ANN ARBOR, Mich. — A newly filed motion from Michigan Attorney General Dana Nessel could rightly allow state courts to determine if a potential leak from the aging Line 5 pipeline in the Straits of Mackinac is grounds for shutting down the pipeline. The motion critically highlights how Enbridge Energy not only missed a deadline to remove the state court action to federal court, but also how the company’s arguments defy “the facts, the law, and basic common sense.”

“This motion is critical because if successful, it will allow the state courts to consider for the first time whether the risks of a rupture of Line 5 in the Great Lakes justify the continued operation of the pipeline, which transports 23 million gallons a day of oil and natural gas through nearly 70-year-old pipelines in the Straits of Mackinac,” said Andy Buchsbaum, attorney for the National Wildlife Federation. “If Enbridge’s gamesmanship is successful, it would allow Enbridge to circumvent Michigan’s ability to protect the Great Lakes and to tie the case up in federal court by months, if not years, leaving the Great Lakes in great danger. The state of Michigan is correct in asserting its right for the Line 5 case to be heard in state courts and for Enbridge to be subject to state law.”

According to the attorney general’s filing:

“Enbridge has had the same removability arguments that it used to justify removal of the [parallel] 2020 case available to it since the inception of this [2019] case.  This knowledge is memorialized in its first substantive filing [in 2019] in response to the Plaintiff’s Complaint in state court where Enbridge argued that the Plaintiff’s action is completely preempted by federal law (a long-acknowledged basis for federal jurisdiction), and further made the same express preemption arguments that formed a central ingredient in its removal of the 2020 Case and that underpin its present removal effort. Those preemption arguments were hardly under the radar. They received considerable attention from the state court and were not only the focus of considerable inquiry at oral argument but, by the court’s order, were the subject of supplemental briefing. At the time, Enbridge was content to litigate those issues, and the merits of the State’s claims, in state court.  It submitted extensive state-court briefing, participated in multiple hearings before the state-court judge, and elected to remain in state court even after filing a timely notice of removal based on what Enbridge admits are substantially the same public trust claims in the State’s initial pleading in Michigan v. Enbridge Partners LLP, 1:20-cv-1142 ('2020 Case'). Even as Enbridge vigorously argued that this Court should exercise jurisdiction over the public trust claims in the 2020 Case, it continued to submit the identical public trust claims in this case to the state court’s jurisdiction. 

“Now, Enbridge has changed its mind in the hopes of obtaining what it clearly perceives to be a more favorable forum. But it is more than two years too late, and federal courts do not condone this type of gamesmanship and abuse of the removal statutes. Removability turns on whether the removing party has enough information to create an objectively reasonable basis for seeking removal, not absolute certainty that a court will exercise jurisdiction over a properly removed action. Because Enbridge’s knowledge of removability is written all over its pleadings and representations to this Court in the 2020 Case and to the state court in this case, Enbridge long ago forfeited its right to remove this case.”