“We will not stop operating the pipeline unless we are ordered by a court or our regulator to do so, which we view as highly unlikely,” Kenyon said.
Enbridge is currently in mediation with Michigan over the issue, but lawyers in the U.S. do not expect a negotiated solution to the problem.
“That judge orders mediation in every case — always,” said Margrethe Kearney, Grand Rapids, Michigan-based senior attorney at the Environmental Law and Policy Centre, adding that the likelihood of an agreement is lower than if Enbridge and Michigan had embarked on mediation on their own initiative.
Kearney’s group is opposed to Line 5 and the replacement project and she argues that there are exceptions in the 1977 treaty that would allow Michigan to demand the pipeline cease operations.
Article 4 of the treaty also notes that the transit pipeline will be subject to regulations by the “appropriate governmental authorities,” including on pipeline safety, technical pipeline construction and operation standards and environmental protection. Kearney said she questions whether the treaty applies to Line 5 in this situation.
In addition, she said Enbridge’s plan to continue operating the pipeline despite the state government’s order to shut the line down will hurt the company’s ability to argue that it is a responsible pipeline operator.