I. INTRODUCTION

One of Canada’s major oil and gas companies, Enbridge Inc., has found itself enmeshed in a dispute with the State of Michigan for over a decade. The latest episode of entanglement ended up in the United States Supreme Court with the issuance of its decision in Enbridge Energy, LP v. Nessel.^[1] The Supreme Court sided with the state in its dispute against Enbridge,^[2] not on the merits of the underlying dispute but rather over a very technical procedural question that the American court system is afflicted with. The goal of this article is to provide the reader with a basic overview of the Enbridge case but also with a general overview of how the American federal and state judicial systems interact with each other.

Enbridge and the state of Michigan have had a fraught relationship. Back in 2010, a pipeline operated by Enbridge, Line 6B, ruptured spilling thousands of barrels of oil. The cleanup took years and its impact on state politics lingers. Enbridge owns another pipeline, Line 5, which runs 645 miles (approx. 1,040 km) “from Northwestern Wisconsin through Michigan and into Canada.”^[3] The pipeline moves “petroleum products to refineries across the Midwestern United States, Ontario, and Quebec.”^[4] “Between Michigan’s Upper and Lower Peninsulas, a 4-mile strip of Line 5 traverses the Straits of Mackinac pursuant to a 1953 easement granted to Enbridge’s predecessor by the State of Michigan”.^[5]

In June 2019, the Attorney General of Michigan filed a lawsuit against Enbridge claiming that the 1953 easement was no longer valid given the risk of oil spills from the pipeline. The lawsuit was brought in a Michigan state court. A year later, in November 2020, the Governor of Michigan purported to revoke the 1953 easement and brought a suit against Enbridge to enforce the revocation of the easement. The lawsuit was similar in nature to the earlier lawsuit by the Attorney General and was also filed in a Michigan state court. It is at this point that a Canadian reader may lose the plot, and for this a basic introduction to the American judicial system is needed. This is the subject of the next section.

II. THE AMERICAN STATE AND FEDERAL COURT SYSTEM

In Canada, each province has a set of trial and appellate courts. Usually, each province has two sets of trial courts, one that adjudicates disputes involving smaller dollar amounts and another that deals with larger more-complicated and higher-dollar-value disputes. Each province also has its own appellate court, from which appeals may be taken up the Supreme Court of Canada. Typically, most disputes including those between private individuals as well as those between private individuals and a provincial or federal government can be brought in these provincial trial courts. Additionally, a federal court system exists that hears appeals or judicial reviews of federal administrative agencies as well as cases in a set of areas that are seen as quintessentially federal in nature such as patents, copyrights, trademarks, immigration, and First Nation matters. Some of these disputes can be brought in either the federal court or the provincial courts, while some must be brought only in one or the other. Canadian lawyers have little trouble figuring out which court to file their cases in, and lawyers spend little time trying to navigate in which court to file their cases.

On the other hand, the United States court system is a bit more complex. Each state has its own state judicial system that has the standard range of courts from trial to intermediate appeal courts to a state supreme court. These courts are considered courts of general jurisdiction and can, in theory, hear almost every type of case regardless of whether the law being adjudicated is state or federal. Then there is a federal court system. These courts include federal trial courts, known as federal district courts, and appellate courts known as the federal circuit courts. The United States Supreme Court is the highest court in the federal system, but it is also the court from which appeals from the state system may be brought if the question being adjudicated is federal in nature.

Where things get interesting is the following interplay between state and federal courts. Federal courts can hear two types of civil cases.^[6] The first are cases involving federal law, known as the federal question jurisdiction. A case that is based on a federal law, say the antitrust Sherman Act or the 1964 Civil Rights Act, is typically filed by the plaintiff in a federal court. Another type of cases that can be heard in a federal court are those known as diversity cases. These are cases based on state law, but where the plaintiff and defendant are from two different states. For example, if the plaintiff is a pedestrian from New York and the defendant is a driver from Illinois who was driving in New York City and had an accident with the plaintiff. The plaintiff’s lawsuit, although grounded in New York tort law, could be brought in a federal district court in the state of New York. The idea behind the first type of cases is that federal courts have expertise in federal law, and the idea behind the second type of cases is that an out-of-state defendant might expect unfair treatment in the state court of the local plaintiff (or vice versa). As such, having the case heard in the federal court may provide a more neutral forum for adjudicating the case.

The more interesting question, however, is what happens when a plaintiff files a federal question case or a case where the defendant is from another state in the plaintiff’s state court instead of the federal court? The answer is that the defendant has the option to remove the case from the state court and take it to the appropriate federal district court, provided certain conditions are met. These conditions are laid out in legislation found in Chapter 28 of the United States Code, section 1446 titled Procedure for removal of civil actions.^[7] Section 1446(b)(1) makes it clear that the “notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant…of a copy of the initial pleading setting…”^[8]

The question in the Enbridge case was if the defendant missed the 30 day deadline, could the district court nonetheless hear the case using what is known as equitable tolling, or the ability of a court to exercise its equitable discretion to suspend the time limit for reasons of fairness and equity.^[9] How exactly this question ended up being the heart of the dispute between Enbridge and the State of Michigan is explained in the next section.

