It seems like everything is slower than normal… or faster than normal, depending on who you are. Perhaps.
If you’re a retired engineer in the north woods, awaiting some special news, time drags like an eternity, regardless of how much you do.
Days end as you talk with a friend realizing hazily that it seems two days have passed since this morning, when you happened down to the river to pray and ran into that surprise.
Days seem to have 48 hours instead of 24. And yet, so little seems to get done.
All talk. No sense of any progress. 24/7 “news” cycles crowing together in a cacophony of chaos.
Perhaps it’s those currently overwhelmed for whom time seems to race? As one tends vent tubes, receives new patients, swabs noses, or transports victims of our newest plague, perhaps the time seems to flash by as the end of the day arrives before one is aware… though grief persists around all the lost hours missed with children and lovers.
It feels a prayer for the world is in order in each moment.
Yet we are the gods creating each day here on Mother Earth. We are the ones managing the planet’s infrastructure now, as humans have become their own sort of plague upon the planet… some spewing excessive carbon for glorious lives of ease… while others toil for pennies, hoping to have enough to eat each evening.
It seems us children have gone a bit too far with Mother these days. She’s hotter than ever about our obstinance – our commitment to fashion and fast, our desires for more. In our haste, we’ve seemed to have bypassed all the tipping points She tried to provide as warnings.
The arctic waters no longer cool and the forests are burning with abandon, while floods wipe away dreams and beings perish at ever increasing rates. In the last year humans have reckoned our pending demise as the pandemic dead pile and require disposal. For those who care to heed the signs, evidence is clear. Losing a “9/11” of American victims each day seems enough, does it not, to make it clear?
So what of those who will not see? Those in denial? Is it truly all of us?
What is to be done when many among us fail to consider their fellow man? Those who fly about, not considering the tremendous impacts personal actions have for all others? Those who blast through the fast food bag, throwing it out the window as they speed to work, where they will earn only enough to afford that cheap substitute for nourishment? Those who piss into potable water as many around the world struggle to find clean water to drink? Will this be the fate of us all as we poison our surroundings to assure we can keep living faster? Giving back far too little in reciprocity to the Mother keeping us alive each day?
What of those so afraid of their loss of perceived power that they’ve allowed their secret plans for insurrection to become real… and revealed? Will we ever truly know the truth of what has transpired in our government, our agencies, our law enforcement ranks, as the power of money has trumped the power of compassion for our fellows? Will we ever find our ways forward to a place of peace?
To assure you are duly warned, LANGUAGE ALERT. Oops. Was that too late? Did the title give too much away? In case it did not, what ensues will be the ramblings on the many levels of how fucked we are. While I typically focus on the Enbridge Line 3 debacle in Northern Minnesota, there is OH SO MUCH OTHER HORRIBLE happening these days, that I will cover a bit of new or strange ground today. For those who’ve been reading a while, nothing too new, no worries. [Though at Book Club Sunday I’m pretty sure they were like, “How do we uninvite the lady who started the Book Club? She’s kinda sounding crazy.” (FYI: I hear ya’. I feel pretty crazy. Isn’t that NORMAL these days?)]
The issue in the Center Ring is the National insanity and, while I heard 45 was banned… is he back? [I swear I did a search for him yesterday and only Don, Jr popped up. 45 used to be @realDonaldTrump as you may recall. Surely this @POTUS account was there too and I missed it?] No activity of late… but maybe this account is managed by… Kayleigh McEnany? Or some other lackey?
So TWO law enforcement officers had to die for this to happen, one apparently at his own hand and one by skull fracture with a fire extinguisher, and we still see pretty much NOTHING done to those who committed the insurrection? Nothing much anyway. I hear they got the Q Shaman (is this dude serious?), the Arkansasshole, and the podium guy. But many are still at large:
The duo of 45 and Rudy – who called for the group to march to the Capitol for “Trial by Combat”
The Capitol Police officers who waved these insurrectionists in toward the Capitol, removing barriers and running away from them as they flowed through the building seeking to reek havoc and “Stop the Steal” [luckily some quick thinkers managed to secure the ballot boxes]
The Insurrectionists who wandered in as if it was any given Wednesday, rummaging through desks and destroying/stealing government property
The Republicans who encouraged – even after ALL the chaos – a continued commitment to OBJECTING to the certification of the vote [time to remove them all]
That 45 has been given until 1/11 to resign – like, WHY THE FUCK IS THIS HIS Decision? Remove that motherfucker NOW, eh? – which correlates to the 3% movement’s insignia [as we’ve already heard threats from insurrectionists who acted on 1/6/21 that they would “be back on the eleventh”] should give some rationale for a pause. A requirement that we consider what might be going down today? I mean, after the epic fail at the Capitol, I’d not be surprised by almost anything. Perhaps the police are downplaying it as they have folks staged in all the states to take over? 3% believe the County Sheriff is the highest law of the land and it was disturbing to see Deputies in Olympia, Washington giving law enforcement guarding the governor’s mansion some side-eye as they fist bumped the protestors (who eventually shouted “kill them all”).
The talk that this is “Over Now” – as I heard on On the Media – like, hey, we counted the votes so, all is fine, we’re moving on with Joe! – might be a bit premature. Those who disagree may have other plans [WARNING: that link is a bit creepy, though I think we should ALL be aware there is some portion of our country that feels that way].
