In 2014 and 2015, Enbridge applied for and received 12 Construction Stormwater Permits (CSW) from the Minnesota Pollution Control Agency (MPCA), for storage yards across the 1854 and 1855 Treaty Areas of Northern Minnesota, used to stockpile pipe for the proposed Sandpiper and Line 3 pipeline projects. Eleven of the 12 permits are still active today. All were issued illegally.
Honor the Earth’s research on this issue, much of which came thru a Data Practices Act Request to the MPCA, informed Sunday’s article in the Star Tribune, “Pipeline Opponents Claim Enbridge Skirted Permit Rules for Storage Yard”.
The permits are invalid because the MPCA’s Construction Stormwater General Permit, under which these pipe yards were authorized, requires all environmental review for the project to be completed before issuance. Also, the Minnesota Environmental Policy Act (MEPA) prohibits the issuance of any permits for new projects before the state’s environmental review is complete and deemed adequate. This is a common sense law designed to prevent premature state action. The Minnesota Environmental Quality Board administrative rules expand upon and interpret the relevant MEPA statue in detail and explain that its purpose is to ensure a robust and unbiased environmental review process.
On the online applications for all 12 CSW permits, Enbridge checked a box saying yes, all necessary environmental review was complete. The MPCA says that they don’t have the capacity to review all applications, so any online application with the correct boxes checked is automatically approved.
Enbridge’s assertion at the time of CSW permit application submission that all necessary environmental review for the projects had been completed, and MPCA’s issuance of permits without documentation of completed environmental review or a variance from the rules, represent violations of Minnesota law. In March 2017, the MPCA wrote a letter to Enbridge acknowledging this.
These violations have irreparably undermined the state’s ability to conduct an objective process for reviewing the projects and determining if they are in the state’s best interest. They have encouraged Enbridge’s recent “doubling-down” on investments in the project in order to avoid sunk costs, including an overwhelming number of print, TV, social media, and radio advertisements; busses of employees and union workers at public hearings; and increased allocations of legal resources in the state process and political organizing resources across Northern MN.
This has also introduced enormous bias into the court of public opinion, as rural communities across Northern Minnesota have now spent years living with pipe for the proposed project transported on their roads and piled in their backyards.
Winona LaDuke, Executive Director of Honor the Earth, says, “Every day, my people are forced to face these pipeline yards and watch more pipe come in on rail and truck. The project is unapproved, yet hundreds of millions of dollars of material sits in our communities as if it is a done deal. We have lived here for thousands of years and are already under extreme duress. The additional impact of living with these pipes in our backyards is immense for my community. We believe that the company should not be able to violate state law. There are no permits, the pipes should not be here. We call on the State to require their removal.”
To remedy this situation, Enbridge should demonstrate their support for a fair review process by acknowledging their non-compliance with MEPA and the CSW General Permit application prerequisites, terminating all relevant CSW permits, and removing their pipes from state boundaries. Otherwise, the MPCA should vacate the CSW permits and require Enbridge to remove their pipes from state boundaries. The MN Public Utilities Commission should abort the ongoing application review process for Line 3 and require Enbridge to reapply.
The MN Department of Commerce has submitted and defended their formal testimony with expert economic analysis concluding a lack of need for the project. A final round of public hearings was held in September and October across the state, and thousands attended to voice their opinions. The evidentiary hearings just concluded on Monday, November 20, where attorneys and intervening parties had a chance to cross-examine each other’s expert witnesses. During the evidentiary hearing, Honor the Earth attorneys asked Enbridge’s Line 3 Project Director, Paul Eberth, why one of the active CSW permits (for the Carlton Pipe Yard) was transferred to Texas-based pipeline company Targa LLC in September 2017, and he testified under oath that he didn’t know what Targa was doing with it.
Enbridge staff also testified that they have already purchased all the pipe for Line 3, that the cost for the pipe for the Minnesota portion alone was over $300 million, and that approximately half of it is already staged in these pipe yards. The rest is coming in by rail and truck as we speak.
Honor the Earth, other intervening parties, and retired MPCA staff and citizen advocate Willis Mattison, are filing procedural grievances about the illegally issued pipe yard permits.
The MN Public Utilities Commission will rule on the adequacy of the final Environmental Impact Statement in December and is expected to make a final permit decision in May 2018.
Summary of MPCA Permit Data (from https://cf.pca.state.mn.us/water/stormwater/csw)
MPCA Construction Stormwater General Permit (see Section 1.B and Appendix A Section A)
Relevant MN Statute and Rules (MEPA 116D.04 Subd. 2b and EQB Rules 4410.0200 and 4410.3100)