Traverse City, Mich. — On December 17, the District Court for the Western District of Michigan issued its opinion in Enbridge v. Whitmer. The federal case was brought by the Canadian oil company to stop Michigan state officials from enforcing Governor Whitmer’s 2020 Notice of Revocation and Termination of the 1953 Easement for the operation of the aging Line 5 Dual Pipelines through the Straits of Mackinac — the heart of the Great Lakes.
Support our work: We’re taking the Line 5 tunnel permit to the Michigan Supreme Court.
The Court’s sweeping opinion rests on its adoption of Enbridge’s arguments that federal law preempts the State’s ability to enforce the terms of the Easement and the requirements of the public trust doctrine to protect Michiganders’ rights in the waters and bottomlands of the Great Lakes.
To reach its decision, the court improperly conflates Michigan’s public trust doctrine with federal pipeline safety standards. The public trust doctrine, however, is a completely independent, long-standing common law doctrine that is an essential aspect of state sovereignty. Thus, the court’s reduction of the public trust to the equivalent of a safety standard is not only legally wrong, it is offensive to state sovereignty and a century of Michigan Supreme Court jurisprudence. The court similarly errs in adopting Enbridge’s position that the State, in holding the company accountable for its violations of State law, impermissibly interferes with foreign affairs.
“Flow is disappointed by the outcome, and the court’s distortion of Michigan’s public trust doctrine and the State’s inalienable sovereign duties as trustee of that trust,” says Flow Water Advocates Staff Attorney Kacey Cook, “but we remain steadfast in our support of the Department of Attorney General’s exceptional advocacy on behalf of the state officials and their efforts to protect Michigan’s water resources, for all of us.”
The parties now have the option to appeal the district court’s decision to the U.S. Court of Appeals for the Sixth Circuit.
###
Flow Water Advocates is an independent 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all. With a staff of legal and policy experts, strategic communicators, and community builders, Flow is a trusted resource for Great Lakes advocates. We help communities, businesses, agencies, and governments make informed policy decisions and protect public trust rights to water. Learn more at www.FlowWaterAdvocates.org.
