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Judge grants motion by state of Michigan to appeal key decision in Line 5 dispute

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5 minute read

By James McCarten in Washington

The U.S. judge presiding over Michigan’s bid to shut down the Line 5 pipeline has given her blessing to the state to appeal one of her key findings, breathing new life into a strategy that hinges on getting the dispute heard by a lower court.

Back in August, District Court Judge Janet Neff rejected a motion from Michigan Attorney General Dana Nessel to send the case back to state court, where Nessel has acknowledged they have a better chance of winning.

But earlier this week, Neff granted Nessel’s request to certify that August decision, clearing the way for what’s known as an interlocutory appeal — formally asking an appeals court to reverse a judge’s order before a final decision in the case has been made.

Such certifications, rare in U.S. law, must meet certain conditions, Neff wrote in a decision Tuesday: that they involve a “controlling question of law” that’s likely to generate a difference of opinion, and that an appeal could expedite a resolution.

“Having reviewed the record, the court concludes that this dispute is one of the exceptional situations that compels certification,” the order reads.

“Each of the three issues identified by (the) plaintiff involve a controlling question of law, there is substantial ground for difference of opinion, and an immediate appeal will materially advance the ultimate termination of the litigation.”

Neff has also ordered that the current case — just one of several open files involving Enbridge Inc., Line 5 and the state of Michigan — remain stayed and administratively closed until the appeal is resolved.

Michigan has been in court for years with Calgary-based Enbridge in an effort to shut down Line 5, fearing a disaster in the Straits of Mackinac, the ecologically sensitive region where the pipeline crosses the Great Lakes.

Enbridge and its allies, which include the federal Liberal government in Ottawa, insist the pipeline is safe, that planned upgrades will make it even safer, and that a shutdown would impart too great a cost for the North American economy to bear.

The legal saga, however, has been dominated almost from the start by arcane procedural questions about jurisdiction and precedent, with Tuesday’s decision likely to deepen that morass even more.

Nessel has made three central arguments: that Enbridge flouted a 30-day window to move the case to district court; that Neff relied too heavily on her own earlier decision to reject Nessel’s motion in a separate but nearly identical Line 5 case; and that the question of jurisdiction has not been properly settled.

“The attorney general believes that the federal trial court clearly erred when it refused to send the case back to state court,” Nessel’s office said in a statement. “The order allows (Nessel) to ask the federal court of appeals to step in and right this wrong.”

Environmental groups in Michigan that back the state’s efforts against Line 5 also cheered the decision.

“This ruling is good news for the Great Lakes. Enbridge’s use of the federal courts to delay the state’s ability to protect the Great Lakes is unconscionable,” National Wildlife Federation counsel Andy Buchsbaum said in a statement.

“We hope that this will get the case back on track quickly so the Great Lakes doesn’t suffer from a massive oil spill.”

Enbridge, for its part, sees things differently.

A statement from the company cited Neff’s own words from the August 2022 decision in which she accused Nessel of seeking “a race to judgment and a collision course between the state and federal forum.”

“The attorney general seeks to undermine these considerations and promote gamesmanship and forum shopping,” Enbridge said, “while ignoring the substantial federal issues that are properly decided in federal court and not state court.”

This report by The Canadian Press was first published Feb. 23, 2023.

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Energy

U.S. EPA Unveils Carbon Dioxide Regulations That Could End Coal and Natural Gas Power Generation

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From Heartland Daily News

By Tim Benson Tim Benson

The U.S. Environmental Protection Agency (EPA) announced new regulations on April 25 that would force coal-fired power plants to reduce or capture 90 percent of their carbon dioxide emissions by 2039, one year earlier than in the rule originally proposed in May 2023.

Other newly announced coal regulations include a final rule “strengthening and updating the Mercury and Air Toxics Standards (MATS) for coal-fired power plants, tightening the emissions standard for toxic metals by 67 percent, finalizing a 70 percent reduction in the emissions standard for mercury from existing lignite-fired sources,” and another rule to “reduce pollutants discharged through wastewater from coal-fired power plants by more than 660 million pounds per year.” The EPA also issued an additional rule to require the safe management of coal ash in locations not previously covered by federal regulations.

“Today, EPA is proud to make good on the Biden-Harris administration’s vision to tackle climate change and to protect all communities from pollution in our air, water, and in our neighborhoods,” said EPA Administrator Michael S. Regan. “By developing these standards in a clear, transparent, inclusive manner, EPA is cutting pollution while ensuring that power companies can make smart investments and continue to deliver reliable electricity for all Americans.”

EPA estimates its new regulations will reduce carbon dioxide emissions by 1.38 billion metric tons by 2047 and create $370 billion in “climate and public health net benefits” over the next twenty years.

Coal in a Regulatory Decline

Partially due to increasingly stringent regulations, electricity generation from coal has fallen from 52 percent of the nation’s total output in the 1990s to just 16.2 percent in 2023. Critics of the new regulations, including Jason Isaac, CEO of the American Energy Institute, argue that EPA’s new rules would make it impossible to open new coal plants and will effectively force those already online to shut down operations.

“These rules are a direct attack on an important and necessary source of American energy—one of our most affordable, reliable resources, and one that is essential here and growing in use around the world,” said Isaac. “The ignorance of this administration is negligent at best, criminal at worst, relegating the least among us to more expensive energy, or even none at all, as millions of Americans are finding out by having their electricity disconnected.

“On one hand they push to electrify everything and then with the other leave us with unreliable electricity,” Isaac said. “The Biden administration is hell bent on destroying coal and reaching new levels of recklessness.”

‘De Facto Ban’ on Coal

The new regulations almost assuredly will face legal challenges from the coal industry and others, says Steve Milloy, founder of JunkScience.com.

