Federal Judge to Decide If a State Can Shut Down a Cross-Border Pipeline

US District judge to rule on Enbridge Energy’s bid to dismiss Michigan Gov. Gretchen Whitmer’s 2021 revocation of a pipeline easement.

Fresh nuts, bolts, and fittings are ready to be added to the east leg of the pipeline near St. Ignace as Enbridge prepares to test the east and west sides of the Line 5 pipeline under the Straits of Mackinac in Mackinaw City, Mich., on June 8, 2017. The Canadian Press/AP, Detroit News-Dale G. Young

A federal judge will determine within weeks what role states have in regulating pipelines, a ruling that could have profound implications for operators of more than 2.6 million miles of oil and gas pipelines in the United States—especially those within the 71 networks spanning the nation’s border with Canada.

U.S. District Judge Robert Jonker heard oral arguments during an hour-long Nov. 12 hearing in his Grand Rapids, Michigan, courtroom on Calgary-based Enbridge Energy’s motion to dismiss Michigan Gov. Gretchen Whitmer’s 2021 revocation of a 68-year-old easement needed to proceed with a $500 million upgrade to its Line 5 pipeline that spans the Straits of Mackinac as it crosses the Canada–U.S. border.

Enbridge’s summary judgment motion in Enbridge v. Whitmer argues that federal law and international treaties preempt Michigan’s actions and seeks to end more than six years of multi-jurisdictional legal wrangling over its Line 5 project.

Michigan motioned Jonker for a stay pending the U.S. Supreme Court’s ruling on state Attorney General Dana Nessel’s appeal for clarity after lower federal courts issued conflicting opinions on whether the case belongs in state or federal court. The high court agreed in January to review the case.

In 2019, Enbridge announced plans to encase a 4.5-mile segment of its Line 5 pipeline in a concrete tunnel at the bottom of the Straits of Mackinac, which link Lake Superior with Lake Huron and separate Michigan from Ontario at the Canada–U.S. border.

The $500 million pipeline tunnel is among planned improvements along Enbridge’s 645-mile Line 5 pipeline, which begins at the Superior Pipeline Hub in Superior, Wisconsin, crosses the border at Port Huron, Michigan, and ends in the Sarnia, Ontario, refinery.

The cross-border pipeline, operating since receiving a state easement in 1953, carries up to 540,000 barrels of light crude oil, light synthetic crude, and natural gas a day through its two 20-inch lines.

Concerns about Line 5 rupturing in the straits, which a recent University of Michigan study calls “the worst possible place” for a spill, have been growing since 2014 revelations exposed Enbridge maintenance shortfalls, including gaps in protective coating, and spiked in 2017 when a boat anchor snagged on the pipeline.

As documented by Clean Water Action and Oil & Water Don’t Mix, there have been numerous oil and gas spills along Line 5, including more than 220,000 gallons near Crystal Falls in 1999 that featured a burning “vapor cloud,” more than 1.1 million gallons of petroleum that spilled into the Kalamazoo River in 2010, and a 70,000 gallon November 2024 spill in Wisconsin.

Damage to anchor support EP-17-1 on the east leg of the Enbridge Line 5 pipeline within the Straits of Mackinac in Michigan is seen in this June 2020 photo. The Canadian Press/HO - AP, Michigan Department of Environment, Great Lakes, and Energy

Multi-Jurisdictional Sparring

In 2019, Nessel filed a state suit to halt Enbridge Energy’s tunnel plan. In November 2020, Whitmer ordered that state regulators revoke the 1953 lakebed easement and ordered the pipeline crossing shut down by May 2021.

Enbridge filed a federal lawsuit seeking to invalidate the order and petitioned to have the case heard in federal courts.

What followed was years of jurisdictional sparring. In November 2023, a federal judge transferred the suit to federal courts, and in December 2023, Michigan regulators approved permits for the tunnel.

But Nessel then filed another state suit alleging that the pipeline violates three Michigan laws, leading to another round of precursory jurisdictional determinations.

The Department of Justice formally entered the fray with a Sept.12 statement of interest, arguing Michigan’s effort to shut down the pipeline interferes with U.S. foreign policy and the federal government’s exclusive authority over pipeline safety standards.

The department’s brief argues that Whitmer’s order is an attempt to “globalize” Michigan’s regulatory authority and clash with the federal government’s goal of maintaining the flow of energy between the United States and Canada, as stipulated by U.S. President Donald Trump in a series of executive actions and policy directives.

Only the federal government can regulate pipeline safety, federal attorneys maintain, and allowing states to be the ultimate arbiter would create an untenable patchwork of regulations.

“Shutting down Line 5 could disrupt the energy supply chain, increase domestic prices, and enhance the economic and political power and leverage of malign foreign actors worldwide,” department attorneys wrote.

A 2022 analysis by Consumer Energy Alliance said shutting down the pipeline’s straits section could result in $23.7 billion in higher fuel costs for families and businesses in Indiana, Michigan, Ohio, Pennsylvania, and Ontario.

An above-ground section of Line 5 at Enbridge’s Mackinaw City pump station in Michigan. AP Photo/John Flesher

‘An Exception to Preemption’

The oral arguments before Jonker were similar to those made during a four-hour Jan. 27 hearing in Nessel v. Enbridge in front of Ingham County Circuit Judge James Jamo in Mason, Michigan. Only Enbridge and state attorneys addressed the bench.

Michigan maintains that it has the authority to revoke the 1953 easement under the state’s public trust doctrine, which requires it to hold natural resources “in trust” for public benefit, as well as its environmental laws.

State attorneys argue Michigan statutory public nuisance provisions require the state to demand Line 5’s border crossing be relocated to a less environmentally sensitive area—a pipeline routing decision within the state’s authority.

Enbridge attorneys maintain that Michigan’s claims are preempted by the Pipeline Safety Act, the 1977 U.S.–Canada Transit Pipelines Treaty, and the Federal Foreign Affairs doctrine.

Under the Pipeline Safety Act, they insist, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration has exclusive regulatory authority in ensuring that pipelines meet safety and environmental standards.

According to Enbridge, a Line 5 shutdown would mean that refineries in Ontario, Quebec, Michigan, Ohio, and Pennsylvania would receive 45 percent less crude oil than they require.

While state and local regulators have land-use jurisdiction over siting pipelines, once built, they cannot impose retroactive safety restrictions, which Michigan is doing to Line 5, according to the Enbridge attorneys.

State attorneys said enforcing the state’s public trust doctrine, statutory public nuisance provisions, and the Michigan Environmental Protection Act has nothing to do with pipeline safety standards.

Michigan maintains that Enbridge has to prove why it should not be subject to state law and show a relevant federal statute preempting these state laws, rather than needing “to show an exception to preemption.”