Judge grants motion by state of Michigan to appeal key decision in Enbridge Line 5 dispute

The U.S. judge leading Michigan’s efforts to shut down the Line 5 pipeline has given the state his blessing.
appealed one of her key findings, breathing new life into the strategy that hinges on getting the dispute heard by the lower court.

Back in August, District Court Judge Janet Neff denied a motion by Michigan Attorney General Dana Nessel to send the case back to state court, where Nessel has admitted they have a better chance of winning.

But earlier this week, Neff granted Nessel’s request to certify that the August decision, clearing the way for what is known as an interlocutory appeal – formally asking the appeals court to reverse the judge’s order before the final decision in the case has been made.

Such certification, rare in U.S. law, must meet certain conditions, Neff wrote in Tuesday’s decision: that there is a “controlling question of law” that could lead to a difference of opinion, and that an appeal could expedite resolution.

“After reviewing the record, the court concludes that this dispute is one of exceptional circumstances requiring certification,” the order said.

“Each of the three problems identified by [the] the plaintiff involves the question of legal control, there is a basis for a difference of opinion, and the direct appeal will materially advance the final termination of the court.”

Neff also ordered that the current case — just one of several open files involving Enbridge Inc., Line 5 and the state of Michigan — remain on hold and administratively closed until the appeal is concluded.

Michigan has been in court for years with Calgary-based Enbridge in an effort to close Line 5, fearing a disaster in the Straits of Mackinac, an ecologically sensitive area where the pipeline crosses the Great Lakes.

Enbridge insists the pipeline is safe

Enbridge and its allies, which include the federal Liberal government in Ottawa, insist that the pipeline is safe, that the planned upgrade will make it safer, and that its shutdown would cost the North American economy too much.

The legal saga, however, has been dominated almost from the beginning by arcane procedural questions about jurisdiction and precedent, with Tuesday’s decision likely to deepen that morass even more.

Nessel has made three main arguments: that Enbridge flouted the 30-day window to move the case to the district court; that Neff relied too heavily on his own previous decision to deny Nessel’s motion in the separate but identical Line 5 case; and that the question of jurisdiction has not been properly settled.

“The attorney general believes that the federal court clearly erred in refusing to send the case to state court,” Nessel’s office said in a statement. “The order allows [Nessel] to ask the federal appeals courts to step in and right this wrong.”

Environmental groups in Michigan that supported the state’s efforts against Line 5 also cheered the decision.

“This ruling is good news for the Great Lakes. Enbridge’s use of federal courts to delay the state’s ability to protect the Great Lakes is unconscionable,” said National Wildlife Federation counsel Andy Buchsbaum in a statement.

“Hopefully the case will come back soon so the Great Lakes don’t suffer a major oil spill.”

Enbridge, for its part, sees it differently.

The company’s statement quoted Neff’s own words from an August 2022 decision in which he accused Nessel of seeking “a race for justice and a collision between state and federal forums.”

“The Attorney General seeks to undermine that reasoning and promote gamesmanship and forum shopping,” Enbridge said, “while ignoring federal issues that are properly decided in federal courts and not state courts.”