Michigan AG challenges court decision involving Line 5 Tunnel Law

Mackinac Bridge. Michigan Attorney General Dana Nessel opposes Enbridge's plan to build a tunnel under the Straits of Mackinac to house the company's Line 5 pipeline. (Keweenaw Now file photo)

LANSING -- With a brief filed on Thursday, Jan. 16, in the Michigan Court of Appeals, Michigan Attorney General Dana Nessel continues to challenge the constitutionality of the law which provided for the 2018 agreement between former Gov. Rick Snyder’s administration and Enbridge Energy to build a tunnel beneath the Straits of Mackinac to house the energy company’s Line 5 pipeline.

Public Act 359 of 2018 was rushed through the Legislature to amend Public Act 214 of 1952, which allowed for the construction of the Mackinac Bridge. Nessel's brief filed Thursday argues that the 2018 act violates Article 4, Sec. 24, of the Michigan Constitution, referred to the Title-Object Clause, which provides that "No law shall embrace more than one object, which shall be expressed in its title."

In response to questions raised by Gov. Gretchen Whitmer, Nessel issued a formal opinion in March 2019 that concluded Act 359 was unconstitutional and the agreements based upon it made between the Snyder administration and Enbridge should likely be considered void.*

In June 2019, Enbridge Energy countered by suing the State in the Michigan Court of Claims seeking a declaration that the Act is constitutional, thereby making the December 2018 tunnel agreement valid. The Court of Claims agreed with Enbridge and ruled in the energy company’s favor on Oct. 31, 2019.

The brief filed Thursday by the Michigan Department of Attorney General asks the Court of Appeals to reverse the Court of Claims decision because Act 359 violates the Title-Object Clause by not providing fair notice of the content of the law, and embraces two unrelated objects -- a utility tunnel to carry oil beneath the Straits and the Mackinac Bridge to carry motor vehicles above.

Separately, on Jan. 16, a panel of the Court of Appeals denied, by a 2-1 vote, the State’s motion for stay pending appeal. Had it been granted, the stay would have delayed the effect of the Court of Claims decision until the Court of Appeals reached its decision on the constitutionality of Act 359. Instead, Act 359 currently remains in effect during the appeal. The State is reviewing the order.

This case is separate from and not related to the Attorney General’s lawsuit that seeks to shutdown Enbridge’s existing 66-year-old pipelines in the Straits.**

Editor's Notes:

* See our Apr. 1, 2019, article, "Attorney General Nessel finds Mackinac Straits Corridor Authority Law unconstitutional; Gov. Whitmer issues directive to halt actions in furtherance of PA 359."

** See our June 29, 2019, article, "Attorney General Nessel takes legal steps to decommission Line 5; Gov. Whitmer seeks to dismiss Enbridge lawsuit."