A couple of weeks ago, we reported on an MPSC hearing in which Administrative Law Judge Theresa Sheets denied intervenors’ motion for order compelling discovery– a ruling that essentially said Enbridge didn’t have to answer the questions they didn’t want to answer.
Among those questions was whether Enbridge had sought consent from local municipalities in which they’ll be working– a requirement, we think, pretty clearly described in the state constitution and statutory law. (I know, I know, we’ve written about this many times before, most recently here). Well, there’s some interesting, potentially very good, news to report.
The transcript of that August 24 hearing has been released. And we’ve had a chance to read Judge Sheets’s ruling in her own words. Unfortunately, in the transcript she still denies the motion for order compelling discovery. But what’s interesting– perhaps groundbreaking from our point of view– is what she says along the way. It goes like this:
Judge Sheets notes that the intervenors asked Enbridge whether it had obtained any consents and asks for copies of those consents. Enbridge objected to the question, citing a 2004 case involving another pipeline company (because consents were not necessary for MPSC approval– that’s very important). So next, Judge Sheets describes the Wolverine case and says this:
. . . the basic outcome of that — it went through the Court of Appeals and the Supreme Court — is that the Company is going to be required to get those consents. That is part of what they have to do. And I think in the end, I don’t think anyone is saying that consents are ultimately not going to be necessary before construction commences. However,for the purposes of these proceedings, those consents, even in Wolverine pipeline, were not required.
Note what Judge Sheets says here: Enbridge is “required to get those consents.” It’s just that they don’t have to get them prior to MPSC approval. However, she says, they will still have to get them prior to construction. This is very important indeed. In fact, Judge Sheets says it again:
So while I understand that obtaining consents might be an issue, that ultimately has to be addressed because consents will be necessary before construction commences, I think for purposes of these proceedings, the motion to compel, it doesn’t, it doesn’t tell me how this matter is any different than Wolverine in terms of how consents are relevant to this case.
And then she says it again:
. . . the Company is going to have to obtain those from municipalities. But for purposes of these proceedings, the Wolverine pipeline case basically said the argument about obtaining those consents is better left for the circuit court. . .
And again:
I do believe that the issue of requesting that the local consents or municipalities’ consents be obtained prior to construction, I do believe that that is something you can reserve for your briefing and argument that will go to the Commission.
So now we have a Judge who has reviewed the appropriate case law and gone on record publicly as saying– repeatedly and pretty unequivocally– that Enbridge is required to obtain consents from local municipalities before they begin construction. And yet, Enbridge has already begun construction without having obtained any local consents at all. They are, once again, flouting the law. In fact, their strategy appears to be to pretend like there are no such laws and that there are no judges who have made such statements and that there are no local municipalities (like Brandon Township) who have passed resolutions under the authority of the state constitution (and the ruling in the Wolverine case).
But ignoring it won’t make it go away. That is why it is important that we continue to remind everyone who will listen– including state elected officials and the press– of this important legal matter. Enbridge should no more be exempt from the laws of this state than you or me.
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