GRAND RAPIDS, MI — The U.S. and Canadian governments are meeting biweekly to discuss how the state-ordered closure of the Enbridge Line 5 pipeline under the Straits of Mackinac comports with a 1977 treaty, according to a letter filed with a federal judge in Grand Rapids this week.
Attorneys for Canada disclosed regular high-level talks between U.S. Cabinet officials and their Canadian counterparts, in a Monday, June 21 letter to U.S. District Court Judge Janet Neff, who is presiding over litigation between Enbridge and the state of Michigan.
The filing comes after state attorneys questioned whether formal treaty negotiations were occurring and a U.S. State Department spokesperson denied formal talks were happening.
According to Canadian attorneys, “official discussions” have resulted in the “establishment of a bi-lateral process in which representatives of the two countries are meeting bi-weekly to address the potential shutdown, including in the context of the 1977 Treaty.”
Canada has not formally invoked dispute provisions in the treaty, but the possibility remains, wrote Gordon Giffin, attorney for the Canadian government.
“Canada continues to believe that it would be contrary to the interest of both Canada and the United States, and contrary to the intent of the Treaty, for court proceedings relating to the shutdown to proceed while this diplomatic process is ongoing,” Giffin wrote.
In a May amicus brief, the Canadians asked Neff to stall the state-ordered closure of Line 5 under the straits, which Michigan Gov. Gretchen Whitmer announced in November.
They are also fighting efforts by Michigan Attorney General Dana Nessel to move a lawsuit against Enbridge back to state court in Ingham County where it was originally filed.
In a June 2 filing, Nessel questioned whether treaty talks were actually occurring, writing that, “while there have apparently been communications between officials of each government, there is no evidence that negotiations under the Treaty itself are in progress.”
According to Giffin’s letter, discussions have taken place between Prime Minister Justin Trudeau and U.S. President Joe Biden, as well as between Canadian foreign minister Marc Garneau and U.S. Secretary of State Anthony Blinken; Canadian justice minister David Lametti and U.S. Attorney General Merrick Garland; Canadian transport minister Omar Alghabra and U.S. Secretary of Transportation Pete Buttigieg; and Canadian natural resources minister Seamus O’Regan and U.S. Secretary of Energy Jennifer Granholm, a former Michigan governor.
“While the possibility remains of formally invoking the dispute resolution mechanism of the 1977 Treaty, initiating such proceedings is not necessary to conduct official and meaningful consultations between the Parties regarding the Treaty,” Giffin wrote.
It’s unclear to what extent treaty discussions have involved state of Michigan officials, if at all. A message sent to Nessel’s office on Tuesday was not returned.
The controversial pipeline segment is presently operating illegally in the state’s eyes after Enbridge disregarded a May 12 deadline to close the dual oil lines.
Whitmer, a Democrat and close ally of President Biden, threatened to seize Enbridge’s profits from operating the pipeline in court if the company disregarded her closure order.
Enbridge and its allies claim the aging pipeline is operating safely and the state lacks the authority to shut it down by revoking the 1953 easement signed with the Michigan Department of Natural Resources that allows the pipeline to cross state-owned lakebed.
Pipeline supporters, including many in organized labor, argue Line 5 is an important energy conduit and its closure would have negative economic effects in the U.S. and Canada.
Whitmer and pipeline opponents say the 68-year-old line poses an oil spill threat to the Great Lakes and point to a poor history of company compliance with easement terms and a track record that includes the massive 2010 Kalamazoo River oil spill.
The state and Enbridge have been in mediation since April.
Enbridge is also seeking state and federal permits to build a large utility tunnel under the straits to house a rebuilt section of Line 5. Michigan tribes and environmental groups are opposing the tunnel project, arguing it would disrupt potentially significant underwater archeological sites and that such fossil fuel infrastructure would contribute to global climate change.
Read More: U.S., Canada in ‘biweekly’ meetings over Enbridge Line 5 dispute