Amicus Curiae Brief — Enbridge Energy, LP, et al., Petitioners v. Dana Nessel, Attorney General of Michigan, on Behalf of the People of the State of Michigan
Supreme Court briefSep 5, 2025
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No. 24-783
In the Supreme Court of the United States
ENBRIDGE ENERGY, LP, ET AL.,
Petitioners,
V.
DANA NESSEL, ATTORNEY GENERAL OF MICHIGAN,
ON BEHALF OF THE PEOPLE OF THE STATE OF MICHIGAN,
Respondent.
——————
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF OF AMICI CURIAE STATE OF
WEST VIRGINIA AND 9 OTHER STATES
IN SUPPORT OF PETITIONERS
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
mwilliams@wvago.gov
(304) 558-2021
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
Counsel for Amicus Curiae State of West Virginia
[additional counsel listed after signature page]
TABLE OF CONTENTS
Introduction and Interests of Amici Curiae .................... 1
Summary of Argument ........................................................ 2
Argument .............................................................................. 3
I.
Courts can apply equitable exceptions to the
30-day removal deadlines in Section 1446(b)(1) ....... 3
II.
Equitable considerations justify extending
Section 1446(b)(1)’s 30-day deadlines here ............. 12
A. This case involves national issues that
uniquely demand federal treatment..................... 12
B. This case involves international issues
that uniquely demand federal treatment............. 20
Conclusion ........................................................................... 26
II
TABLE OF AUTHORITIES
Page(s)
Cases
ANR Pipeline Co. v. Iowa State Com.
Comm’n,
828 F.2d 465 (8th Cir. 1987) ......................................... 15
Apache Nitrogen Prods., Inc. v. Harbor
Ins. Co.,
145 F.R.D. 674 (D. Ariz. 1993)..................................... 10
Arellano v. McDonough,
598 U.S. 1 (2023) ........................................................... 12
Ark. Elec. Co-op. Corp. v. Ark. Pub. Serv.
Comm’n,
461 U.S. 375 (1983) ....................................................... 13
Back Drs. Ltd. v. Metro. Prop. & Cas. Ins.
Co.,
637 F.3d 827 (7th Cir. 2011) ........................................... 1
Bad River Band of Lake Superior Tribe of
Chippewa Indians of Bad River Rsrv.
v. Enbridge Energy Co., Inc.,
No. 19-CV-602-WMC, 2023 WL 4043961
(W.D. Wis. June 16, 2023) ............................................ 17
Bad River Band of Lake Superior Tribe of
Chippewa Indians of Bad River Rsrv.
v. Enbridge Energy Co., Inc.,
626 F. Supp. 3d 1030 (2022) ......................................... 25
Bank of the United States v. Deveaux,
9 U.S. (5 Cranch) 61 (1809) .......................................... 11
III
Missouri ex rel. Barrett v. Kan. Nat. Gas
Co.,
265 U.S. 298 (1924) ....................................................... 14
Boechler, P.C. v. Commissioner,
596 U.S. 199 (2022) ......................................................... 4
Bowen v. City of New York,
476 U.S. 467 (1986) ......................................................... 9
Brown v. Demco, Inc.,
792 F.2d 478 (5th Cir. 1986) ................................... 12, 25
Bugliotti v. Republic of Argentina,
952 F.3d 410 (2d Cir. 2020) .......................................... 20
Burnett v. N.Y. Cent. R.R. Co.,
380 U.S. 424 (1965) ......................................................... 8
Cassirer v. Thyssen-Bornemisza
Collection Found.,
596 U.S. 107 (2022) ....................................................... 20
E. Ohio Gas Co. v. Tax Comm’n of Ohio,
283 U.S. 465 (1931) ....................................................... 14
Finley v. United States,
490 U.S. 545 (1989) ......................................................... 4
Fla. Dep’t of Revenue v. Piccadilly
Cafeterias, Inc.,
554 U.S. 33 (2008) ........................................................... 8
Galtieri v. Wainwright,
582 F.2d 348 (5th Cir. 1978) ......................................... 13
Hanson v. Depot LBX, Inc.,
756 F. Supp. 3d 56 (W.D. Va. 2024) ............................ 11
Harrow v. Dep’t of Def.,
601 U.S. 480 (2024) ......................................................... 4
IV
Hedges v. United States,
404 F.3d 744 (3d Cir. 2005) ............................................ 4
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011) ......................................................... 9
Holland v. Florida,
560 U.S. 631 (2010) ................................................... 5, 12
In re Int’l Paper Co.,
961 F.2d 558 (5th Cir. 1992) ......................................... 11
Iowa Mut. Ins. Co. v. LaPlante,
480 U.S. 9 (1987) ........................................................... 26
Irwin v. Dep’t of Veterans Affs.,
498 U.S. 89 (1990) ........................................................... 5
Kolovrat v. Oregon,
366 U.S. 187 (1961) ....................................................... 21
Kontrick v. Ryan,
540 U.S. 443 (2004) ......................................................... 4
Loftin v. Rush,
767 F.2d 800 (11th Cir. 1985) ......................................... 9
Marx v. Gen. Revenue Corp.,
568 U.S. 371 (2013) ......................................................... 7
McCulloch v. Sociedad Nacional de
Marineros de Honduras,
372 U.S. 10 (1963) ......................................................... 20
Menominee Indian Tribe of Wisc. v.
United States,
614 F.3d 519 (D.C. Cir. 2010) ........................................ 8
Murphy Bros. v. Michetti Pipe Stringing,
Inc.,
526 U.S. 344 (1999) ......................................................... 8
V
N. Ill. Gas Co. v. Airco Indus. Gases,
676 F.2d 270 (7th Cir. 1982) ......................................... 10
Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002) ....................................................... 12
Nutraceutical Corp. v. Lambert,
586 U.S. 188 (2019) ..................................................... 5, 7
PennEast Pipeline Co., LLC v. New
Jersey,
594 U.S. 482 (2021) ....................................................... 17
Powers v. Chesapeake & Ohio Railway Co.,
169 U.S. 92 (1898) ........................................................... 6
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996) ....................................................... 13
Republic of Philippines v. Marcos,
806 F.2d 344 (2d Cir. 1986) .......................................... 21
Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145 (2013) ......................................................... 4
Socha v. Boughton,
763 F.3d 674 (7th Cir. 2014) ......................................... 12
Sprint Commc’ns, Inc. v. Jacobs,
571 U.S. 69 (2013) ........................................................... 2
Steward v. Garrett,
935 F. Supp. 849 (E.D. La. 1996) ................................ 11
Syngenta Crop Protection, Inc. v. Henson,
537 U.S. 28 (2002) ........................................................... 9
Tennessee v. Davis,
100 U.S. 257 (1879) ....................................................... 10
Torres v. Southern Peru Copper Corp.,
113 F.3d 540 (5th Cir. 1997) ......................................... 21
VI
Ungar v. Palestine Liberation Org.,
599 F.3d 79 (1st Cir. 2010) ........................................... 20
United States v. Belmont,
301 U.S. 324 (1937) ....................................................... 21
United States v. Mendoza,
565 F.2d 1285 (5th Cir. 1978) ......................................... 1
United States v. Pink,
315 U.S. 203 (1942) ....................................................... 21
Universal Truck & Equip. Co. v.
