CINCINNATI, Ohio — Michigan Attorney General Dana Nessel traveled to Cincinnati on Thursday to argue before the 6th Circuit Court regarding the future of her lawsuit against Canadian-based Enbridge, which operates the controversial Line 5 pipeline.
The lawsuit seeks to force Enbridge to shut down the oil and natural gas pipeline, which runs through the Great Lakes in the Straits of Mackinac. Multiple environmental and tribal groups have sided with efforts to oppose Line 5.
Nessel is arguing to have the case brought back to state court, after a previous ruling upheld the removal of the case to federal court.
"It's a matter of the basic principles of state sovereignty, and federalism, you know, which are some pretty important points to jurisprudence," Nessel told 13 ON YOUR SIDE ahead of Thursday's hearing. "But in addition to that, we've already been having this case heard in state court. We had motions for summary disposition that were on the table, had already been argued, were being contemplated by the judge when they yanked it up and moved it to another court. We'd have to completely start all over again."
Nessel's lawsuit was originally filed in 2019. Enbridge filed in Dec. 2021 to have the case removed to federal court.
Generally, according to federal statute, filing to remove a case to federal court must happen within 30 days of receiving the initial pleading, "or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter."
The statute also provides for removal to federal court within 30 days after a defendant receives "a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."
While Nessel's lawsuit was originally filed years prior, Enbridge has argued that a Nov. 2021 court decision to remove a separate Line 5 lawsuit from Governor Gretchen Whitmer impacted that 30-day removability timetable, and made their Dec. 2021 removal notice timely.
Another court upheld that decision in 2022.
However, Nessel told 13 ON YOUR SIDE her department planned to use the federal statute to argue a return of the case to state court.
"We think this would establish a terrible precedent that, you know, [if] the state or any other party sues the defendant in state court, [the defendant] just [gets] to hang out in state court as long as they want until it's not beneficial to them anymore, and then remove it to federal court and start over," Nessel said. "That's not how the law works."
Enbridge, however, said in a statement to 13 ON YOUR SIDE they are "confident" that the 6th Circuit would uphold the prior ruling, given foreign policy considerations surrounding the international pipeline.
"The district court properly found exceptional circumstances warranting this case being heard in federal court," the statement read. "First, the dispute raises important foreign affairs issues that are embedded in the Attorney General’s action and that properly belong in federal court. The August 2022 decision states, 'Considering the motion in the proper context and totality, the Court again points to the important federal interests at stake in having this dispute heard in federal court.'"
"Also, as the district court explained, the Attorney General was setting up a forum battle between federal and state courts," the statement continued. "The Court said that it '...will not accept the State’s invitation to undermine its previous decision and perpetuate a forum battle.'"
"In her appeal, the Attorney General continues to seek to undermine these considerations and promote gamesmanship and forum shopping, while ignoring the substantial federal issues that are properly decided in federal court and not state court," the statement read. "Not surprisingly, Enbridge’s case has been supported by several different amici groups including organized labor, business, and energy."
Atop the question of judicial jurisdiction, Nessel also highlighted what she believed to be risks to her state should the case need to go through federal courts.
"Every day that goes by is another day that we're putting our natural resources and our economy at grave risk in the state of Michigan," Nessel said. "And so, we want to get back to state court. We want to go back to where we left off and have some, you know, very significant rulings that were on the table and hopefully get some resolution to this case."
In Grand Rapids, some climate activists echoed what they believed to be risks posed by Line 5, rallying in support of Nessel's arguments.
"I believe the Attorney General can win, especially if the people become involved," Robin Hendricks with Great Lakes Water Protectors said. "She's representing the people for the Great Lakes. So we need people to tune in and get involved and stand with us."
Enbridge, however, has asserted that their work and the pipeline is safe - pointing to its work on its Great Lakes Tunnel that would seek to improve safety by digging into rock beneath the straits.
"Enbridge remains focused on building the Great Lakes Tunnel which will make a safe pipeline safer and protect the waters of the Great Lakes, the environment, and people while assuring long term energy security and reliability and supporting Michigan jobs and the economy," the company's statement read.
The 6th Circuit began hearing arguments just after 1 p.m. Thursday afternoon.
This is a developing story and will be updated to include additional information.