45’s delight at the rioters’ response to his command, his complete disregard for what was transpiring, his subsequent submissive speech (obviously given by a clone – see, there’s a reason for everything!), are all reasons for his immediate removal and, to be honest, his commitment to a mental health facility to evaluate his current mental state. At least we get some media folks (FINALLY) speaking to this chaos and asking for accountability? Apparently 56% of us want 45 removed immediately. Regardless, too little has been done, and whatever is done in the end will be too late to allow the U.S. any means of holding authority in the world. We have become the shit-holiest of countries.
I’m not sure what % of his followers are still in love with him (the clone theorists) and what % are finally realizing that he’s never truly given a shit about them at all. But I’m concerned for all of them. For those disillusioned, perhaps suicide will feel an only option. I know how I felt when Bernie wasn’t given the nomination (the first time). It isn’t pretty – discovering of the unfairness and corruption in our government – whether true or imaginary. [I was a late bloomer when it comes to Presidential politics – hadn’t paid nearly enough attention to the Dark Money and Citizens United decisions over the years…] For those still believing in 45, I fear what they can be led to do in the name of “democracy” or “Jesus“.
Christianity is deeply interwoven with many of the ideologies that brought Trump supporters out to the National Mall and into the halls of Congress.
According to Andrew L. Whitehead, co-director of the Association of Religion Data Archives and professor of sociology at Indiana University-Purdue University Indianapolis, understanding Christian nationalism is essential to understanding what motivated many of the demonstrators and rioters in Washington.
“I think that [the demonstrators and rioters] believe that God has a specific plan for this country, and that their vision for the country has been given to them by God,” Whitehead said. “Christian nationalism at its core is this desire to see Christianity be privileged in the public sphere.”
The Christianity of Christian nationalism is very narrow and specific, according to Whitehead. It is typically white supremacist, nativist, and authoritarian. Whitehead and his colleagues previously found that adherence to a Christian nationalist ideology was one of the strongest predictors of a Trump vote.”
Here’s what Beau had to say… [It’s just a thought… and a good one imagining Trump in Alamo, Texas – so many levels of funny! – just 225 miles away from the actual Alamo. And I’d agree with Beau that, without Twitter, he’ll surely be full of vitriole to spew as soon as he gets in front of his followers; and we should take care to assure the story stays straight. A review of the situation on the 6th by PBS Newshour journalists was quite thorough and I recommend it. Four women journalists: PBS NewsHour’s anchor and managing editor Judy Woodruff talks to correspondents Lisa Desjardins, Amna Nawaz and Yamiche Alcindor.
Meanwhile, in Ring Two, we STILL have a pandemic unfolding!! The country is losing the equivalent of another “9/11” every day… and many still are giving the virus short shrift. We’re too busy talking about the insurrection and getting ‘back to normal’ just as soon as we possibly can!! Yet, since November 1st, Minnesota has lost 3205 citizens to COVID – that’s 57% of our dead in the last 6 weeks. We saw the spiking deaths as Enbridge moved workers into the area. It seems they anticipated Walz and his administration permitting them to flood Northern Minnesota with pipeliners from places like Texas, North Dakota, Wisconsin, Oklahoma, and more. The foreign corporation is now moving at breakneck speed to drill under our rivers as quickly as possible, hoping to eradicate the Minnesota Court of Appeals authority to rule on the legal need for this pipeline. [Ring three could be your choice of: the economy failing, the pending market crash, the death of big oil, climate change, the evictions, food shortages. As all that stuff is interconnected, you eventually get around to all the others!]
Many hospitals in Los Angeles and other hard-hit areas are struggling to keep up and warned they may need to ration lifesaving care. Nurses are caring for more sick people than typically allowed under the law after the state began issuing waivers to the strict nurse-to-patient ratios.”
At least on the insurrection front we have The Governator who has spoken clearly on what we saw on the 6th. He recognizes the situation for the disturbing nightmare it truly is… because he’s lived its legacy. Patriotism is standing by the Country, not the President. Indeed, Teddy! Give him a listen – it’s worth a few moments as we face what feels like such a historic moment in time.
And on the Enbridge front, here’s a bit more good news. [See, I never let you down!!] American Birkebeiner Ski Foundation has reported that they are breaking ties with Enbridge as a sponsor, saying:
We’ve taken pause to reconsider our relationship with Enbridge Energy and have chosen to dissolve our agreement. In hindsight, we realize that this association was perhaps not a clear pathway to engaging conversation in support of education, future change, and ultimately our greater Birkie Green initiatives, nor was it in alignment with our American Birkebeiner Ski Foundation (ABSF) mission. For that, we are sorry. We never intended to cause concern within the Birkie community.”
Guess they finally realized they were being funded by the very source of their demise… thanks to those who helped them.
Good Luck today, Everybody! Let’s hope for the best. [Publishing this early… as I’m a bit concerned about cover of dark operations some insurrectionists might be considering. I mean, they’ve had four whole days to plan deep into the night… so I’m counting on someone planning to do something. Let’s just hope they aren’t as successful as they hope.]
