By Laina G. Stebbins, Michigan Advance

On virtually all policy points, Democratic incumbents Gov. Gretchen Whitmer and Attorney General Dana Nessel couldn’t be further apart from their GOP challengers, gubernatorial nominee Tudor Dixon and Attorney General nominee Matthew DePerno.

But perhaps one of the most tangible, albeit lesser-mentioned differences between the candidates for governor and attorney general is their contrasting positions on Line 5, the long-embattled oil pipeline in the Great Lakes that has been a flashpoint of environmental and economic debate for the past decade.

Environmentalists have long expressed their concern that an oil spill in the turbulent Straits waters would cause irreparable damage to the Great Lakes region. All 12 of Michigan’s federally recognized tribes also strongly oppose Line 5 and its proposed replacement for treaty rights reasons.

Enbridge was responsible for three of the nation’s largest-ever inland oil spills, with one spilling more than 1 million gallons of heavy crude oil into a tributary of Michigan’s Kalamazoo River in 2010.

Those who support Line 5 say the pipeline is crucial for meeting the energy needs of northern Michigan and the Upper Peninsula.

There are two court battles left at play regarding Line 5:

• Nessel v Enbridge et al, filed June 27, 2019.
  • Filed in state court (Ingham County’s 30th Judicial Circuit)
  • Removed to federal court in August
  • Seeks to decommission Line 5 via public trust protections and other state laws
• Enbridge v Whitmer et al, filed Nov. 24, 2020.
  • Filed in federal court (U.S. District Court for the Western District of Michigan)
  • Seeks court ruling establishing that the Pipeline and Hazardous Materials Safety Administration (PHMSA), not the state, has sole regulatory authority over Line 5 regulation

While Whitmer and Nessel have both spoken out against Canadian owner Enbridge and filed lawsuits in attempts to shut down the nearly 70-year-old pipeline, Dixon and DePerno have slammed their actions and vowed to keep Canadian oil running through the pipeline that snakes under the Straits of Mackinac.

In terms of environmental policy, the Democratic incumbents have put forward their own efforts to fight climate change, pollution and more. While the Republican challengers have not made environmental issues a top campaign priority, they have opposed many of Democrats’ actions, making it possible that they would reverse course if voted into office.

The Advance breaks down the differences between the incumbents and nominees on climate change, Line 5 and what each possible election scenario could mean for the future of the controversial pipeline.

Climate change

A United Nations Intergovernmental Panel on Climate Change (IPCC) report last year showed the earth was warming far faster than expected, which could trigger thawing permafrost, extreme weather, such as floods, wildfires, prolonged droughts, sea level rise, melting ice sheets and loss of wildlife habitat — some of which the world and the state of Michigan has already begun to see.

Despite climate change being absent from any of the hot-button campaign talking points in Michigan, the state — via Whitmer and Nessel — has put forward plenty of actions since 2019 that are ultimately meant to lessen the effects of global warming and other types of environmental harm.

For her part, Whitmer has championed electric vehicle development and other climate change measures like requiring state-owned facilities to use 100% renewable energy by 2025. She has also worked with the GOP-led Legislature on historic investments in Michigan’s manufacturing sector, most of which is tied to electric vehicles (EVs).

Whitmer signed an executive directive adding Michigan in the U.S. Climate Alliance as one of her first acts as governor to cut greenhouse gas emissions in accordance with the Paris Agreement. At the time, Donald Trump was president and had pulled the U.S. from the agreement, but many states had joined on their own. 

Last year, Whitmer introduced the MI Healthy Climate Plan with the goal of achieving 100% economy-wide carbon neutrality by 2050.

“Michigan has been impacted by climate change, from a polar vortex and historic floods to dam breaks and week-long power outages,” Whitmer said in April. “The MI Healthy Climate Plan identifies actions we can take to address climate change head-on, lower costs for Michiganders, ensure every Michigan worker has a good-paying, sustainable job, and every family has clean air, water, and a home powered by clean, reliable energy.”

She also restructured and renamed the state’s beleaguered Michigan Department of Environmental Quality (DEQ) to the Department of Environment, Great Lakes and Energy (EGLE), while directing state departments to embrace more sustainable energy practices and strengthening the state’s PFAS Action Response Team on per- and polyfluoroalkyl substances.

The Sierra Club Michigan Chapter, Clean Water Action, Michigan League of Conservation Voters (LCV) and other top environmental groups in the state have endorsed Whitmer for governor over Dixon.

A Dixon spokesperson did not give specific answers on whether she supports the MI Healthy Climate Plan and whether she backs Michigan joining the Paris Climate Accords, but did provide a statement.

“Tudor believes that the climate is changing, but does not support kneecapping our economy for Whitmer’s radical Green New Deal. We know that heavy polluters like China and India aren’t going to change their ways, and even John Kerry admitted that the U.S. could go to net zero emissions tomorrow and it wouldn’t have any impact on worldwide conditions. Our farmers and business owners are inherently inclined to protect our environment and are innovating to find meaningful solutions,” Dixon spokesperson Sara Broadwater said.

