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Canada invokes pipeline treaty with U.S. in dispute over Line 5 pipeline

OTTAWA — Canada is formally invoking a 1977 pipeline treaty with the United States in a bid to prevent Michigan from turning off the taps to Enbridge's Line 5 pipeline.

OTTAWA — Canada is formally invoking a 1977 pipeline treaty with the United States in a bid to prevent Michigan from turning off the taps to Enbridge's Line 5 pipeline.

Foreign Affairs Minister Marc Garneau said in a statement Monday that the transit pipeline treaty "guarantees the uninterrupted transit of light crude oil and natural gas liquids between the two countries."

Line 5 carries 540,000 barrels of light crude and natural gas liquids between Wisconsin, and Sarnia, Ont., which the company and other proponents say are a critical energy source in the U.S. Midwest, as well as Ontario and Quebec.

But almost a year ago, Michigan Gov. Gretchen Whitmer revoked an easement granted to the pipeline in 1953 which had allowed it to run through the Straits of Mackinac, a water body connecting Lake Michigan and Lake Huron. 

Citing potential catastrophic environmental consequences if the aging pipeline ruptures, Whitmer gave Enbridge six months to shut off the flow. Enbridge challenged the order in court, and the two sides have been engaged in court-ordered mediation talks for months.

Those talks are now at a standstill, with Michigan indicating last month it had no desire to continue.

Canada had already argued in a brief submitted to the court last spring that the case should be set aside to allow Canada and the United States to negotiate a solution under the transit pipeline treaty.

With the mediation talks now not moving, Canada has formally requested the dispute process of the treaty to begin, and its lawyer asked the U.S. federal judge to halt further court proceedings pending the outcome of the treaty talks.

"In response to Michigan’s efforts to shut down Line 5, Canada has raised its significance for Canadian economic and energy security at the highest levels of the U.S. federal government," Garneau said.

"We have also stressed the importance of fully respecting and implementing the international agreements that are in place between our two countries."

The dispute mechanism first calls for negotiations between the two federal governments. If those fail, either side can request binding arbitration, a process that could take six months just to get the arbitrators in place.

Whitmer said in a statement she was "profoundly disappointed" by Canada's move, and asked Prime Minister Justin Trudeau to reverse the decision. She said she expected more from Canada, "a nation that prides itself on its commitment to environmental protection" and accused it of bowing to the bidding of the company responsible for the 2010 oil spill in the Kalamazoo River.

That rupture of Enbridge's Line 6B spilled more than 3.8 million litres of diluted bitumen into the river in one of the largest inland oil spills ever seen in the U.S.

"I remain confident that Michigan will prevail in its legal efforts with respect to Line 5, regardless of today’s action, and I will continue to fight to get the pipelines out of the water," said Whitmer.

Canadian environmental groups were on Whitmer's side.

Michelle Woodhouse, the water program manager at Environmental Defence, said the pipeline "poses an unacceptable threat to the Great Lakes," including to the way of life of Indigenous Peoples in the region. She also said Canada has not done the research to prove the true importance of the pipeline to Ontario and Quebec.

"Yet Canada seems to be accepting Enbridge’s claims about this dangerous pipeline unequivocally, while downplaying the risks posed to the Great Lakes and to climate," she said. "We know alternatives exist — an independent analysis shows the existing pipeline system has capacity to meet most of the region’s energy needs without Line 5."

Ontario Premier Doug Ford backed the Canadian move, as did Enbridge. In a statement the company said the pipeline has operated safely for 68 years and provided a "much needed source of energy."

"To have that threatened by a single governmental entity creates concerns about energy security as winter approaches and the economy as the region looks to re-emerge from the pandemic," the company said.

This report by The Canadian Press was first published Oct. 4, 2021.

Mia Rabson, The Canadian Press