Click here to return to our Regulatory Tracker or here to sign up for our monthly Tracker email updates. If you’re a reporter and would like to speak with an expert on this topic, please email us.
For more information on the Enbridge Line 3 Replacement and Expansion, click here.
Quick Take
Line 5 continues to operate even though Michigan revoked a key easement, and there is litigation ongoing in state court and international settlement negotiations underway between the US and Canada. The Army Corps is preparing an EIS evaluating the proposed Great Lakes Tunnel, which could further delay the project, and the Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a final rule imposing stricter pipeline safety requirements near the Great Lakes.
Why It Matters
Enbridge’s Line 5 pipeline carries 23 million gallons of crude oil and natural gas between Superior, Wisconsin, and Sarnia, Ontario. The pipeline diverges into two lines under the Straits of Mackinac, an environmentally sensitive region connecting Lake Michigan and Lake Huron. Enbridge claims that Line 5 supplies 65% of the propane used in northern Michigan, in a state which has the highest residential propane consumption in the country.
Line 5 has been staunchly opposed by the state of Michigan, environmentalists, and Tribes, particularly the Bay Mills Indian Community. Opponents cite the threats to Tribal interests and treaty rights, the project’s detrimental climate impacts, and the substantial environmental impacts in the event of a spill. In response, Enbridge has proposed a project called the Great Lakes Tunnel, which will be built deeper under the Straits and house a replacement line for that section of Line 5.
Current Status
Michigan Governor Gretchen Whitmer has revoked a 1953 easement and ordered Enbridge to halt operation of Line 5, but Enbridge has refused to halt the project, arguing Michigan lacks the authority to revoke the easement. Litigation between the two parties is ongoing in state court after Governor Whitmer voluntarily dismissed the state’s suit in federal court on Nov. 16, 2021.
On June 24, 2021, the Army Corps of Engineers decided to prepare an Environmental Impact Statement for the Great Lakes Tunnel, which could further delay the project. On Oct. 4, 2021, the Canadian government invoked a 1977 Agreement for the first time, in which Canada and the US would resolve the dispute pursuant to the Agreement’s settlement procedures.
Timeline of Events
Background
Read more1953 Michigan awards an easement to Enbridge for the Line 5 pipeline to run through the Straits of Mackinac.
Trump Administration
Read moreJan. 11, 2017 The Bad River Band of the Lake Superior Chippewa refuses to renew an easement for Line 5 that expired in 2013. The easement granted a right-of-way over tribal land in northern Wisconsin.
June 29, 2017 A report commissioned by the Michigan Department of Environmental Quality (now the Michigan Department of Environment, Great Lakes, and Energy (EGLE)) finds that Line 5 has approximately a 1 in 60 chance of leaking over 35 years.
Aug. 31, 2017 Enbridge divers find gaps in the enamel coating of Line 5 during an inspection, prompting safety concerns.
Dec. 12, 2018 The Michigan legislature passes a bill creating the Mackinac Straits Corridor Authority (MSCA) and authorizing it to enter into an agreement with Enbridge to approve the Great Lakes Tunnel. The bill passes in the final month of Republican Governor Rick Snyder’s term, before Democrat Gretchen Whitmer takes office. During her election campaign, Whitmer had said shutting down Line 5 was a priority.
Dec. 19, 2018 Enbridge announces an agreement with the MSCA to build a Great Lakes Tunnel that would house a Line 5 replacement.
March 29, 2019 Michigan Attorney General Dana Nessel issues an opinion that the statute creating the MSCA and the agreement pursuant to it are unconstitutional under state law. Governor Whitmer directs state agencies to halt actions pursuant to the statute. Enbridge sues in the Michigan Court of Claims challenging the opinion.
Oct. 31, 2019 The Michigan Court of Claims finds that the statute creating the MSCA and the agreement pursuant to that authorization are valid. Enbridge Energy LP v. State, No. 19-000090-MZ (Mich. Ct. Cl.).
Jan. 16, 2020 Attorney General Nessel appeals the Michigan Court of Claims decision. Enbridge Energy LP v. State, No. 351366 (Mich. Ct. App.).
