Enbridge, Sti. Ignace | Susan J. Demas
By the end of December, the legal battle between the Canadian energy company Enbridge Inc. and the Bad River Band will enter its next phase. U.S. District Judge William Conley issued an order Monday that requires Enbridge and the tribal community to meet to discuss ways to mitigate dangers associated with the company’s Line 5 pipeline by Dec. 17, and to submit plans by Dec. 24 for the future of Line 5. Either the tribe and the company will work together on a plan, or they’ll propose separate visions for Line 5.
In his decision, Conley denied Enbridge’s requests for injunctive relief. Enbridge asserted that the Bad River Band and Naomi Tillison, director of its natural resources department, had unlawfully denied the company access to Line 5 to conduct inspections and maintenance. Enbridge argued that the Clean Water Act, the Transit Pipelines Treaty signed between the U.S. and Canadian governments in 1977 and the U.S. All Writs Act— which dates back to 1789 in its original form — gave the court the authority to order the tribe comply with Enbridge’s demands for access to tribal land.
The treaty prohibits public authorities from instituting measures that would “have the effect of impeding, diverting, redirecting or interfering with in any way the transmission of hydrocarbons in transit,” the decision document notes. In his decision, Conley writes that Enbridge isn’t a party to the U.S.-Canadian treaty. Nor does the treaty suggest that “a private entity could bring a cause of action to enforce it or even that it may be enforced in federal court,” the decision states. “Instead, the signatory countries may bring claims under the Transit Treaty pursuant to a specific arbitration process, as Canada has done with respect to Line 5.”
Elizabeth Ward, chapter director of the Sierra Club of Wisconsin, says invoking the treaty was an attack on tribal sovereignty. “I was happy to see the judge recognize that the 1977 Transit Treaty had no bearing on this case at all,” said Ward, who monitored the federal case closely. “Enbridge tried to argue that it was OK for them to trespass on Bad River’s land and, essentially, this treaty between the U.S. and Canada overwrote Bad River’s sovereignty. And I was glad to see the judge agree with Bad River that Enbridge was wrong.”
In September, Conley ruled that Enbridge has trespassed on the Bad River’s land. Nevertheless, Conley rejected the tribe’s request to immediately shut down Line 5 stating that such a move would have “significant public and foreign policy implications.” The issue of international relations between the U.S. and Canadian governments, which hovers over the privately operated pipeline, however, wasn’t mentioned in Conley’s decision Monday. Line 5 is a nearly 70-year-old pipeline that carries up to 23 million gallons of oil and natural gas across 645 miles through Canada and the Upper Midwest. It snakes through Superior and northern Wisconsin, into Michigan and into Ontario. A $450 million reroute plan has been proposed by the company which would avoid the Bad River Reservation. However, the tribe is seeking to remove the pipeline from its watershed entirely, not just from the reservation itself.
The damage an oil spill could cause to the ecosystems and water sources is a principal concern for the pipeline’s critics. Although Enbridge presented its shut-off and purge protocols in the event of an oil spill, those protocols take time to take effect. “Even if those shut-off valves were activated in time to prevent any release of additional crude oil and liquid gas (‘NGL’), a failure of the line would likely not prevent the roughly 20,000 gallons of crude oil and NGL constantly contained in that stretch of pipe from being released into the Bad River, absent sufficient time to purge it into a fleet of trucks before the pipeline failed,” the court decision states. There are also 14 -miles between shut-off valves.
Another section of the decision states that “while Enbridge claims to be much better prepared now, one need look no further to appreciate the potential damage than the spill of over one million gallons into the Kalamazoo River in 2010, after the failure of another of Enbridge’s pipelines, which was similarly built in the 1950’s.”
Although not explicitly mentioned, climate change also factored into the potential impacts analyzed by the judge. Increasing trends of heavy rain in Wisconsin have contributed to issues with flooding, soil and coastline erosion, and damage to infrastructure like bridges and roads. Both flooding and shoreline erosion threaten to weaken a section of Line 5 that crosses the Bad River. Conley stated in his decision that while there are various reasons why the pipeline is likely to fail where it crosses the river at some point, the Bad River Band has yet to prove “its right to an immediate entry of injunctive relief,” when it comes to shutting Line 5 down.
A worst-case flooding scenario for Bad River section of the pipeline, the decision points out, would be a once-in-500-years flood occurring more than once. The last time such a thing occurred was in 2016, though a series of major floods could also present a danger of significant erosion. The decision states that “the risk of a catastrophic failure of the pipeline at the meander (where the pipeline crosses the Bad River) remains thankfully at least a year away.”
As it stands, Enbridge and the Bad River Band are set to begin their talks by Dec. 16. Those discussions will in part cover ways to mitigate risks of an oil rupture, such as by installing new emergency valves on the reservation. In a statement to the Wisconsin Examiner, Enbridge touted the safety of its pipeline.
“Line 5 continues to operate safely across the Bad River Reservation. The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) is the safety regulator in the U.S. for interstate pipelines, approves response plans, and audits operators like Enbridge regularly. Line 5 meets or exceeds all federal PHMSA regulatory requirements,” a company spokesperson said. “Enbridge also has an extensive and intensive system of monitoring and maintaining Line 5, including through video-cameras at the meander, and constant monitoring of weather and flow conditions on the Bad River.”
The spokesperson added, “Enbridge has repeatedly proposed remediation projects to halt erosion at the meander, and a project to install emergency valves on the reservation, as we also move forward with permitting for a planned 41-mile relocation project of the Line 5 pipeline around the reservation. We look forward to meeting with the Bad River Band to discuss these issues. In the meantime, the Line 5 pipeline will continue to safely operate.” The Bad River Band’s lawyers and chairman couldn’t be reached for comment.
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