This weekend, the Star Tribune re-printed Louise Erdrich’s December 28th NY Times piece where she shared thoughts on her recent visit to the proposed crossing of Enbridge’s Line 3 at the Mississippi River near Palisade, MN. We live near the first proposed crossing, in the LaSalle Valley near Alida, Minnesota, where taxpayers spent millions to purchase and restore the land after Jack Pine blowdowns. Tim Walz and his administration have given Enbridge a green light for this unnecessary tar sands pipeline project… and we watch as Water Protectors remain, standing in the way of this horrible idea.
In November, Minnesota Gov. Tim Walz’s administration signed off on final water permits for Enbridge to complete an expansion of its Line 3 pipeline. … Lawsuits — including one by the White Earth and Red Lake nations and several environmental organizations, and another by the Mille Lacs Nation — are pending. But construction has already started.
This has been a brutal year for Indigenous people, who have suffered nearly double the COVID-19 mortality rate of white Americans. … Nevertheless, tribal people worked hard on the elections. The Native vote became a force that helped carry several key areas of the country and our state.
On the heels of those victories, the granting of final permits to construct Enbridge’s Line 3, which will cross Anishinaabe treaty lands, was a breathtaking betrayal. The Land of 10,000 Lakes is already suffering from climate change. Yet Minnesota’s pollution control and public utility agencies refused to take the future of our lakes into account, or to consider treaty rights, in granting permits.
This is not just another pipeline. It is a tar sands climate bomb; if completed, it will facilitate the production of crude oil for decades to come. …
The state’s environmental impact assessment of the project found the pipeline’s carbon output could be 193 million tons per year. That’s the equivalent of 50 coal-fired power plants or 38 million vehicles on our roads, according to Jim Doyle, a physicist at Macalester College who helped write a report from the climate action organization MN350 about the pipeline. He observed that the pipeline’s greenhouse gas emissions are greater than the yearly output of the entire state.
If the pipeline is built, Minnesotans could turn off everything in the state, stop traveling and still not come close to meeting the state’s emission reduction goals. …
And if the pipelines were to leak, the sludgy mixture is almost impossible to clean up. The state’s environmental impact statement notes that the pipeline will run through two watersheds that drain into Lake Superior. Any spill in the vicinity of the Great Lakes, which contain 84% of North America’s available freshwater, is an existential threat to our water supply. …
“There is nowhere worse on earth to have an oil sands pipeline system than the Great Lakes region,” says Rachel Havrelock, the founder of the University of Illinois Freshwater Lab. “It is, everything else aside, the world’s worst planning.”
The thing is, there was no plan. There is no plan. It’s clear to me that with the Keystone XL Pipeline on hold and Line 5 challenged in Michigan, Enbridge is building as fast as it can to lock in pipeline infrastructure before regulatory agencies and governments institute rules on climate change.
Global financial institutions have been realizing the environmental cost of the fossil fuel industry. Last year, Moody’s downgraded Alberta’s creditworthiness to its lowest level in 20 years, citing (among other issues) the province’s reliance on oil sands. Black Rock, HSBC, Deutsche Bank and many other global financial institutions have taken steps to divest from fossil fuels.
But instead of pulling back their production levels, many oil sands companies, with the support of Canadian banks, doubled down, producing a surplus. These Canada-based corporations are perpetrating a vast ecological crime, and Minnesota is their accomplice. But we could cross over to something better. Tar sands do not have to flow through this pipeline. The rivers can heal, the great scars gouged into the wetlands regenerate.
The Complaint begins with a review of the situation detailing the proposed pipeline, noting that “Although the Corps purports to find that the Project will have no significant impact on the environment”, construction and operation would have significant impacts (§ 8) clarifying in § 9:
Construction would require clearcutting vegetation from a 50 foot-wide permanent right-of-way and a 95- to 125-foot temporary construction right-of-way for the entire route of the Project; excavation of a minimum 7 foot-deep trench; stockpiling of removed soils; transportation of approximately 60 foot-long, 36-inch diameter pipe segments to the trench; welding the pipe segments into a continuous pipeline; re-filling of the trench; and construction of ancillary facilities, including pump stations, valves, electrical substations, access roads, horizontal directional drilled waterbody crossings, cathodic protection equipment, and communications facilities. These activities also would utilize a substantial amount of heavy equipment that will produce noise and air emissions, damage roads, and compact soils. These construction-related activities alone make the Corps’ finding of no significant impact indefensible.”
Ignoring concerns like impacts to drinking water quality, among other things, the Complaint challenges that the USACE improperly decided to NOT prepare an Environmental Impact Statement (§ 11), which also fails to meet the requirements of NEPA (National Environmental Protection Act) that requires the USACE to take a hard look at impacts, again rendering the approvals unlawful (§ 12). Along with this failure, the USACE also failed to evaluate impacts of construction to meet Clean Water Act 404 and evaluate alternatives that would be less environmentally damaging (§ 13), whether the pipeline is in the public interest (§ 14), thus making the USACE approval of the 404 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law in violation of the Administrative Procedure Act (“APA”), NEPA, the CWA, and the Corps’ own permit regulations” (§ 14). They ask that the project be vacated and that construction be enjoined. [This last word means they would prohibit the Project with an injunction.]