Apr. 9, 2020 Enbridge applies for permits from both the EGLE and the U.S. Army Corps of Engineers (USACE) for the Great Lakes Tunnel project.
June 11, 2020 The Michigan Court of Appeals affirms the Court of Claims’ decision after finding that the statute creating the MSCA is constitutional. Enbridge Energy LP v. State, No. 19-000090-MZ (Mich. Ct. App.).
June 19, 2020 Enbridge suspends operations of Line 5 due to “significant damage” to an anchor from an unknown cause.
June 22, 2020 Attorney General Nessel asks the state court to temporarily enjoin operation of Line 5 while the damage is assessed. Michigan v. Enbridge Energy LP, 19-474-CE (Mich. 30th Cir.).
June 25, 2020 A state court judge orders Enbridge to temporarily suspend operations of Line 5 after Enbridge failed to provide the state with sufficient information about damage to the pipeline and its supporting infrastructure. Michigan v. Enbridge Energy LP, 19-474-CE (Mich. 30th Cir.).
July 20, 2020 The Michigan Department of Natural Resources seeks a written pledge from Enbridge to carry $900 million of liability insurance and set aside $1.88 billion in additional assets for use in the event of a catastrophic spill. Enbridge responded that it is already obligated to do so under a 2018 agreement between a subsidiary, Enbridge Energy, and then-Governor Snyder. The Department argues, however, that Enbridge Energy lacks the resources to cover the costs of a major spill, and Enbridge is not legally bound by pledges made by a subsidiary.
Nov. 13, 2020 Governor Whitmer revokes and terminates a 1953 easement allowing Enbridge to operate under the Straits of Mackinac, citing the public trust doctrine. The notice requires Enbridge to stop using the dual pipelines in the Straits by May, 2021. The state files a complaint in state court, seeking declaratory and injunctive relief. Michigan v. Enbridge Energy, LP, No. 20-646-CE (Mich. 30th Cir. Ct.).
Nov. 24, 2020 Enbridge removes the case to federal court. Michigan v. Enbridge Energy, LP, 1:20-cv-01142 (W.D. Mich.).
Jan. 12, 2021 Enbridge refuses to comply with Governor Whitmer’s order to halt Line 5 operations, arguing the Governor lacks the authority to revoke the easement.
Biden Administration
Read moreMay 10, 2021 The Bay Mills Indian Community Executive Council passes a resolution to banish Enbridge Energy’s Line 5 dual pipelines from all Tribal lands, including the Straits. According to the Native American Rights Fund, “Tribes exercise banishment only to address especially egregious acts of harm to the community.”
June 24, 2021 The USACE announces that it will prepare an environmental impact statement (EIS) evaluating the Great Lakes Tunnel project. Enbridge anticipates that this decision could delay the project.
July 29, 2021 Attorney General Nessel declines to file an appeal of the Court of Appeals’ June 11, 2020 decision upholding the constitutionality of Enbridge’s agreement with the state of Michigan. Enbridge Energy LP v. State, No. 19-000090-MZ (Mich. Ct. App.).
Oct. 4, 2021 The Canadian Minister for Foreign Affairs issues a statement invoking a 1977 Agreement between Canada and the US, stating the agreement “prohibits measures intended to impede, divert, redirect or interfere with crude oils moving through transit pipelines.” Concurrently, counsel for the Canadian government requests that the Western District of Michigan hold the case in abeyance pending resolution via the Treaty’s dispute settlement process.
Nov. 4, 2021 The leaders of Michigan’s twelve federally recognized Tribal Nations send a letter to President Biden urging him to decommission the Line 5 pipeline. The Tribes say the pipeline threatens the Great Lakes and “numerous precious rivers and streams,” impacting Tribal Nations’ reserved fishing, hunting, and gathering rights under the 1836 Treaty of Washington.
Nov. 9, 2021 A White House spokesperson says that the US is not planning on shutting down the Line 5 pipeline. The comment was made in response to questions regarding the US government negotiations with Canada under the 1977 Agreement.
Nov. 16, 2021 The District Court for the Western District of Michigan Southern Division rejects Michigan’s request to send the case back to state court. Michigan v. Enbridge Energy, LP, No. 20-1142 (W.D. Mich.).
