Whitmer threatens Enbridge as refinery workers protest Line 5 closure deadline

Lansing — While the state's Democratic attorney general is saying she can't close Line 5 without a court order, Michigan's Democratic governor is insisting Enbridge will be considered a trespasser if it continues to operate the oil pipeline in the Straits of Mackinac after Wednesday. 

Gov. Gretchen Whitmer warned an Enbridge executive Tuesday that if the Canadian company continued to operate in the Straits past Wednesday, the state would seek its profits if it eventually prevails in its legal fight to revoke the pipeline's easement. Continued operations would be considered "an intentional trespass," she said.

The company, Whitmer said, "will be liable for unjust enrichment, which will require disgorgement to the state of all profits derived from its wrongful use of the state's property."

"The state intends to assert claims for trespass and unjust enrichment against Enbridge at the appropriate time when the pending motion for remand in the state’s lawsuit has been decided," Whitmer wrote in the letter to Vern Yu, Enbridge's executive vice president.

The National Wildlife Federation on Tuesday applauded Whitmer's ultimatum, noting Enbridge could be forced potentially to give up 100% of its daily Line 5 profits — an amount the group estimated to be about $1.4 million a day. 

Enbridge said in a Tuesday statement it is confident the state and the company would eventually reach a resolution. 

"A shutdown of Line 5 has serious, broad ramifications and raises substantial federal and international questions relating to interstate and international commerce," Enbridge spokesman Ryan Duffy said. "That is why the case is in federal court where the judge has ordered mediation." 

Whitmer's letter came a day after Attorney General Dana Nessel's office told The Detroit News that she had no way to enforce the easement revocation and closure order without court intervention. 

"The jurisdictional issue will not be decided until sometime after May 12," Nessel spokeswoman Lynsey Mukomel said. "We need a court order that requires Enbridge to shut down in compliance with the notice. We will continue to work to get that as soon as possible."

Members of Steelworkers International and Local 912 at the Toledo Refining Company lined the Capitol lawn Tuesday with hundreds of hard hats to represent the more than 1,000 refinery jobs that would be lost if Michigan closes Enbridge's Line 5 oil pipeline.

Union members also testified before House and Senate committees.

About a quarter of the employees at the Toledo refinery live in southeast Michigan, said Tim Marshall, a pipe fitter and union official with Local 912. They and Ohio employees are invested in the safety of the pipeline as much as anyone else, he said.

"My refinery depends on, my family depends on Line 5," Marshall said. "A threat to that line is a threat to my family, it's a threat to my well-being."

Following Whitmer's letter, the Bay Mills Indian Community said it had voted to banish Enbridge Energy from its reservation and all its ceded territory, including the Straits of Mackinac. Banishment only is used under tribal law "when egregious acts and misconduct have harmed tribal citizens, treaty rights, territories and resources," according to a tribe statement.

"Enbridge's continued harm to our treaty rights, our environment, our history, our citizens, and our culture, is a prime example of how banishment should be used," said Bay Mills Executive Council President Whitney Gravelle.

In November, Whitmer revoked the pipeline's easement through the Straits of Mackinac and ordered it closed within six months or by May 12. 

The state argued its case for the closure in Ingham County Circuit Court before Enbridge moved it to federal court and filed its own lawsuit maintaining that regulation of the pipeline is exclusive to the federal government, namely the Pipeline and Hazardous Material Safety Administration. 

The state is fighting to push its case back to Ingham County Circuit Court. The state and Enbridge also have entered mediation in the federal case filed by Enbridge.

The dual span transporting up to 540,000 barrels of light crude oil and natural gas liquids a day has been a source of controversy amid environmental concerns over the possibility of a spill between Lakes Huron and Michigan. Twelve Michigan Native American tribes fear a rupture and argue it would infringe on their fishing rights. 

Whitmer and Nessel campaigned in 2018 on promises to close the line, but Republican former Gov. Rick Snyder entered an agreement with Enbridge at the end of his term requiring the company to build a $500 million tunnel beneath the Straits to house a new segment of the 68-year-old pipeline. Whitmer has said her easement revocation will not affect Enbridge's efforts to gain permitting approvals and eventually construct the pipeline. 

Refinery workers on Tuesday urged the state to consider the truck and rail traffic that would result if the pipeline is closed and argued the pipeline was a safer bet for transportation. Federal regulators have said the pipeline is safe, said Scott Hayes, health, safety, environmental and government affairs manager for Toledo Refining Co. 

"I trust science over emotion," Hayes said. "And that's what I believe has happened in this case, it's become political and they've thrown all science out the window."

After a Tuesday hearing, Rep. Jack O'Malley, R-Lake Ann, said there will be risks accompanying the pipeline's closure such as increased traffic on roads and rail as the oil is transported over land. The closure, he said, would amount to "cutting of your nose to spite your face."

"Common sense has been left on the side of the road," O'Malley said. "I think a logical compromise is, build the tunnel."

Senate Minority Leader Jim Ananich, D-Flint, criticized lawmakers supporting the steelworkers' protest and taking photos in hardhats on the Capitol lawn, noting Republicans' past support of union-opposed legislation such as right to work, the prevailing wage repeal and worker safety changes.

The GOP support, he said, "makes me wonder how stupid they think workers are."

"Looks more like an audition for the new village people," he said in a Tuesday tweet. 

Nessel has pushed back on protests from Ohio and Canada over the line's closure, noting she made a promise to the people of the state of Michigan, not other areas. 

"We shouldn't be in a position where Canada stands to gain nearly all the benefit and the state of Michigan bears all the risks," Nessel said Tuesday on Twitter

eleblanc@detroitnews.com