Two years too late? Justices take up forum fight over Michigan pipeline

WASHINGTON (CN) — The Supreme Court considered on Tuesday opening federal courtroom doors to a Canadian energy company fighting a lawsuit threatening to shut down its oil pipeline running beneath the Straits of Mackinac. 

Michigan asked a state court to close Line 5, which carries crude oil and propane between the United States and Canada. But Enbridge Energy sought a venue change, pushing the justices to find that its circumstances required federal court review. 

“What we're talking about is an international pipeline that not only impacts the relationship between the United States and Canada but literally millions of people within and with outside Michigan,” John J. Bursch, an attorney with Bursch Law representing the company, said. “This is the paradigm case that belongs in federal court.” 

In 2019, Michigan Attorney General Dana Nessel sued Enbridge, claiming the continued operation of the Straits Pipelines was a public nuisance and violated the state’s environmental protection laws. 

Before a court could rule on the dispute, damage to the Straits Pipelines led to an emergency shutdown in 2020. A judge granted Michigan’s request for a temporary restraining order, prohibiting Enbridge from operating the pipeline until the incident had been investigated. 

Complicating the case, Michigan Governor Gretchen Whitmer was also pursuing a complaint against Enbridge over violating the terms of an easement. Whitmer argued the agreement should be revoked on public trust grounds. 

A lower court ruled Whitmer’s suit belonged in a federal court. In 2021, the governor dismissed her case, believing the attorney general’s case would resume in state court. 

Enbridge said Nessel’s case should be moved to federal court, too. By that point, however, the company missed the 30-day removal deadline by over two years. 

Under a doctrine known as equitable tolling, courts can pause or extend statute of limitations deadlines in extraordinary circumstances. A court ruled Enbridge’s case qualified for the extension, but an appeals court reversed. 

At the Supreme Court, Enbridge tried to guide the justices to a simple ruling, holding that federal courts had authority to excuse the 30-day removal deadline. But several justices questioned the source of that power. 

Justice Ketanji Brown Jackson, a Joe Biden appointee, asked why the justices should assume lawmakers wanted equitable tolling considerations to work here. 

“Isn't the broader point that because there were these kinds of exceptions in the statute, Congress was thinking about this, they covered it, and who are we now to believe that other things should be taken into account on this equitable basis?” Jackson asked. 

Justice Sonia Sotomayor, a Barack Obama appointee, questioned why Enbridge thought it had a right to have a federal court try the case. 

“You have a right to have recovery for a loss, and the forum where that right is adjudicated is not lost,” Sotomayor said. “You have a forum. You have the state court.” 

Chief Justice John Roberts, a George W. Bush appointee, added that the court typically puts more focus on the interests of the plaintiffs. 

Michigan pushed the justices to reject Enbridge’s “atextual escape hatch.” Solicitor General Ann Sherman noted that lawmakers created explicit exceptions to the 30-day deadline, indicating courts could not create their own exceptions. 

“The deadline serves not to protect defendants from stale claims but to officially settle which of two courts will decide the merits of a case,” Sherman said. “This allocation of judicial power is a task for Congress, not courts.” 

The court was equally critical of the state’s arguments. Justice Elena Kagan, an Obama appointee, said the 30-day rule was functionally a statute of limitations, which is subject to equitable tolling. 

“I bet if you put 10 lawyers in a room and said, ‘Is an appeals deadline a statute of limitations,’ they would kind of stare at you funny, you know,” Kagan remarked. “What it is, it's a deadline. I mean, a statute of limitations is also a deadline.” 

Justice Samuel Alito, a Bush appointee, worried there could be a significant delay before federal courts could review questions about treaty rights between the United States and Canada. In the interim, Alito said, there could be massive fuel shortages. 

Michigan responded that because these were state law claims, Congress entrusted state courts to adjudicate them. 

“So the answer is it's just too bad?” Alito asked. “Maybe that's the answer. Sometimes the law produces consequences that are not desirable. But what we're told … is shutting down Line 5 would result in a massive shortage of gas, diesel and jet fuel in both Ontario and Quebec, not to mention end thousands of Canadian jobs.” 

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