Ace journalist David Hasemyer– he pretty much owns this story at this point– has a brief article this morning in Inside Climate News about yesterday’s hearing, a hearing that more or less fizzled. We make a brief appearance at the end of Hasemyer’s article to say this:

 “These townships are gun shy,” said Jeff Insko, a university literature professor who created the Line 6B Citizens’ Blog to chronicle events surrounding the pipeline construction. “They are afraid to stand up to Enbridge.”

Let me back up a little to explain that remark: 

First off, we’d never been to federal court before, so the experience was quite an interesting one. For one thing, it appears that federal judges can show up for hearings pretty much whenever they want. It was almost 2:15 before a clerk came out and arranged the judge’s bench, laying out documents and even maneuvering the chair just so– not a bad deal for a judge, I though! A few minutes later, Judge Cleland himself emerged. He’s clearly a man who gets right down to business and he struck us as very smart and very tough. Stand up in his courtroom and you’d best be on your toes.

Now here’s what went down: Judge Cleland started by saying that he didn’t see any point in anybody spending any more time preparing for anything until the question of the plaintiff’s “prudential standing” is resolved. On that question, he pointedly asked POLAR attorneys, “can you get across that threshold?” Because if you can’t, he continued, there’s no point in further taking up any of this court’s time.

So what is this issue of standing? Well, it’s a matter of whether POLAR has the right to bring this suit before the court. You see, fundamental to any lawsuit is an injured plaintiff who has suffered an “injury in fact.” You can’t just make a general argument for a general injury. Nor can a third party bring a lawsuit on somebody else’s behalf. To be a plaintiff, you have to be able to show that you have (or will) suffer some specific injury.

But here’s the thing about questions of standing: they’re really a matter of gatekeeping (thus the “threshold” metaphor) and are often a way of either avoiding or addressing larger questions. If a court is interested in ruling on some important substantive question, it may not be that strict about standing; if the court wants to avoid deciding a substantive issue, it may be more strict about standing.

Enbridge, of course, would rather not have Judge Cleland ruling on substantive issues (such as the “local consent” question). So in a motion to dismiss the lawsuit, Enbridge has argued that “POLAR lacks prudential standing to bring its public nuisance claim for the simple reason that it is based entirely upon legal interests belonging only to non-party municipalities.” That is, “POLAR is asserting rights that belong exclusively to governmental entities that are not parties to this case.”

In other words, Enbridge is arguing that POLAR is essentially trying to sue on behalf of, say, Brandon Township (and its Woodlands Ordinance) or the state of Michigan (and its Constitution). POLAR, on the other hand, will need to muster an argument that shows how or why they do have the right to advance an argument on behalf of the public interest and/or that there Enbridge’s actions will, indeed, cause injury-in-fact to POLAR members. And they are making those arguments. However, we can’t tell whether Judge Cleland wants to address the larger questions; we can’t decide whether he’s going to be strict or relaxed about standing. If we had to guess based on what we saw yesterday, we’d say strict (unfortunately).

Which brings us back to our comments in Inside Climate News this morning. The fact is that POLAR is carrying the load here for everyone. Townships, municipalities, counties, the state of Michigan– no one wants to step up and take on Enbridge and their deep pockets. (Take the MTA, for instance: they support POLAR’s position on the local consent question and yet they also think that POLAR does not have standing. So why aren’t they filing suit?!) What this means, essentially, is that if Cleland decides POLAR does not have standing, no judge is ever going to rule on the local consent question or any of the others (unless, that is, the case gets remanded back to state court, but that seems unlikely to us).

So Enbridge will get its way–not because its position is right (ethically or legally) but only because Enbridge possess might. And that’s a shame.