Judge grants motion by state of Michigan to appeal key decision in Enbridge Line 5 dispute

The U.S. decide presiding over Michigan’s bid to shut down the Line 5 pipeline has given her blessing to the state to
appeal one of her key findings, respiratory new life into a technique that hinges on getting the dispute heard by a decrease court docket.

Again in August, District Court docket Judge Janet Neff rejected a motion from Michigan Lawyer Basic Dana Nessel to ship the case again to state court docket, the place Nessel has acknowledged they’ve a greater probability of profitable.

However earlier this week, Neff granted Nessel’s request to certify that August decision, clearing the best way for what’s often known as an interlocutory appeal — formally asking an appeals court docket to reverse a decide’s order earlier than a remaining decision in the case has been made.

Such certifications, uncommon in U.S. legislation, should meet sure situations, Neff wrote in a decision Tuesday: that they contain a “controlling query of legislation” that is possible to generate a distinction of opinion, and that an appeal may expedite a decision.


“Having reviewed the file, the court docket concludes that this dispute is one of the distinctive conditions that compels certification,” the order reads.

“Every of the three points recognized by (*5*) plaintiff contain a controlling query of legislation, there’s substantial floor for distinction of opinion, and an instantaneous appeal will materially advance the last word termination of the litigation.”

Neff has additionally ordered that the present case — only one of a number of open recordsdata involving Enbridge Inc., Line 5 and the state of Michigan — stay stayed and administratively closed till the appeal is resolved.

Michigan has been in court docket for years with Calgary-based Enbridge in an effort to shut down Line 5, fearing a catastrophe in the Straits of Mackinac, the ecologically delicate area the place the pipeline crosses the Nice Lakes.

Enbridge insists pipeline is secure

Enbridge and its allies, which embody the federal Liberal authorities in Ottawa, insist the pipeline is secure, that deliberate upgrades will make it even safer, and {that a} shutdown would impart too nice a price for the North American financial system to bear.

The authorized saga, nonetheless, has been dominated nearly from the beginning by arcane procedural questions on jurisdiction and precedent, with Tuesday’s decision possible to deepen that morass much more.

Nessel has made three central arguments: that Enbridge flouted a 30-day window to transfer the case to district court docket; that Neff relied too closely on her personal earlier decision to reject Nessel’s motion in a separate however practically equivalent Line 5 case; and that the query of jurisdiction has not been correctly settled.

“The legal professional normal believes that the federal trial court docket clearly erred when it refused to ship the case again to state court docket,” Nessel’s workplace stated in an announcement. “The order permits [Nessel] to ask the federal court docket of appeals to step in and proper this mistaken.”

This July 19, 2002 file photograph reveals the Mackinac Bridge that spans the Straits of Mackinac from Mackinaw Metropolis, Mich. Enbridge desires to drill an almost 6.4-kilometre tunnel via bedrock beneath the Straits of Mackinac that will home a alternative for twin pipes which have run alongside the underside of the waterway connecting Lake Huron and Lake Michigan for 67 years. (Carlos Osorio/The Related Press)

Environmental teams in Michigan that again the state’s efforts towards Line 5 additionally cheered the decision.

“This ruling is sweet information for the Nice Lakes. Enbridge’s use of the federal courts to delay the state’s potential to shield the Nice Lakes is unconscionable,” Nationwide Wildlife Federation counsel Andy Buchsbaum stated in an announcement.

“We hope that it will get the case again on monitor shortly so the Nice Lakes does not undergo from a large oil spill.”


Enbridge, for its half, sees issues otherwise. 

A press release from the corporate cited Neff’s personal phrases from the August 2022 decision in which she accused Nessel of looking for “a race to judgment and a collision course between the state and federal discussion board.”

“The legal professional normal seeks to undermine these concerns and promote gamesmanship and discussion board buying,” Enbridge stated, “whereas ignoring the substantial federal points which might be correctly determined in federal court docket and never state court docket.”

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