Last week, the Minnesota Department of Commerce shocked us all with its formal testimony in opposition to Line 3:  

Oil market analysis indicates that Enbridge has not established a need for the proposed project; the pipeline would primarily benefit areas outside Minnesota; and serious environmental and socioeconomic risks and effects outweigh limited benefits.”

Minnesota would be better off if Enbridge proposed to cease operations of the existing Line 3, without any new pipeline being built.”

As the DOC is the direct arm of the Governor’s office (part of the Executive Branch), we all hope that their testimony marks a long-awaited political shift by the Dayton administration.  These comments were particularly surprising coming from the DOC as the agency in charge of the recently released Environmental Impact Statement, which is dismissive of the ability to avoid significant impact to tribal resources and lacks serious environmental justice analysis, and from the same agency that muzzled and abused its tribal liason, Danielle Molliver, when Enbridge complained to the Governor that she was advocating for tribal interests too genuinely.  

After taking some time to review the 338-page DOC testimony, we now offer our analysis.  This is one of the most important moments in an already 4+ year campaign, so it is critical that we all understand what the DOC did and didn’t say, what it means, and how to respond.  

First, please note that the DOC is not the agency that makes approval decisions on Line 3 permits. Enbridge’s proposal is alive and well, and they still feel so confident in a Minnesota approval that they are continuing construction in both Wisconsin and Saskatchewan, despite relentless direct actions by water protectors.  

The Minnesota Public Utilities Commission (PUC) is scheduled to make the final permit decisions in Spring 2018.  The PUC is not a state agency with a Commissioner appointed by Governor Dayton, but instead an independent, quasi-judicial body of 5 commissioners that operates completely independent of the Dayton administration.  So in one sense all the DOC can ever do is offer their opinions as part of their project management responsibilities.

So what exactly did the DOC say?  The conclusion that captured headlines was that so far, Enbridge has not demonstrated an economic need for the project.  In the State’s regulatory process, this is the most important question, because Minnesota’s laws are generally designed and interpreted to prioritize the needs of corporations regardless of social and environmental impacts. The DOC included an extensive oil market analysis by expert witness Dr. Marie Fagan of London Economics International, pointing out many significant flaws in Enbridge’s analyses of need.  

But this is not the end and we cannot celebrate yet: the DOC repeatedly said that the reason Enbridge had not yet shown a need for the additional capacity that a new Line 3 would provide is that they have not yet committed to shutting down the existing Line 3.  They’ve said it orally at the PUC, but insufficiently for the DOC to rely upon in its analysis and conclusions.  

This was just the first phase of the evidentiary process.  Enbridge (along with the other intervening parties) now has until October 11 to submit Rebuttal testimony in response.  That gives Enbridge the chance to 1) commit to shutting down the existing Line 3, and 2) address the problems in their economic analyses that the DOC pointed out.  If they do that, the DOC’s conclusions could change dramatically.  That’s what happened in the Alberta Clipper pipeline case back in 2009 - the MN DOC filed direct testimony saying that Enbridge had not yet shown a need for the project, then Enbridge filed rebuttal testimony, and the DOC flip-flopped to support the pipeline.  Then the PUC approved it.  

So is the testimony meaningless because Enbridge can reverse it with 1 sentence?  No. If Enbridge fully commits to shutting down the existing Line 3, they might be able to change the DOC’s mind about need. But the DOC testimony is still a huge acknowledgment.  For the first time ever in the 4+ year campaign to stop the Sandpiper/Line 3 corridor, the Dayton administration has acknowledged a long list of important truths about this project - truths that Tribes, environmental groups, and water protectors have been shouting from the rooftops for years, but until now have been largely ignored.  Often in direct contradiction of Enbridge’s claims, the DOC testimony shows that:

  • The existing Line 3 is dangerous and needs to be shut down immediately (p.14)
  • A new Line 3 would pose serious risks to our water and public health, and have disproportionate impacts on Indigenous people (p.87)
  • Minnesota refineries currently have all the oil they need, and they don’t use Line 3 much, so this project has very little benefit for Minnesota (exactly how much is unclear because that information is “trade secret” and deleted from the testimony) (p.75-79)
  • Especially due to the rise of electric vehicles, demand for petroleum products is likely to decline in Minnesota, the 5-state region, and the US, making increased pipeline capacity unnecessary (Fagan p.27-29)
  • MN has renewable energy AND greenhouse gas reduction goals, we are so far not on pace to meet them, and any pipeline permit decision should consider this (p.82-85)
  • The proposed abandonment of Line 3 is a huge problem (p.94).  They recommended that regardless of the decision on the new line, the PUC require Enbridge to at least remove the 223 segments of Line 3 where pipe is exposed (p.113)
  • The eventual abandonment of a new Line 3, years or decades from now, is also a huge problem. They recommend that, if the PUC approves a new pipeline, they require Enbridge to create a trust fund to cover future decommissioning costs, which to our knowledge has never been done in the US before (p.116)
  • Enbridge likely overstates the number of oil trains that a new Line 3 would replace (p.39)
  • Enbridge likely overstates the number of jobs the project will create (p.70)
  • Enbridge likely overstates the tax revenue the project would provide for MN counties, since it is currently suing the State for a refund on past taxes (p.70)
  • Enbridge manipulated several graphs in order to make alternative routes and pipelines appear less adequate at meeting project goals than they actually are (p.47-51 and 65-66)

What this means is that our resistance has changed the conversation, and that we’ve made incredible progress with Governor Dayton’s administration.  He still isn’t ready to publicly oppose the project, but our movement has created the political space necessary for an honest consideration of facts that for years did not exist.

It also means it’s time to turn up the heat.  The resistance camps are hosting joint actions in Duluth and Bemidji on September 23, and Camp Makwa is calling for warriors to join them.  On September 28th, we march in St. Paul.  The public can submit comments on the EIS until October 2 and comments for the evidentiary process until November 22.  The PUC is hosting a series of public hearings across the state from late September to late October, and a series of evidentiary hearings in St. Paul in November (dates and locations here).  

In order to have the right tool to analyze all of the social, economic and environmental impacts on tribal resources, Honor the Earth is working with the 5 Intervenor Tribes and the Minnesota Chippewa Tribe to produce a tribal Cumulative Impact Assessment (CIA) process for large infrastructure projects like Line 3.  The publication will be announced in the next few days, with a 30 day public comment period including regional public hearings.  We encourage everyone to participate as fully as possible, as well as other tribal, state and federal agencies.  The Cumulative Impact Assessment will more thoroughly and fairly consider potential impacts to the people, the lands, the waters, the animals and our collective future.

Please join us.

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