LANSING -- Michigan Attorney General Dana Nessel issued her first formal legal opinion on March 28, 2019, finding the Mackinac Straits Corridor Authority law, Public Act 359 of 2018, unconstitutional because its provisions go beyond the scope of what was disclosed in its title. Governor Gretchen Whitmer had sought the Attorney General’s opinion on the constitutionality of Act 359 in a request submitted on January 1, 2019.
In her opinion, the Attorney General concludes that certain provisions of Act 359 -- including those transferring all authorities related to a utility tunnel from the Mackinac Bridge Authority to the Straits Corridor Authority and requiring the Corridor Authority to enter into an agreement for the construction of a tunnel if a proposed agreement was presented by a specific date and met listed criteria -- are unconstitutional because they violate Article 4, Section 24 of the Michigan Constitution, referred to as the Title-Object Clause.
Specifically, the clause provides that "no law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title." [Emphasis added]
As the opinion itself notes, when describing the importance of the clause, former Supreme Court Justice Thomas Cooley explained that "the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon its own merits …." Cooley was referring to legislation that didn’t give lawmakers clear notice of what they were voting on.
Finally, the Attorney General concludes in her opinion that "any court determination that Act 359 is unconstitutional would likely apply that decision retroactively, and conclude that the Mackinac Straits Corridor Authority, its Board, and any action taken by the Board are void from their inception."
The Attorney General’s opinion process included public comments from more than a dozen organizations and individuals, as well as a review of the opinion by the office’s Opinion Review Board, which is comprised of eight senior assistant attorneys general with appellate writing experience.
Gov. Whitmer's response
On March 28, 2019, after reviewing the opinion issued by Attorney General Nessel, Governor Whitmer signed an executive directive instructing state departments and agencies to halt any actions in furtherance of the Mackinac Straits Corridor Authority law, Public Act 359 of 2018.
"I agree with the conclusion reached by Attorney General Nessel," Whitmer said in a press release. "The Great Lakes are our most precious resource in Michigan, and because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law."
Executive Directive 2019-13 directs state departments and autonomous agencies not to take any further action regarding Act 359 and to report to the governor’s legal counsel regarding actions taken since the bill was passed.
Oil and Water Don't Mix response
On March 28 leaders of the Oil and Water Don't Mix campaign to protect the Great Lakes from oil pipelines praised actions by Gov. Whitmer on Line 5 in response to the attorney general’s opinion and urged her to move quickly in decommissioning Enbridge’s troubled Line 5.
"The backroom deals creating Enbridge’s proposed oil tunnel couldn’t survive public scrutiny and now we know they can’t survive the rule of law," said Liz Kirkwood, executive director of FLOW (For Love of Water). "It’s time to focus on Michigan’s true energy future and protect Michigan’s Great Lakes and our economy from a Line 5 pipeline rupture. The path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac."
Sean McBrearty, campaign coordinator for Oil and Water Don’t Mix, said the attorney general's opinion protects Michigan from agreements that only benefit Enbridge.
"The attorney general is rightfully wiping the legal slate clean and now Gov. Whitmer has the opportunity to put Michigan on a path that doesn’t lead to a disastrous outcome for the Great Lakes and Michigan," McBrearty said. "Her decision to halt all Line 5 activity is a significant and appropriate step forward and has our full support."
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