Enbridge has filed a federal complaint against the State of Michigan in the US District Court for the Western District of Michigan. Enbridge’s complaint asserts that the actions of the State in issuing a Shutdown Order directed against Line 5 on November 13 were in violation of federal law because:
- The issuance of that order, which would effectively close Line 5 in its entirety, is expressly preempted under federal law, which prohibits states from enforcing their own pipeline safety standards. That is exactly what Michigan seeks to do through its Shutdown Order;
- The Shutdown Order unconstitutionally interferes with interstate commerce by effectively closing a vital and irreplaceable interstate pipeline in violation of the Commerce Clause of the US Constitution; and
- The Shutdown Order unconstitutionally violates the Foreign Commerce Clause and intrudes on the management by the United States of its Foreign Affairs by forcing the closure of an international pipeline, contrary to the purposes of international treaties entered by the United States.
Additionally, Enbridge has filed a petition requesting the State’s easement case be moved from Michigan Circuit Court to federal court.
Enbridge is filing a petition to remove to the same federal court the complaint filed against it by the State on November 13 in the Circuit Court of Ingham County. Enbridge maintains that the Shutdown Order sought to be enforced by that complaint raises significant federal law questions that warrant litigation in a federal court. These include:
- The State’s Shutdown Order is based on the State’s enforcement of safety standards, which is prohibited by federal law. The Pipeline Safety Act, for example, bars states from enforcing safety measures for interstate pipelines.
- The State’s Shutdown Oder is contrary to the treaties that the United States has entered with Canada, including notably the Transit Pipelines Treaty of 1977, providing for the unimpeded flow of petroleum products in pipelines linking the two nations, such as Line 5.
- The federal government’s “paramount” authority under the federal Submerged Lands Act over the regulation of interstate and international commerce that takes place on the bottomlands of navigable waters owned by the State.