Story updated on Oct. 23 at 11:30 a.m. ET to include comments from Brandon Township.
A federal judge in Michigan has postponed a hearing to decide whether a Canadian company should be blocked from further work on a project to replace an aging oil pipeline until the company complies with state and local regulations.
The continuance came yesterday after a brief hearing before U.S. District Judge Robert Cleland in which the judge asked for clarification about whether the group seeking the injunction against Enbridge Inc. could legally ask for an order to halt to the billion-dollar project.
The nonprofit organization—Protect Our Land And Rights (POLAR)—sought the order when it determined that Enbridge had failed to obtain permits from the Michigan Department of Environmental Quality and from three counties where Enbridge has begun work on its new line 6B.
Now Cleland wants to hear arguments raised by Enbridge over whether POLAR can legally ask for the work stoppage because the organization is not one of government agencies affected. That hearing has been scheduled for Nov.7.
Click here to view full map of the Line 6B replacement project.
"We think we have some valid arguments on the compliance issues," said Jeff Axt, POLAR's founder. "What we have to figure out now is how to get those heard by the judge."
Enbridge did not respond to calls for comment.
Axt said it is too early to comment on the strategy his group might use to persuade Cleland to hear the case, although he said a number of tactics will be considered. They could include arguing that individual POLAR members are entitled to raise the issues or trying to persuade one of the affected townships to join the case.
Brandon Township, a rural community of 15,000 at the headwaters of the Flint River, passed a resolution in August demanding that Enbridge comply with its local ordinances. But the resolution was largely symbolic, because township trustees concluded it would be fruitless to fight Enbridge in court if the company failed to comply.
Township Supervisor Kathy Thurman said the board of trustees will now reconsider its position not to fight in court and seek an opinion on whether the township should join the POLAR lawsuit.
If Brandon Township or any of the other affected townships were to join the lawsuit, it almost certainly would provide the necessary legal standing to raise the issues outlined in the lawsuit.
"I don't know what the answer will be, but we will be talking to our legal counsel," Thurman said.
Charles Ten Brink, a law professor at Michigan State University who specializes in zoning and planning issues, said a resolution in favor of either POLAR or Enbridge would give that side a powerful edge as the replacement project proceeds.
If Enbridge prevails, Ten Brink said it will establish a precedent the company could use to thwart similar challenges as the project continues onto the second and longer phase.
If POLAR wins, the group will have a sturdy foundation from which to pursue the legal questions it has raised.
"While it is a tangled procedural question, it is one that is important to sort through in the interests of the parties involved," Ten Brink said.
Axt and his organization were recently joined in their fight by the Michigan Township Association, which represents more than 1,235 townships throughout the state, including several of the townships where Enbridge hasn't obtained local work permits. But it is unclear whether the association would have legal standing in the case
Axt and the township association want the judge to order Enbridge to stop work until the company complies with state and local ordinances that cover construction projects by utility companies.
POLAR and the township association say the Michigan constitution obligates Enbridge to follow local laws and ordinances. But Enbridge says it is required to follow only federal regulations governing pipelines.
The Pipeline and Hazardous Materials Safety Administration (PHMSA) is responsible for overseeing pipeline safety regulations. A PHMSA spokesman recently told InsideClimate News that the federal agency leaves siting and permitting review to state and local authorities.
While the legal maneuvering continues, Enbridge is moving ahead with work along the first 50-mile segment of pipeline slated for replacement. Huge lengths of pipe are being positioned along the route, trees are being cut down over the protests of some angry landowners and trenches being dug though backyards and fields.
Enbridge has proposed replacing the entire 210 mile length Line 6B from Indiana to Ontario, Canada, at a cost of $1.3 billion. But the project has faced resistance by landowners angry with Enbridge over condemnation of their property and by environmental organizations concerned about the dangers a leak would pose to water sources.
The replacement project comes in the wake of a disastrous spill in 2010 that gushed more than 1 million gallons of dilbit—heavy tar sands oil diluted with chemicals—into the Kalamazoo River near Marshall, Mich.
The spilled resulted in a two-year long closure of a 35-mile stretch of the river, a cleanup cost to Enbridge of more than $809 million and a record $3.7 million fine against the company for breaking as many as two dozen rules governing pipeline safety.
The U.S. Environmental Protection Agency notified Enbridge this month that the company needs to do additional cleanup in three areas where the heavy oil is still pooling on the river bottom. The extra work could mean dredging 100 acres of the river, an undertaking that could take as long as a year and add millions more to the cleanup cost.
Although local officials interviewed by InsideClimate News believe Enbridge is required to follow their municipal ordinances, they have been reluctant to confront the company for fear of becoming involved in costly litigation.
"These townships are gun shy," said Jeff Insko, a university literature professor who created the Line 6B Citizens' Blog to chronicle events surrounding the pipeline construction. "They are afraid to stand up to Enbridge."
Insko worries that Enbridge might win the federal court case on a technical point.
"The real tragedy here is that the substantive issues could be buried without Enbridge ever having to face them," he said. "And that would be bad for the citizens of the state of Michigan, it seems to me."