So preoccupied with other things (mainly, the PS Trust conference), we totally forgot to post an update on last week’s hearing in federal court. You may recall that the hearing was set to resolve the issue of whether POLAR has “standing” to sue Enbridge for noncompliance with municipal ordinances, state statutes, and the Michigan Constitution. It’s a tricky procedural question– but also what’s referred to as a “threshold” question. If POLAR can’t cross the threshold issue, they can’t enter the room where the more substantive questions– like local consent– reside (and can be addressed).
Just prior to the hearing, however, there was (in our view) a game changer: Brandon Township filed a motion to intervene in the lawsuit. This is important because there is no question at all as to whether Brandon Township has standing– a municipality most certainly has standing to sue to enforce its own ordinances.
We were unable to attend the hearing, but we’ve been debriefed and can tell you this much: Judge Cleland acknowledged the Brandon motion to intervene, but he hadn’t read it and so did not rule (on the question of whether to allow the intervention; we don’t see any reason why he would not allow it, but who knows?). The hearing on POLAR’s standing then proceeded.
According to all accounts from the POLAR side, the hearing went very well. POLAR attorney Bill Tomblin apparently did quite a bang up job, while Enbridge attorneys seemed a relatively ineffectual and bumbling. The POLAR team and its supporters left the hearing feeling reasonably optimistic and Judge Cleland said he would issue a ruling in a week. So we should know something more in the next few days.
We have no idea what will happen from here, but we’ll hazard a guess (based on our own observations and impressions): Judge Cleland doesn’t want this case in his court. He would prefer not to rule on it one way or the other, especially since the real substantive issues at stake are local and state, not federal, matters. So he’s looking for a reason to get it out of his courtroom. That could mean a dismissal (which could be bad for POLAR), but it could also mean– and this is what we’re predicting– kicking it back to Oakland County court, which in our view, could be quite good for POLAR. Please don’t hold us to any of that!