But the Republican has spoken out against Whitmer’s pushes for renewable energy, including her support of electric vehicles.

“Gretchen Whitmer wants you to pay more for gas, to force you into EVs,” Dixon said during the WOOD-TV debate with Whitmer this month, but did not elaborate.

Dixon has been particularly vocal in opposing Whitmer and the GOP-led Legislature for striking a deal this month adding almost $1 billion for business tax breaks, which helped secure a multi-billion-dollar investment from an electric vehicle battery-making company, Gotion. Dixon has sharply criticized it for involving a company that is a subsidiary of a Chinese corporation.

If elected, Dixon could have her administration reverse course on EV investments and renewable energy efforts.

The same goes for DePerno, who has spoken up about climate change issues even less, if at all, during his campaign, besides being supportive of Line 5. DePerno did not respond to a request for comment for this story.

But Nessel has made her platform abundantly clear. Battling pollution like PFAS has been a cornerstone of Nessel’s time in office. She has signed onto numerous lawsuits aiming for better environmental protections, more accountability for polluters, a prioritization on renewable energy, expansion of clean water protections and more.

Environmental groups including Sierra Club Michigan Chapter, Clean Water Action and Michigan LCV have endorsed Nessel for attorney general, calling Nessel a “champion fighting to protect our environment and hold polluters accountable,” while DePerno was named as one of LCV’s “dirty dozen” candidates who have “consistently sided against the environment” in reference to his support for Line 5.

Governor (and lieutenant governor) candidates on Line 5

Both Dixon and her pick for lieutenant governor, former state Rep. Shane Hernandez (R-Port Huron), are diametrically opposed to Whitmer’s efforts to decommission Line 5. Lt. Gov. Garlin Gilchrist is Whitmer’s running mate.

In early days of her administration, Whitmer attempted to negotiate with Enbridge for a set date to shut down the currently existing pipeline until the company builds a new, tunnel-encased replacement pipeline under the Straits. That project has not yet passed the permitting phase and would be several years out before starting construction if approved.

But Enbridge refused, starting a contentious relationship between the Democrat and the Canadian oil company. Whitmer ordered the state to conduct a review of Enbridge’s 1953 easement with the state, during which the Department of Natural Resources (DNR) found that Enbridge had violated numerous terms of the agreement.

“So long as oil is flowing through the pipelines, there is a very real threat of a catastrophic oil spill in the Great Lakes,” Whitmer said last year.

Whitmer used that DNR review to order Enbridge to decommission Line 5 by a date in spring 2020 after having the DNR revoke the easement. She simultaneously filed Whitmer v. Enbridge to back up her order in state court. 

Enbridge then filed a countersuit, Enbridge v. Whitmer, to argue that federal authorities preempt the state of Michigan’s ability to carry out such actions. The company has refused to honor the shutdown order.

Eventually, a judge ruled to allow Enbridge to bring Whitmer’s shutdown suit into federal court. This would have greatly diminished her chances of winning, so Whitmer decided to drop Whitmer v. Enbridgeand hedge her bets instead on Nessel’s 2019 lawsuit that seeks the same outcome on Line 5.

Whitmer has steadfastly maintained that Line 5 poses a threat to the environmentally sensitive Straits of Mackinac and should be shuttered until a replacement is built.

Dixon, on the other hand, has used Whitmer’s opposition to the pipeline against her in foundational campaign arguments claiming that a Line 5 shutdown would raise gas prices. The argument is a common line from Republicans and oil industry allies, although not all evidence supports the claim.

When faced with Line 5 questions from an audience event in Rochester Hills, Dixon said we shouldn’t be “afraid” of “Big Oil” because it contributes to so much of daily life.

“Oil is not our enemy. We have to make sure that we protect it,” Dixon said, before delving more into what she characterized as the “danger” of shutting down Line 5 and blasting Whitmer for attempting to.

Dixon has also claimed that Line 5 would help abate inflation and has used Line 5 to stress issues of energy security and propane availability in the Upper Peninsula.

Shutting down Line 5 “would raise the cost to heat your home, it would raise the price to fly out at the airport in a time we need economic development and it would raise the cost of gas for your car,” Dixon claimed during her first debate with Whitmer on Thursday. “But she doesn’t care about money in your pocket. She likes the political benefit.”

Dixon told right-wing outlet Brietbart earlier this month that Whitmer’s “environmental religion” is hurting Michigan.

“Imagine being in the Upper Peninsula of Michigan and having the governor threaten your ability to heat your homes — really, literally, put your life in danger because of her environmental religion, because she’s beholden to this Green New Deal,” Dixon said.

The Green New Deal has not passed Congress.

While in office, Hernandez also opposed Whitmer’s efforts to shut down Line 5 and argued the pipeline’s decommissioning would raise gas prices.

In the 2018 Lame Duck session of GOP former Gov. Rick Snyder’s final term, Hernandez voted yes on Public Act 359 which Snyder signed to usher through the state’s deal with Enbridge to build a tunnel-encased replacement pipeline.

