The underlying dispute pits Enbridge Energy against Michigan Attorney General Dana Nessel, who filed state-court claims — centered on a public trust theory over state bottomlands in the Straits of Mackinac — seeking to terminate the pipeline's easement. Enbridge removed the case to federal court roughly 850 days after the attorney general filed suit, relying on Canada's invocation of a 1977 transit treaty as the triggering event that brought federal common law of foreign affairs into play. According to Michigan's counsel at argument, the Sixth Circuit held that Enbridge had missed every potential removal opportunity and was 850 days late; that ruling is now law of the case.
Arguing for Enbridge, John J. Bursch of Caledonia, Michigan, urged the Court to apply the equitable-tolling presumption from Holland and its progeny — Boechler, Young, Nutraceutical, and Harrow — to the removal deadline, characterizing § 1446(b) as a non-jurisdictional timing rule that functions as a statute of limitations because it prescribes a period within which certain rights may be enforced. He argued that nothing in the removal statute provides the clearest command Holland requires to strip federal courts of their traditional equitable authority, and he asked the Court simply to declare the presumption unrebutted and remand to the Sixth Circuit to decide whether equitable tolling is warranted on the facts.
Michigan Solicitor General Ann M. Sherman countered that the removal deadline is categorically different from a statute of limitations: it does not close the courthouse door, it merely allocates judicial power between two sovereigns, and the historical tradition in the removal context has always been strict enforcement. She argued that Congress created at least six explicit exceptions to the 30-day rule — many already reflecting equitable concerns and some specifically authorizing courts to extend the deadline for cause — and that this comprehensive scheme shows Congress did not intend courts to fashion additional exceptions. She also noted that Congress used the words equitable tolling expressly in § 1455 for criminal removals, yet left that language out of § 1446.
Several justices pressed Bursch on whether losing a preferred forum is meaningfully like losing a claim. Justice Sotomayor questioned whether any right is truly lost when a litigant retains a full forum in state court, and Justice Jackson probed whether the removal deadline functions as a statute of limitations at all, noting that the Court in Arellano assumed the presumption applied before finding it rebutted by a textual hook — language absent from § 1446. Justice Kagan appeared more receptive to Enbridge's position, observing that the Court has been quite generous in calling deadlines functional statutes of limitations and questioning why a forum-shifting deadline should be treated differently.
The international stakes surfaced repeatedly. Justice Alito pointed to the West Virginia amicus brief, which he described as quoting a Canadian source to the effect that shutting down Line 5 would result in a massive shortage of gas, diesel, and jet fuel in both Ontario and Quebec and end thousands of Canadian jobs, and as citing a special committee of the Canadian Parliament that concluded Line 5's shutdown could reduce safety and create shortages of various energy products on both sides of the border. Sherman responded that state courts have concurrent jurisdiction over even significant federal questions and that this Court remains available as a backstop. Justice Sotomayor pressed Sherman on whether, if Michigan prevailed, the attorney general would commit to asking the state court to continue its existing stay pending resolution of Enbridge's parallel federal action — in which a district court, according to statements at argument, recently granted summary judgment to Enbridge on preemption grounds. Sherman said she had not consulted her client on that question and that it would be a strategic decision.
Bursch argued during his main presentation that the Eleventh and Fifth Circuits have recognized equitable tolling in the removal context for more than 40 and 35 years, respectively, without producing a flood of successful tolling claims, and that the case is a unicorn unlikely to open the barn door to routine late removals.