Line 3: The regulatory battles on Enbridge unfold in the Great Lakes

By Winona LaDuke
News From Indian Country

It’s the sequel to the Sandpiper, but larger and dirtier. Throughout June and July, Minnesotans and tribal members have packed informational meetings with questions for the Public Utilities Commission on the 5000 page Draft  Environmental Impact Statement on Line 3.  

The final DEIS is scheduled to be out in the fall, and the pipeline’s certificate of need (ie: what they need to begin construction) could be issued as early as April of next year. Many expressed frustration at the time table, as being inadequate. (In comparison, the state of New York took 7 years to review proposals for fracking in that state, before the state issued a ban.  A federal ban on lead shot took a couple of decades).   

In the meantime, Enbridge has increased activity in the north, moving in more pipes and equipment, anticipating approval. The company faces many concerned people, Water Protector camps emerging along the proposed line, and increasing numbers of concerned legislators and county commissioners in the north, and also two new federal court decisions with implications for this line.   At the outset, one of the main questions being asked in the 22 public hearings, is why the “No Build Option” is not being recommended by the Department of Commerce.
Here are some of the questions being asked:

1. Where is the spill data?
Enbridge has tried to bar the disclosure of this information, stating that some “bad actors” might use it. The Park Rapids-based Friends of the Headwaters, however, pointed out that “ … Enbridge pipelines on its mainline route are exposed above ground or shallowly buried in many locations. Google Earth can be used to find such pipelines hanging above streams. This imagery reveals that many pipelines are within a few feet of each other. The type of person who would do deliberate damage already has plenty of information about where to do such damage … .”

There are some spill scenarios in the report, but none have been done, for instance, on the St. Louis River. If I were Duluth’s mayor or City Council, I would want to know the plan to protect the Great Lakes. As well, primary spill data comes from the so called Pinewood spill site (that’s a spill which the state, rather than asking for a clean up by the company, has used as a study site). Unfortunately, the clay of Pinewood, is nothing like the water rich, and sandy soils throughout the rest of the proposed route.  

2. If you are Native, you might want to know why you don’t matter.
The Department of Commerce reports in the DEIS that “the impacts associated with the proposed project and its alternatives would be an additional health stressor on tribal communities that already face overwhelming health disparities and inequities … .” The Department of Commerce notes that the tribal community bears the largest impact of this proposed project: “Any of the routes selected would negatively affect tribal resources and tribal members. The … relationship to the land and the rights tribal members have in the ceded territories complicates the traditional notion of mitigation. The ceded territories and the rights that go with them are not mobile and cannot be transferred … .”

And then there’s this, “ … A finding of ‘disproportionate and adverse impacts’ does not preclude selection of any given alternative. … This finding does, however, require detailed efforts to avoid, mitigate, minimize, rectify, reduce, or eliminate the impact associated with the construction of the Project or any alternatives.”

In other words, does this language just mean, “deal with it?”

3. Potential harm to natural resources and tourism ?
The Department of Commerce also noted that the preferred project route would cross more wild rice lakes than any other proposed route. This area has the highest concentration of such lakes, the most pristine aquatic ecosystems and the shallowest aquifers, the most delicate soil types and other environmental features. Regional fisheries generate $7.2 billion annually and support 49,000 jobs. The tourism economy of northern Minnesota represents $11.9 billion in gross sales, or 240,000 jobs. The DEIS states that Enbridge’s Line 3 will create no new long term jobs. In fact, the company laid off 1000 employees with its recent merger with Spectra, and 500 last fall between Canada and Minnesota.

4. What about pipeline abandonment?
There is not much about the abandonment of the old line in the DEIS a precedent-setting issue., less than 20 pages in fact. Today there are at least eight operating pipelines in Minnesota, most of them operating around 30 or more years. Line 3 is the first “abandonment” of a line that could become a national precedent. Enbridge has estimated that  $l.2 billion will be required for the removal of the old Line 3. There is no clear documentation on what this entails, including if it will review “ legacy contamination” , or what fifty years of a leaky pipeline would do for the ecosystem.  It is also not clear, if this pipeline is abandoned who will pay for that $l.2 billion, or what would happen to the next 5 pipelines which it is likely that Enbridge at some point would seek to remove, since many of them are over 50 years old.  Many landowners believe that the abandonment issue be solved before we talk about any new pipelines.

5. Tar sands oil?
According to a Minnesota Environmental Partnership survey this spring, 60 percent of Minnesota opposes tar sands pipelines.  Why? It’s one of the dirtiest and most greenhouse gas-intensive fuels on the planet. A recent National Academy of Sciences report concluded that spilled tar sands oil is extremely difficult, if not impossible, to clean up and that U.S. communities are generally unprepared for spill response. And it is the source of the cancers and health impacts on the Dene people who live downstream from the tar sands projects in Alberta, Canada.

6. Is there really a need?
The Toronto Globe and Mail suggests that pipeline companies and politicians are overbuilding lines by 2.4 million barrels a day capacity. Plus, it is not clear how much tar sands oil will be produced in 10 or 15 years, according to the Canadian Association of Petroleum Producers. Investment in the extraction of Alberta tar sands has plummeted recently and major oil companies are pulling out, because oil prices are stuck at around $40-$50 per barrel, and tar sands oil costs $80-$100 to produce.

7. What could Enbridge or Minnesota be liable for?
The city of Flint, Michigan came to international attention when their drinking water system collapsed As of mid June, 13 Michigan public officials have been charged, including 4 charged with involuntary manslaughter as a result of investigations into the negligence involved with Flint’s water crisis. The director of Michigan’s Department of Health and Human Services, Nick Lyon, has been charged with involuntary manslaughter and misconduct in office over the Flint water crisis. Both are felonies in Michigan.

The state’s chief medical executive, Dr. Eden Wells, will be charged with obstruction of justice. Four other officials, including the former Flint emergency manager and former director of public works, were also charged with involuntary manslaughter.

The involuntary manslaughter charge stems from an outbreak of Legionnaires’ disease, a type of pneumonia, that spread in the city following its switch in water source. According to the indictment, Lyon knew about the outbreak but failed to alert the public. The disease killed 12 people and sickened more than 70 in 2014 and 2015, “ The Flint Water Crisis was and is a failure of leadership”, according to a report issued by Michigan Attorney General Bull Schuette. “ .. A cause of the breakdown in state management was a fixation , a preoccupation with data, finance and costs instead of placing the health, safety and welfare of citizens first.” These indictments, as well as the  Judge James Boarsberg’s federal ruling that the federal permits authorizing the pipeline to cross the Missouri River just upstream of the Standing Rock reservation, hastily issued by the Trump administration just days after the inauguration, violated the law in certain critical respects. These two court decisions could have serious implications for Enbridge’s future in the region. 

While a state regulatory process moves forwards in Minnesota, Tribal governments are pointing out that “consultation” or meeting with the tribes does not constitute consent, at that it surely does not constitute Free Prior and Informed Consent- the international UNDRIP standard. There’s a difference between telling tribal governments what you plan to do, and telling them to deal with it, and getting consent. Thus far two tribal governments, White Earth and Fond du Lac have formally intervened in the process.  

Down pipe, the Bad River, Lac Courte Orielles, Ho Chunk, Little Traverse and other nations will face more oil if the pipeline is not stopped in Minnesota.    The regulatory battle is just unfolding.

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