Nov. 30, 2021 Governor Whitmer voluntarily dismisses the state’s suit in federal court against Enbridge Inc. Michigan v. Enbridge Energy, LP, No. 20-1142 (W.D. Mich.). According to the Michigan Attorney General’s office, Enbridge cannot remove the ongoing case in state court because the company failed to request a change of venue within 30 days of receiving the complaint. Michigan v. Enbridge Energy, Ltd. P’ship, et al., No. 20-646-CE (Mich. Cir. Ct.).
Dec. 2021 The State Department invites Michigan’s federally recognized tribes to provide input prior to the upcoming talks with Canada under the 1977 Agreement.
Dec. 21, 2021 DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) publishes an interim Final Rule designating the Great Lakes, coastal beaches, and marine coastal waters as “Unusually Sensitive Areas,” and extending more stringent pipeline safety requirements to hazardous liquid pipelines in those areas. The rule cites the 2018 anchor strike on Enbridge Line 5 in support of the need for enhanced protections. The rule is effective Feb. 25, 2022, the same day comments are due.
Jan. 13, 2022 An administrative law judge grants Enbridge’s request to strike testimony from the Bay Mills Indian Community about the cultural importance of the Straits of Mackinac from being considered by the Michigan Public Service Commission (MPSC), in determining whether to issue a permit for the Tunnel Project.
Feb. 18, 2022 A coalition of Indigenous Tribes, public safety experts, and environmental groups, including the Bay Mills Indian Community represented by Earthjustice and the Native American Rights Fund, submit briefs to the Michigan Public Service Commission (MPSC) urging them to deny Enbridge’s permit request for the Line 5 Tunnel Project.
March 1, 2022 Two oil and gas industry trade associations, the American Petroleum Institute and the GPA Midstream Association, file a petition for review to stop implementation of the PHMSA Pipeline Safety: Unusually Sensitive Areas for the Great Lakes, Coastal Beaches, and Certain Coastal Waters rule. The D.C. Circuit ruled to hold the case in abeyance on Apr. 20, 2022. GPA Midstream Association, et al v. DOT, et al, Docket No. 22-01037 (D.C. Cir.).
March 9, 2022 The Michigan state senate passes a symbolic resolution urging the adoption of policies to support increased oil and gas drilling, including the continued operation of Line 5, to promote “energy independence in the United States.”
Aug. 5, 2022 Enbridge reports that a contractor found likely oil-contaminated soil along Line 5 about one mile west of the Bad River Band of Lake Superior Chippewa Reservation. According to DNR, the contamination is likely due to a previous discharge and not an ongoing release.
Aug. 18, 2022 The District Court for the Western District of Michigan retains federal jurisdiction over suits by Michigan’s Attorney General and Enbridge regarding the governor’s shutdown order. The decision prevents the state court from hearing the case. Nessel v. Enbridge Energy LP, et al., No. 1:21-cv-1057 (W.D. Mich.).
Sep. 7, 2022 The District Court for the Western District of Wisconsin rules that Enbridge must compensate the Bad River Band of Lake Superior Chippewa for “trespass [on tribal lands] and unjust enrichment” from building Line 5 through the Bad River Reservation. However, the court holds that the “public interest” weighs in favor of keeping the pipeline operational. Enbridge’s easements through the reservation expired in 2013, and on Jan. 4, 2017, the Bad River tribal council voted not to renew the easement. Bad River Band of the Lake Superior Tribe of Chippewa Indians v. Enbridge, No. 19-cv-602-wmc (W.D. Wis.).
Oct. 7, 2022 EPA’s Tribal and Multimedia Office submits comments on the Army Corps’ notice to prepare a draft environmental impact statement for the Line 5 Tunnel Project. In those comments, EPA expresses “concern[] about likely significant impacts from the proposed project” including impacts to waters “essential to the exercise of Tribal treaty rights”. EPA’s Region 5 Office has also expressed concern on the Line 5 Wisconsin Segment Relocation, commenting on March 16, 2022 that the proposed project may have “substantial and unacceptable adverse impacts” on wetlands and the Bad River.