Southworth-Milton, Inc.,
765 F.3d 103 (1st Cir. 2014) ........................................... 3
V.L. v. E.L.,
577 U.S. 404 (2016) ......................................................... 5
Vill. of Oakwood v. State Bank & Tr. Co.,
481 F.3d 364 (6th Cir. 2007) ......................................... 13
Walker v. Time Life Films, Inc.,
784 F.2d 44 (2d Cir. 1986) ............................................ 13
Wallace v. Kato,
549 U.S. 384 (2007) ....................................................... 12
Wecker v. Nat’l Enameling & Stamping
Co.,
204 U.S. 176 (1907) ......................................................... 9
West Virginia v. EPA,
597 U.S. 697 (2022) ....................................................... 20
Wilkins v. United States,
598 U.S. 152 (2023) ......................................................... 4
Young v. United States,
535 U.S. 43 (2002) ....................................................... 4, 7
VII
Statutes
15 U.S.C. § 717 .................................................................... 14
16 U.S.C. § 797 .................................................................... 14
28 U.S.C. § 1441 .................................................................. 11
28 U.S.C. § 1446 .......................................1, 3, 4, 5, 6, 7, 9, 12
28 U.S.C. § 1447 ................................................................ 3, 5
43 U.S.C. § 1332 .................................................................. 14
49 U.S.C. § 60101 ................................................................ 15
Energy Policy Act of 1992,
Pub. L. No. 102-486, 106 Stat. 2776 ............................ 14
Energy Policy Act of 2005,
Pub. L. No. 109-58, 119 Stat. 594 ................................ 14
Lessons from the Price-Anderson Nuclear
Industry Indemnity Act.............................................. 16
Other Authorities
Agreement Between the Government of
the United States and the Government
of Canada Concerning Transit
Pipelines, Jan. 28, 1977, 28 U.S.T. 7449,
1977 WL 181731 ............................................................ 24
Amicus Br. of Am. Petroleum Inst., et al.,
Enbridge Energy, LP v. Whitmer,
135 F.4th 467 (6th Cir. 2025)
(No. 24-1608), 2024 WL 4881965 ................................ 18
VIII
Amicus Br. of the Chambers,
Nessel ex rel. Michigan v. Enbridge
Energy, LP, 104 F.4th 958 (6th Cir.
2024) (No. 23-1671), 2023 WL 8283519 ....................... 18
Amicus Br. of the Gov. of Canada,
Enbridge Energy, LP v. Whitmer, 135
F.4th 467 (6th Cir. 2025) (No. 24-1608),
2023 WL 6324405 .......................................................... 19
Amicus Br. for States of Ohio, Indiana, and
Louisiana,
Nessel ex rel. Michigan v. Enbridge
Energy, LP, No. 19-474-CE
(Mich. Cir. Ct. June 29, 2020), available
at https://tinyurl.com/vukjj8db .................................. 18
ANNE E. MELLEY, ET AL.,
FEDERAL PROCEDURE, LAWYER’S
EDITION (June 2025 Update) ...................................... 14
Amy L. Stein,
Energy Emergencies,
115 NW. U. L. REV. 799 (2020) ..................................... 19
Br. of Amicus Curiae Gov. of Canada,
Michigan v. Nessel,
No. 1:20-cv-01142-JTN-RSK
(W.D. Mich. June 1, 2021), ECF No. 45 ..................... 24
CANADIAN HOUSE OF COMMONS,
SPECIAL COMMITTEE ON THE
ECONOMIC RELATIONSHIP BETWEEN
CANADA AND THE UNITED STATES,
ENBRIDGE’S LINE 5: AN INTERIM
REPORT (Apr. 2021),
https://tinyurl.com/4yzvnsuu ....................................... 23
IX
Carole E. Goldberg-Ambrose,
The Protective Jurisdiction of the
Federal Courts,
30 UCLA L. REV. 542 (1983) ....................................... 17
CHERYL J. TRENCH & THOMAS O.
MIESNER,
THE ROLE OF ENERGY PIPELINES AND
RESEARCH IN THE UNITED STATES
(2006), https://tinyurl.com/4rsmevjj ........................... 22
Compl.,
Nessel v. Enbridge Energy Ltd.,
No. 1:21-cv-01057
(W.D. Mich. Dec. 15, 2021), ECF No. 1...................... 15
Debates,
OPEN PARLIAMENT (Feb. 3, 2021),
https://tinyurl.com/4wnzbs8m ..................................... 22
Declaring a National Energy Emergency,
Exec. Order 14156, 90 Fed. Reg. 8433
(Jan. 29, 2025) ............................................................... 15
In re Enbridge Energy, Ltd.,
No. U-20763, 2023 WL 8435367
(Mich. Pub. Serv. Comm’n Dec. 1, 2023) .................... 17
Establishing the National Energy
Dominance Council,
Exec. Order 14213, 90 Fed. Reg. 9945
(Feb. 14, 2025) ............................................................... 15
Establishment of Great Lakes Interagency
Task Force and Promotion of a
Regional Collaboration of National
Significance for the Great Lakes,
Exec. Order 13340, 69 Fed. Reg. 29043
(May 18, 2004) ............................................................... 26
X
Jack L. Goldsmith,
Federal Courts, Foreign Affairs, and
Federalism,
83 VA. L. REV. 1617, 1169 (1997) ................................. 21
Jeff D. Makholm & Laura T.W. Olive,
Troubles With Seven Decades of
Canadian/United States Oil Trade,
NERA (June 5, 2024),
https://tinyurl.com/msanym58 .................................... 22
JOE CALMAN & RORY JOHNSON,
THE CO-EVOLUTION OF THE CANADAU.S. OIL INDUSTRY AND POSSIBLE
IMPLICATIONS OF DONALD TRUMP’S
RE-ELECTION (2024),
https://tinyurl.com/5acmt9vd ...................................... 22
Julio Mejía and Elmira Aliakbari,
Shutting Down Line 5—Bad for Both
Sides of the Border, FRASER INSTITUTE
(Sept. 20, 2022),
https://tinyurl.com/53wtk9a3....................................... 23
Letter from 11 Members of Congress to
President Joseph R. Biden
(Nov. 4, 2021),
https://tinyurl.com/y3veyrb ......................................... 18
Megan Geuss,
Reviving the Transit Pipeline Treaty of
1977: How A Michigan Pipeline Could
Bring the US and Canada to
Arbitration, 14 ARB. L. REV. 86 (2023) ...................... 26
XI
Michael G. Collins,
The Unhappy History of Federal
Question Removal,
71 IOWA L. REV. 717 (1986).......................................... 11
North American-Made Energy Security
Act,
H.R. 1938, 112th Cong. (2011) ..................................... 22
Pamela J. Stephens,
Implementing Federal Energy Policy
at the State and Local Levels: ‘Every
Power Requisite,’
10 B.C. ENVTL. AFF. L. REV. 875 (1983) .................... 14
Pls.’ Reply Br. In Supp. Of Mot. to
Remand,
Michigan v. Nessel,
No. 1:20-cv-01142-JTN-RSK
(W.D. Mich. June 2, 2021), ECF No. 51 ..................... 25
Protecting American Energy From State
Overreach,
Exec. Order 14260, 90 Fed. Reg. 15513
(Apr. 8, 2025) ................................................................. 16
Richard J. Pierce, Jr.,
Environmental Regulation, Energy,
and Market Entry,
15 DUKE ENVTL. L. & POL’Y F. 167
(2005) .............................................................................. 16
Robert P. Faulkner,
The Courtesy Copy Trap: Untimely
Removal from State to Federal Court,
52 MD. L. REV. 374 (1993) ............................................ 10
S. Rep. No. 81-303 (1949) ..................................................... 8
XII
Scott Dodson,
In Search of Removal Jurisdiction,
102 NW. U. L. REV. 55 (2008) ....................................... 10
Scott R. Haiber,
Removing the Bias Against Removal,
53 CATH. U. L. REV. 609 (2004) ............................. 10, 11
Statement by Minister O’Regan Regarding
Line 5,
GOVERNMENT OF CANADA
(May 11, 2021),
https://tinyurl.com/we5ec59f ....................................... 23
Steve Bucci,
Great Lakes Need Protection. But
Shutting Down Line 5 Is Foolish,
BRIDGE MICHIGAN
(Aug. 14, 2019),
https://tinyurl.com/yc5cxyda ....................................... 19
Stop Killing Our Pipelines, America,
TORONTO SUN (Feb. 20, 2021),
https://tinyurl.com/y87sep44 ....................................... 23
Supp. Br. of Amicus Curiae Gov. of
Canada,
Michigan v. Nessel,
No. 1:20-cv-01142-JTN-RSK
(W.D. Mich. Nov. 16, 2021), ECF No. 82 ................... 24
XIII
Br. of the United States as Amicus Curiae
Supp. Partial Reversal,
Bad River Band of Lake Superior
Tribe of Chippewa Indians of Bad
River Rsrv. v. Enbridge Energy Co.,
Inc.,
Nos. 23-2309, 23-2467
(7th Cir. Apr. 10, 2024),
2024 WL 1681140 .......................................................... 24
Taylor Meehan,
Lessons from the Price-Anderson
Nuclear Industry Indemnity Act for
Future Clean Energy Compensatory
Models,
18 CONN. INS. L.J. 339 (2011) ...................................... 16
Unleashing American Energy,
Exec. Order 14154, 90 Fed. Reg. 8353
(Jan. 29, 2025) ............................................................... 15
WEINSTEIN, CLOWER & ASSOCS.,
ENBRIDGE LINE 5 | SHUTDOWN
IMPACTS ON TRANSPORTATION FUEL
(2022), https://tinyurl.com/4h9mwzs7 ......................... 19
Why a Line 5 Shutdown Just Doesn’t
Make Sense,
CANADA ACTION (Mar. 7, 2021),
https://tinyurl.com/2hs8mztr ....................................... 23
INTRODUCTION
AND INTERESTS OF AMICI CURIAE
Federal jurisdiction shouldn’t turn on a game of
“gotcha.” Yes, deadlines matter. But when a case involves
uniquely compelling circumstances, a court should not use
procedural niceties to eject a party from a federal forum.