Next follows a review of the Jurisdiction and Venue and information on the Parties: Red Lake Band of the Chippewa (§ 18-22), White Earth (§ 23-30, Honor The Earth (§ 32), Sierra Club (§ 33-34). The USACE is noted as Defendant (§ 36).
The next sections cover the Statutory and Regulatory Background, starting with NEPA (§ 37-63) which requires a “hard look” at environmental consequences prior to taking major action… which the Line 3 project CLEARLY is. A deep dive of the process required of the USACE in permitting approvals ensues, noting the Environmental Assessment (EA) done by the USACE was insufficient, as proper review of the factors – that regulations require -warranted an EIS, which “must include a ‘range of actions, alternatives, and impacts.’” per 40 C.F.R. § 1508.25, including, I’ll note, a “No Action alternative” (b1). § 51 notes that impacts of GHG emissions on climate change is one of the cumulative impacts analysis NEPA requires… and one the USACE failed to do. Precedent also says that NEPA analysis requires that oil spill risks and impacts be completed (§ 56) and requires analysis of cultural resource impacts (§ 57).
Next up for review is the Clean Water Act (CWA; § 64-75), which regulates discharges of pollutants in the waters of the United States and quality standards for surface waters and requires the USACE to permit only after taking “all appropriate and practicable steps to avoid and minimize adverse impacts to waters of the United States.” 40 C.F.R. § 230.91(c)(2) First, the CWA says that the USACE may not issue a 404 permit “if there is a ‘practicable alternative’ to the project with less impact” (§ 69) and that there must be a definition of the project’s overall purpose. Furthermore, if a project is not water dependent, the Corps “must presume that a practicable alternative that does not involve a special aquatic site is available and will have less adverse environmental impact on the site and its ecosystem.” If this is the case, the “applicant must rebut the presumption with detailed, clear, and convincing information proving that a less adverse practicable alternative is not available.” (§ 70) Second, the Corps cannot permit if the project could result in discharge that adversely impacts U.S. waters (§ 73), and that, if no less damaging alternative is available, the applicant is required to show all steps that would minimize potential adverse impacts. (§ 74) Finally, the USACE “must independently verify all the information in the permit application.” (§ 75)
The Rivers and Harbors Act (RHA) (§76-81), our “nation’s oldest environmental law”, covers prohibitions for actions that impair navigable waters. The USACE approval of the Section 408 permit requires predetermination that “the use or occupation at issue will not be injurious to the public interest” (§ 80) and is subject to NEPA (§ 81).
Next are the USACE’s own Permitting Regulations (§ 82-88). Here, the Complaint charges that the USACE must assure the project is in the “public interest” (§ 82) after evaluating “probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest”, (§ 83) balancing benefits against “reasonably foreseeable detriments”, (§ 84) including consideration of effects “on historic, cultural, scenic, and recreational values, including Indian religious or cultural sites.” (§85) The District Engineer is to make an independent review of need based on public interest, (§ 86) and must “independently verify the information submitted by the permit applicant” (§ 87).
With regard to Treaty Rights and Federal Government Trust Obligations (§ 89-105), the Complaint makes clear the history of US treaties with the Chippewa – giving a good read to educate yourself on this history – and explaining that Native People’s usufructuary rights (to hunt, fish, and gather) are just as critical to their continued existence as “the atmosphere they breathed”. Of special note are § 96 “Treaties are ‘the supreme Law of the Land.’ U.S. Const. art. VI, cl. 2.” and § 98 “The federal government, including federal agencies, cannot abrogate treaty rights without specific and clearly expressed Congressional authorization.” This section also notes the courts deference to the Indians in settling matters of Treaty Law (§ 99) and that the USACE “is responsible for ensuring treaty rights are given full effect and not abrogated or impinged upon by agency actions absent an act of Congress.” (§ 100) There is special mention of the Winter’s Doctrine (§ 101) which protects Tribes’ uses of their water. [I won’t go into it again here, but this is CRITICAL, as noted in a previous blog on the MEQB and their erroneous approval of the Minnesota 2020 Water Plan.] § 105 mentions the requirements of the “The United Nations Declaration on the Rights of Indigenous Peoples, endorsed by the United States in 2011” requiring good faith consultation with Indigenous Peoples to assure free and informed prior consent – which doesn’t seem to have happened… as multiple Tribes are suing for a Stay on the Line 3 project.
The portion on Environmental Justice references Executive Order 12898 noting the 1994 effort, enacted under President Clinton and still in effect, to identify and address adverse effect of programs, policies, and activities on minority and low-income populations, which indicates agencies, under NEPA, require a “hard look” at EJ issues. (§ 106-108)
The Factual Allegations notes (§ 109-111): Enbridge submitted a permit application on 9/21/18 (Section 404 of CWA, Section 10 of RHA, Section 14 of RHA) for their project and in January 2020 supplied updated materials, for which the USACE has sole pre-construction permitting authority and which must comply with NEPA.
