On Thursday March 28, 2018 Michigan Attorney General Dana Nessel issued her first formal legal opinion, per Governor Whitmer's request, on the Mackinac Straits Corridor Authority Bill (PA 359). On her first full day in office, back in January, Governor Whitmer requested the opinion on the constitutionality of the law that created the Mackinac Straits Corridor Authority and on the Authority's approval of the Agreement. The legislation was passed and signed by Governor Snyder last fall, as part of the strategy to replace Line 5 with a tunnel under the Straits.
In her opinion, the Attorney General writes that the law is unconstitutional because it goes beyond the scope of what was disclosed in its title (violates Article 4, Sec 24 of the Constitution, the "Title Object Clause.") She also stated, “It is my opinion, therefore, 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”.
Governor Whitmer immediately followed with an Executive Directive ordering all state departments to stop any activity related to the tunnel project approved by the authority and "report to the governor's legal counsel regarding actions taken since the bill was passed.
“I agree with the conclusion reached by Attorney General Nessel,” Whitmer said in a statement. “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.”
The law in question solely pertains to the pending creation of the proposed new tunnel under the straits. It has nothing to do with the continued safe, continued operation of the existing Line 5 pipeline that runs along the lake bed. Should the law be invalidated, it would simply halt a solution that actually removes the pipe from the lake bed. We are a long way from that happening however.
Two weeks ago the Michigan Court of Claims reviewed this issue and ruled that the only section of the law that is unconstitutional is the term limits of the new board and that the rest of the law can stand. Although Court of Claims Judge Stephen Borello ruled that the 6-year terms for members of the authority established by the law was unconstitutional, he maintained that the appointments themselves — "and all the trappings of decision-making associated therewith" remain valid.
While Nessel’s Opinion contradicts this Michigan Court of Claims Ruling, an Attorney General Opinion is subject to legal challenge and we are likely to see that happen given the comments of the legislature and Enbridge.
The State Senate and House immediately commented on the actions: "An AG opinion is exactly that, an opinion. It's not binding. It's not final. And it's certainly not without cause to challenge," said Senate Majority Leader Mike Shirkey. "The Senate will pursue its options in order to advance the very important work and purpose of the energy tunnel. This is the fastest, safest, and most economical long-term solution for Michigan. It’s very important to our economy."
House Speaker Lee Chatfield called the tunnel plan "the right thing to do for our state, our waterways, and for our future. It’s well past time to put aside political talking points and campaign rhetoric and just to the right thing. The administration needs to protect the people of our state, secure our critical Mackinac Straits and approve the tunnel project immediately," he said in a statement.
Representative Triston Cole stated, "To suggest that lawmakers weren't clear on the details of the plan they voted for last December is outrageous. This plan put forward after months of debate, public testimony and rigorous investigation. There were few issues discussed more publicly than constructing a tunnel for Line 5."
Enbridge stated: We intend to seek clarification from the Administration on a path forward. Line 5 will continue to safely operate, as it has for more than 60 years. "Enbridge worked in good faith with the Michigan Government on the tunnel project," said Enbridge Chief Legal Officer Bob Rooney. "We disagree with the Attorney General's opinion and continue to believe in the benefits of the tunnel."
We will keep you informed on this issue as it progresses. The Attorney General’s press release and Opinion as well as the statement and Executive Directive from Governor Gretchen can be found below