WASHINGTON — A Wisconsin judge on Monday ordered a Canadian energy giant and a band of Native Americans to dilute their wine and band together to prevent the “draconian” shutdown of the Line 5 cross-border pipeline.
A compromise between Alberta-based Enbridge Inc. and the Bad River Band of Lake Superior Chippewa would be less than ideal, “particularly in the long term,” District Court Judge William Conley said in a written opinion.
But overall, Conley suggested, it would be better than the options before the court now: permanently cutting off a vital pipeline between the two countries or courting an environmental disaster that may only be a matter of time.
The possible options that the gang has currently presented to the court, if granted, would effectively amount to an “automatic and permanent closure” of the pipeline, the judge said.
“Before adopting such draconian injunctions, therefore, the court must consider what alternative steps, however imperfect…would reduce the risk of an oil spill in the near term,” he wrote.
If possible, Conley continued, those steps should also preserve the operation of Line 5 “for those areas of the United States and Canada that currently depend on it.”
Conley ruled in September that the Bad River gang had the right to revoke permission for the pipeline to cross its territory in 2013, and that Enbridge should have known it had no guarantee it would continue to operate.
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In that ruling, he refused to order the immediate closure of the pipeline, citing “widespread economic consequences” and “significant foreign and public policy implications.”
But Monday’s order, which requires the two sides to meet by December 17 in an effort to negotiate a solution, also makes it clear that the court will “continue to consider the gang’s request for injunctive relief.”
Conley acknowledged in the order that the band’s own natural resources officials have already considered other options and gave their reasons for refusing to accept them.
A Wisconsin judge ordered a Canadian energy giant and a Native American gang on Monday to dilute their wine and band together to prevent the “draconian” shutdown of the Line 5 cross-border pipeline. #Line5 #cdnpoli #USpoli
But the gang “appears not to have weighed the flaws in those alternatives against the risk of potential pipeline failure” should the pipeline be allowed to continue operating, even temporarily, he said.
None of Enbridge’s proposals provide “permanent solutions” to a potential failure, short of a complete rerouting, he wrote. But “at least each seems to prevent that risk at relatively limited costs to the band’s natural resources.”
Conley also flatly rejected the company’s counterclaims, which allege the gang has refused to allow them access to the territory to carry out inspections and maintenance on the pipeline.
“The court is not convinced by any of Enbridge’s arguments.”
These included a request for an injunction under a 1977 pipeline treaty that is expressly intended to prevent disruption of the flow of energy between Canada and the US.
Foreign Minister Mélanie Joly has already invoked that treaty in Wisconsin, and talks between the two countries have been ongoing for nearly a year over a similar case in Michigan.
But Enbridge does not have any power in the courts under that treaty, which already allows “appropriate government authorities” to regulate cross-border pipelines in their jurisdiction, Conley wrote.
The center of the band case is the area where the pipeline crosses a “meander” in the Bad River, where heavy erosion and the risk of flooding make it the most likely location of a possible break in the line.
“The negative impact in this area on the Bad River Basin and even on Lake Superior itself could be catastrophic,” Conley wrote, adding that a break “would be a substantial and unreasonable interference with the rights of the band and the public.” .
That said, he continued, “the gang has yet to prove its right to an immediate entry of injunctive relief.”
Enbridge has already promised to reroute the pipeline around the reserve, and Conley said in September that the court is “inclined” to order the reroute to be completed within the next five years.
That hasn’t satisfied the Bad River gang, however, who still want the pipeline shut down in the meantime.
In a statement, Enbridge acknowledged the latest order and said it was willing to work to find a workable solution.
That could include “reasonable remediation projects, the installation of emergency valves in the reserve, as well as an appropriate plan to close and purge Line 5 if the meander worsens,” the company said.
“We look forward to meeting with the Bad River gang to discuss these issues. In the meantime, Line 5 will continue to operate safely.”
Environmental concerns about Line 5 have long been a priority in Wisconsin, where the pipeline passes directly through the Bad River Reservation, more than 500 square kilometers of pristine wetlands, creeks and wilderness areas.
The gang has been in court with Enbridge for more than three years, arguing that the company is trespassing because it violated the terms of the easements that allowed the pipeline to run through the reservation beginning in 1953.
The company says its plans for a 40-mile detour of Line 5 around the reserve are now two years old, and 100 percent of private owners along the new route have already signed agreements.
Line 5 is also under legal siege in neighboring Michigan, where the state wants to close the line for fear of a disaster in the Strait of Mackinac, the ecologically sensitive area where it crosses under the Great Lakes.
Business groups and chambers of commerce on both sides of the border, provincial governments and Ottawa have rallied behind Enbridge in their effort to present the survival of Line 5 as a mission-critical issue for continental energy security.
Allies have argued in court documents and in public forums that Line 5 is a vital source of power for several Midwestern states and an essential link for Canadian refineries that feed some of Canada’s busiest airports.
This report by The Canadian Press was first published on November 28, 2022.