The Project is described (§112-127), including a history of current Line 3 and noting the differences that this “replacement” project would include (basically making it a NEW and DIFFERENT pipeline than current Line 3, not a replacement). The route and capacity, as well as the transported substance are each explained showing this project is an EXPANSION which includes new facilities (§ 117): “including eight pump stations (four adjacent to existing pump stations and four at new locations), electric transmission lines, access roads, and 37 mainline valves. Enbridge also proposes to expand the Clearbrook Terminal.” § 121 explains the wetland conversions proposed which would cause “loss of critical wetland functions, including decrease in above-ground biomass; loss of forest interior habitat; decrease in structural diversity; loss of visual screening and aural screening from human activity; decrease in local climate amelioration; loss of evergreen winter cover for wildlife; loss of habitat for shade-tolerant or shade-loving plants; loss of wildlife food sources (e.g., acorns); and increase in and replacement of native plants by invasive and exotic plant species.” Also mentioned are Fond du Lac impact (§ 122), wetlands and the Mississippi Headwaters region (§ 123), calcareous fen wetlands – highly susceptible to disturbance and thus more protected by Minnesota law (§ 124), groundwater resources (§125), the “Straight River Basin, an important Minnesota aquifer (§ 126), and wild rice beds (§127).
Regarding the Permit Application (§ 128-138), the Complaint charges that Enbridge’s permit application “largely consists of generic and conclusory statements that do not provide the information the Corps must have to evaluate the Project”, which precluded meaningful public comment on 404 compliance, and ignored the “numerous alternatives”, such as upgrades to other pipeline systems (which they have already done based on Enbridge’s reported shipments since 2016) or repair and replacement of the current Line 3 pipeline. Enbridge has not shown that these alternatives are not practicable though, in fact, some would be cheaper. There is also no explanation for Enbridge’s insistence on their preferred route, though many alternative routes are evidenced to be “less environmentally damaging”. The Complaint notes that Enbridge plans to use HDD (horizontal directional drilling, which most avoids impacts and limits vegetation disturbance) at only 21 of the 227 water crossings, “based on inadequately conducted wetland delineation surveys.” It also mentions the risk associated with HDD for “frac-out… when pressurized fluids and drilling lubricants escape the active bore,” which the Corps did not consider a threat.
The issuance of the USACE permit (§139 -162), referenced a November 2020 Environmental Protection Plan, which was not publicly available at the time of the Complaint’s filing (Christmas Eve 2020). In addition, the USACE issuance of the Section 408 authorization for the Lost River, Minnesota Flood Control Project was made in reliance on information Enbridge provided in its 9/21/18 application. (§ 141) [So no independent review… WTF?] The USACE also failed to make public the documents used to determine their decision – “a combined Environmental Assessment, Section 404(b)(1) Guidelines Evaluation, Public Interest Review, and Statement of Findings for the Project (“Decision Document”)”, indeed refusing “to make them public except pursuant to a request made under the Freedom of Information Act” (FOIA), even though their own internal policies provide that Tribes not be required to seek such documents via FOIA. When these documents were provided to fulfill Sierra Club’s FOIA request, “the Corps indicated that it is still reviewing documents for potential redactions and will provide those documents at a later date.” (§ 142) [Yet construction continues in Minnesota at present time. TO WHOM do we turn for ACCOUNTABILITY?]
The Corps goes so far as to state in their Permit (§ 143):
The Decision Document shows the USACE failed to:
Perform environmental analysis where they thought they lacked “sufficient control and responsibility to expand its analysis” [what does this even mean exactly?] (§ 144)
Include in their scope “the entire pipeline construction, or operation” again noting their lack of sufficient control and responsibility [Who the hell HAS THE CONTROL AND RESPONSIBILITY if not the USACE, FFS?] (§ 145)
“evaluate the direct, indirect, and cumulative impacts of the Project… instead (limiting) … scope of its analysis to segments of the pipeline over which the Corps determined it has control and responsibility.” [Again, why would it NOT have control and responsibility as the SOLE Federal Agency issuing pre-construction permits?] (§ 146)
“analyze or provide any evidence that the construction method Enbridge plans to use at each water crossing location will be sufficiently protective.” (§ 147)
“consider the Project’s impacts on wetlands that are hydrologically connected to trout streams, wild rice, lakes, and other protected waters of high or outstanding biological significance (§ 148)
“evaluate the Project’s potential to result in oil spills” or “analyze whether Enbridge has measures in place to adequately guard against or respond to such spills (§ 149)
Account for GHG emissions of the Project, noting reliance on the “State EIS” for this analysis (which the PUC ignored). (§ 152)
Evaluate cumulative impacts of the Project (§ 153)
Evaluate social costs of climate impacts of the project (§ 155)
Evaluate the infringement on Treaty Rights, specifically usufructuary rights ( 156)
“consider the impact of an oil spill on the Tribes’ rights to hunt, fish, and gather and to clean water.” (§ 160)
The Decision Document states on Environmental Justice: “Based on information available to the Corps, including the information provided in the State EIS, as well as the details of the Project that is within the Corps’ regulatory authority, the Project would not have disproportionately high and adverse impacts to minority populations.” (my emphasis) Yet the ‘State EIS’ acknowledged:
The EJ analysis indicates that American Indian populations residing in the census tracts noted in Table 11.3 will experience disproportionately high and adverse impacts. As described in Chapter 9 of this EIS, the intensity of impacts felt by American Indian populations will be greater than depicted by quantitative analysis alone because of their cultural and spiritual relationship with the natural environment.”
