This week, EarthRights International submitted an amicus brief on behalf of professors of foreign relations law before the U.S. Court of Appeals for the Sixth Circuit in support of the State of Michigan’s authority to protect the Great Lakes from the Line 5 oil pipeline.
The case, Enbridge v. Whitmer, stems from Michigan’s decision in November 2020 to terminate an easement that had previously allowed Canadian energy giant Enbridge to operate Line 5 beneath the Straits of Mackinac, a narrow passage joining Lake Michigan to Lake Huron. This stretch of Line 5 presents a particularly high risk of spill because heavy shipping in the Straits exposes the pipeline to damage from anchors and other objects. Such a spill could result in an environmental catastrophe, with grave repercussions for the Great Lakes and the Michigan communities, industries, and species that rely on them. Michigan revoked the easement to prevent precisely such a spill.
In November 2020, Enbridge sued Michigan, challenging the revocation of the easement. One of Enbridge’s arguments is that under the “foreign affairs preemption doctrine,” Michigan was prohibited (or “preempted”) from protecting its lands and waters by an overriding federal interest in keeping the pipeline flowing to preserve foreign relations with Canada. The district court agreed, and Michigan appealed that decision to the Sixth Circuit.
The law professors’ amicus brief shows that the district court erred in finding that the foreign affairs preemption doctrine prevents Michigan’s revocation of the easement. The foreign affairs preemption doctrine allows state law to be preempted only if the challenged state action either (a) exceeds traditional state authority by treading upon the federal government’s constitutionally-delegated foreign affairs powers and creating the state’s own foreign policy, or (b) clearly conflicts with U.S. foreign policy embodied in binding federal law. Recognizing the serious federalism concerns and threats to states’ rights from such preemption, the Supreme Court has placed careful limits on this doctrine – including that mere effects on foreign relations do not warrant displacement of state laws, regardless of how serious of a federal interest is implicated.
There is no evidence that Michigan sought to create its own foreign policy by requiring Enbridge to operate on a valid easement, or that it treated this stretch of Line 5 any differently because it is part of an international pipeline. Rather, Michigan officials acted within traditional state authority to protect its own lands, resources, and people.
Nor is there any federal foreign relations act with the force of law that conflicts with Michigan’s actions. The only federal act with the force of law under consideration is the1977 Transit Pipeline Treaty between the United States and Canada, but the treaty text expressly allows the type of non-discriminatory action that Michigan took, so there is no conflict warranting preemption.
We have previously addressed foreign affairs preemption at the Colorado Supreme Court and in other amicus briefs. This is also the second time we have submitted an amicus brief in litigation related to Line 5. The first was in the Bad River Band’s trespass suit against Enbridge for illegally operating a stretch of Line 5 on the Bad River Reservation, which we submitted in October 2023 alongside human rights and environmental organizations. These briefs complement our longstanding work with the Bay Mills Indian Community using international human rights mechanisms to address violations of and threats to the rights of Indigenous Peoples from Line 5’s continued operations.
