Oct. 31-- Oct. 31--LANSING -- Legislation approved under former Gov. Rick Snyder to allow for construction of a tunnel to house a new Enbridge Line 5 crude oil pipeline under the Straits of Mackinac is constitutional, the Court of Claims ruled Thursday.
The ruling by Judge Michael Kelly overturns an opinion by Attorney General Dana Nessel and is also a setback for Gov. Gretchen Whitmer, who has ordered state agencies to stop work on approvals and other actions related to the tunnel.
Nessel and Whitmer both said they will appeal the ruling.
"The state of Michigan will not rely on a foreign corporation to protect and preserve our state's most precious resource, its Great Lakes," Nessel said in reference to Enbridge, a Canadian oil giant.
Opponents of the tunnel say there is too great a risk of a catastrophic oil spill in the environmentally sensitive straits during the several years it would take to build the $500-million tunnel, at Enbridge's expense.
Proponents of the tunnel say it is the safest way to get the pipeline out of the water while ensuring delivery of propane, used for home heating, to the Upper Peninsula, and crude oil to refineries in Detroit and northern Ohio.
Nessel issued an opinion in March that said the tunnel legislation violates the Michigan constitution because it did not have a single purpose described in its title, as the constitution requires.
But Kelly, who was first elected to the court in 2008, said the title of the legislation accurately reflects its purpose.
Nessel and other state officials "stress too narrow an interpretation" of the relevant section of the constitution, and "purport to impose an exacting requirement on legislation that is not supported by case law," he wrote in a 22-page opinion.
"If the court were to adopt the position advanced by the (state) in this case, it would run the risk of propagating an approach under which few laws could withstand scrutiny."
Enbridge spokesman Ryan Duffy said the company is pleased with the ruling.
"We continue to believe the tunnel is the best solution for Michigan and that Line 5 can continue to be safely operated during the period while the tunnel is being constructed," Duffy said in an email. "And we are committed to build it."
House Speaker Lee Chatfield, R-Levering, said on Twitter that the ruling "is great news for thousands of Michigan's families (and) our statewide economy." He said it will give Michigan citizens peace of mind that "political gamesmanship" will not leave them without home heating in the winter.
"We need these jobs," Chatfield said. "We need this tunnel. Let's get it built."
But Mike Shriberg, Great Lakes executive director for the National Wildlife Federation, said the ruling is "scary for the Great Lakes."
The "lame-duck tunnel scheme rushed through last year lacked a timeline for decommissioning the existing Line 5, providing a free pass for Enbridge to use the Great Lakes as a shortcut for as long as it wants while it purports to study the tunnel," Shriberg said.
Though some oil and natural gas products are delivered to Michigan by Line 5, most of the oil and gas the line carries originates from western Canada and is delivered to Canadian markets.
Sean Hammond, policy director for the Michigan Environmental Council, urged Whitmer and Nessel to take the case to the Michigan Supreme Court and "continue to use every legal tool at their disposal to end the massive risk to our Great Lakes posed by Line 5."
Appeals of Court of Claims decisions normally go to the Michigan Court of Appeals, though it's possible to request expedited treatment by the Michigan Supreme Court.
Nessel said Thursday she recently learned Enbridge "seriously misrepresented its financial holdings when it made its deal with the Snyder administration." In the event of a catastrophic oil spill, "Michigan could be left holding the bag for more than a billion dollars in unfunded liability," she said.
Nessel was referencing a recently completed study commissioned by the state from American Risk Management Resources Network, LLC, a Wisconsin-based insurance firm that specializes in environmental risk.
The study found that although the state received financial assurances of up to $1.9 billion from Enbridge companies to cover a potential spill, and although Enbridge parent company Enbridge, Inc. has the resources to back such a commitment, the state is not protected because Enbridge, Inc. did not sign the agreements. Instead, the agreements were signed by Enbridge subsidiaries with much leaner financial resources, the study found.
Duffy had no immediate comment on the financial study or Nessel's comments about it.
Whitmer and Nessel, both Democrats, campaigned in 2018 on decommissioning Line 5. Whitmer had talks with the company about allowing it to proceed with the tunnel, but the talks broke off after Enbridge would not commit to completing the project as quickly as Whitmer deemed necessary. Construction is estimated to take five to seven years.
"The governor is committed to protecting the Great Lakes," and "the administration clearly disagrees with today's ruling," Whitmer spokeswoman Tiffany Brown said.
Enbridge filed a lawsuit in the Michigan Court of Claims on June 6, asking the court to rule on the legality of the law and the agreement it reached with Snyder, a Republican, to build a utility tunnel beneath the channel linking lakes Huron and Michigan.
In its lawsuit, Enbridge said "the state now refuses to honor the promises made in the December 2018 agreements."
Nessel has separately sued in Ingham County Circuit Court seeking to shut down the pipeline.
Kelly said the litigation "has generated strong views on whether the policy goals of (the tunnel law) are sound." However, "those concerns are not the focus of the instant action and are best left to the Legislature," he said.
Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4. Read more on Michigan politics and sign up for our elections newsletter.
