On Wednesday, the U.S. District Court for the Western District of Michigan granted Michigan Attorney General Dana Nessel’s request to certify its August 2022 ruling for interlocutory appeal to the United States Court of Appeals for the Sixth Circuit. This is a necessary step in appealing any non-final order of a federal judge to the federal court of appeals. The request was granted shortly after the attorney general filed a petition for a writ of mandamus in the Sixth Circuit arguing that the case belongs in state court.
This case was originally filed in the Michigan Circuit Court for the County of Ingham in 2019. After Enbridge successfully moved a related 2020 lawsuit filed by Governor Gretchen Whitmer to federal court from state court, Enbridge then removed Nessel’s case as well. The deadline to file such a request had expired nearly two years before Enbridge removed this case.
The attorney general filed a motion to remand her lawsuit back to state court, arguing that the removal was untimely, and the federal court lacked jurisdiction. In August 2022, the district court denied that motion to remand, and in response the attorney general filed a motion with the district court asking the court to certify the decision for interlocutory appeal. The matter was pending for 5 months.
On February 17, 2023, the attorney general filed a petition for a writ of mandamus in the Sixth Circuit Court of Appeals, arguing that the district court made clear legal errors and abused its discretion. She asked the court of appeals to send the case back to state court.
The federal trial court granted the attorney general’s motion to certify the denial, which opens the door to the attorney general appealing this matter to the federal court of appeals. The attorney general believes that the federal trial court clearly erred when it refused to send the case back to state court. The order allows her to ask the federal court of appeals to step in and right this wrong.
“This pipeline poses a grave threat to Michigan and to our Great Lakes,” said Nessel. “Enbridge initially agreed that this case belonged in state court and waited two years to move it to federal court. I am grateful that the district court has now recognized that an appeal is appropriate, and I look forward to raising these important issues in the Sixth Circuit.”
Previously, twenty-eight entities – including 16 states, the District of Columbia, four Native American tribes, six environmental organizations, and the Great Lakes Business Network – submitted friend of the court briefs in support of Nessel’s motion to remand in State of Michigan, et al v Enbridge Energy, et al. The briefs support the state’s right to enforce its own laws in its own courts.
As a result of the court’s decision, the attorney general will file an application for leave to immediately appeal the August 2022 decision denying remand.
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