With Line 5 tunnel plan halted, next steps may belong to Enbridge Energy

June 27, 2019: Michigan AG Dana Nessel files lawsuit to shut down Line 5 in Mackinac Straits

LANSING — The Mackinac Straits Corridor Authority no longer exists — and therefore could not sue Michigan Gov. Gretchen Whitmer’s administration for halting plans to build a tunnel around Enbridge Energy’s Line 5 oil pipeline.

That’s the opinion of Mike Nystrom, who served as chairman of the corridor authority — a body GOP lawmakers created in December to approve and oversee construction and operation of the bedrock tunnel that was expected to cost Enbridge up to $500 million.

“Based on my understanding, [Whitmer’s] decision more or less abolished the authority. And therefore, it makes it somewhat challenging for us to be the ones to take legal action against the decision,” Nystrom, of East Lansing, told Bridge Magazine Monday.

“My opinion is that it’s up for Enbridge to take on this challenge — if it were to go through the court process.”

Nystrom’s comments came four days after Whitmer ordered state agencies to halt action on the tunnel plans. Her order followed a legal opinion from Attorney General Dana Nessel, a fellow Democrat, that found lawmakers violated the state constitution when they enacted Act 359, the law creating the corridor authority.

Whitmer’s order drew praise from environmentalists who want the 66-year-old pipeline shut down for fear of a rupture in the Great Lakes and opposition from Republican lawmakers who argue the tunnel would protect the Great Lakes — and the flow of energy to the Upper Peninsula.

Questions are swirling about what’s next for the tunnel plan.

Senate Majority Leader Mike Shirkey, R-Clarklake, vowed last week the GOP-controlled Senate would ensure the corridor authority could defend the tunnel deal in court.

But Nystrom doubts the board would get that chance, because it no longer exists. The board, which approved tunnel-related agreements in December, initially had loose plans to meet later this spring.

Now Nystrom said he is in waiting mode.

During its short life, the corridor authority has gotten legal direction only from the attorney general’s office, and that guidance completely halted once Nessel succeeded Republican Bill Schuette in January, Nystrom added.

“I’m hopeful that the current administration can come together with Enbridge and figure out a positive path forward and ultimately avoid having to hammer this out in the courts,” Nystrom said.

Whitmer’s press secretary, Tiffany Brown, released a statement that echoed Nystrom’s conclusion.

“The attorney general has concluded, and the governor agrees, that Act 359 violates the state constitution. As a result, any action that depends on the Act — including the creation of the Mackinac Straits Corridor Authority — is void,” Brown said.

And last week, Deputy Attorney General Kelly Keenan sent a letter to corridor authority members advising them "to refrain from any further action to implement" the law Nessel found constitutionally flawed.  

Enbridge last week defended its tunnel plan. The Canadian pipeline giant is still weighing its next steps, spokesman Ryan Duffy told Bridge on Monday.

“But we will definitely be working with the administration on a path forward,” he said in an email.