“Timeliness is important to our jurisprudence, but
chronometry must not be given absolute dominance over
justice, fairness, and common sense.” United States v.
Mendoza, 565 F.2d 1285, 1290 (5th Cir. 1978).
Indeed, this Court has already recognized as much.
It’s repeatedly stressed that non-jurisdictional time limits
are assumed to have some equitable flexibility baked into
them.
And it’s recently rejected many efforts to
transform more flexible non-jurisdictional provisions into
inflexible jurisdictional bars to evade that presumption.
Yet the court below saw things differently. When
examining the 30-day deadline for removal found in 28
U.S.C. § 1446(b)(1), the lower court at least recognized
that the statute isn’t jurisdictional. Pet.App.19a. But it
sped past the presumption and bestowed “jurisdictional
attributes” on the statute anyway.
Pet.App.22a.
Reversing the district court, it held that Section 1446(b)’s
time limits “leave no room for equitable exceptions.”
Pet.24a. Wooden proceduralism won the day.
But Section 1446(b)(1) is another typical federal statute
that allows for equitable tolling. None of the usual signals
of a mandatory claims-processing rule can be found here.
And at bottom, the lower court’s decision seems driven by
a hostility toward removal and the invocation of federal
jurisdiction. That was wrong. “There is no presumption
against federal jurisdiction in general, or removal in
particular.” Back Drs. Ltd. v. Metro. Prop. & Cas. Ins.
2
Co., 637 F.3d 827, 830 (7th Cir. 2011) (Easterbrook, J.).
“In the main, federal courts are obliged to decide cases
within the scope of federal jurisdiction.”
Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013).
Exceptional circumstances would warrant tolling the
statute here. The case involves a critical piece of
America’s energy infrastructure—the Enbridge Line 5
pipeline. Starting and ending in Canada, the line carries
more than 20 million gallons of light crude oil and natural
gas liquids every day, supporting energy consumers and
operations in Wisconsin, Michigan, Ohio, Pennsylvania,
and beyond. Michigan wants to shut down the Line’s key
chokepoint, an underwater crossing at the Straits of
Mackinac (where two Great Lakes meet). Though the
dispute is of serious interest to Michiganders, the pain
from such a shutdown would be felt far beyond a single
State’s—or single country’s—borders. North America’s
interconnected energy system is threatened. Courts
should be more willing to bend on a filing deadline when
serious national and international interests like these are
at stake.
The Court should reverse.
SUMMARY OF ARGUMENT
I. The Sixth Circuit incorrectly held that the 30-day
deadline for removal is a rigid bar that’s not subject to
equitable concerns. The statute is not jurisdictional. Nonjurisdictional statutes are presumptively amenable to
equitable tolling. That presumption isn’t overcome here,
considering the factors that this Court has said are
relevant. And the lower court focused on the wrong
factors—the statute’s text does not contain exceptions
that implicitly foreclose equitable exceptions, its context
does not suggest that it bears jurisdictional
3
characteristics, and its strict construction is not a license
to kick every case back to state court based on the clock.
Past precedent from this Court confirms as much.
II. Exceptional circumstances justify equitable tolling
here. In deciding whether to toll a statute, courts should
consider the nature of the interest involved. If there’s a
decidedly national or federal interest implicated, then
that’s more reason to toll. And so it is here. This suit goes
directly to national energy policy, a matter of supreme
federal importance. The suit will affect the energy needs
of an entire region. Beyond that, it will directly affect
diplomatic relations with Canada, which views any
shutdown of the pipeline as a breach of an important
international treaty. Issues like these should stay in
federal court.
ARGUMENT
I.
Courts can apply equitable exceptions to the
30-day removal deadlines in Section 1446(b)(1).
Section 1446(b)(1) says that a defendant must remove
a case from state court “within 30 days” after receipt of an
initial pleading or summons, “whichever period is
shorter.” The Sixth Circuit concluded that these “time
limitations are mandatory,” “leav[ing] no room for
equitable exceptions.” Pet.App.24a. But the lower court
was mistaken.
A. To start, Section 1446(b)(1) doesn’t contain
jurisdictional time limits, as just about every court—Sixth
Circuit included, Pet.App.19a—has recognized. See
Universal Truck & Equip. Co. v. Southworth-Milton,
Inc., 765 F.3d 103, 110 (1st Cir. 2014) (collecting
authorities). Among other things, 28 U.S.C. § 1447(c) says
that any objection to untimely removal is waived if not
4
raised within 30 days of removal—and jurisdictional
defects can’t be waived or forfeited. See Kontrick v.
Ryan, 540 U.S. 443, 456 (2004). Section 1447 also says that
a plaintiff must object to an untimely removal by motion;
because the court can’t address the issue sua sponte, that’s
another signal that the 30-day clock is non-jurisdictional.
See Wilkins v. United States, 598 U.S. 152, 157 (2023).
And perhaps most importantly, Section 1446(b)(1) itself
lacks any clear statement that it’s jurisdictional. Harrow
v. Dep’t of Def., 601 U.S. 480, 484 (2024). So the 30-day
removal time limits avoid the rule that “jurisdictional”
provisions can never be excused for “equitable reasons.”
Id. That outcome makes sense, as “filing deadlines” like
these are “quintessential [non-jurisdictional] claimprocessing rules.” Sebelius v. Auburn Reg’l Med. Ctr., 568
U.S. 145, 154 (2013).
“[N]onjurisdictional
limitations
periods
are
presumptively subject to equitable tolling.” Boechler, P.C.
v. Commissioner, 596 U.S. 199, 209 (2022). Congress
“must be presumed to draft” time bars in light of the
“background principle” from common law that time limits
can usually be equitably tolled. Young v. United States,
535 U.S. 43, 49-50 (2002). And it’s important that courts
consistently respect such background principles, as
Congress must be able to “legislate against a background
of clear interpretive rules, so that it may know the effect
of the language it adopts.” Finley v. United States, 490
U.S. 545, 556 (1989) (emphasis added). So a party arguing
that a non-jurisdictional provision doesn’t leave room for
equity “must contend with [a] high bar.” Harrow, 601 U.S.
at 489 (addressing “nonjurisdictional timing rules”).
