As we reported late yesterday, Enbridge has filed a “Notice of Removal” to have POLAR’s recent lawsuit heard in federal rather than state court. We spent last night reviewing the relevant documents and can now provide some details. First, a brief explanation of the why and the how of this action:  

According to federal law, a party that has been sued in a state court can ask that the case be “removed” to federal court under certain conditions. The main condition is what’s called “diversity of citizenship”– which just means that the parties in the suit are residents of different states. There is also a requirement that the amount of money “in controversy” exceeds $75,000. Because POLAR’s suit against Enbridge meets both of these requirements, Enbridge is within its rights to request removal.

As to the suit itself, POLAR filed its complaint on September 18th on behalf of its members, who are landowners along the Line 6B pipeline. The complaint asks the Court for “injunctive relief”; that is, it asks the Court to take action to stop Enbridge’s current construction activities until certain requirements have been met. POLAR claims that Enbridge is “taking unilateral action to construct [the new] Line 6B, without the agreement of. . . landowners. . . whose properties remain the subject of dispute.” And because of this, Enbridge “risks a breach of the peace.”

Now some of that might seem a little technical, but the basis for POLAR’s claims is really quite simple: Enbridge has commenced construction without first obtaining all of the necessary permits (mostly environmental permits from the Michigan DEQ and various counties). Nor has it obtained the local consents required under the Michigan constitution and state law.

It won’t come as a surprise to anyone, of course, when we say that we think POLAR’s complaints are compelling. But what makes them so compelling is that they are, to our mind, completely reasonable and, in fact, quite modest. All they are really asking is for Enbridge to do things right: to obtain permits and consents as needed before commencing work. Indeed, as the complaint points out “there is no harm to Enbridge [in this suit] because it can, if it desires, begin working on that property by obtaining the requisite approvals of governmental entities.”

Yet evidently Enbridge just does not want to slow down. So they’ve asked to have this heard in federal court, which raises one last question: why? What advantage is it to Enbridge to have this case removed from state court? As I’ve said before, I’m not a lawyer (just an amateur legal junkie), but I can think of a few possible reasons:

First, it’s a way of avoiding the “hometown” disadvantage. Out of state parties to a lawsuit might not be as familiar with state rules and procedures as the in-state party. The out of state party might not have working relationships with state judges, for example. Going to federal court removes that home-field advantage.

Secondly, as I understand it, the rules in federal court are streamlined, which means that cases tend to move more swiftly. And since we know Enbridge is in a hurry, this is to their advantage.

Finally, Enbridge has always claimed (disingenuously, I think, but they claim it nevertheless) that aside from MPSC approval, the Line 6B project is subject to regulation and oversight only at the federal level. They state this once again in their Notice of Removal filing: “the federal government has expressly preempted local governmental bodies from regulating the safety and maintenance of interstate Pipeline Facilities.” So Enbridge continues to pretend that state and local municipalities have no authority whatsoever over any part of the Line 6B project. And if that’s your view, it only makes sense that you’d want your case heard at the federal level. After all, townships, cities, counties, states– to Enbridge, these things barely exist.

We will, of course, follow this case closely.