US President Biden could order Michigan to keep Line 5 open – Canadian law professor

TORONTO (ICIS)–US President Joe Biden could issue an executive order to prevent Michigan governor Gretchen Whitmer from shutting down Enbridge’s Line 5 oil pipeline, a Canadian law professor said on Tuesday.

Whitmer has revoked Line 5’s easement to cross the Straits of Mackinac and ordered that the pipeline be shut down by tomorrow, Wednesday, 12 May.

Enbridge has challenged the move in a federal court. Last week, the company reiterated it would defy the state’s order and shut Line 5 only if ordered to do so by a court.

“The Biden administration could, if they wanted to, issue an executive order, either telling the government of Michigan that they cannot revoke the easement, or telling the governor not to revoke the easement until it has been determined whether or not [a US-Canada pipeline transit] treaty applies” to the dispute, Kristen van de Biezenbos said.

Van de Biezenbos is associate law professor at the University of Calgary. She spoke in an interview with Canada’s BNN business television.

However, she also said regardless of legal issues, politically Biden and Whitmer were close allies, and in her 2018 campaign, Whitmer had committed to shutting down Line 5, citing the fear of oil spills.

As such, Biden may be unwilling to prevent Whitmer from fulfilling this campaign promise.

Regarding the 1977 transit treaty, van de Biezenbos said that the treaty has never been invoked, and that it was unclear whether it could actually be invoked in the Line 5 situation.

Also, it would be “tricky” for Canada’s to invoke the treaty against its largest trading partner, she said.

“It is not a small thing to accuse [the US of violating the treaty], especially a partner as close as the US,” she said.

While observers and industry executives have said that a Wednesday shutdown of Line 5 was unlikely, the continued uncertainty right up to the 12 May deadline has prompted much nervousness in recent days in Canada.

The 540,000 bbl/day pipeline provides key feedstocks for the refining and petrochemical industries in Ontario and Quebec, as well as Michigan, Ohio and other states.

In the chemical industry, trade group the Chemistry Industry Association of Canada (CIAC) has repeatedly noted the importance of Line 5 for producers in Ontario and the Montreal petrochemicals cluster.

LINE 5 BACKGROUND
Enbridge’s Line 5 dual pipeline is part of a system shipping oil from Canada’s Alberta and Saskatchewan provinces to the Sarnia refining and petrochemicals hub in southern Ontario, and from there to Quebec via the Line 9 pipeline.

It transports up to 540,000 bbl/day of light crude oil, light synthetic crude and natural gas liquids (NGLs). It also supplies 65% of propane demand in Michigan’s Upper Peninsula, and 55% of Michigan’s state-wide propane needs.

A disruption could affect 10 regional refineries in the US and eastern Canada, Enbridge has said.

Governor Whitmer, concerned about oil spills, is seeking to end a 1953 easement that allows Line 5 to cross the Straits of Mackinac into Michigan on its way to Sarnia.

Whitmer has said that the existing pipeline poses an unacceptable risk of a catastrophic oil spill in the Great Lakes region, and last week, state officials reiterated that it would be illegal for Enbridge to keep operating Line 5 after 12 May.

Meanwhile, Enbridge keeps working on a $500m tunnel project to relocate the affected portion of Line 5. This, however, does not resolve Michigan’s bid to shut down Line 5’s current operations.

Thumbnail photo: Michigan governor Gretchen Whitmer