That’s especially so where, as here, a time bar is short; the
presumption “is stronger” when that’s true. Hedges v.
United States, 404 F.3d 744, 749 (3d Cir. 2005) (citing
United States v. Beggerly, 524 U.S. 38, 48 (1998)).
5
The presumption of equitable tolling might be
overcome where, for instance, a time limit is set out “in
unusually emphatic form,” is described in “highly detailed
and technical language,” reiterates the limitation in many
different ways, would produce destructive “practical
consequences,” would affect “substantive limitations on
the amount of recovery,” is “unusually generous,” or
involves some underlying subject matter that involves a
special need for certainty. Holland v. Florida, 560 U.S.
631, 646-47 (2010) (cleaned up). So in Nutraceutical Corp.
v. Lambert, 586 U.S. 188, 194 (2019), for example, the
Court found that a 14-day time limit for filing an
interlocutory petition for permission to appeal was not
subject to equitable tolling where the relevant rules
expressly instructed courts (more than once) not to grant
extensions. In other words, Nutraceutical involved at
least two of the factors suggested in Holland: an
“unusually emphatic” time bar that was also reiterated in
different ways. Holland, 560 U.S. at 646.
But Section 1446(b)(1) checks none of Holland’s
boxes—so the presumption can’t be overcome here. The
statute lacks atypically emphatic language (such as
“under no circumstances” or “without exception”). While
the statute says a notice of removal “shall” be filed within
30 days, the Court has found equitable tolling was a
possibility even when Congress used more aggressive
“shall” language in statute. See, e.g., Irwin v. Dep’t of
Veterans Affs., 498 U.S. 89, 95 (1990); cf. V.L. v. E.L., 577
U.S. 404, 409 (2016) (noting how the Court has “long
rejected the notion that all mandatory prescriptions … are
properly typed jurisdictional”). And the statute lacks any
express penalty for missing the 30-day deadline; Congress
commands lower courts to remand only when “it appears
that the district court lacks subject matter jurisdiction.”
28 U.S.C. § 1447(c). The statute also doesn’t note the 30-
6
day limit multiple times. Any destructive practical
consequences are more likely to follow from refusing to
consider equitable concerns. The 30-day bar doesn’t affect
substantive relief. It isn’t unusually generous. Lastly, it
doesn’t call for some special consistency. Already, courts
must sometimes probe the specific facts presented and
determine whether extra time for removal should be
afforded. See, e.g., 28 U.S.C. § 1446(c)(1) (allowing for
removal in a diversity case after a year when “the plaintiff
has acted in bad faith in order to prevent a defendant from
removing the action”). Likewise, figuring out when a
“paper” first indicates that a case is removable—as
Section 1446(b)(3) requires—can call for careful factual
parsing, too.
And as it turns out, this Court already embraced most
of these principles. In Powers v. Chesapeake & Ohio
Railway Co., 169 U.S. 92 (1898), the Court construed a
predecessor removal statute. In doing so, it left no doubt
that removal time limits were subject to equity. It started
from the same point of agreement where the analysis here
began: “the time of filing a petition for removal is not
essential to the jurisdiction.” Id. at 98. And it ended with
the same result, too: “the incidental provision as to the
time [for removal] must, when necessary to carry out the
purpose of the statute, yield to the principal enactment as
to the right.” Id. at 101. In finding that the present-day
statute can never yield, the Sixth Circuit forgot that
century-plus-old principle.
B. Against all these cues, neither the lower court nor
the Michigan Attorney General have identified anything
that overcomes the presumption in favor of equity.
The text does not do the work that the Sixth Circuit
thought it did. For one, the Sixth Circuit thought it was
important that the statute purportedly has “exceptions.”
7
Pet.App.21a-22a. But as relevant here, it doesn’t. Section
1446(b)(2)(C), for instance, does not allow a defendant to
remove after 30 days; it says only that an earlier-served
defendant can join a later-served defendant’s timely filed
notice. It’s a process provision. Section 1446(b)(3) also
allows a defendant to remove within 30 days of receiving
the first “paper” that shows the case is actually removable.
But that doesn’t extend the 30-day period, either; it only
explains when the period begins to run.
See
Nutraceutical, 586 U.S. at 197 (distinguishing between
“the antecedent issue of when the [time] limit begins to
run” and “the availability of tolling”). It’s an accrual
principle, not an exception or tolling doctrine.
Anyway, the Court has refused to embrace any firm
rule that a statute’s written exceptions foreclose all
others. See Young, 535 U.S. at 53 (rejecting an argument
that an “express tolling provision, appearing in the same
subsection as the [relevant time bar], demonstrates a
statutory intent not to toll”). For good reason: “the
expressio unius canon,” which the Sixth Circuit was
tacitly invoking, “does not apply unless it is fair to suppose
that Congress considered the unnamed possibility and
meant to say no to it.” Marx v. Gen. Revenue Corp., 568
U.S. 371, 381 (2013) (cleaned up). Nothing suggests that
here.
It also doesn’t matter that Section 1446(b)(1) says the
notice of removal is due within 30 days of when the initial
pleading is received or 30 days of when the summons is
served, “whichever period is shorter.” The lower court
thought this last bit of “shorter” language meant
Congress wanted “strict enforcement,” Pet.App.20a, but
it does no such thing. When Congress added that
language, it was trying “to accommodate atypical state
commencement and complaint filing procedures.”
8
Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S.
344, 353 (1999). Some States only required a summons to
be served, while others might require just the complaint
(or both). Congress wanted to make sure that no
defendant was “in the position of having to take steps to
remove a suit to Federal court before he knows what the
suit is about.” S. Rep. No. 81-303, at 6 (1949). And looking
to the shorter period just assured that defendants in
summons-only States didn’t enjoy an unreasonably extra
time because just because of a quirk of state law. Murphy
Bros., 526 U.S. at 352 n.4. None of that background points
to a congressional intent to lockdown the time for removal.
The lower court also placed too much weight on the title
of the part in which the 30-day removal time limit is found.
The part is titled “Jurisdiction and Venue.” But just using
the word “jurisdiction” doesn’t automatically imbue every
matter found in that statutory part with “jurisdictional
elements.” Contra Pet.App.22a. Nor has the Court ever
held that a time limit’s mere adjacency to jurisdictional
provisions bars equitable tolling. Cf. Burnett v. N.Y. Cent.
R.R. Co., 380 U.S. 424, 427 n.2 (1965) (explaining that a
time limit’s placement near the substantive right it affects
“does not indicate a legislative intent as to whether or
when [the limit] should be tolled”). The court should be
homing in on the specific time limitations, not the “scheme
as a whole.” Menominee Indian Tribe of Wisc. v. United
States, 614 F.3d 519, 530 (D.C. Cir. 2010).
What’s more, a “heading cannot substitute for the
operative text of the statute.” Fla. Dep’t of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008). Again,
by everyone’s agreement, the text says the 30-day time
limit is not jurisdictional—so it’s hard to see how the Sixth
Circuit could render it a de facto jurisdictional statute
through the heading. If titles are important, then it also
9
matters that (1) removal is found in a chapter (chapter 89,
titled “removal of cases from state court”) that’s separate
from another chapter governing district courts’
“jurisdiction” (chapter 85); and (2) the section is called
“procedure for removal of civil actions.” 28 U.S.C. § 1446
(emphasis added); cf. Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 439 (2011) (finding that a
provision’s “placement” in a “procedure” subchapter
suggested that it was not jurisdictional). But altogether,
if the Court were to treat Section 1446(b)(1) as an
inflexible command merely because of where it falls in the
U.S. Code, that would “trivialize [federal courts’]
authority under” the statute. Loftin v. Rush, 767 F.2d 800,
805 (11th Cir. 1985).
