GRAND RAPIDS, MI — The government of Canada has formally invoked a 1977 treaty with the U.S. government that it says bars Michigan from forcing Enbridge Inc. to close its controversial aging Line 5 oil pipeline under the Straits of Mackinac.
Gordon Griffin, attorney for the Canadian government, notified a federal judge in Grand Rapids of the treaty invocation in a Monday, Oct. 4, court filing, which requests that litigation between Enbridge and Michigan be paused while the two governments resolve the dispute.
The formal request for negotiations under Article 9 of the 1977 Transit Pipelines Treaty was delivered to the U.S. through diplomatic channels on Monday.
The treaty stipulates that “no public authority” in either the U.S. or Canada shall take measures that would “have the effect of, impeding, diverting, redirecting, or interfering with in any way the transmission of hydrocarbons in transit,” Griffin wrote.
The U.S. State Department did not immediately return a message seeking comment Monday afternoon.
U.S. District Judge Janet Neff is currently deciding whether to send litigation between Enbridge and the state of Michigan back to circuit court in Ingham County, where, presumably, a judge would be friendlier to the state’s arguments.
Michigan Attorney General Dana Nessel sued Enbridge last fall to enforce Gov. Gretchen Whitmer’s order to close the Line 5 dual pipelines segment under the straits by May 12, which the company has refused to do without a court order.
In turn, Enbridge sued Whitmer and the state and wants Neff to rule that only the federal Pipeline and Hazardous Materials Safety Administration (PHMSA), an agency within the U.S. Department of Transportation, can order the pipeline’s closure.
Voluntary mediation between the state and Enbridge ended this month without a settlement, following what the state called “unproductive” sessions that Enbridge sought to continue. Neff denied an Enbridge motion last week to file a brief opposing the state’s June motion to remand the case.
International attention on the Line 5 dispute has been mounting since Whitmer ordered the pipeline closure in November. Canadian officials say shutting the pipeline down imperils jobs and high-ranking ministers have called its continued operation “non-negotiable.
In a May amicus brief, the Canadian government asked Neff to stall the state-ordered closure. According to court filings, high-level diplomatic discussions have been occurring this year between Canadian Prime Minister Justin Trudeau and U.S. President Joe Biden, as well as between Canadian foreign ministers and their counterparts in the United States.
President Biden’s administration has said very little about the dispute, which follows Biden’s early move to cancel authorization for the controversial Keystone XL pipeline upon taking office. Experts say Biden, an ally of Whitmer, is juggling the desire of climate voters demanding a shift away from fossil fuels with efforts to improve an international trading relationship with Canada strained under Donald Trump.
In June, the administration promised to put Enbridge’s application to build a tunnel that would house a rebuilt section of pipeline under the straits under strict environmental review, a move that’s expected to delay the potential start of construction by several years.
Beyond advocacy in favor of the pipeline from Canadian officials, public disclosure of diplomatic moves has largely come through U.S. federal court filings. In June, Canadian officials revealed that the two countries were meeting “biweekly” to discuss the potential treaty dispute.
In his letter Monday, Griffin wrote that the U.S. “undertook a solemn and reciprocal commitment to Canada in the [Treaty] not to interfere with the operations of international hydrocarbon transit pipelines (such as Line 5) absent specific justifications.”
“That obligation, with legally binding effect under international law, expressly applies to any measures instituted by “a public authority in the territory of either Party” — including the State of Michigan and this Court,” Griffin wrote.
In a lengthy statement, Whitmer said she was “profoundly disappointed” in the treaty move and took the Canadian government to task for doing the “bidding” of a company that fouled the Kalamazoo River in 2010. Her office said there is “no legal reason that the court should wait to rule in our case, and this remains true, even in light of Canada’s action today.”
Whitmer said Michigan and Canada would remain a “strong partner” on a range of other issues and she called on Trudeau to change course.
“So long as oil is flowing through the pipelines, there is a very real threat of a catastrophic oil spill in the Great Lakes,” Whitmer said. “I have made clear to Enbridge that it cannot use our state-owned lakebed for these pipelines, but Enbridge has refused to stop. Moreover, rather than taking steps to diversify energy supply and ensure resilience, Canada has channeled its efforts into defending an oil company with an abysmal environmental track record.”
In a statement, Enbridge spokesperson Ryan Duffy wrote that the company appreciate the efforts of “Team Canada,” including the Canadian federal government and the provinces of Ontario, Quebec, Alberta and Saskatchewan, for advocating on behalf of the pipeline.
“Enbridge has continued to participate in the mediation process in good faith and still is hopeful that a negotiated resolution will continue to provide consumers and industry in the region with safe, reliable energy and advance the quick construction of the tunnel at the Straits of Mackinac,” Duffy wrote, along with a list of pro-Line 5 talking points.
The company is attempting to build a four-mile utility tunnel under the straits following a deal struck in 2018 with former Michigan Gov. Rick Snyder. Line 5 supporters on both sides of the border are advocating for the tunnel and opposing Whitmer’s closure order, claiming the pipeline has operated without a spill in the straits for decades and disruptions in energy supply from a shutdown would have negative economic repercussions in both countries.
Environmental groups and Line 5 opponents denounced the treaty move as a “delay tactic” and pointed to a huge oil pipeline spill this weekend off the coast of California’s Orange County as an example of the risk continued operation of the submerged pipeline poses.
The 68-year-old, 645-mile pipeline runs from Superior, Wisconsin to Sarnia, Ontario by way of Michigan. It is a key part of Enbridge’s Lakehead network that carries light crude and natural gas liquids under the Straits of Mackinac. Its existence has caused escalating concern since another Enbridge pipeline caused a massive oil spill in 2010 on the Kalamazoo River.
“As we watch yet another devastating oil spill destroy critical water and wildlife, Canada is increasing the risk of an oil spill in the Great Lakes by attempting to delay the shut down of Line 5,” said Larry Bell of Bell’s Brewery in Kalamazoo, speaking as a co-chair in the Great Lakes Business Network. “Michigan has a right and duty to protect our Great Lakes. Canada should be working with Michigan and the United States to transition away from this 70-year-old oil pipeline instead of creating legal delays that only benefit Enbridge.”
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