Nessel backs a new way to close Line 5 in federal court

Michigan Attorney General Dana Nessel has weighed in on a Wisconsin federal court dispute over a portion of Enbridge's Line 5, backing the pursuit by the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation for an emergency shutdown of the pipeline.

The band filed an emergency motion for injunctive relief seeking closure of the pipeline on May 10 in the U.S. District Court in the Western District of Wisconsin, arguing erosion has been so significant that one bad storm could wipe out the riverbank and cause the pipeline to fail. Nessel filed an amicus brief in support of the effort on Wednesday.

Recent erosion events have "rapidly eaten away the bank" of the Bad River near Superior, Wisconsin and have left as little as 11 feet between the pipeline and the water, Nessel's office said in a press release.

The Bad River flows into Lake Superior.

"If the bank continues to erode and the water reaches the pipeline, the pipeline will be vulnerable to rupture due to the force of currents, debris strikes, or erosion of the ground beneath the pipeline leaving it suspended without adequate support," Nessel's office said.

Enbridge asked the court to reject the Bad River Band's request because the pipe is "completely covered by multiple feet of soil," Enbridge spokesman Ryan Duffy said in a statement.

"Line 5 remains in full compliance with all applicable codes and regulations established by the pipeline safety regulator, the Pipeline and Hazardous Materials Safety Administration," Duffy said. "PHMSA is fully aware of the same facts on which the Band relies in its injunction motion" and has not taken action.

In her brief, Nessel asked the court to consider the impact a pipeline rupture would have on Michigan, its residents and Lake Superior.

"Lake Superior is a priceless natural and cultural resource and, like all the Great Lakes, it is vital to our way of life in Michigan," Nessel said. "As Attorney General, I owe a duty to the people of Michigan to protect all of Michigan’s waters, not only for us today, but also for future generations."

U.S. District Judge William Conley ruled partly in favor of the band last year and concluded the pipeline is effectively trespassing on tribal land, but stopped short of requiring Enbridge to immediately close the pipeline, citing "significant public and foreign policy implications."

Conley sought input from both parties in deciding on the terms of a permanent injunction.

Duffy said a permanent injunction of the pipeline at the Bad River would effectively terminate the entire pipeline, affecting customers in the United States and Canada. He said the company has proposed "numerous plans" to reinforce the riverbank and stop erosion, but has not gotten approval from the Bad River Band to undertake the work.

Enbridge plans to re-route the segment of Line 5 around the reservation. The company has permission from landowners and is waiting on permits, Duffy said.

ckthompson@detroitnews.com