And the Sixth Circuit further erred in thinking that
removal statutes are to be so “strictly construed” that
exceptions can be premised on only expressly “clear”
statements. Pet.App.22a-23a. Recognizing that a statute
“must be strictly construed … does not answer the
question whether equitable tolling can be applied” to that
statute’s time limitations. Bowen v. City of New York, 476
U.S. 467, 479 (1986). It’s quite right that the removal
provisions should be construed to respect “state
sovereignty.” Pet.App.22a. But that’s not to say that
provisions should be read in an unduly rigid manner,
especially when a case concededly falls within the subjectmatter jurisdiction of federal courts. (That wasn’t the case
in Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28
(2002), for instance, a case on which the Sixth Circuit
relied, Pet.App.22a.) “Federal courts … should be equally
vigilant to protect the right to proceed in the Federal
court as to permit the state courts, in proper cases, to
retain their own jurisdiction.” Wecker v. Nat’l Enameling
& Stamping Co., 204 U.S. 176, 186 (1907).
10
The notion that “removal jurisdiction must be strictly
construed actually means that in the context of removal, a
federal court must not expand its jurisdiction beyond the
precise limitations set by Congress.” Apache Nitrogen
Prods., Inc. v. Harbor Ins. Co., 145 F.R.D. 674, 680 (D.
Ariz. 1993). “There is clearly more reason to construe
strictly removal jurisdiction than to construe strictly the
30-day removal period, which is really more akin to the
time period in which to file a responsive pleading than to
a statute of limitations.” Robert P. Faulkner, The
Courtesy Copy Trap: Untimely Removal from State to
Federal Court, 52 MD. L. REV. 374, 382 n.45 (1993)
(cleaned up). It seems unlikely “the drafters of the
removal statutes would be disturbed over an untimely but
otherwise nonprejudicial and appropriate removal.” Id.
So strict construction shouldn’t be used to transform
every jot and tittle of the jurisdictional statutes into a
quasi-jurisdictional bar. After all, “the values served by
the procedural rules may not be promoted by strict
application of the procedural rules and, indeed, may be
hindered in certain situations by their strict application.”
Scott Dodson, In Search of Removal Jurisdiction, 102
NW. U. L. REV. 55, 60 (2008). So “to be observant of these
[removal] restrictions is not to indulge in formalism or
sterile technicality.” N. Ill. Gas Co. v. Airco Indus. Gases,
676 F.2d 270, 274 n.2 (7th Cir. 1982) (cleaned up).
Relatedly, federalism doesn’t support the decision
below, either. “The argument … that it is an invasion of
the sovereignty of a State to withdraw from its courts into
the courts of the general government” a case that presents
substantial federal interests “ignores entirely the dual
character of our government.” Tennessee v. Davis, 100
U.S. 257, 266 (1879). The Framers “extensively balanced
and weighed issues of federalism” in creating federal
courts’ jurisdiction in the first place. Scott R. Haiber,
11
Removing the Bias Against Removal, 53 CATH. U. L. REV.
609, 659 (2004). And “[t]hese same individuals also
thought it was essential to create a mechanism allowing
for removal to federal court.” Id. So federalism “do[es]
not provide [a] plausible ground[] for judicially created
impediments to the exercise of a defendant’s removal
rights.” Id. at 660; see also, e.g., In re Int’l Paper Co., 961
F.2d 558, 561 (5th Cir. 1992) (issuing a writ of mandamus
against a district court that purported to remand a case
based on the “spirit of federalism”). Ultimately, a federal
court’s duties “to exercise jurisdiction where it is
conferred, and not to usurp it where it is not conferred, are
of equal obligation.” Bank of the United States v.
Deveaux, 9 U.S. (5 Cranch) 61, 87 (1809) (Marshall, C.J.).
Federalism might play a role in deciding whether
equity justifies an exception to the 30-day deadline in a
specific case. Cf. Steward v. Garrett, 935 F. Supp. 849, 854
(E.D. La. 1996) (considering “federalism” in evaluating
whether the removal deadline should be extended under
28 U.S.C. § 1441(e)). But it shouldn’t justify a total bar
against such exceptions in every case. And truth be told,
federalism concerns are somewhat “diluted” when it
comes to procedurally procedural rules like the 30-day
clock. Hanson v. Depot LBX, Inc., 756 F. Supp. 3d 56, 73
(W.D. Va. 2024). Were it otherwise, federalism might be
used to slam the federal-court door on cases that uniquely
belong before federal judges—and where state interests
prove to be subordinate to federal ones. See Michael G.
Collins, The Unhappy History of Federal Question
Removal, 71 IOWA L. REV. 717, 759-60 (1986). As it turns
out, this is one such case. More on that below.
***
In short, Section 1446(b)(1)’s 30-day deadlines are
subject to equitable exceptions.
12
II.
Equitable considerations justify extending
Section 1446(b)(1)’s 30-day deadlines here.
To say that equity plays a role in applying Section
1446(b)(1) is not to erase the statute’s deadlines entirely.
Equity demands balance. “Equitable tolling is a rare
remedy to be applied in unusual circumstances, not a cureall for an entirely common state of affairs.” Wallace v.
Kato, 549 U.S. 384, 396 (2007). Equitable doctrines “are
to be applied sparingly.” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002). Yet this standard
should also be applied “with awareness of the fact that
specific circumstances, often hard to predict in advance,
could warrant special treatment in an appropriate case.”
Holland, 560 U.S. at 650; see also Socha v. Boughton, 763
F.3d 674, 684 (7th Cir. 2014) (recognizing that equitabletolling standards impose a “high bar,” but not an
“impossible” one).
That’s why lower courts have looked for “exceptional
circumstances” before tolling Section 1446(b). Brown v.
Demco, Inc., 792 F.2d 478, 482 (5th Cir. 1986); see also
Arellano v. McDonough, 598 U.S. 1, 6 (2023) (explaining
that equitable tolling applies when a diligent party
confronts “extraordinary circumstances”).
And
exceptional circumstances exist here—there’s nothing
common to be found in this case. Michigan’s anti-energy
lawsuit implicates uniquely national and international
interests that should be addressed in federal court. The
district court rightly refused to remand; the Sixth Circuit
erred in holding otherwise.
A. This case involves national issues that
uniquely demand federal treatment.
In considering whether exceptional circumstances
exist that warrant tolling the 30-day deadline, courts
13
should consider the underlying interests involved. In
other contexts, “exceptional circumstances” that might
lead a federal court to decline to exercise jurisdiction can
exist when “the federal interests in retaining jurisdiction
over the dispute” are minimal and the “State’s interests
are paramount.” Quackenbush v. Allstate Ins. Co., 517
U.S. 706, 716, 728 (1996). The converse should also be
true: federal courts should be more interested in
exercising their jurisdiction when federal or national
interests are particularly strong. Pet.App.31a; cf. Walker
v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986)
(explaining that “exceptional circumstances” warranted
exercise of pendent jurisdiction over state-law claims after
dismissal of federal claims where state claims were
interrelated with federal law); Galtieri v. Wainwright, 582
F.2d 348, 354 n.13 (5th Cir. 1978) (explaining that
“exceptional circumstances” can exist to warrant review
of unexhausted state habeas claims where a cases
“involv[es] the authority and operations of the general
government”).
Thus, it may be appropriate for courts to relax
procedural removal requirements when allowing the
litigation to proceed in federal court presents a
“significant conflict with or threat to a federal interest.”
Vill. of Oakwood v. State Bank & Tr. Co., 481 F.3d 364, 369
n.3 (6th Cir. 2007).
Cases involving interstate energy implicate obvious
federal interests. “The production and transmission of
energy is an activity particularly likely to affect more than
one State, and its effect on interstate commerce is often
significant enough that uncontrolled regulation by the
States can patently interfere with broader national
interests.” Ark. Elec. Co-op. Corp. v. Ark. Pub. Serv.
Comm’n, 461 U.S. 375, 377 (1983). Indeed, “[t]he energy
14
area is replete with federal interests,” including “national
security interests.” Pamela J. Stephens, Implementing
Federal Energy Policy at the State and Local Levels:
‘Every Power Requisite,’ 10 B.C. ENVTL. AFF. L. REV.
