Judge grants motion by state of Michigan to appeal key decision in Enbridge Line 5 dispute

The U.S. judge presiding over Michigan's bid to shutdown the Line 5 pipeline has given her blessing to the state to
appeal one of her key findings, breathing new life into a strategythat hinges on getting the dispute heard by a lower court.

Back in August, District Court Judge Janet Neff rejected a motionfrom Michigan Attorney General Dana Nessel to send the case back tostate court, where Nessel has acknowledged they have a better chanceof winning.

But earlier this week, Neff granted Nessel's request to certifythat August decision, clearing the way for what's known as aninterlocutory appeal formally asking an appeals court to reverse ajudge's order before a final decision in the case has been made.

Such certifications, rare in U.S. law, must meet certainconditions, Neff wrote in a decision Tuesday: that they involve a "controlling question of law" that's likely to generate adifference of opinion, and that an appeal could expedite a resolution.

"Having reviewed the record, the court concludes that thisdispute is one of the exceptional situations that compels certification," the order reads.

"Each of the three issues identified by [the]plaintiff involvea controlling question of law, there is substantial ground for difference of opinion, and an immediate appeal will materiallyadvance the ultimate termination of the litigation."

Neff has also ordered that the current case just one of severalopen files involving Enbridge Inc., Line 5 and the state of Michigan remain stayed and administratively closed until the appeal isresolved.

Michigan has been in court for years with Calgary-based Enbridgein an effort to shut down Line 5, fearing a disaster in the Straitsof Mackinac, the ecologically sensitive region where the pipelinecrosses the Great Lakes.

Enbridge insists pipeline is safe

Enbridge and its allies, which include the federal Liberalgovernment in Ottawa, insist the pipeline is safe, that planned upgrades will make it even safer, and that a shutdown would imparttoo great a cost for the North American economy to bear.

The legal saga, however, has been dominated almost from the startby arcane procedural questions about jurisdiction and precedent,with Tuesday's decision likely to deepen that morass even more.

Nessel has made three central arguments: that Enbridge flouted a30-day window to move the case to district court; that Neff reliedtoo heavily on her own earlier decision to reject Nessel's motion ina separate but nearly identical Line 5 case; and that the questionof jurisdiction has not been properly settled.

"The attorney general believes that the federal trial courtclearly erred when it refused to send the case back to state court," Nessel's office said in a statement. "The order allows [Nessel]to ask the federal court of appeals to step in and rightthis wrong."

Environmental groups in Michigan that back the state's effortsagainst Line 5 also cheered the decision.

"This ruling is good news for the Great Lakes. Enbridge's use ofthe federal courts to delay the state's ability to protect the GreatLakes is unconscionable," National Wildlife Federation counsel AndyBuchsbaum said in a statement.

"We hope that this will get the case back on track quickly sothe Great Lakes doesn't suffer from a massive oil spill."

Enbridge, for its part, sees things differently.

A statement from the company cited Neff's own words from theAugust 2022 decision in which she accused Nessel of seeking "a raceto judgment and a collision course between the state and federalforum."

"The attorney general seeks to undermine these considerationsand promote gamesmanship and forum shopping," Enbridge said,"while ignoring the substantial federal issues that are properlydecided in federal court and not state court."