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Michigan Attorney General calls Mackinac Straits pipeline law 'unconstitutional'

Mackinac Bridge
Mark Brush
Michigan Radio
The law passed during December's lame duck session authorize the MAckinaw Straits Corridor Authority to build a tunnel around Line 5.

Michigan Attorney General Dana Nessel says a law passed last year to build an oil pipeline tunnel beneath the Mackinac Straits is unconstitutional.

One of the first things Gov. Gretchen Whitmer did when she took office in January was to ask for an attorney general’s opinion on the law, which former Gov. Rick Snyder pushed through in the waning days of the legislature.

The law created a complicated structure to insure a tunnel would be built to house Enbridge’s Line 5 pipeline. Critics have complained the pipeline poses a threat of a catastrophic leak. The pipeline’s owners insist it is safe.

In the opinion released Thursday, Attorney General Nessel says the law is unconstitutional because its provisions go beyond the scope of what was disclosed in the law’s title.   

The Attorney General concludes that certain provisions of Act 359 – including those transferring all authorities related to a utility tunnel from the Mackinac Bridge Authority to the Straits Corridor Authority and requiring the Corridor Authority to enter into an agreement for the construction of a tunnel if a proposed agreement was presented by a specific date and met listed criteria – are unconstitutional because they violate Article 4, Section 24 of the Michigan Constitution, referred to as the Title-Object Clause.

Nessel adds any actions taken by the Mackinac Straits Corridor Authority are “void.” In December, the Authority approved agreements for the proposed tunnel.   

The governor’s office reacted quickly after the Attorney General’s opinion was released. 

Gov. Gretchen Whitmer issued an executive directive instructing state departments and agencies to halt any actions in furtherance of the Mackinac Straits Corridor Authority law.

“The Great Lakes are our most precious resource in Michigan,” Whitmer said in a written statement, “And because of their significance, I’ve instructed state departments and agencies to halt any actions in furtherance of this law.” 

The opinion will likely set the stage for a renewed legal fight over the future of Enbridge’s line 5 pipeline.

Enbridge did not respond to a request for comment at the time of publishing.

The Attorney General’s opinion does not carry the weight of law. But it may aid critics of the pipeline tunnel plan and those who wish to see the aging Line 5 pipeline shutdown.

We applaud Attorney General Nessel for clearly recognizing the legislative overreach, restoring the rule of law, and stopping the attack on the Great Lakes and the state constitution,” said Liz Kirkwood, an environmental attorney and Executive Director of FLOW (For Love of Water), a Traverse City-based environmental group. 

Republicans criticized the Attorney General's opinion.

“Today’s opinion from Attorney General Dana Nessel comes as no surprise when considering previous remarks about Line 5 and its replacement," says St. Sen. Ed McBroom (R-Vulcan), "Her ruling only complicates and further delays the eventual closure of Line 5 and the construction of the tunnel replacing it."


An Enbridge spokesman says the company is "surprised and disappointed" by the actions of Michigan's governor and attorney general. 


“Enbridge worked in good faith with the Michigan government on the tunnel project,” said Enbridge
Chief Legal Officer Bob Rooney in a written statement, “We disagree with the Attorney General’s opinion and continue to believe in the benefits of the tunnel.”

Enbridge officials says they intend to seek clarification from the Administration on a path forward.  In the meantime, company officials say they remain committed to protecting the waters of the Great Lakes

 Editor: Enbridge Energy is a financial sponsor of Michigan Radio.

Steve Carmody has been a reporter for Michigan Public since 2005. Steve previously worked at public radio and television stations in Florida, Oklahoma and Kentucky, and also has extensive experience in commercial broadcasting.
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