Next the Complaint discusses Risk of Oil Spills (§ 163-173). Perhaps most striking was this: “Effective clean-up methods simply do not yet exist and may never exist for the type of oil that Enbridge plans to transport in large quantities through the Line 3 pipeline.” [So, if we DO get a spill, we got FUCK ALL for cleanup.] Following is a summary of tar sand properties and the risks associated with spill using the 2010 Enbridge catastrophe in Kalamazoo as example where cleanup costs exceeded $1B and required “more than 2000 personnel, over 150,000 feet of boom, 175 heavy spill response trucks, 43 boats, and 48 oil skimmers.” There is also reference to the millions of dollars in Minnesota tourism revenue that are risked with a spill, noting the Corps failed to account for these economic losses in their permit decision, as they did not consider oil spill risks associated with the Project.
On Climate Impacts (§ 174-182), the Complaint shares the current threats of climate change and Minnesota’s disproportionate experience with average temperature, noting:
Every county in Minnesota is experiencing more climate-related stresses: extreme storms, flash floods, excessive heat, and droughts. Lake Superior has warmed substantially and Great Lake ice cover has dropped precipitously.”
As tar sands oil production generates almost triple the warming pollution of conventional crude – and the Complaint describes the extraction process for our edification – there is a causal connection between the Project and increased GHG emissions. While the USACE has studies that estimate the well-to-wheel GHG emissions for tar sands crude, and the “social cost of carbon” is commonly used by government agencies to evaluate projects, the USACE “failed to consider information showing that approval of the Project will result in hundreds of billions of dollars in social costs.” (§ 182)
There are four main areas of relief sought with this complaint:
Find the USACE in violation of the law WRT a failure to “Adequately Consider the Direct, Indirect and Cumulative Impacts of Its Permit Action Violated the National Environmental Policy Act and the Administrative Procedure Act” (§ 183-195) as they: unlawfully segmented NEPA by not including the segments of the Project outside Minnesota; failed to evaluate risks and impacts of oil spills; failed to factor in the significant difference between conventional and tar sands crude; failed to analyze the threats of crossing methods (i.e., frac-outs during HDD), failed to analyze alternatives; failed to quantify cumulative and incremental effects of climate change; failed to assess the impacts of approval on Tribal Treaty Rights; and restricted the scope of review (giving no explanation of its analysis and failing to provide rational EJ review).
Find the USACE “acted arbitrarily, capriciously, and contrary to the evidence before it, in violation of NEPA and contrary to the APA, 5 U.S.C. §§ 706(2)(A), (D), in failing to prepare a full EIS on the Project” (§ 196-203) though the Project would involve extensive environmental impacts, crossing 78.3 linear miles of wetlands, and impacting lands where Tribes retain usufructuary rights.
Find the USACE violated Clean Water Act § 404 and the Administrative Procedure Act (§ 204-210) in its failure to: conduct an alternatives analysis, including those that are practicable and less environmentally harmful to fulfill the Project’s purpose; assess any off-site alternatives and limiting to the route corridor designated by the Minnesota Public Utilities Commission; or independently verify information necessary to determine the least damaging alternative.
Find the USACE acted arbitrarily and capriciously in failing to undertake a lawful and rational public interest review of the actions authorized by the Permit (§ 211-217) as required by its own governing regulations. Specifically, “The Corps’ public interest review unlawfully limited the scope of its consideration of detrimental effects to water impacts associated with construction of the Project, even though the Corps considered beneficial effects beyond the construction, such as “services provided not related to the Project” and benefits to others in the United States who would use the products of crude oil transported by the pipeline. Decision Document at 48.”
Overwhelmed with a recent trip to the North Dakota border to determine the Line 3 project status, I’m still processing through the hundreds of photos and videos we captured. What we observed was disturbing.
The good news is that they have not yet gone under the Red River. We can still prevent this project from ever transporting any tar sands from the horrific Athabasca (region where tar sands are mined). Note: When you click on the link from NASA, be sure to click on the eyeball logo that says “All” to view the slideshow of the region over time from 1984 to 2016.
The process of extracting oil from the sand is expensive. It takes two tons of sand to produce one barrel of crude oil. Great Canadian Oil Sands opened the first large-scale mine in 1967, but growth was slow until 2000 because the global cost of a barrel of oil was too low to make oil sands profitable.”
Here’s a brief shot of some of what we found in Kittson, Marshall, Pennington, Red Lake, & Clearwater counties.
I’ll be updating this blog as I finalize the details. We have quite a lot of video to process into something cohesive.
Until then, if you’d like to read something more while you wait, on how we got to this place where we have not yet been able to stop this pipeline, no matter HOW many people speak up… read this blog, a summary of recent MN350 report on Koch Industries capture of the MN Chamber of Commerce.
