Judge clears way for Enbridge to continue operating pipeline through Bad River tribal land, citing consequences of disruptions
Laura SchulteMADISON – A federal judge has ruled that a Canadian oil company can continue to operate a contested pipeline through the tribal lands of the Bad River Band of Lake Superior Chippewa while the company works to reroute the line through nearby properties.
Citing damage that could be caused to consumers, markets and international relations by a disruption of operations, Judge William Conley ruled late Wednesday that Enbridge Energy can continue to operate the nearly 70-year-old pipeline, but must work to assuage concerns that erosion could cause a spill in the Bad River.
The ruling comes three years after the band 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 lands.
Tribal officials no longer wanted Enbridge to operate the pipeline on tribal lands and feared that a rupture would pose grave environmental damage.
More: Oil contaminated soil found near Enbridge's Line 5, one mile outside Bad River Band reservation
In particular, the largest concern raised in court documents is a meandering channel of the Bad River that has gotten steadily closer to the buried pipeline. The tribe argued 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.
Those concerns were bolstered by a spill on another of Enbridge's pipelines in 2010 on the Kalamazoo River in Michigan, which took years and more than $1 billion to clean up.
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.
Conley, of the Western District federal court in Madison, said Enbridge is being permitted to continue the operation of the pipeline because of concerns over the impact to consumers, refineries, regional economics and the international energy supply if operations were disrupted, in addition to the potential for the impact to foreign relations with Canada.
"There is little question that an immediate shutdown of the pipeline would have significant public policy implication on the trade relationship between the United States and Canada," Conley wrote.
More: 'It could rise to the level of Standing Rock': Wisconsinites push back against oil pipeline reroute
But Conley also noted that Enbridge's continued use of the pipeline through tribal lands after the expiration of the easements also impacts the tribe's sovereign rights to control its own lands. To remedy that issue, Enbridge will be required to pay a yet to be determined fee for the easement in the interim, which could double if the construction is not finished in time.
“This ruling is a turning point in the battle to protect Indigenous rights and the Great Lakes — it underscores again why Enbridge Energy should shut down Line 5,” said Beth Wallace, Great Lakes freshwater campaigns manager for the National Wildlife Federation. “Judge Conley rightly took Enbridge to task in their attempt to run roughshod over the rights of the Bad River Band to protect their waterways, their territory, and their culture. This is a major victory in a battle that should have never taken place.”
Juli Kellner, a communications specialist for Enbridge, said in a statement Thursday morning that the company was pleased with the court's decision.
"The importance of Line 5 was affirmed today by the federal court judge’s decision ensuring the pipeline will continue to provide energy to millions of people in the Upper Midwest while Enbridge moves forward with the relocation of Line 5 around the Bad River Reservation," she said.
"Enbridge remains open to resolving issues amicably with the Bad River Band of the Lake Superior Tribe of Chippewa Indians as we also continue to focus on providing consumers and industry in the region with safe, reliable energy."
Line 5 transports 545,000 barrels of products a day
Currently, 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.
The line would employ about 700 union workers from Wisconsin and beyond. Michels Corporation — which is co-owned by gubernatorial candidate Tim Michels — will be contracted to help with construction as well.
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, who worry about the potential for spills and say that investments should instead be made in green energy.
On the other side of the debate, 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.
Laura Schulte can be reached at leschulte@jrn.com and on Twitter at @SchulteLaura.