By: Lauren E. Smith

The Supreme Court is scheduled to hear oral arguments for Enbridge v. Nessel[1] this upcoming February.[2] The question presented in this case is a procedural one regarding whether or not district courts have the authority to excuse the thirty-day time limit for removal from state court to federal court in exigent circumstances under 28 U.S.C. 1446.[3] This question, however, arises from a lawsuit challenging Michigan’s authority to regulate interstate pipelines.[4]

In 2020, state officials in Michigan initiated efforts to permanently shut down Enbridge’s Line 5, a 645-mile-long international pipeline that supplies propane to millions of homes and businesses in the state.[5] In November of that year, Governor Whitmer revoked Enbridge’s 1953 easement to the land, claiming breach of the “public trust” doctrine, and ordered Enbridge to cease operations within 180 days.[6] In October 2021, Canada claimed Michigan violated the 1977 Transit Treaty, which requires the unrestricted flow of energy between the United States and Canada.[7] Enbridge sued Governor Whitmer, claiming that the Pipeline Safety Act preempts state law under the Supremacy Clause of the United States Constitution.[8] The District Court for the Western District of Michigan decided in Enbridge’s favor, holding, “the national government has unequivocally decided to displace state power in this area and assume exclusive responsibility for interstate pipeline safety. It is not this Court’s job ‘to judge the wisdom of the National Government’s policy.’”[9] A spokesperson for the Michigan Attorney General gave a statement on this holding, believing the case to be “wrongly decided on the law and an affront to Michigan’s sovereign interests.”[10] Governor Whitmer filed a notice of appeal on January 5, 2026.[11]

Because Line 5 extends into Canada, the Foreign Affairs Doctrine governs its operation.[12] The U.S. Constitution exclusively vests the power to regulate foreign affairs to the national government, and national policy preempts Michigan’s claims.[13] State concerns must sometimes yield to national interests, and the United States has a legitimate interest in uniform dealings with other nations.[14] Shutting down Line 5 is in direct conflict with the stated policy preferences of both nations who contracted to ensure the “uninterrupted transmission” of oil and natural gas.[15] Therefore, preemption is appropriate.[16]

While there is always tension between state and federal power, this decision helps companies with interstate and international operations trust that states cannot promulgate conflicting regulations to the federal standards. This decision favors painless corporate compliance. Often, companies have the difficult task of tracking and adhering to new regulations across jurisdictions. With this decision, companies know exactly what the rules are and where they come from.[17] On appeal, if Michigan’s argument for sovereignty were to be accepted, this risks the emergence of an unpredictable patchwork of regulations between states that would greatly impede companies’ ability to participate in interstate and international commerce. However, Congress made it clear in passing the Pipeline Safety Act that pipeline safety regulation is exclusively within the power of the federal government and the National Pipeline and Hazardous Materials Safety Administration.[18]

This case raises important questions about who the stakeholders are. Michiganders are fairly concerned about the potential effects an oil spill could have on their land and water.[19] At the same time, Line 5 supplies approximately 65% of the propane used in Upper Peninsula, and a shutdown could close refineries and result in the loss of $5.4 billion in annual economic output to Ohio.[20] The Constitution supports the proposition that one state’s decisions should not affect the fate of others, supporting the preemption of Michigan’s revocation.[21]

 

[1] Enbridge Energy, LP v. Nessel, 145 S. Ct. 2843 (2025).

[2] Enbridge Energy, LP v. Nessel, SCOTUSblog, https://www.scotusblog.com/cases/case-files/enbridge-energy-lp-v-nessel/ [https://perma.cc/YCD2-N2KD] (last visited Feb. 4, 2026).

[3] Nessel v. Enbridge Energy, LP, 104 F.4th 958, 973 (6th Cir. 2024); 28 U.S.C. 1446(b)(1).

[4] Nessel, 104 F.4th. at 962.

[5] See Enbridge Energy, Ltd. P’ship v. Whitmer, No. 1:20-cv-1141, 2025 LX 590531, at *1, *4–8 (W.D. Mich. Dec. 17, 2025) (occurring after incidents with the pipeline increased safety concerns, specifically, after a tug boat accidently stopped an anchor and dented the pipeline); Eric Heisig, Michigan Governor Appeals Loss Over Enbridge’s Line 5 Regulation, Bloomberg L. (Jan. 6, 2026, at 17:37 ET), https://news.bloomberglaw.com/litigation/michigan-governor-appeals-loss-over-enbridges-line-5-regulation [https://perma.cc/KR53-53TE].

[6] Enbridge, 2025 U.S. Dist. LX 590531, at *8–9 (claiming the authority to do so under the original conditions of the easement, which reserves Michigan’s right to terminate).

[7] Id. at *14; see Agreement Concerning Transit Pipelines, Can.-U.S., art. IX, Jan. 28, 1977, 1086 U.N.T.S. 344.

[8] Enbridge, 2025 U.S. Dist. LX 590531, at *13; Pipeline Safety Act of 1979, H.R. 1489, 102nd Cong., 2d Sess. (1992) (ensuring states cannot interfere with national pipeline safety regulations); U.S. Const. art. VI, cl. 2 (declaring “the Laws of the United States . . . and all Treaties made . . . shall be the supreme Law of the Land.”).

[9] Enbridge, 2025 U.S. Dist. LX 590531, at *64 (quoting American Ins. Assn. v. Garamendi, 539 U.S. 396, 427 (2003)).

[10] Heisig, supra note 5.

[11] Id.

[12] See Enbridge, 2025 U.S. Dist. LEXIS 590531, at *48.

[13] See id. (citing United States v. Pink, 315 U.S. 203, 233 (1942)).

[14] Id. (citing Am. Ins. Assn. v. Garamendi, 539 U.S. 396, 413 (2003)).

[15] Agreement Concerning Transit Pipelines, Can.-U.S., Jan. 28, 1977, 1086 U.N.T.S. 344.

[16] Enbridge, 2025 LEXIS 590531, at *64.

[17] Id. at *61 (holding “federal law unambiguously applies”).

[18] Pipeline Safety Act of 1979. H.R. 1489, 102nd Cong., 2d Sess. (1992).

[19] Todd Richmond, Federal Judge Blocks Whitmer From Shutting Down Submerged Great Lakes Pipeline, AP News (Dec. 17, 2025, at 14:50 ET), https://apnews.com/article/enbridge-pipeline-tunnel-whitmer-lawsuit-trump-7b0bfc8858f4dfdefb029a201eae1b79 [https://perma.cc/QEB7-7NFL] (discussing concerns about the Great Lakes).

[20] Does Michigan Really Need Line 5?, ENBRIDGE, https://www.enbridge.com/projects-and-infrastructure/public-awareness/line-5-michigan/does-michigan-really-need-line-5 [https://perma.cc/EK5E-Q65S] (last visited Jan. 31, 2026).

[21] See U.S. Const. art. I, § 8, cl. 3 (granting Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”); see also Healy v. Beer Inst., 109 S. Ct. 2491, 2499 (1989) (holding statutes are invalid when “the practical effect of the regulation is to control conduct beyond the boundaries of the State”).