“Another unconstitutional EPA rule from the Biden regime that will be DOA at [the Supreme Court] but not until much harm has been caused,” said Milloy. “Congress has not authorized EPA to issue regulations that operate as a de facto ban on coal plants, yet that’s what this regulation amounts to because it mandates emissions control technology (i.e., carbon capture and sequestration) which does not, and will never, exist for coal plants.”

EPA, by contrast, says carbon capture and sequestration (CCS) is the “best system of emission reduction for the longest-running existing coal units” and a “cost-reasonable emission control technology that can be applied directly to power plants and can reduce 90 percent of carbon dioxide emissions from the plants.”

“The requirement for imaginary technology violates Clean Air Act notions of only requiring the best available and adequately tested technology,” Milloy said. “The de facto ban violates the 2022 [Supreme Court] decision in West Virginia v. EPA, which established the major questions doctrine, under which agencies cannot undertake significant new actions, like banning coal plants, without authorization from Congress.”

Natural Gas Targeted, Too

Coal plants were not the only target of new EPA regulations, as natural gas power plants are also now required to eliminate or capture 90 percent of their carbon dioxide emissions by 2032, three years earlier than called for when the draft rule was originally proposed in 2023.

The EPA is acting as if it has absolute power unconstrained by the law and prior court rulings, Darren Bakst, director of the Competitive Enterprise Institute’s Center on Energy & Environment, says in a press release.

“The [EPA] absurdly thinks its authority to regulate means it has the authority to shut down businesses,” said Bakst. “Establishing new regulations for power plants does not mean the agency can effectively force them out of business.

“This is Clean Power Plan Part II, but like with many sequels, it is worse,” Bakst said.

Tim Benson ([email protected]) is a senior policy analyst with Heartland Impact.

For more on the Biden administrations power regulations, click here.

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Alberta

Game changer: Trans Mountain pipeline expansion complete and starting to flow Canada’s oil to the world

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Workers complete the “golden weld” of the Trans Mountain pipeline expansion on April 11, 2024 in the Fraser Valley between Hope and Chilliwack, B.C. The project saw mechanical completion on April 30, 2024. Photo courtesy Trans Mountain Corporation

From the Canadian Energy Centre

By Will Gibson

‘We’re going to be moving into a market where buyers are going to be competing to buy Canadian oil’

It is a game changer for Canada that will have ripple effects around the world.  

The Trans Mountain pipeline expansion is now complete. And for the first time, global customers can access large volumes of Canadian oil, with the benefits flowing to Canada’s economy and Indigenous communities.  

“We’re going to be moving into a market where buyers are going to be competing to buy Canadian oil,” BMO Capital Markets director Randy Ollenberger said recently, adding this is expected to result in a better price for Canadian oil relative to other global benchmarks. 

The long-awaited expansion nearly triples capacity on the Trans Mountain system from Edmonton to the West Coast to approximately 890,000 barrels per day. Customers for the first shipments include refiners in China,  California and India, according to media reports.  

Shippers include all six members of the Pathways Alliance, a group of companies representing 95 per cent of oil sands production that together plan to reduce emissions from operations by 22 megatonnes by 2030 on the way to net zero by 2050.  

The first tanker shipment from Trans Mountain’s expanded Westridge Marine Terminal is expected later in May.

Photo courtesy Trans Mountain Corporation

 The new capacity on the Trans Mountain system comes as demand for Canadian oil from markets outside the United States is on the rise.  

According to the Canada Energy Regulator, exports to destinations beyond the U.S. have averaged a record 267,000 barrels per day so far this year, up from about 130,000 barrels per day in 2020 and 33,000 barrels per day in 2017. 

“Oil demand globally continues to go up,” said Phil Skolnick, New York-based oil market analyst with Eight Capital.  

“Both India and China are looking to add millions of barrels a day of refining capacity through 2030.” 

In India, refining demand will increase mainly for so-called medium and heavy oil like what is produced in Canada, he said. 

“That’s where TMX is the opportunity for Canada, because that’s the route to get to India.”  

Led by India and China, oil demand in the Asia-Pacific region is projected to increase from 36 million barrels per day in 2022 to 52 million barrels per day in 2050, according to the U.S. Energy Information Administration. 

More oil coming from Canada will shake up markets for similar world oil streams including from Russia, Ecuador, and Iraq, according to analysts with Rystad Energy and Argus Media. 

Expanded exports are expected to improve pricing for Canadian heavy oil, which “have been depressed for many years” in part due to pipeline shortages, according to TD Economics.  

Photo courtesy Trans Mountain Corporation

 In recent years, the price for oil benchmark Western Canadian Select (WCS) has hovered between $18-$20 lower than West Texas Intermediate (WTI) “to reflect these hurdles,” analyst Marc Ercolao wrote in March 

“That spread should narrow as a result of the Trans Mountain completion,” he wrote. 

“Looking forward, WCS prices could conservatively close the spread by $3–4/barrel later this year, which will incentivize production and support industry profitability.”  

Canada’s Parliamentary Budget Office has said that an increase of US$5 per barrel for Canadian heavy oil would add $6 billion to Canada’s economy over the course of one year. 

The Trans Mountain Expansion will leave a lasting economic legacy, according to an impact assessment conducted by Ernst & Young in March 2023.  

In addition to $4.9 billion in contracts with Indigenous businesses during construction, the project leaves behind more than $650 million in benefit agreements and $1.2 billion in skills training with Indigenous communities.   

Ernst & Young found that between 2024 and 2043, the expanded Trans Mountain system will pay $3.7 billion in wages, generate $9.2 billion in GDP, and pay $2.8 billion in government taxes. 

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