By John Flesher
AP Environmental Writer
TRAVERSE CITY (AP) — Michigan legislators did not violate the state constitution with their decision to allow construction of an oil pipeline tunnel beneath a waterway linking two of the Great Lakes, a judge said last Thursday.
The ruling by Judge Michael Kelly of the Michigan Court of Claims was a victory for Enbridge Inc., which struck a deal with former Republican Gov. Rick Snyder to build the tunnel beneath the Straits of Mackinac.
Lawmakers approved the agreement during a lame-duck session last December over objections that the authorizing measure was drafted sloppily and rushed to enactment before Snyder’s term expired.
He was succeeded in January by Democrat Gretchen Whitmer, a critic of the deal.
Attorney General Dana Nessel, also a newly elected Democrat, issued an opinion in March that the bill was unconstitutional because its provisions far exceeded what its title specified. Whitmer then ordered state agencies not to carry out the agreement.
Enbridge filed a lawsuit requesting a ruling from the Court of Claims.
In his written opinion, Kelly said the title adequately followed the constitutional requirement to “express the general purpose or object” of a proposed law.
“Examination of this title reveals that the construction, maintenance and operation of a utility tunnel are plainly contemplated...,” he said.
Whitmer and Nessel said they would take the case to the Michigan Court of Appeals.
“We have always anticipated that this matter would be resolved in the appellate courts and we are more resolved than ever to continue this fight on behalf of the people of Michigan,” Nessel said.
Enbridge, a Canadian company based in Calgary, Alberta, said it was pleased with the ruling and “remains fully committed to the Great Lakes tunnel project.”
Kelly’s decision is one step in what promises to be a lengthy court battle over Enbridge’s proposed replacement for twin underwater pipes crossing the 4-mile-long straits, which connects Lakes Huron and Michigan.
The pipes are part of Line 5, which carries crude oil and natural gas liquids used to make propane. The underground line runs between Superior, Wisconsin, and Sarnia, Ontario. The Straits of Mackinac segment is divided into two adjacent pipes.
Environmentalists contend the 66-year-old pipes are vulnerable to a spill that would do catastrophic damage to the lakes and shorelines.
The company says they are regularly inspected and in good condition, despite dents from an anchor strike last year and gaps that have formed beneath some sections, requiring installation of supports.
Under its agreement with Snyder, Enbridge would shut down the underwater segment of Line 5 and replace it with a single pipe housed in a concrete-walled tunnel that would be drilled through bedrock beneath the straits.
The company has agreed to pay for the $500 million project, which it says would be finished by 2024. Whitmer has pushed for a quicker timetable, which Enbridge says isn’t workable.
“The governor is committed to protecting the Great Lakes,” spokeswoman Tiffany Brown said last Thursday in a statement pledging to continue Whitmer’s fight to decommission Line 5.
Nessel filed a separate lawsuit in June seeking a shutdown. The case is pending in Ingham County Circuit Court.
Sean Hammond, policy director of the Michigan Environmental Council, urged Whitmer and Nessel to “continue to use every legal tool at their disposal to end the massive risk to our Great Lakes posed by Line 5 as soon as possible.”
The Michigan Chamber of Commerce and the American Petroleum Institute praised Kelly’s ruling.
Republican state House Speaker Lee Chatfield tweeted: “This is great news for thousands of Michigan’s families & our statewide economy. With this ruling, people will have peace of mind that they are not going to be left out in the cold this winter by political gamesmanship. We need these jobs. We need this tunnel. Let’s get it built.”
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