Tribal Leaders Condemn Final Permit for MN Pipeline & Seek To Halt Imminent Pipeline Construction
December 1, 2020
ST. PAUL, Minn. -- Construction could begin very soon to replace a major oil pipeline in northern Minnesota. State regulators gave final permit approval on Monday, despite strong opposition from tribal leaders and environmental groups.
Canadian firm Enbridge Energy says its Line 3 pipeline is in dire need of a safer replacement and for years, has sought approval from the state in a closely watched process. Monday's action from the Minnesota Pollution Control Agency puts the project on the road toward breaking ground.
Winona LaDuke, a Native American activist and executive director of the group Honor the Earth, said apart from the environmental harm, construction will start in areas where residents are vulnerable to COVID.
"The 4,200 workers that are coming in, largely from out of state, into northern communities that have very few health facilities," LaDuke said.
Last week, two tribes requested another state agency stay its approval while a legal challenge plays out in an appeals court.
Supporters of the Line 3 project say it will bring much-needed work to a hard-hit region in the economic crisis, and that it received a lengthy review so it can meet environmental standards.
LaDuke and other opponents say the review process was incomplete and based on unreliable information. Meanwhile, she said there are better ways to put individuals in this field to work.
"You know, you've got city after city with crumbling infrastructure in this country. Those are the pipes we need," she said. "And we're going to need more of them because of climate change."
As for the environmental concerns, opponents say the $2.6 billion project will add scores of new waterways to a path of potential pipeline spills and negatively affect wild rice beds.
This fall, state regulators approved other permits, and the U.S. Army Corps of Engineers gave its endorsement.
Law360
“Minn. Tribes Seek To Halt Imminent Pipeline Construction”
Law360 (November 30, 2020, 6:48 PM EST)
-- Two tribes are urging the Minnesota Public Utilities Commission to stay a handful of orders approving aspects of a proposed Enbridge Energy Partners LP pipeline, saying construction should not proceed until a state court has weighed in on various appeals.
The Red Lake Band of Chippewa and White Earth Band of Ojibwe, both of northern Minnesota, filed with the commission on the eve of Thanksgiving, pointing to cases currently before the Minnesota Court of Appeals seeking to undo state regulators' approval of the pipeline over unaddressed environmental risks.
The tribes sought speedy consideration of their motion Wednesday, citing the COVID-19 pandemic as well as a letter from Enbridge stating construction could begin this week.
"Since Enbridge has informed landowners that it is 'estimating construction on or near your property will start on approximately November 30, 2020,' and that it intends to complete construction within six to nine months of the start of construction, the tribes respectfully request that the commission expedite consideration of this motion," they wrote.
An Enbridge spokesperson told Law360 on Monday that the exact timeline for construction hasn't been settled.
The tribes also argued that proceeding with construction could cause irreparable harm by exacerbating the COVID-19 pandemic in Minnesota, as Enbridge "seeks to employ at least 4,200 workers."
Bringing workers into the state during "the worst phase of the pandemic to date will accelerate the infection rate, thereby putting more tribal members, healthcare workers, and other citizens at risk," the tribes claimed.
A delay would not harm Enbridge, the tribes added, because of the "global reduction in crude oil demand in response to the COVID-19 pandemic."
Enbridge filed two applications related to the controversial Line 3 project before the Minnesota Public Utilities Commission in April 2015, according to the tribes. The project includes an approximately 338-mile crude oil pipeline through Wisconsin from its North Dakota border to its Wisconsin border, intended to replace an existing pipeline.
The tribes are challenging MPUC orders from 2018 up to this year approving an environmental impact statement for the pipeline, as well as a certificate of need laying out market demand for oil, according to Wednesday's motion.
These orders should be stayed until the state appeals court has weighed in on consolidated appeals from both tribes, as well as environmental groups including Honor the Earth and the Sierra Club, the tribes said.
The tribes' Nov. 25 motion cites state laws including the Minnesota Administrative Procedure Act and Minnesota Environmental Policy Act to support a stay.
The motion also references the 2017 Minnesota Supreme Court decision in Webster v. Hennepin County , arguing that failure to stay construction on the pipeline could result in the appeals court losing jurisdiction over the case.
A "failure to favor stays in cases where actions cannot be undone would as a practical matter severely reduce or eliminate the court of appeals' role within our government," the tribes claimed.
Practically, they added, "if a stay is not granted and the court upheld tribes' claims, there would be no point to remanding the case to the commission, because ... the pipeline would have long been in operation, making such hearing pointless."
Enbridge spokesperson Michael Barns told Law360 on Monday that "construction can now begin" on the pipeline and that the project is bringing "millions of dollars in local spending and additional tax revenues at a time when Northern Minnesota needs it most."
"Safety is our top priority," Barns added. "To protect our team, workers and surrounding communities, Enbridge has instituted strict and industry-leading coronavirus testing and screening protocols for workers."
The Minnesota Public Utilities Commission is scheduled to take up the tribes' stay motion Friday morning, a spokesperson confirmed.
Attorney Frank Bibeau, counsel for the tribes and member of the White Earth Band of Ojibwe, told Law360 his team is prepared to seek a federal court injunction to block the pipeline if this motion fails.
The pipeline could compromise the Upper Mississippi Watershed, which provides "our primary treaty foods: wild rice, fish and maple syrup," Bibeau said.
"All Enbridge wants is to get into the global market," added Bibeau's co-counsel, Joseph Plumer. "We're left with all the risk and Enbridge gets all the profit."
The tribes are represented by Red Lake Nation counsel Joseph Plumer and Frank Bibeau of Honor the Earth and the White Earth Band of Ojibwe.
The case is In the Matter of the Application of Enbridge Energy LP for a Certificate of Need for the Line 3 Replacement Project in Minnesota From the North Dakota Border to the Wisconsin Border, case number PL-9/CN-14-916, before the State of Minnesota Public Utilities Commission.
--Additional reporting by Morgan Conley. Editing by Marygrace Murphy.
We are requesting the Walz Administration to please issue a stay on construction.
Important to know:
There are outstanding legal challenges to Line 3, however, “one is from the state’s Department of Commerce, an agency that contends Enbridge hasn’t properly shown demand for the oil the pipeline would carry. Agency spokeswoman Mo Schriner said Commerce is still reviewing its options for the appeals process.”