875, 900 (1983). And most relevant here, this Court has
already recognized that transporting energy commodities
like oil, natural gas, and natural gas liquids through
interstate pipelines “is essentially national—not local—in
character.” E. Ohio Gas Co. v. Tax Comm’n of Ohio, 283
U.S. 465, 470 (1931); see also, e.g., Missouri ex rel. Barrett
v. Kan. Nat. Gas Co., 265 U.S. 298, 309-10 (1924) (“The
paramount interest [in interstate wholesale energy
commodity markets] is not local but national, admitting of
and requiring uniformity of regulation.”).
Congress has often passed laws reflecting the
substantial federal interest in the broader energy market.
The Natural Gas Act, for instance, exercises federal
control over interstate sales of natural gas because that
federal control is “necessary in the public interest.” 15
U.S.C. § 717(a). The Federal Power Act broadly regulates
“the development, transmission, and utilization of power.”
16 U.S.C. § 797(e). A series of Energy Policy Acts—
extending back to the 1970s—have sought to regulate and
subsidize national energy development. See, e.g., Energy
Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594;
Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat.
2776. The Outer Continental Shelf Lands Act broadly
regulates oil and gas development on the continental shelf,
recognizing the “national interest” in the “effective
management” of those resources. 43 U.S.C. § 1332(4).
The list goes on and on. See 23A ANNE E. MELLEY, ET
AL., FEDERAL PROCEDURE, LAWYER’S EDITION Ch. 56
Summary (June 2025 Update) (cataloguing the many
federal laws related to “energy regulation and
development” and related fields). Laws like that statute
15
reflect that All this is not even to mention the many other
federal statutes that, while not directed exclusively at
energy, have nevertheless substantial effects on the field.
(Paging the Clean Air Act.) But read together, these
statutes confirm how the federal eye is focused firmly on
energy.
Perhaps most relevant here, the Pipeline Safety Act
expansively—and exclusively—governs safety issues
related to hazardous liquids and natural gas pipelines. See
49 U.S.C. § 60101, et seq. “Congress intended to preclude
states from regulating in any manner whatsoever with
respect to the safety of interstate transmission facilities.”
ANR Pipeline Co. v. Iowa State Com. Comm’n, 828 F.2d
465, 470 (8th Cir. 1987). So a suit like Michigan’s—one
that attacks purported weaknesses in pipeline “safety
culture,” for instance—undermine Congress’s objective.
Compl. ¶ 50, Nessel v. Enbridge Energy Ltd., No. 1:21-cv01057 (W.D. Mich. Dec. 15, 2021), ECF No. 1.
The Executive has emphasized the federal nature of
energy, too. More than once, President Trump has
proclaimed that it is “in the national interest to unleash
America’s affordable and reliable energy and natural
resources.” Unleashing American Energy, Exec. Order
14154, 90 Fed. Reg. 8353, 8353 (Jan. 29, 2025); see also,
e.g., Establishing the National Energy Dominance
Council, Exec. Order 14213, 90 Fed. Reg. 9945, 9945 (Feb.
14, 2025) (“We must expand all forms of reliable and
affordable energy production.”). The President has
explained that “affordable and reliable” energy “is a
fundamental requirement for the national and economic
security of any nation.” Declaring a National Energy
Emergency, Exec. Order 14156, 90 Fed. Reg. 8433, 8433
(Jan. 29, 2025). And “American energy dominance is
threatened when State and local governments seek to
16
regulate energy beyond their constitutional or statutory
authorities.” Protecting American Energy From State
Overreach, Exec. Order 14260, 90 Fed. Reg. 15513 (Apr.
8, 2025). That threat can no doubt arise when a state court
acts without appropriately considering the national
energy interests affected by a case before it.
And the States themselves recognize that these issues
are national ones, especially considering our
interdependent energy system. When a critical energy
system like the Line 5 pipeline goes down, that directly
affects the economic welfare of other States. But it also
forces them to rapidly reconfigure their own energy and
environmental strategies, which might in turn have still
further spillover effects on other States. Substantial
investments in energy resources (like refineries) might be
suddenly transformed into wasted sunk costs. Long-term
planning might be dispensed in favor of a sudden
emergency response. The kind of coordination that would
be necessary for any of this to happen is not the sort of
coordination for which local states coordinates are
renowned.
Altogether, at many different times and in many
different ways, just about every branch of government has
expressed a federal interest in energy. So “[w]hen dealing
with issues such as our national energy policy, federal
courts should be the forum for settling disputes, rather
than in a plethora of state courts.” Taylor Meehan,
Lessons from the Price-Anderson Nuclear Industry
Indemnity Act for Future Clean Energy Compensatory
Models, 18 CONN. INS. L.J. 339, 365 (2011). Otherwise,
“[s]ate parochialism” that myopically focuses on “only instate benefits” (or harms) could have a “devastating
effect” on national energy needs, even producing
“catastrophic [energy] shortage[s].” Richard J. Pierce,
17
Jr., Environmental Regulation, Energy, and Market
Entry, 15 DUKE ENVTL. L. & POL’Y F. 167, 176, 180 (2005);
see also, e.g., Carole E. Goldberg-Ambrose, The
Protective Jurisdiction of the Federal Courts, 30 UCLA
L. REV. 542, 567 (1983) (explaining how a proposal to
create a federal Energy Mobilization Board “reflected a
concern that energy projects capable of producing
national benefits at great local cost would receive
disadvantageous treatment in state courts”). Worse, it
would undermine the Framers’ vision of “creat[ing] a
cohesive natural sovereign” that could “connect[] our
country through turnpikes, bridges, and roads—and more
recently pipelines.” PennEast Pipeline Co., LLC v. New
Jersey, 594 U.S. 482, 508 (2021).
The Attorney General’s lawsuit triggers this federal
interest in energy, as it represents a direct effort to impair
a key component of our national energy infrastructure. If
the challenge to the Straits of Mackinac crossing succeeds,
the whole line might well close. See, e.g., In re Enbridge
Energy, Ltd., No. U-20763, 2023 WL 8435367, at *210
(Mich. Pub. Serv. Comm’n Dec. 1, 2023) (“[S]ubstantial
evidence on the record … show[s] that if the dual pipelines
[across the Straits] are … shut[]down, [then] Line 5 in
Michigan may be abandoned in full or in part, which will
require higher-risk and costlier alternative fuel supply
sources.”). And at least one federal court has already seen
evidence that shutting down Line 5 would produce
“increased economic volatility in the markets for light
crude, NGLs and propane/butane in the Upper Midwest
and Eastern Canada.” Bad River Band of Lake Superior
Tribe of Chippewa Indians of Bad River Rsrv. v.
Enbridge Energy Co., Inc., No. 19-CV-602-WMC, 2023
WL 4043961, at *10 (W.D. Wis. June 16, 2023).
18
But even this description of the harms from shutdown
is something of an understatement—as many others have
shown. Trade unions have already laid out the dire
consequences of shutting down Line 5 before this Court.
Unions.Amicus.Br.11-18 (“If Line 5 ceased operation, the
refineries in Michigan, Ohio, Ontario, Quebec, and
Pennsylvania that depend on the products the pipeline
carries would either have to significantly reduce
production or close down completely.”). Business owners
have said much the same. Amicus Br. of the Chambers at
2-9, Nessel ex rel. Michigan v. Enbridge Energy, LP, 104
F.4th 958 (6th Cir. 2024) (No. 23-1671), 2023 WL 8283519
(“The potential negative impact of this suit is difficult to
overstate. A shutdown of Line 5 in Michigan will have
effects across the Midwest and in Canada.”); Amicus Br.
of Am. Petroleum Inst., et al. at 16-17, Enbridge Energy,
LP v. Whitmer, 135 F.4th 467 (6th Cir. 2025) (No. 241608), 2024 WL 4881965 (shutting down Line 5 “would
shut off a large portion of the energy supply of not only
Michigan itself, but other midwestern states as well as
substantial portions of Canada”).