The ECO Act sought to reward residential energy customers who switched to more efficient heating systems that relied on electricity rather than propane. The Act, which was introduced by Republican Senator Jason Rarick, from Pine City, would have created jobs for local contractors, released utility companies from minimum spending requirements, prioritized benefits for low income home owners, and expanded consumer choice by rewarding them for switching to more efficient heating systems, according to MN350’s report. The Propane Association’s opposition to the legislation is easy to understand. They want people to use more propane. The reasoning behind the opposition of the Minnesota Chamber of Commerce is less transparent. However, MN350’s report makes a strong case for the claim that one Chamber member, the Pine Bend Refinery own by Koch Industries, has essentially captured the Chamber of Commerce when it comes to policy regarding bills such as the ECO Act, or other legislation regarding energy efficiency and the reduction of fossil fuel use. This is the case, the report argues, even though many of the other large members of the Chamber have expressly stated their support for increased energy efficiency, reduced petroleum use, and a greener economy. The report points out that Koch Industries lobbyist, Matthew Lemke, is on the Board of Directors for the Minnesota Chamber of (Commerce) and that time-and-again Chamber lobbyists statements have mirrored the Koch-Pine Bend position rather than that of companies such as 3M or Target.”
After a bit of working through the many photos and videos, this is our summary thus far.
Pipe staged along route from Red River east for 5.2 miles, then pushed dirt is consistent along the route throughout Kittson County. Marshall County dirt push was mainly at crossings of roads and waterways. Pipe staging along the corridor returned east of Trail, Minnesota and through to the Clearwater County line [another 6 miles of staged pipe]. We noted a bore machine off Hwy 75 in Marshall County and found 2-3 road crossings where they had prepared to bore under but no boring seemed to have been completed where we observed. [Quick video of the area on arrival – it was my first trip to this part of the state so I took in the Beet Field Vista.]
We observed many campers at the campgrounds north of the Petro Pumpers at Thief River Falls. Multiple trailers and trucks from states known for pipeline workers. These guys have their systems in place – with big propane tanks, foam board for skirting, and huge trucks… for driving through the snow. We counted trailers, campers, and trucks from 19 states: ND, OK, TX, MN, MO, FL, IL, MS, MT, OR, AR, PA, KS, IN, OH, SD, MI, WA, NV. [Hard to watch… HOW is THIS COVID-19 SAFE, Governor Walz?]
Clearbrook terminal showed piping staged from the east side of Hwy 92 to the Enbridge terminal there south of town. [You can still smell the gas leak or chemical smell at the plant when you drive past – SO GROSS. Makes me wonder about all those ramps on the houses in Clearbrook.]
The equipment storage yard north of Bagley on 242 again showed no apparent security presence.
Quick Summary of the Enbridge Corridor of Death from ND to Clearbrook
Hoping to have more video for release by the end of the week… There are a LOT of video files to consolidate… Sixty of them to be exact. Whew!
After posting last week’s blog, I got a request to update folks on what the current legal status is for the proposed Enbridge Line 3 project. I will admit my title was a bit deceiving… the Motions for Stay to the Court of Appeals were what I was anticipating, not a Stay decision, which would take a few more days… or longer.
While Enbridge experienced their first fatality on the project, we still hear no word from the Walz Administration to give pause for the project. No stopping for death of any kind it seems… The politics on the Virus and the Project are undeniable these days. 😦
So, where are we exactly with the Line 3 legal fight? This is what Kevin Whelen, former Executive Director for MN350 and current Line 3 Water Protector active in the Palisade, MN area wanted to know after reading last week’s blog.
RE Kevin’s request for an overview:
Friends of the Headwaters hopes that the court will expedite a stay request, but it’s unlikely that our other appeals will get decisions before spring.
Current FOH court appeals regarding the Line 3 oil pipeline:
* A challenge to the MN Pollution Control Agency’s (MPCA) misguided and lackadaisical decisions around the contested case and the water permits.
* An appeal DISPUTING THE ADEQUACY OF EIS, the Line 3 Environmental Impact Statement.
* A STAY ON LINE 3 CONSTRUCTION until the appeals have been heard, argued, and decided.
* An appeal CHALLENGING THE MN PUBLIC UTILITIES COMMISSION (PUC)–its process, its lazy acceptance of incomplete Enbridge data, its willful ignorance regarding the MN Environmental Policy Act, and its incoherent rationale for Line 3.
* A legal complaint regarding the US Army Corps of Engineers’ (USACE) 404 permit.
Friends of the Headwaters’ member response on FB 12-15-20 (my additions)
What does all this mean? And when can we hope for relief from the Enbridge onslaught to our forests and wetlands?
We must first remember how unlikely a Stay is to secure: 50% of requests don’t get the desired ruling. It’s almost always a long-shot. That said, 2020 isn’t like most other times. And the presence of a Global Pandemic, alongside increasing evidence that we need urgent and immediate response by governments as the planet burns, floods, and convulses due to the human activity – may help our cases.
The LTEs are fast and furious, with most of the Enbridge support focusing on jobs and profits and most of the opposition focused on the risks for death and environmental destruction. Which do YOU find “Irreparable”? I think it’s pretty clear we can fix jobs and financial problems while death is hard to remedy… whether it’s an 80-year old tree or your 80-year old Grandma.
