When we last checked back in December, plans to implement a new state government authority in Michigan specially designed to build an enclosed underwater tunnel crossing the Mackinac Straits for Enbridge Inc.’s proposed replacement for its Line 5 products pipeline seemed ready to move ahead. That quickly changed soon after Democrats succeeded Republicans as the state’s governor and attorney general in January.
On Mar. 28, Atty. Gen. Dana Nessel issued her first formal legal opinion in response to Gov. Gretchen Witmer’s Jan. 1 request that the AG look into the matter. Nessel found that certain provisions in 2018’s Public Act 359 were unconstitutional because they violate Article 4, Section 24 of the Michigan Constitution, referred to as the Title-Object Clause.
Specifically, the clause provides that “no law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.”
Nessel noted in her opinion that when describing the importance of the clause, former state Supreme Court Justice Thomas Cooley explained that “the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon its own merits.” Cooley was referring to legislation that didn’t give lawmakers clear notice of what they were voting on, the AG said.
“Any court determination that Act 359 is unconstitutional would likely apply that decision retroactively, and conclude that the Mackinac Straits Corridor Authority, its board, and any action taken by the board are void from their inception,” she stated. Witmer signed an executive directive that day ordering state departments and agencies to halt any actions in furtherance of Public Act 359.
Double-barreled lawsuit
Nessel then sued on June 27 in Michigan’s Court of Claims to dismiss Enbridge’s June 6 action to seek enforcement of the late 2018 agreement authorizing Enbridge to build the tunnel and continue operating Line 5. She also took the first step to decommission the existing dual pipelines in the straits.
On July 16, six Michigan House Democrats said in a statement they were “deeply disappointed” that Nessel sued to stop the operation of Line 5 with no alternative after the issue had been resolved through an appropriate compromise.
“This lawsuit will create a lengthy, expensive legal battle that could take a decade or more to decide, all the while leaving an aging pipeline lying on the bed of the Straits of Mackinac, until all possible appeals are exhausted,” they warned.