Government officials are deeply worried about the
energy-attacking effects of this litigation, too. Elsewhere,
States have explained that “if Line 5 halts production,
significant economic hardship will be thrust upon the
entire region.” Amicus Br. for States of Ohio, Indiana, and
Louisiana at 4-9, Nessel ex rel. Michigan v. Enbridge
Energy, LP, No. 19-474-CE (Mich. Cir. Ct. June 29, 2020),
available at https://tinyurl.com/vukjj8db. Members of
Congress have stressed that “Line 5 is essential to the
lifeblood of the Midwest.” Letter from 11 Members of
Congress to President Joseph R. Biden (Nov. 4, 2021),
https://tinyurl.com/y3veyrb.
Even the Canadian
government has warned that “the market could not adapt
to the shutdown of Line 5 without grave harm to North
19
American energy security and economic prosperity.”
Amicus Br. of the Gov. of Canada at 10, Enbridge Energy,
LP v. Whitmer, 135 F.4th 467 (6th Cir. 2025) (No. 241608), 2023 WL 6324405.
These many voices are right to worry about how the
Attorney General’s suit threatens to upend the regional
and national energy markets. Closure would endanger
the operations of a slew of upper Midwest refineries.
Propane, which heats the homes of many through frigid
Midwest winters, would be slashed; Line 5 supplies more
than half the propane used in Michigan alone. Airports,
industrial users, and individual drivers will find fuels
harder to come by; “families and businesses across the
Midwest will spend at least $23.7 billion more on gasoline
and diesel over the following five years” after a shutdown.
WEINSTEIN, CLOWER & ASSOCS., ENBRIDGE LINE 5 |
SHUTDOWN IMPACTS ON TRANSPORTATION FUEL 3 (2022),
https://tinyurl.com/4h9mwzs7. And because Line 5 is a
part of a “highly integrated and interdependent North
American energy market,” it’s hard to predict exactly how
similar effects might be felt elsewhere, too. Steve Bucci,
Great Lakes Need Protection. But Shutting Down Line 5
Is Foolish, BRIDGE MICHIGAN (Aug. 14, 2019),
https://tinyurl.com/yc5cxyda; see also, e.g., Amy L. Stein,
Energy Emergencies, 115 NW. U. L. REV. 799, 853 (2020)
(noting how “energy emergencies” may “have the
potential to have more national impact” because “there is
a higher risk of cascading effects”).
In short, the federal interests here are substantial. Oil,
gas, and natural gas liquids are a centerpiece of America’s
energy dominance, and closing Line 5 would strike a blow
to that centrality. Those interests provide “exceptional
circumstances” for the district court’s retention of the
case.
20
Of course, that’s not to say that every lawsuit affecting
energy matters belongs in federal court. But where, as
here, the federal court otherwise has subject-matter
jurisdiction, a case so directly relating to “the many vital
considerations of national policy implicated in deciding
how Americans will get their energy” should not be thrust
out of federal court because of a procedural flaw. West
Virginia v. EPA, 597 U.S. 697, 729 (2022). Even more so
now, when complex energy issues are top of mind for
governments and citizens alike.
B. This case involves international issues that
uniquely demand federal treatment.
This case also has a significant international element to
it, and that aspect warrants a finding of exceptional
circumstances, too.
In a different context, this Court has recognized that
the “international complexion” of a case can present a
“uniquely compelling justification” for exercising federal
jurisdiction—even where it might usually not. McCulloch
v. Sociedad Nacional de Marineros de Honduras, 372
U.S. 10, 17 (1963) (addressing interlocutory appeal from
agency proceeding). Other courts in other contexts have
said similar things, and vice versa. See, e.g., Ungar v.
Palestine Liberation Org., 599 F.3d 79, 86 (1st Cir. 2010)
(finding that “extraordinary circumstances” warranting
relief from judgment might include the case’s “potential
effect on international relations”); Bugliotti v. Republic of
Argentina, 952 F.3d 410, 414 (2d Cir. 2020) (explaining
that “international comity” can provide “exceptional
circumstances” warranting dismissal).
More generally, questions implicating international
relations raise “uniquely federal” concerns. Cassirer v.
Thyssen-Bornemisza Collection Found., 596 U.S. 107, 116
21
(2022). “Governmental power over external affairs is not
distributed, but is vested exclusively in the national
government.” United States v. Belmont, 301 U.S. 324, 330
(1937). “No State can rewrite our foreign policy to
conform to its own domestic policies,” including by way of
“judicial decrees.” United States v. Pink, 315 U.S. 203,
233 (1942). And even in state-court proceedings, States
“cannot refuse to give foreign nationals their treaty rights
because of fear that valid international agreements might
possibly not work completely to the satisfaction of state
authorities.” Kolovrat v. Oregon, 366 U.S. 187, 198 (1961).
Federal courts are better positioned to engage with
matters like treaties and international economic affairs.
“[F]ederal courts, in contrast to the states, have
independence from local political processes and, as a
branch of the national government, are likely to be more
sensitive to national foreign relations interests.” Jack L.
Goldsmith, Federal Courts, Foreign Affairs, and
Federalism, 83 VA. L. REV. 1617, 1169 (1997). One sees
that idea at work in a case like Torres v. Southern Peru
Copper Corp., 113 F.3d 540, 543 (5th Cir. 1997), where the
Fifth Circuit found that a case raised “important foreign
policy concerns”—and thus belonged in federal court—
where the government of Peru “vigorous[ly]” opposed an
action undermining its mineral interests. See also, e.g.,
Republic of Philippines v. Marcos, 806 F.2d 344, 353 (2d
Cir. 1986) (finding case was properly removed based on its
“important foreign policy implications”).
When it comes to Line 5, the foreign-policy concerns
are front and center.
Start from the United States’ perspective. Congress
has declared that “[t]he development and delivery of oil
and gas from Canada to the United States is in the
national interest of the United States in order to secure oil
22
supplies to fill needs that are projected to otherwise be
filled by increases in other foreign supplies.” North
American-Made Energy Security Act, H.R. 1938, 112th
Cong. § 2(4) (2011). And chiefly because of the “enormous,
integrated North American pipeline and refining
systems” on the Mainline and elsewhere, the United
States has indeed become “heavily dependent” on
Canadian energy supplies.
JOE CALMAN & RORY
JOHNSON, THE CO-EVOLUTION OF THE CANADA-U.S. OIL
INDUSTRY AND POSSIBLE IMPLICATIONS OF DONALD
TRUMP’S RE-ELECTION 11 (2024), https://tinyurl.com/
5acmt9vd. In other words, “the American standard of
living depends on the oil and gas moving quietly through
a web of interconnected pipelines”—Canadian ones
included—“twenty-four hours a day, and seven days a
week.” CHERYL J. TRENCH & THOMAS O. MIESNER, THE
ROLE OF ENERGY PIPELINES AND RESEARCH IN THE
UNITED STATES 20 (2006), https://tinyurl.com/4rsmevjj.
More specifically, the Enbridge Mainline, of which
Line 5 is a part, is one of the principal means that national
interest in Canadian energy cooperation is served. And
“legal woes related to the Enbridge Line 5 strain that
relationship.” Jeff D. Makholm & Laura T.W. Olive,
Troubles With Seven Decades of Canadian/United States
Oil
Trade,
NERA
(June
5,
2024),
https://tinyurl.com/msanym58.
