Can They Do That? (Part 1): Shut Down Line 5
By John Spangler
Associate Editor, Volume 23
In the era of the perpetual election cycle, it is no surprise that candidates are already declaring for 2018 races in Michigan. Michigan’s 4-year, off-presidential elections include the state senate, the governor, and the focus of this series, the attorney general. Thus begins our feature, “Can They Do That?,” where we explore the statutory authority of the attorney general’s office as it relates to campaign promises in our diverse state.
Dana Nessel announces her bid for Michigan Attorney General in August 2017
Though the attorney general is nominated by their party and not by primary vote, it still helps a candidate to declare early and build a public profile. The first candidate to declare, and the first we will discuss, is Democrat Dana Nessel. Ms. Nessel is an attorney in private practice and former prosecutor whose most notable case was DeBoer v. Snyder[1], later Obergefell v. Hodges[2], the gay-marriage challenge that made it to the Supreme Court and won. At her August 15, 2017 event declaring her candidacy, Ms. Nessel’s speech covered a number of ideas to put in force should she be elected. One of those proposals was “On my first day, I will file to shut down Enbridge Line 5.”[3]
So, can she do that? Line 5 is a pipeline that runs under the Straits of Mackinac, the narrowest point between Michigan’s Upper and Lower Peninsula. Built in 1953,[4] it has worried environmental activists for years and recently attracted a great deal of attention for issues like missing support struts,[5] unprotected pipe surfaces,[6] and the revelation that it was built for weaker currents than exist in the Straits.[7] An oil spill from Line 5 could spread over a vast area.[8] Enbridge also had the worst inland oil spill in U.S. history from a different pipeline in the Kalamazoo River in 2010,[9] raising further concerns about Enbridge’s safety record.
What authority would a new attorney general have to quickly file suit against the pipeline’s operation? Line 5 is operated under a contract with the state of Michigan that has remained in place since the 1953 installation allowing the easement under the straits.[10] Contracts with the state are managed and overseen by the State Administrative Board, a committee which consists of representatives from the offices of the governor, lieutenant governor, attorney general, secretary of state, state treasurer, Superintendent of Public Instruction, and the Director of the Department of Transportation (DDOT).[11] The Board has been called on in the past to address state contracts that became troublesome, most notably the case of contractor Aramark privatizing prison food service and then supplying maggots[12] and drugs.[13]
But the votes for State Administrative Board action might be difficult to secure in a divided government. The governor and lieutenant governor are elected on the same slate,[14] and the governor appoints the state treasurer[15] and DDOT.[16] Even if all three other elected positions were amenable to Ms. Nessel’s efforts, that would provide a 4-3 split. However, there are other grounds to fulfill Ms. Nessel’s campaign promise, some of them quite underutilized.
The attorney general can lend their office’s resources to these efforts and join or file amicus briefs.[17] But there are many more options as well. M.C.L.A. 14.28 authorizes the Michigan attorney general to “intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested.”[18] This broad wording provides a great deal of discretion, and includes representing the interests of a political subdivision of the state in a matter of state interest.[19]
In the past, that has meant representing counties in the tobacco Master Settlement Agreement,[20] or even school boards.[21] The state interest in healthy, clean water for its citizens is handled by numerous municipal or regional agencies. For example, the Great Lakes Water Authority is a regional authority that provides water and sewer for approximately 3.9 million Michiganders,[22] including the majority of the state’s African-American population[23]. It is not clear whether a Mackinac spill would be of a scale to reach public water intakes for cities like Detroit or Flint,[24] but after the fiasco that was Flint and the Karagondi Water Authority, maintaining clean drinking water is clearly in the people’s interest. Thus, a suit brought on the GLWA’s behalf would seem to have firm legal standing.
But there is one more intriguing possibility. Ms. Nessel must first win the office, of course, and to do so will require the support of organized activists and volunteers. And some of the most active and organized on this issue are members of the Native American tribes in and around the Straits of Mackinac. Native American tribes in northern Michigan have prominently[25] protested[26] the continued use of Line 5, as a potential spill could threaten fisheries and shorelines of tribal lands. Some of these fishing rights are enshrined in federal treaties, like the Treaty of Washington for the Grand Traverse Band of Ottawa and Chippewa Indians.[27] As attorney general, Ms. Nessel would take an oath to uphold both the state and federal constitutions. Should a state contract conflict with the laws and treaties of the United States, the Supremacy Clause must govern.
In short, can they do that? Why, yes. Given the broad statutory authority of the attorney general to act in the people’s interest, and given the many interested groups with well-documented concerns about Enbridge Line 5, it would be both legally and politically possible to file suit on day one of Ms. Nessel’s term. In future installments, we will examine what other candidates have proposed to attempt under the auspices of the office of attorney general.