III. THE ENBRIDGE-MICHIGAN DISPUTE

As mentioned above, two key lawsuits were filed against Enbridge, one by the Governor of Michigan and another one by the State’s Attorney General. In June 2019, Michigan’s Attorney General sued Enbridge in a Michigan state court to shut down Line 5, claiming the easement was void and operations violated state law. Enbridge litigated in state court for over a year without removing the case to federal court, missing the 30-day removal deadline under §1446(b). Then in November 2020, Michigan’s Governor Whitmer separately revoked the easement and filed her own similar lawsuit in a Michigan state court. At this stage, Enbridge and the Attorney General agreed to hold the state case in abeyance pending the outcome of the Governor’s lawsuit.

Unlike the Attorney General’s case, this time Enbridge removed the Governor’s suit to a United States federal district court, arguing that there was federal-question jurisdiction, because the Governor’s claims implicated a 1977 U.S.-Canada treaty and the foreign relations of the United States. The Governor opposed the removal of the case to federal court and sought a remand of the case back to state court. The district court denied the remand agreeing that there was a federal question that should be addressed in the federal court. So, the Governor voluntarily dismissed her suit. It was at this point that Enbridge decided to remove the Attorney General’s case against it to federal court, and unsurprisingly the Attorney General opposed this move on the grounds that more than 30 days (887 days) had lapsed since the lawsuit was filed. The district court was not bothered by this lapse of time holding that principles of equitable tolling allowed it to assume jurisdiction over the case. The Attorney General sought an interlocutory appeal to the United States Court of Appeals for the Sixth Circuit, which held that the district court could not exercise equitable tolling for the 30 day deadline since the 30 day deadline was mandatory. This decision contrasted with other decisions of some other federal appeal courts. Enbridge sought leave to appeal this decision to the United States Supreme Court, which granted the leave to appeal.

In a short but technical decision the Supreme Court agreed with the Sixth Circuit. In other words, the district court could not have granted Enbridge’s attempt to remove the case from state court after the 30 day deadline. As such, the Attorney General’s case against Enbridge now returns to a Michigan state court, almost six years after it was first filed.

IV. SO NOW WHAT?

While the reasoning of the Supreme Court may be of interest to those interested in United States federal rules of civil procedure, for most Canadian lawyers, the reasoning is not as important as the result itself. Canadian companies finding themselves embroiled with States or with American companies as litigants should pay careful attention to the necessary deadline for removal, among other deadlines. Enbridge will now have to face the case in a state court. As an aside, there is at least one other case against Enbridge pending at the Michigan Supreme Court as well as other cases pending against it at various court levels.^[10]

The question that a Canadian lawyer or company may ask is does it really matter whether the case is in state or federal court? There is a perception that federal courts are more neutral and more fair to defendants who are not from the state in which the plaintiff is located.^[11] As such, out-of-state defendants, generally, prefer to have their case heard in a federal court instead of the corresponding state court. Whether this perception is real or not is a matter of debate,^[12] but this issue was danced around during the oral arguments of the Enbridge case.^[13] Canadian companies have sometimes not fared well in past episodes in American state courts,^[14] and the venue for litigation is something that Canadian companies need to pay more attention to in the future. As such, deadlines such as the 30 days for removal from state courts to federal courts are important for Canadian companies to keep in mind, especially when being or potentially being on the receiving end of a lawsuit in the United States.

• * Moin Yahya is a Professor of Law at the University of Alberta and one of the co-editors of the ERQ. He is called to bar in Alberta, the Northwest Territories, and is an associate member of the Virginia State Bar.

  ¹ Enbridge Energy, LP v Nessel, 608 U.S. ___ (2026), online (pdf): <supremecourt.gov/opinions/25pdf/24-783_bqm2.pdf>.

• ² The dispute is between Enbridge Energy, LP, Enbridge Energy Co., Inc., and Enbridge Energy Partners, L.P., all American subsidiaries of the Canadian Enbridge Inc. For simplicity, and following the U.S. Supreme Court, they will all be referred to as Enbridge.

• ³ Enbridge, supra note 1 at 7.

• ⁴ Ibid.

• ⁵ Ibid.

• ⁶ See Federal Jurisdiction, “Civics Education Project: Courts of the Fifth Circuit”, online (pdf): <acrobat.adobe.com/id/urn:aaid:sc:US:cde50d63-c32a-4d32-b1c9-31087052b56c>; See also Federal Judicial Center, “Jurisdiction of Federal Courts”, online (pdf): <fjc.gov/history/work-courts/jurisdiction-federal-courts>.

• ⁷ 28 USC § 1446.

• ⁸ Ibid.

• ⁹ This is a simplified explanation. More technical definitions can be found in Black’s Law Dictionary (11^th ed, Cengage 2019).

• ¹⁰ University of Michigan School of Engineering, “Supreme Court’s Michigan pipeline case is about Native rights and fossil fuels, not just technical legal procedure” online: <seas.umich.edu/news/supreme-courts-michigan-pipeline-case-about-native-rights-and-fossil-fuels-not-just-technical>.

• ¹¹ Orie L. Phillips & A. Sherman Christenson, “The Historical and Legal Background of the Diversity Jurisdiction”, 46 A.B.A. J. 959 (1960).

• ¹² Kevin M. Clermont & Theodore Eisenberg, “Xenophilia in American Courts” 109 Harv L Rev 1120 (1996).

• ¹³ Oral Arguments, Enbridge Energy, LP v Nessel, No. 24-783, online: Oyez <oyez.org/cases/2025/24-783>.

• ¹⁴ See e.g. Tomris Laffly, “The Rousing True Story Behind The Burial”, Time (6 October 2023), online: <time.com/6321067/the-burial-true-story>.