Now look to the Canadian side. Then-Prime Minister
Justin Trudeau highlighted how “Line 5 is a vital source
of fuel for homes and businesses on both sides of the
border.” Debates, OPEN PARLIAMENT (Feb. 3, 2021),
https://tinyurl.com/4wnzbs8m. The Canadian Minister of
Natural Resources likewise underscored that “Line 5 is
essential to [Canada’s] energy security,” so the
Government has “continuously advocated for and raised
23
the importance of Line 5.” Statement by Minister
O’Regan Regarding Line 5, GOVERNMENT OF CANADA
(May 11, 2021), https://tinyurl.com/we5ec59f.
The
Toronto Sun echoed these sentiments, entreating former
President Biden to “demonstrate his friendship with
Canada … by urging Michigan Gov. Gretchen Whitmer
not to kill Enbridge’s Line 5.” Stop Killing Our Pipelines,
America,
TORONTO
SUN
(Feb.
20,
2021),
https://tinyurl.com/y87sep44.
These aren’t chicken-little cries from a few Canadian
politicos and publishers. Among other things, “[s]hutting
down Line 5 would result in a massive shortage of gas,
diesel and jet fuel in both Ontario and Quebec”—not to
mention end thousands of Canadian jobs. Why a Line 5
Shutdown Just Doesn’t Make Sense, CANADA ACTION
(Mar. 7, 2021), https://tinyurl.com/2hs8mztr. A special
committee of the Canadian parliament even concluded
that “[Line 5]’s shutdown could … reduce[] safety, [create]
shortages of various energy products on both sides of the
Canada–U.S[.]
border,
[produce]
transportation
bottlenecks for Alberta’s crude oil, and [lead to] job losses
for Canadian and American workers.” CANADIAN HOUSE
OF COMMONS, SPECIAL COMMITTEE ON THE ECONOMIC
RELATIONSHIP BETWEEN CANADA AND THE UNITED
STATES, ENBRIDGE’S LINE 5: AN INTERIM REPORT 10
(Apr. 2021), https://tinyurl.com/4yzvnsuu; see also Julio
Mejía and Elmira Aliakbari, Shutting Down Line 5—Bad
for Both Sides of the Border, FRASER INSTITUTE (Sept. 20,
2022), https://tinyurl.com/53wtk9a3 (“On the Canadian
side, closing Line 5 would cause a shortage of at least 14
million gallons of gasoline per day and increase the costs
of oil by roughly US$2.24 per barrel.”). So if the Attorney
General’s lawsuit succeeds, the U.S.-Canada relationship
could be seriously wounded.
24
And this lawsuit will do more than anger an important
ally—it might also lead the United States to violate
international law. Line 5 falls under 1977 treaty between
the United States and Canada governing hydrocarbon
transit pipelines.
See Agreement Between the
Government of the United States and the Government of
Canada Concerning Transit Pipelines, Jan. 28, 1977, 28
U.S.T. 7449, 1977 WL 181731. The treaty prohibits any
“public authority” in the United States or Canada from
“institut[ing] any measures” that will “have the effect” of
“interfering with in any way the transmission of
hydrocarbons” in covered pipelines. Id. at art. II. Only
temporary, emergency response measures are permitted.
Id. at art. V(1). Seeing as how shutting down the Straits
crossing would not be temporary and not be an emergency
response measure, the suit appears to be asking for
unlawful relief.
No wonder, then, that Michigan has already soured
relations under the Treaty. Canada has been forced to
invoke the dispute resolution procedures under the
Treaty. See Br. of Amicus Curiae Gov. of Canada at 8-9,
Michigan v. Nessel, No. 1:20-cv-01142-JTN-RSK (W.D.
Mich. June 1, 2021), ECF No. 45. It is the “first time in
the 44-year history of the 1977 Treaty that either Party
has formally invoked its dispute resolution mechanism.”
Supp. Br. of Amicus Curiae Gov. of Canada at 1, Michigan
v. Nessel, No. 1:20-cv-01142-JTN-RSK (W.D. Mich. Nov.
16, 2021), ECF No. 82.
And even the Biden
administration—no great fan of pipelines—admitted that
a Line 5 shutdown could very well offend the Treaty. See
Br. of the United States as Amicus Curiae Supp. Partial
Reversal at 27-30, Bad River Band of Lake Superior
Tribe of Chippewa Indians of Bad River Rsrv. v.
Enbridge Energy Co., Inc., Nos. 23-2309, 23-2467 (7th Cir.
Apr. 10, 2024), 2024 WL 1681140.
25
Thus, “there is little question that an immediate
shutdown of the pipeline”—what the Attorney General
wants—“would have significant public policy implications
on the trade relationship between the United States and
Canada.” Bad River Band of Lake Superior Tribe of
Chippewa Indians of Bad River Rsrv. v. Enbridge Energy
Co., Inc., 626 F. Supp. 3d 1030, 1057 (2022). Yet Michigan
has insisted that Michigan-based litigation over Line 5
shouldn’t wait for the process to play out. Pls.’ Reply Br.
In Supp. Of Mot. to Remand at 20, Michigan v. Nessel,
No. 1:20-cv-01142-JTN-RSK (W.D. Mich. June 2, 2021),
ECF No. 51. Allowing this suit to proceed in a local trial
court at the behest of a party indifferent to the
international implications risks a treaty breach. That
potential for an international incident presents another
“exceptional circumstance” that justifies the district
court’s choice to keep this case.
***
It’s undeniable: this case presents critical national and
international interests. A federal court should address
them.
Those interests provide “exceptional
circumstances” that warrant equitable tolling here.*
That’s not to say that these are the only circumstances that support
equitable tolling in this case. For instance, the district court found
that the Attorney General and the State of Michigan were
“attempt[ing] to gain an unfair advantage through the improper use
of judicial machinery.” Pet.App.38a-41a. Among other things, the
Attorney General and the State were said to be advancing selfcontradictory positions on federal-court jurisdiction while also
manipulating related suits to dodge adverse decisions on federal
jurisdiction. Such conduct can give rise to exceptional circumstances
warranting tolling, too. Cf. Brown, 792 F.2d at 482 (holding that
“exceptional circumstances” were presented by the plaintiff’s “bad
faith effort to prevent removal,” which led the court to allow removal
*
26
CONCLUSION
The Court should reverse and remand with
instructions to allow this case to proceed in federal court.
Respectfully submitted.
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
mwilliams@wvago.gov
(304) 558-2021
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
Counsel for Amicus Curiae State of West Virginia
“more than precisely thirty days after the first defendant is served”).
Further, because it crosses tribal lands, Line 5 has implicated the
interests of Native American tribes. See Megan Geuss, Reviving the
Transit Pipeline Treaty of 1977: How A Michigan Pipeline Could
Bring the US and Canada to Arbitration, 14 ARB. L. REV. 86 (2023).
Tribal-land interests are exactly the sorts of matters that don’t belong
in state courts. Cf. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15
(1987) (“If state-court jurisdiction over Indians or activities on Indian
lands would interfere with tribal sovereignty and self-government,
the state courts are generally divested of jurisdiction as a matter of
federal law.”). And as for other national interests, the Great Lakes
themselves (and the environmental management implicated in the
Attorney General’s suit) likewise present matters of national and
international concern. See, e.g., Establishment of Great Lakes
Interagency Task Force and Promotion of a Regional Collaboration
of National Significance for the Great Lakes, Exec. Order 13340, 69
Fed. Reg. 29043, 29043 (May 18, 2004) (discussing the “nationally
significant environmental and natural resource issues involving the
Great Lakes”).
27
ADDITIONAL COUNSEL
TIM GRIFFIN
Attorney General
State of Arkansas
CHRIS CARR
Attorney General
State of Georgia
BRENNA BIRD
Attorney General
State of Iowa
AUSTIN KNUDSEN
Attorney General
State of Montana
MICHAEL T. HILGERS
Attorney General
State of Nebraska
DREW WRIGLEY
Attorney General
State of North Dakota
GENTNER DRUMMOND
Attorney General
State of Oklahoma
ALAN WILSON
Attorney General
State of South Carolina
KEN PAXTON
Attorney General
State of Texas
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.