The pipeline has to move eventually because of risky erosion conditions, but it does not have to shut down immediately, the judge said.
MADISON, Wis. (CN) — Energy giant Enbridge has three years to cease operating portions of a pipeline on a Wisconsin Indian tribe’s lands, a federal judge said in a decision Friday.
U.S. District Judge William Conley additionally ordered Enbridge to pay the Bad River Band of Lake Superior Chippewa Indians more than $5.1 million for operating the Line 5 oil and natural gas pipeline on reservation lands for which Enbridge’s easements had expired a decade ago.
First opened in 1953, the 645-mile Line 5 pipeline snaking from Superior, Wisconsin to Sarnia, Ontario for now has 12 miles crossing the Bad River Reservation. The pipeline reportedly transports 22 million gallons of crude oil and natural gas from far Northern Wisconsin, down to the southeast through Michigan and across the Canadian border into Sarnia each day.
The Bad River Band sued Enbridge in the summer of 2019, in part asserting the multinational fossil fuel company was trespassing on tribal lands with its pipeline, violating the tribe’s authority to regulate its reservation and creating a public nuisance with the pipeline’s environmental impacts in the process.
After more than three years of briefing and discovery, Conley ruled in September that Enbridge was indeed trespassing and unjustly enriching itself, but the Barack Obama appointee stopped short of ordering the pipeline shut down immediately, citing “significant public and foreign policy implications” like harms to the region’s economy and possible violations of a treaty with Canada.
Subsequent to Conley’s summary judgment ruling, a weeklong bench trial took place in October, and in late November the judge issued a ruling denying Enbridge’s remaining counterclaims and ordering it and the tribe to confer on emergency purge and shutdown plans for the pipeline, particularly regarding an eroding part of the Bad River’s bank called the “meander.”
Work began on those plans, but in May the Bad River Band filed an emergency motion asking the court to take immediate action to shut down the pipeline, saying spring flooding had eroded the river’s banks to the extent that the exposure and rupture of the pipeline were imminent threats.
Conley ultimately declined a shutdown and pointed out that the tribe had not taken adequate steps to prevent some of the erosion and would not let Enbridge reinforce the land surrounding the pipeline either, and he begged the tribe to act in good faith.
Nevertheless, Conley’s 52-page decision on Friday stated that a Line 5 rupture at the Bad River meander would “unquestionably” create a public nuisance, continuing that “the current conditions at the meander create a real and unreasonable risk of that nuisance occurring such that equitable relief is warranted.”
The judge remained convinced that “the current threat of rupture is still not so imminent” that the pipeline needs to be immediately shut down, noting the Band’s refusal to allow remediation efforts to prevent a rupture and the likelihood of shortages and price increases for refined gas, propane and butane in the Upper Midwest and Eastern Canada “creating hardships, especially for the poor and other economically challenged households.”
However, the environmental risks are real enough that Conley’s order made Enbridge adopt a more conservative version of its monitoring and shutdown plan for the pipeline which decreases proposed flow thresholds that would trigger a purge of the pipeline, a modified plan which Enbridge has 21 days to adopt and implement.
In addition to the $5 million and change the judge ordered Enbridge to pay to the tribe for trespassing — a sum calculated as a fraction of the more than $1 billion in profits Enbridge netted while trespassing, according to calculations in the decision — the company was ordered to continue to cough up profits to the tribe on a quarterly basis as long as it is trespassing on the tribe’s 12 former allotment parcels.
Enbridge, the Bad River Band and lawyers for each could not be immediately reached for comment on Friday.
Enbridge’s website claims it is currently working on relocating the 12-mile section of Line 5 running through the Bad River Reservation and replacing it with about 41 miles of pipe outside the reservation.
Notwithstanding that Enbridge says the reroute would take around five years, according to Friday’s ruling, Conley felt he could not justify that length of time given the circumstances and gave Enbridge three years to pack up and finish its reroute.
“If Enbridge fails to do so, the three years will at least give the public and other affected market players time to adjust to a permanent closure of Line 5,” Conley said. “It will also give Enbridge sufficient time to appeal this court’s injunctive order or make new law.”
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