The Supreme Court hears a Line 5 oil pipeline case with high stakes for treaty rights

The U.S. Supreme Court today hears oral arguments on a narrow procedural question that could determine whether Michigan or federal courts ultimately decide the fate of a 73-year-old oil pipeline that many tribal nations say threatens their waters, treaty rights and way of life.

The case, Enbridge v. Nessel, focuses on Line 5, a 645-mile oil pipeline that begins in Superior, Wisconsin, winds through Michigan and ends in Ontario, Canada. More than half a million barrels of oil and natural gas circulate there daily. The pipeline leaked more than 30 times inland, collectively spilling more than a million gallons of oil. Michigan’s 12 federally recognized tribes have called for it to be shut down.

The Straits of Mackinac, where the pipeline crosses Lake Michigan and Lake Huron, is ecologically sensitive and sacred to the Ashininaabe peoples because the waters are central to their creation story. Five tribal nations also hold treaty rights to fish and hunt in these waters, rights that predate Michigan’s statehood and are protected by federal law.

But the tribes are not parties to this particular case, which began in 2019, when Michigan Attorney General Dana Nessel sued to shut down the pipeline.

“What’s at stake Tuesday is the authority of the State of Michigan to manage state resources and public trust issues like the lake bed,” said David Gover, Pawnee and Choctaw general counsel at the Native American Rights Fund, which, along with Earthjustice, is representing the Bay Mills Indian Community in its advocacy against Line 5. “It’s state sovereignty and what the state’s capacity is to manage and protect its resources.”

The specific question before the court is narrow but consequential: Was a lower court entitled to allow Enbridge to move the case from Michigan state court to federal court more than two years after the customary 30-day deadline for such a request had expired? A year after Nessel filed suit, the state officially revoked the pipeline’s operating permit, citing fishing and hunting rights and the Washington Treaty of 1836, and warning that an oil spill in the Sound “would have serious and negative impacts for tribal communities.”

Michigan Gov. Gretchen Whitmer sued Enbridge to enforce the revocation, but chose to drop her suit in 2021 to support the attorney general’s case in state court. A federal court later allowed Enbridge to take the case to federal court, citing “exceptional circumstances.” Now the Supreme Court must decide whether this was appropriate.

“Indian legal cases often rely on gateway doctrines such as standing, jurisdiction and revocation before the courts get to interpreting the treaty,” said Wenona Singel, a citizen of the Odawa Indian Bands of Little Traverse Bay and director of the Center for Native Law and Policy at Michigan State University School of Law. “These procedural decisions can quietly influence outcomes. … When infrastructure operates in waters protected by treaty rights, delays in litigation have environmental and cultural consequences. A procedural extension can take years before a court reaches the merits of the case.”

Debbie Chizewer, managing attorney for the environmental nonprofit Earthjustice, said about 40 million people rely on the Great Lakes for fresh water and could be affected by an oil spill. The Great Lakes contain a fifth of all fresh surface water on the planet. “This case is really about Michigan’s ability to protect the Great Lakes from an obsolete Canadian oil pipeline that is threatening to rupture,” she said.

Enbridge maintains that concerns about pollution in the Great Lakes are overblown, noting that Line 5 continues to pass safety inspections and that federal regulators have not identified any safety concerns regarding its continued operation. The company also points out that closing the pipeline would have consequences for energy and foreign affairs: Line 5 supplies half of the oil on which Ontario and Quebec depend, and the Canadian government opposes its closure. “The Supreme Court’s review will provide necessary clarity,” an Enbridge spokesperson said.

Tuesday’s arguments are just part of a broader legal and regulatory battle over Line 5. Enbridge has filed another federal lawsuit against Michigan Gov. Whitmer, arguing the governor has no right to shut down the pipeline. In March, the Michigan State Supreme Court will consider a lawsuit filed by several tribes and environmental groups that want to overturn a state permit allowing Enbridge to build a new tunnel under the Straits of Mackinac. Federal and state agencies are currently considering additional permits for the same rerouting project.

And last week, the Bad River Band of Lake Superior Chippewa asked a Wisconsin state court to review another permit allowing Enbridge to reroute Line 5 through its watershed.

“The Band River watershed is not a pipeline corridor whose purpose is to serve Enbridge’s profits,” said Bad River Band Chairwoman Elizabeth Arbuckle. “This is our homeland. We must protect it.”

Wenona Singel of Michigan State University said that while the case before the U.S. Supreme Court won’t redefine treaty rights, it remains important for Indian Country.

“This may influence how easily powerful defendants can change courts in litigation,” she said, “and how long communities must wait for a judicial resolution.”