'It's an extraordinary request': Judge voices hesitance on bid to close Enbridge Line 5 fuel pipeline

MADISON - A federal judge expressed frustration with a move in his court asking him to shut down an oil pipeline that a Wisconsin Native American tribe says is at risk of rupturing on reservation land in northern Wisconsin.

Judge William Conley of the Western District of Wisconsin said that being put in the position to possibly shut down Enbridge Energy's Line 5 made him "uncomfortable," and said that the Bad River Band of Lake Superior Chippewa has repeatedly not allowed Enbridge to take actions to reduce the risk of a failure caused land around it being eroded by the river.

Conley didn't issue a ruling Thursday on whether the line will continue to run.

"It’s an extraordinary request to be made when the band is doing nothing," Conley said.

Conley said that if the band didn't allow solutions to be worked on and continued bringing the case to court, he was worried that the U.S. Supreme Court could end up ruling in a way that could take away rights held by tribes.

"You're jeopardizing rights recognized by the court," he said. "I don't know if you’ve been watching the Supreme Court, but I’m flummoxed."

The band's lawyers argued that they were reviewing Enbridge's plans to shore up the soil around the pipeline, while Enbridge's legal team argued that the band was holding up their attempts at revetment.

In September, Conley ruled that the pipe could remain in operation as long as Enbridge worked to assuage concerns that erosion along the Bad River could cause a devastating spill.

The Bad River Band in 2019 filed a filed a lawsuit to remove the pipeline after right-of-way easements between the tribe and the company expired in 2013. The pipeline operates on about 12 miles of reservation land.

Tribal officials no longer wanted Enbridge to operate the pipeline on tribal lands and feared that a rupture would pose grave environmental damage.

In response to the lawsuit, Enbridge proposed a 41.2-mile reroute of the 645-mile-long pipeline. If approved, construction for the new line would occur in Ashland and Iron counties. 

The environmental impact statement for the reroute is under review by the Department of Natural Resources, with no date yet projected for when it will be completed. The statement will be one of many documents that will be used to determine whether to issue a permit to Enbridge to allow the project to move forward. 

The reroute proposal has been met with criticism and concern over oil spills or pipe leaks, as well as the potential impacts to the environment when the company disrupts forests and digs underneath streams and rivers. 

More:Oil contaminated soil found near Enbridge's Line 5, one mile outside Bad River Band reservation

A meandering channel of the Bad River is within feet of the pipeline

This year, the largest concern is a meandering channel of the Bad River that has gotten steadily closer to the buried pipeline. The tribe argued in past court documents that if the erosion were to reach the pipe, the footing could be washed away and cause the pipeline to rupture and oil to enter the Bad River and other waters that flow into Lake Superior. 

This spring, after a large amount of rain and snow melt, the Bad River Band said in court documents that erosion has taken place at a "staggering pace." In some locations, the river is only 15 feet from the pipeline, the document said. And at some of the locations, "more bank has been lost in the past few weeks than presently stands between the pipeline and the river."

But Enbridge countered that claim. Leonard LeBlanc, the director of pipeline integrity assessments for the company, said in a letter to the court that even with the erosion that occurred in April and May of this year, there is only a ".28% probability that the line would be exposed in 2023, even assuming Enbridge would do nothing to prevent future potential erosion."

The company also pledged to install sandbags in areas where erosion was most concerning, shoring up the pipeline and restoring safety to 100%.

"And even assuming there was a legitimate safety concern, which there is not, the properresponse would not be to shut down the pipeline altogether — upon which industry, homes, andbusinesses in the Midwest and central Canada depend — without any abatement and without anymention of restarting operations," the company said in another court filing.

"Instead, the reasonable response should be to let the operator and landowner (Enbridge owns the land on which the erosion closest to the Line recently occurred) protect its land and assets by implementing erosion prevention measures, including short-term or temporary measures that could be installed promptly and during the spring and summer months this year."

Line 5 carries gas and propane to the eastern U.S. and central Canada

Line 5 transports 545,000 barrels a day of light crude oil, light synthetic crude oil and natural gas liquids from western Canada through Wisconsin and Michigan and into eastern Canada. The products the pipeline carries are used to make transportation fuels, as well as fuel used to heat homes and businesses.

The relocated pipeline will cross 186 waterways and requires the conversion of some wetlands, as well as the permanent and temporary fill of other wetlands along the route. 

The underground pipe is 30 inches in diameter and has been in operation since 1953. The reroute of the line is expected to cost about $450 million and employ about 700 union workers from Wisconsin and beyond.

Enbridge's reroute project is still awaiting crucial permits from the DNR and the Army Corps. of Engineers, which would allow construction to begin. 

The reroute will cross 300 properties where owners granted Enbridge permission, though the company planned originally to invoke eminent domain. It withdrew its application to take land from unwilling owners in August 2020.

That plan likely would have received approval thanks to a 2015 addition to state law by Republican legislative leaders — including now-Assembly Speaker Robin Vos of Rochester — that implemented wording requested by Enbridge lawyers to make the process for condemning easier for Enbridge. 

The change to state law was done in private, with no public hearings, in a state budget bill passed right before the 4th of July holiday. 

Special report: Greasing oil's path

But the permitting process has been rocky along the way, with Enbridge facing hours of pushback from residents and activists at public meetings who expressed concerns about the potential for spills and the need for investments in green energy over fossil fuels. 

Supporters have highlighted the importance of the propane carried by the line for heating homes, as well as the construction jobs the reroute will create. 

Line 5 has also faced resistance in Michigan, where Enbridge wants to drill a new tunnel under a strait connecting two of the Great Lakes. Michigan Gov. Gretchen Whitmer and Attorney General Dana Nessel have sought to shut down the pipeline. Nessel filed a brief Wednesday in support of the tribe’s request, saying a rupture in Wisconsin would also cause environmental damage in Michigan.

The Associated Press contributed.

Laura Schulte can be reached at leschulte@jrn.com and on Twitter at @SchulteLaura.