that the Governor's efforts to shut down Line 5 were preempted by this federal regulatory scheme,” Enbridge said.