To read Part II of this series, click here.
[1] 973 F. Supp. 2d 757.
[2] 135 S. Ct. 2584 at 2592.
[3] Kathleen Grey, Attorney Dana Nessel, known for defense of same-sex marriage, jumps into AG’s race, Detroit Free Press, August 15, 2017, http://www.freep.com/story/news/politics/2017/08/15/dana-nessel-michigan-attorney-general/568959001/.
[4] About Line 5, Enbridge (Oct. 21, 2017, 6:36 PM), https://www.enbridge.com/projects-and-infrastructure/public-awareness/line-5-michigan/about-line-5.
[5] Tracy Samilton, State AG: Parts of pipeline under Mackinac Straits not properly supported, Michigan Radio (Aug. 3, 2016), http://michiganradio.org/post/state-ag-parts-pipelines-under-mackinac-straits-not-properly-supported.
[6] Rick Pluta, Enbridge downplayed significance of Line 5 damage, says state official, Michigan Radio (Sep. 14, 2017), http://michiganradio.org/post/enbridge-downplayed-significance-line-5-damage-says-state-official.
[7] Rebecca Williams, A new report on Line 5 questions its safety, Michigan Radio (Mar. 9, 2017) http://michiganradio.org/post/new-report-line-5-questions-its-safety.
[8] Dr. David Schwab, Worst Case Oil Spill: High Risk Areas Near the Straits of Mackinac, University of Michigan (Oct. 21, 2017, 6:30 PM), http://graham.umich.edu/media/pubs/WorstCaseOilSpill-HighRisk-scenarios-Mackinac.pdf
[9] Kalamazoo River oil spill timeline after 6 years, billion-plus dollars spent, MLive (July 21, 2016), http://www.mlive.com/news/index.ssf/2016/07/kalamazoo_river_oil_spill_time.html.
[10] Straits of Mackinac Pipeline Easement, Michigan Radio (Oct. 21, 2017, 6:39 PM), http://mediad.publicbroadcasting.net/p/michigan/files/201410/1953-04-23_Lakehead_Pipe_Line_Company_Easement_through_the_Straits_of_Mackinac.pdf.
[11] Introduction to the State Administrative Board, Michigan Department of Technology, Management, and Budget (Oct. 21, 2017, 6:47 PM), http://www.michigan.gov/micontractconnect/0,4541,7-225-48756-21005–,00.html.
[12] Paul Egan, More maggots found in Aramark prison kitchen, Detroit Free Press (Jun. 2, 2015), http://www.freep.com/story/news/local/michigan/2015/06/02/aramark-michigan-prison-contractor-maggots-kitchen/28378435/.
[13] Paul Egan, Ex-kitchen worker pleads guilty to trying to smuggle heroin into Ionia prison, Detroit Free Press (Aug. 20, 2017), http://www.freep.com/story/news/local/michigan/2017/08/20/prison-kitchen-worker-heroin-smuggling-trinity/575547001/.
[14] Mich. Const. art. V, § 21.
[15] Mich. Const. art. V, § 3.
[16] Mich. Const. art. V, § 28.
[17] 22 Mich. Civ. Jur. State of Michigan § 16
[18] Mich. Comp. Laws § 14.28 (2017).
[19] 1A Mich. Pl. & Pr. § 15:38 (2d ed.).
[20] In re Certified Question from U.S. Dist. Court for E. Dist. of Michigan, 465 Mich. 537, 638 N.W.2d 409 (2002).
[21] State of Mich. ex rel. Kelley v. C.R. Equip. Sales, Inc., 898 F. Supp. 509 (W.D. Mich. 1995).
[22] About Us, Great Lakes Water Authority (Oct. 21, 2017 7:33 PM), http://www.glwater.org/about-us/.
[23] See U.S. Census data, 2010, Michigan population by race and county, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk.
[24] See map, Public Water Supply Intakes in Michigan, Michigan Department of Environmental Quality (Oct. 21, 2017 7:23 PM), http://www.michigan.gov/documents/deq/deq-rrd-WaterSupplyIntakes_352343_7.pdf.
[25] Desmond Berry, Oil & Water Don’t Mix press conference, YouTube (Jul. 24, 2017), https://www.youtube.com/watch?v=eQ5mOgs8lI4.
[26] Erich T. Doerr, Protests Against Line 5 Are Saturday in Mackinaw City, Mackinac Island News (Sep. 2, 2017), http://www.mackinacislandnews.com/news/2017-09-02/News/Protests_Against_Line_5_Are_Saturday_in_Mackinaw_C.html.
[27] “1836 Treaty”, 7 Stat. 491.