Attorney general candidates on Line 5

Nessel has been a dogged opponent of pipeline company Enbridge. Like Whitmer, she vowed to shut down Line 5 during her 2018 campaign. In a May 2019 interview with the Advance, she recounted meeting with anti-Line 5 activists in 2017 in what would become a pivotal moment leading to her decision to run for attorney general.

“I honestly ran for this very issue. This was the most impactful issue for me,” she said. “I remember walking out of that meeting absolutely horrified and returning to my wife and saying, ‘I think I’m going to run for attorney general. Because if there’s no one out there that is willing to utilize the position of attorney general the way that I know it can be, which is to, you know, work independently, utilizing that office to decommission [Line 5], then I think I’d have to do it.’”

Nessel attempted to make good on that promise in 2019 by pursuing legal action to halt oil transportation under the Straits of Mackinac. Her primary route to achieve that goal has been Nessel v. Enbridge, a lawsuit the Democrat filed in 2019 to decommission Line 5 based on public trust arguments.

The state court case was on pause while Whitmer herself fought Enbridge in court and ultimately dismissed the case. But once Nessel’s lawsuit began to start up again in earnest, in winter of 2021 Enbridge also moved to remand that lawsuit to federal court as well.

The company was ultimately successful in getting the same federal judge to keep the case in federal court, hurting Nessel’s chances of a win on the state’s (currently) sole remaining gambit to shut down Line 5. She is in the process of appealing that jurisdictional ruling.

Though confident that she will ultimately prevail, Nessel has previously told the Advance that if she is not reelected in November or Enbridge “runs out the clock” to go past her second term, she believes that a Republican successor will throw out the case entirely.

Indeed, DePerno has since promised to do just that.

“Probably within the first day or two after I’m sworn in, we’ll dismiss Michigan’s involvement in that litigation,” DePerno told the Advance at a GOP gubernatorial debate in July.

DePerno, a Kalamazoo lawyer, shares Dixon’s view that a Line 5 shutdown is not worth potentially raising energy costs. His campaign website lists dismissing Nessel’s case as a top priority.

His pledge to dismiss Nessel’s lawsuit, which would become his own lawsuit, has angered environmentalists who have accused DePerno of being beholden to “dirty fossil fuels money.”

So what happens with Line 5 after the election?

If Whitmer and Nessel are reelected, Michiganders can expect them to continue to fight the Enbridge over Line 5’s operation. Likewise, if Dixon and DePerno win on Nov. 8, voters can expect them to ally with the Canadian company on Line 5 efforts.

But what happens if there’s a split decision?

The Advance also talked to environmental legal experts about scenarios that could occur regarding Line 5 should one GOP challenger win, but the other loses. Both divided government situations would present unique scenarios that could affect the fate of Line 5.

Dixon and Nessel

In the instance that Dixon beats Whitmer but Nessel is reelected as AG, the state’s shot at fighting back against Enbridge in court remains relatively the same, experts said. Nessel v. Enbridge would continue to play out and remain unaffected, as the lawsuit does not name the governor as a party in the case.

Enbridge v. Whitmer could present a few scenarios. Since the governor in her official capacity is named as defendant, the case would essentially become Enbridge v. Dixon if Dixon defeats the Democrat. Dixon’s primary option to throw a wrench into the case would be to essentially stop defending it on behalf of the state.

As governor, Dixon would have the power to direct the attorney general’s team of lawyers to do what she wants them to do; they are obligated to follow those orders. Nessel would then have recourse to potentially file separate filings to defend the lawsuit independently, but whether the federal judge would allow it is unknown.

Importantly, the outcome of Enbridge’s preemption case against the governor and state of Michigan would have profound if not crippling impacts on Nessel’s own case. Enbridge v. Whitmer seeks a court ruling establishing that the Pipeline and Hazardous Materials Safety Administration (PHMSA), not the state, has sole regulatory authority over Line 5 regulation. An Enbridge win would incapacitate the state’s ability to shut down the pipeline overall.

Dixon could also potentially order the reinstatement of Enbridge’s 1953 easement of the state, which Whitmer ordered the DNR to revoke in November 2020. It is unclear what effect, if any, that would have on the legal fights as Enbridge has already been refusing to honor the revocation.

Whitmer and DePerno

In the case that Whitmer wins reelection on Nov. 8 but DePerno ousts Nessel as AG, Enbridge v. Whitmerwould go on, but DePerno could — as he has promised to do — immediately dismiss Nessel’s 2019 lawsuit against Enbridge. Whitmer would not have recourse against that action. Nessel’s efforts to appeal the federal judge’s jurisdictional question in the case would also be moot.

Whitmer could, however, file a new lawsuit against Enbridge. Since she dismissed her 2020 suit against Enbridge voluntarily after it was remanded to federal court, she still has the power to essentially pick it back up and try again.

That would not prevent the same scenario from happening again, as Enbridge would likely attempt to remand any new state court action to federal court to see their success repeated. A jurisdiction ruling that a Line 5 case belongs in state court bodes well for the state, while a Line 5 case in federal court bodes well for Enbridge.