On November 13, Michigan Governor Gretchen Whitmer and the Michigan Department of Natural Resources issued a notice to Enbridge Energy that by May 2021 it must cease transport of oil through twin pipelines that traverse the Straits of Mackinac. On the same day, Michigan’s Attorney General filed a complaint in state court for injunctive relief against Enbridge (State of Michigan et al. v. Enbridge Energy Limited Partnership et al., case number 20-646-ce, in the state of Michigan Circuit Court for the 30th Judicial Circuit, Ingham County). The notice terminates Enbridge’s 1953 easement in the Straits because of violations of the public trust doctrine and “longstanding, persistent, and incurable violations” of the easement’s standard of care. Further background may be found at law360.com (subscription required).

The pipelines transport 23 million gallons per day of oil and natural gas liquids for four miles underwater between Michigan’s upper and lower peninsulas. Although the pipelines have not leaked in nearly 70 years, a major leak or spill would cause damage rivaling Santa Barbara, the Exxon Valdez, and Deepwater Horizon, but in the largest lake (by surface area) in the world. Hazards to the pipelines abound. Vessel anchors have dinged them, strong water currents have shifted pipeline supports, and protective coatings have flaked away.

The state argues that the easement was void from its inception or revocable, or both, because the state in 1953 did not find that the easement would improve the public trust or not impair the remainder of Michigan’s public trust bottomlands. The state contends that the Supreme Court’s opinion Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), and the Michigan Supreme Court’s decision in Obrecht v. National Gypsum Co., 361 Mich. 399 (1960) require these findings. Citing recent anchor strikes, the state argues that continued operation of the pipelines poses “inherent risks” and “the foreseeable, catastrophic effects if an oil spill occurs at the Straits.” Notice of Revocation and Termination of Easement at 4-5.

Besides the public trust argument, the state asserts that recent operational incidents violate the easement’s standard of “due care of a reasonably prudent person” for the safety and welfare of public and private property. Notice at 11-12. Labelling violations as “incurable,” the state cites many places where the distance between pipeline supports exceeds the required 75 feet, invasive zebra mussels prevent repairing the protective coating, and the pipelines bend more than allowed. Id. at 12-17.

The capacious standards of the public trust doctrine and the standard of “due care” give judges wide latitude to rule for the state. The state’s action is also well-timed given the fact that Governor Whitmer will have a favorable Democratic majority on the Michigan Supreme Court starting January 1, 2021. It is rather fitting that this controversy occurs 50 years after law professor Joseph Sax reinvigorated the public trust doctrine in a seminal essay in the Michigan Law Review.

Citing the Public Trust Doctrine, Michigan Sues to Shutdown Petroleum Pipeline