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The state commission then-Gov. Rick Snyder whipped up last year to grease the wheels for a utility tunnel under the Mackinac Straits is unconstitutional, Attorney General Dana Nessel said last week. State agencies aren't allowed to do anything related to entombing the Line 5 pipeline, Gov. Gretchen Whitmer wrote shortly thereafter.
So now what?
In short, get ready for a bureaucratic and legal chess match between the Nessel/Whitmer tandem, who wants to shut the whole line down, and Enbridge, the Canadian-based owners of the pipeline running along the bottomlands of the Straits.
All the while, light crude oil will continue running through the line.
Enbridge already has a state-issued permit related to the tunnel project, and the company is awaiting another one from the U.S. Army Corps of Engineers, Enbridge spokesman Ryan Duffy said today.
The state permit, issued by the Michigan Department of Environmental Quality in January, would allow Enbridge to do rock and soil sampling, including drilling bore holes, Duffy said.
Asked if the company would push forward if it receives a permit from the Army Corps, Duffy said Enbridge is "evaluating the next steps and we will be working with the Administration on the best path forward."
One such option Enbridge could consider, according to one industry observer, is pursuing the tunnel project on its own through the state's normal permitting process, but it's not clear if that's under consideration.
Environmental groups renewed their call Thursday for Whitmer to decommission the existing Line 5 pipeline. Yet her spokeswoman, Tiffany Brown, said the Governor's Office is "keeping our options open on next steps and how to move forward."
Candidate Whitmer said as governor she would "immediately file to enjoin the easement and begin the legal process to decommission Line 5.”
"Anything short of that is insincere," she added.
Some environmental groups have maintained Enbridge is violating its state easement at the bottom of the straits. Whether a lawsuit pops up isn't clear just yet, but an observer noted a suit has never been filed on those grounds from what he's seen.
Some environmental groups were said to have been considering legal action to block the tunnel law shortly after Snyder signed it into law, but he opted to wait for Whitmer and Nessel to take office.
And whether there's a legal countermeasure to Nessel's opinion to be taken by those who support the tunnel concept for Line 5 is unclear. Asked about that today, Jim Holcomb, executive vice president of the Michigan Chamber of Commerce, said the organization would be evaluating all of its options.
But what's clear to Holcomb is that the state can't stay in neutral very long on the Line 5 issue, he said.
"Our position is, we can't stop working to get to the end that everybody's looking for," Holcomb said, adding the chamber respects the role of the AG but was disappointed with the outcome.
"We're just going to encourage the governor, Enbridge and legislative leaders to not stop, that we have to find a solution," he said.
MIRS asked four political observers how hard Enbridge will fight the issue of building a $1 billion tunnel in court when — as long as the tunnel isn't built — Line 5 will remain in service.
“My advice to them is that ‘yes,’ they’ll need to put up some kind of fight publicly,” said John Truscott of Truscott Rossman Group. “But what they have in place now is a lot cheaper than the tunnel would be. I really believe they want to do what’s best for everyone. So, I think they will try to move forward with the tunnel, but maybe not too quickly.”
Jen Eyer, a partner at Vanguard Public Affairs, said Enbridge will need to stay aggressive because Nessel's end game is to close down Line 5.
“Enbridge should not feel confident about Line 5 remaining in operation if the tunnel isn’t built,” Eyer said. “Attorney General Nessel made it very clear during her campaign that she believes the state has the authority to shut it down. And if she’s right, she’ll make it happen.”
But if that happens, John Sellek, CEO of Harbor Strategic Public Affairs, said "If the tunnel is sunk, the pressure actually falls to the governor and attorney general to protect Mackinac Island from a potential oil bath."
(Kyle Melinn of the Capitol news service MIRS is at firstname.lastname@example.org.)