As we reported late yesterday, the Michigan Townships Association has filed an amicus curiae brief in the POLAR lawsuit now being heard in federal court. ¹ Regardless of whether it alters the outcome of the case, we think this is very good news indeed. And now that we’ve spent the morning reading over the brief, we’re in a position to explain why and to discuss some of the implications of this action. First, the brief:  

If you’ll recall, the POLAR lawsuit seeks to enjoin Enbridge from all construction activities until it has obtained all required permits and permissions, including consent from relevant municipalities. As we’ve said before, POLAR’s position seems to us entirely reasonable– modest, even. After all, you couldn’t, say, build a garage in your backyard without first obtaining the required permits and permissions. But, as we know, Enbridge’s m.o. is, as they say, to shoot first and aim later, to assume at every turn that they’re going to get their way even if that means thumbing their nose at anyone who might be in the line of fire. This is why, for instance, Enbridge began clearing trees in Brandon Township in violation of the township’s Woodlands Ordinance-– and only after they were called out on it did they begin to discuss compliance with Brandon. It’s also why they’ve created a staging area in Capac for construction on phase two of the project, even though they do not yet have MPSC approval, and even though they initially claimed that the activity in Capac had nothing to do with Line 6B– and only after a local reporter kept on the story did they stop dissembling and admit otherwise. It’s also why they declined at least two invitations to attend Groveland Township trustee meetings– and only after it looked like Groveland might take action similar to Brandon’s (ultimately, alas, they did not) s did Enbridge agree to show up and talk. See the pattern? We could go on.

The real point here, though, is that the POLAR lawsuit doesn’t really ask for much. It simply asks Enbridge to do things right, which– astonishingly– puts Enbridge in the bizarre position of arguing in court that they shouldn’t have to. Frankly, we’ve never understood why they would rather put their time and energy into fighting legal battles rather than just getting their permits and permissions. Had they just done so from the beginning they’d probably be nearly done with construction by now; they would have saved everyone all this fuss!

But back to the MTA. The brief begins with some preliminaries in which the MTA argues for why they should be allowed to file their brief (Enbridge, not surprisingly, opposed it). Specifically, they note that the “case presents in part a legal issue of direct and critical importance to MTA’s member townships, that issue being whether [Enbridge] is required to obtain a township’s consent pursuant” to the Michigan Constitution and the state Highway Act.

This issue, of course, is one that we have discussed again and again. The MTA’s brief makes a careful and trenchant legal argument for why “such township consent is required.” What’s new here is that, in doing so, the MTA takes on– and, in our view, effectively dispatches– Enbridge’s most important counter-arguments as to why they do not have to seek consent under those same laws. We’ll focus on just two of these, since (as you can see by following the links above) we’ve already covered the basic provisions of the law(s) in question.

First, one of Enbridge’s favorite talking points whenever they are confronted with a local entity asking questions about their project is to say that their work is regulated at the federal level. We’ve heard Joe Martucci and Jason Manshum say this on numerous occasions. And indeed, this is what they say about “local consent”: interstate pipelines are subject of federal regulatory oversight. The MTA brief acknowledges as much, citing the relevant federal law which designates the PHMSA as the federal agency responsible for oversight of “the construction and operation of interstate pipelines.” In fact, the MTA cites plenty of case law in which courts have found that “as it relates to safety concerns,” federal regulations preempt state and municipal laws.

However, what the MTA also demonstrates is that “this scheme of regulation does not… encompass regulatory authority as to the location and routing of crude oil and petroleum pipelines.” In other words, while it may be true that when it comes to design, safety, and operation, Enbridge is correct that their work is regulated solely by federal law, the “preemptive effect” of federal law is not “all-encompassing.” That is, courts have also found that when it comes to matters other than safety and operations– matters like location and routing– pipeline companies are subject to state and local oversight. The mere fact that Enbridge has to seek approval from the Michigan Public Service Commission demonstrates as much– which is exactly why we’ve always thought that Enbridge’s “we’re regulated by the feds” argument totally disingenuous; they’ve never disputed the MPSC’s authority.

The second Enbridge argument that the MTA counters is Enbridge’s claim that because most of their activity takes place on private land for which they have easement agreements with the landowners, they do not need any consent other than that of the county road commission for instances of road crossings. The MTA, however, argues that the Hightway Act contains no such exception. And they further note that the claim that only road commission approval is necessary conflicts with Michigan case law (I will mostly spare you  those details…), including a 1968 Michigan Supreme Court decision in a similar case in which the court held that BOTH township and county road commission consent was required.

It won’t come as a surprise to anyone when we say that we find the MTA’s arguments sound and persuasive. It remains an open question as to whether the District Court Judge Cleland will even choose to rule on this question. But if he does and if he finds the MTA’s position similarly compelling, Enbridge is going to find itself in a very tough place; it’s hard to see what arguments against the Michigan Constitution and the Highway Act they have left. Following the hearing on Oct. 22nd, I guess we’ll know more.

Finally, we see we still haven’t gotten to why we think the MTA’s position is such good news aside from its legal merits. In fact, we have much more to say by way of commentary and discussion of the implications of the MTA’s amicus filing. But this has already gotten much longer than we originally planned, so we’ll save that for another post. Please stay tuned.