Michigan, Enbridge say Line 5 mediation efforts likely to wrap up by end of August

WASHINGTON — The two sides in the ongoing dispute over the Line 5 pipeline say they expect their mediation efforts to conclude before the end of August — just as opposition to a second cross-border energy conduit is ramping up.

A court-approved mediator says in court documents he will meet again Aug. 11 with officials from the state of Michigan and Enbridge Inc., Line 5’s Calgary-based owner.

The documents, filed late last week in Western District Court in Michigan, offer no added clues as to the state of the dispute, which has been raging since November.

That’s when Gov. Gretchen Whitmer, citing the risk of a spill in the Straits of Mackinac, where the line crosses the Great Lakes, abruptly revoked the easement that had allowed it to operate since 1953.

Enbridge insists the pipeline is safe and has already received the state’s approval for a $500-million effort to dig a tunnel beneath the straits that would house the line’s twin pipes and protect them from anchor strikes.

The company has made it clear it has no intention of shutting down the pipeline voluntarily.

While the dispute centres on whether the pipeline can continue to operate safely, the court case in particular is focused on matters of jurisdiction. Enbridge wants the case heard by a federal judge because a shutdown would raise “substantial federal questions,” while the state insists it is for Michigan to resolve alone. 

In a court filing of its own, Canada’s federal government tried to up the ante, warning of damage to its relationship with the U.S. and the risk of undermining the future credibility of American foreign-policy decisions.

The court should instead set aside the case and give the two countries a chance to negotiate a settlement under the terms of a 1977 treaty that specifically governs pipelines that cross the border, Canada argued.

Michigan’s attorney general has rejected that argument, casting doubts on whether any substantial bilateral discussions have even taken place. That prompted lawyers for the federal government to write to the court last month to insist that such talks are indeed ongoing. 

“Representatives of the two countries are meeting bi-weekly to address the potential shutdown, including in the context of the 1977 treaty,” wrote Gordon Giffin, a former ambassador to Canada himself who is serving as the federal government’s lawyer in the case.  

“Canada continues to believe that it would be contrary to the interest of both Canada and the United States, and contrary to the intent of the treaty, for court proceedings relating to the shutdown to proceed while this diplomatic process is ongoing.” 

Advocates, including Natural Resources Minister Seamus O’Regan, say Line 5 delivers more than half the propane and home heating oil consumed in Michigan, and is a vital source of energy for Ohio and Pennsylvania as well, to say nothing of Ontario and Quebec.

Shutting it down would be an environmental disaster in its own right, they argue, resulting in gasoline shortages, price spikes and some 800 additional oil-laden railcars and 2,000 tanker trucks per day on railways and highways throughout Central Canada and the U.S. Midwest.

As Line 5 has receded from the spotlight, however, environmentalists, activists and Indigenous communities in nearby Minnesota have set their sights on Enbridge’s efforts to upgrade and expand Line 3, which carries heavy and crude oil 1,765 kilometres between Edmonton and Superior, Wis. 

Opponents asked the Minnesota Supreme Court on Wednesday to overturn the regulatory approvals that allowed construction to begin last year. Protesters have been flocking to the Minnesota construction site ever since, hoping to conjure the same public outrage that helped to doom the defunct Keystone XL expansion project. 

Enbridge is spending US$7.5 billion on the project, including $2.6 billion on the American leg. The company says the expansion would increase capacity by the equivalent of 10,000 railcars or 24,000 tanker trucks each day. 

Opponents have long argued that expanding and upgrading cross-border pipelines will lead to more dependence on crude oil from Alberta’s controversial oilsands, exacerbating concerns about climate change and the risk of spills in ecologically sensitive areas and Indigenous lands. 

This report by The Canadian Press was first published July 15, 2021. 

— With files from The Associated Press

James McCarten, The Canadian Press