Enbridge Inc. has scored fresh successes with its campaign to keep its 540,000 b/d dual-pipe Line 5 for oil and natural gas liquids by burying its disputed Straits of Mackinac crossing in a new utility tunnel.

Line 5

After obtaining a permit from the Michigan Department of Environment, Great Lakes and Energy (MEGLE), the $500 million project has secured a ruling that shortened its review by the Michigan Public Service Commission (MPSC).

Administrative Law Judge (ALJ) Dennis Mack barred pipeline foes from stretching the case into a climate change policy debate over greenhouse gas emissions from Line 5 cargos if the 68-year-old pipeline from Canada continues to operate.

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Mack rejected claims that the MPSC review must range beyond the Straits tunnel because Michigan Gov. Gretchen Whitmer served notice in December that she aims to revoke the state route easement as of May.

“The issuance of the notice does not expand the inquiry” by MSPC “to include the environmental effects of the operation and safety of Line 5, or those arising from the production, refinement, and consumption of the oil transported on Line 5,” wrote Mack.

The ALJ reminded pipeline foes that the generations-old state Administrative Procedures Act lays out fairness rules that protect public services and their customers, such as pipelines and energy consumers, against hasty political action.

The Michigan law requires documented reasons for state actions, gives the operations affected the right to respond and requires independent decisions on contested cases if public officials and industry leaders fail to settle disputes.

The MEGLE tunnel permit, granted after a review showed the project would do no harm, satisfied a Michigan constitutional “public trust” provision that requires the state’s government to protect its natural environment, Mack noted.

The judge also said the property law duel begun by Whitmer’s Line 5 easement revocation notice has moved up to Enbridge’s choice of legal arenas, the U.S. District Court for the Western District of Michigan.

The federal court took over the case from Michigan’s Ingham County Circuit Court, where Whitmer filed her demand to shut Line 5. Enbridge is seeking an injunction to suspend enforcement of Whitmer’s easement revocation notice.

No end is in sight yet to the regulatory and legal feud, which began soon after Whitmer and Michigan Attorney General Dana Nessel won office in 2018 partly on a platform that called for closing down Line 5 as an environmental hazard.

The Michigan legislature’s Republican majority passed a bill that ratified a Line 5 tunnel agreement by Enbridge and the former Republican governor. It also created an agency to oversee the project. 

However, Mack noted that MPSC staff said “the ultimate decision in the pending lawsuits on the validity of the easement will not be made in the foreseeable future.”