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Judge says panel had authority to complete oil pipeline deal

By DAVID EGGERT/Associated Press • Mar 12, 2019 at 7:00 AM

LANSING — A Michigan panel's approval of an oil pipeline tunnel beneath the Great Lakes will remain intact even though a state law set unconstitutionally long terms for authority members, a judge ruled.

The Mackinac Straits Corridor Authority was created by lawmakers and then-Republican Gov. Rick Snyder in December 2018 to quickly complete a deal between the state and Canadian pipeline company Enbridge to drill a tunnel below the channel that links lakes Huron and Michigan. It will encase a new segment of Line 5, replacing twin pipes that have lain along the lake bed since 1953.

Court of Claims Judge Stephen Borrello issued a decision Friday in a lawsuit filed by Robert Davis, who regularly sues state and Detroit-area officials.

He ruled that the Legislature violated the state Constitution by specifying that the authority's three members should serve six years. The Constitution has a four-year limit for people who serve on state boards and commissions.

However, Borrello denied Davis' contention that the unconstitutionally lengthy terms of office rendered the authority and its board unable to approve the pipeline agreement. The members' authority to act in year one of their otherwise valid appointments was not affected, he said, calling the argument "devoid of legal merit."

The ruling from Borrello — an appointee of former Democratic Gov. Jennifer Granholm — comes as Democratic state Attorney General Dana Nessel reviews the legality of the contentious deal at the request of Democratic Gov. Gretchen Whitmer.

One of the issues Whitmer asked Nessel to look at is whether the requirement that authority members serve six years or more violates a constitutional four-year limit for newly created commissions. She also wants to know, among other things, whether the new law improperly made changes to a 1952 law.

Attorney general opinions are considered to bind state agencies unless reversed by a court.

Enbridge's Line 5 carries crude oil and natural gas liquids used in propane from Superior, Wisconsin, through northern Michigan to refineries in Sarnia, Ontario.

It has drawn criticism in recent years from environmental groups, native tribes and tourism-related businesses fearful of a rupture that, according to worst-case scenarios outlined by university researchers, could pollute hundreds of miles of Great Lakes shoreline. Enbridge has steadfastly defended the pipelines, contending they are in sound condition and could last indefinitely. But with public pressure mounting, the company embraced the tunnel option.

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