Enbridge Line 5 Clarity – as delivered by Marc Garneau

The end of 2021 revealed some clarity around one of the most contentious trade matters between Canada and the United States.

Let’s revisit the confusion that was being created prior to this clarity:

  • Line 5 is an international oil pipeline that transports up to 540 000 barrels a day of oil and natural gas liquids from Wisconsin to Sarnia, Ontario. It is owned and managed by Calgary-based Enbridge.
  • After much back and forth, in November 2020, Michigan Governor Gretchen Whitmer ordered Enbridge to cease operations of Line 5 by May 2021, and requested the Order be upheld in State Court. Enbridge contested the state’s authority to close an international pipeline, as it is regulated in the U.S. by the Pipeline and Hazardous Materials Safety Administration, which is governed by the U.S. Federal Government and the pipeline has always complied with federal regulations.
  • In May, mediation was attempted and briefs on the matter were filed by each side – including by a limited number of intervenors. Canada’s brief arrived on the very last day allowed for submissions.
Line 5 is an international pipeline, governed by the Transit Pipeline Treaty that was agreed to between our two countries in 1977 – for the explicit reason that the flow of energy between Canada and the U.S. could not be arbitrarily disrupted.  The supremacy of this international treaty for a Court is clear.
  • In May, we, as the Official Opposition, began to call on the Government of Canada to invoke the terms of the Transit Pipeline Treaty, to bring clarity to this situation.
  • In July, U.S. Secretary of State Blinken noted in a public release that there was no formal bilateral process between the federal governments of the United States and Canada concerning Line 5.

This might seem innocuous – but it was a clear signal to the Courts that the U.S. Federal Government is not engaging on this matter – and that the Transit Pipeline Treaty was not being invoked, or potentially, even being considered in any Judgement about this matter in a State Court or Federal Court.

The law can be clear – but only when parties (in this case, the federal governments of Canada and the U.S.) want that law (in this case, the Transit Pipeline Treaty) to be clear.

By indicating that the U.S. and Canadian federal governments were on the sidelines and the Transit Pipeline Treaty was not being discussed, the door is left open for a Judge to determine that the weight of the decision should rest on other concerns.  If any Judgement arose that did not consider the supremacy of the treaty, the resultant undoing of a legal misstep would take years of appeals, and the construction of several false narratives.

For any non-government entity (Enbridge, in this case), the costs can be overwhelming.  This is the objective of these attempts by the Governor of Michigan at ‘lawfare’:  to make the process of doing business so onerous that the increased cost of capital caused by the legal and regulatory uncertainty makes proponents reconsider their actions.

For this, Canada gets caught in the crossfire and we all suffer.

We cannot allow these Courts – or any access to outcomes that benefit society – to be captured by groups that put self-interest ahead of society’s interests, and those of a well-governed democracy that separates the Legislature from the Judiciary.  It will be the downfall of the values by which we govern ourselves.

  • On October 4 – Hon. Marc Garneau exercised his authority as Canada’s Foreign Affairs Minister, and invoked the terms of the Transit Pipeline Treaty on Line 5. The clarity we had called for since May was finally delivered.
  • On October 26, Marc Garneau – one of the Liberal Government’s top Ministers – was shuffled out of Cabinet.

Without rationale, this is a coincidence. However, it follows this Government’s approach to demoting Ministers who stray from the practice of continuous obfuscation on key files.  The definition of a ‘post-nation state’, as practiced by this Prime Minister and his acolytes, does not include the rule of law.  Nor does it include clarity.

Without the basis and clarity of an understood ‘rule of law’, Canada will become an ungovernable and unstable country, inhospitable to investment.

  • On November 16, a U.S. Judge ruled that the action between the Governor of Michigan and Enbridge be heard in U.S. Federal Court.
  • As a result, on November 30, Governor Whitmer dropped the lawsuit against Enbridge and reverted the state’s approach to a previous legal action commenced in 2019 by Michigan’s Attorney General.

It’s odd how clear the interpretation of the law can be – along with the actions of special interest groups and political actors – when clarity is put on the table. I am grateful now that we have this clarity but frustrated that the process took so long and brought so much confusion.

Perhaps, it’s a coincidence – but I am going to say ‘thank you’ to Honourable Marc Garneau.  He has always served his country better than his party leadership has. If that has cost him an exit from Cabinet, it is a shame.  But it is consistent with this government’s methods.

Greg McLean is the Conservative Member of Parliament for Calgary Centre. He is the Vice Chair of the House of Commons Standing Committee on Finance and was previously the Shadow Minister for Natural Resources.

Link to EnergyNow article