A temporary Stay for cultural reasons was issued recently when on December 5th the project encountered a lodge (waaginogaan) near the proposed SECOND crossing under the Mississippi River. [Why cross once when you can cross TWICE? FFS. This project is a bad idea for SO MANY FUCKING reasons.] To my knowledge, Enbridge has YET to produce their Cultural Resources Monitor to review the location with The People, though work continues to the west of the lodge, including on a drill pad at the Mississippi River. [18:55 is a summary by Winona of the project. Permits with no enforcement power… No protection of the Water. The details on the Cultural Resources Monitor is at 26:30 (24:24-28:00 covers the topic). So far, no response for the White Earth Tribal Historic Preservation Officer on a name for that Enbridge representative, who is supposed to be leading any work that involves digging? Who can call Enbridge to task for NOT having the Appropriate Cultural personnel to do a project of this magnitude through Indian Country??? It seems no one. It’s been more than two weeks and no response from the MPCA, PUC, DNR, or even Enbridge – as they barrel on with their work.
Winona also mentioned the death at Hill City and the speed Enbridge is using on this project. She notes (28:25) that Transmountain had two workers die and an injury (12/16/20) and they have closed their project down this week. That article notes the injury occurred after MULTIPLE COVID violations were discovered on inspections. There was also a father of 4 lost in late October on the project – “That injury comes seven weeks after an employee of SA Energy — the contractor leading the pipeline expansion work in the Edmonton region — died at a work site on the outskirts of the Alberta capital. Samatar Sahal, 40, was caught and pinned under a crossbeam of a trench box that was being disassembled at a Trans Mountain site on Oct. 27.” Rushing pipelines IS a dangerous thing.
Trans Mountain is suspending all work in Burnaby and across the entire pipeline route starting Friday, Dec. 18 until Jan. 4, 2021, says a statement. …
The accident follows revelations that federal regulators recently found “systemic non-compliances” of COVID-19 mask rules at Trans Mountain worksites in Burnaby and the Lower Mainland.
Four workers were sent home following an inspection that found more than three dozen violations by contractors in three days.
Canadian Energy Regulator staff conducted a compliance inspection at the Westridge Marine Terminal (Dec. 1) and the Burnaby Terminal (Dec. 2) on Burnaby Mountain. The inspection also focused on “Spread 7,” the section of the pipeline expansion construction being done in the Lower Mainland, on Dec. 3. Work at each of these sites is contracted out to Kiewit-Ledcor Trans Mountain Partnership (KLTP).
Over the course of those three days, the inspector found 37 violations of three COVID protocols set out by Trans Mountain’s COVID-19 response plan.”
And is this kind of COVID violation happening in Minnesota on the Line 3 project? Some photos have been secured on non-complying contractors locally. Regardless of whether or not protocols are followed, COVID is a real risk in our communities. This is a screenshot from a recent FB posting for an employee on the Line 3 project:
State of the Current Legal Cases
As noted above, there are multiple fronts in this tar sands pipeline opposition:
Appeals disputing the Adequacy of the EIS, the Certificate of Need, and Route Permit are currently filed with the MN Court of Appeals. [Initial Briefs on these cases were just recently filed (Red Lake, White Earth, & Mille Lacs Bands, along with Youth Climate Intervenors, Friends of the Headwaters, Sierra Club, Honor the Earth, and the Minnesota Department of Commerce) though the cases will take many months for completion. Hence, a Motion for Stay on the project until the judicial process can make a ruling.] These filings challenge all aspects of the PUC process, which the Office of Legislative Auditors reported did not adhere to the law with regard to public engagement.
Challenging the MPCA ruling on the contested case hearing and their water permits has pushed out as the MPCA has asked for an extension on their response, pushing this case into the new year for briefs. [And, based on a recent MN350Action report on the MN Chamber of Commerce, this avenue may be a long-shot given Laura Bishop’s long-standing ties to Big Business.]
A legal complaint regarding the US Army Corps of Engineers’ 404 permit. This is still in the works as it regards Federal courts as opposed to Minnesota Courts as the USACE is a Federal Agency. This work may also depend on additional factors (which I’m just too tired to investigate at this point… and I guess we have time, though perhaps by next week I can give an update).
Once filed with the Minnesota Court of Appeals, estimates are 15-20 days being about as quick as the Stay could be issued – not much less as Enbridge will be offered a chance to respond. Based on all the reading I have done, the case seems pretty cut-and-dried. And the scientific evidence is certainly piling up against it being a good idea to 1) build a tar sands pipeline ever again, and 2) to even consider doing that unnecessary work during a global pandemic.
Here’s hoping that the Court of Appeals will represent a branch of Minnesota government showing reason and an adherence to the law – kinda their balliwick, eh? – as we’ve not seen that to date from the Executive or Legislative branches. The politics of collusion with Enbridge is thick and includes our media – even resulting in Osterholm NOT being asked about the effect of Line 3 pipeliners coming into the state on River Radio… though a local politician had asked for the question to be presented. Though he did mention that, even with the vaccine, we’ll be seeing the effects from COVID for “many years to come”. He also worried about the tremendous damage we’re doing with PTSD to our health care professionals. Yet, still no #DelayLine3 effort from the Walz Administration? Perhaps they can get Ellison and Osterholm on TOGETHER and talk the Science of Climate Change and COVID and how the Enbridge Line 3 project makes NO SENSE on either front. The focus of the program was on economics, not life, it seems. 😦
Resistance Along the Enbridge Corridor of Death
Rather than write much, I’ll direct you to Healing Minnesota Stories’ Monday blog post about their last weekend’s experience. Sadly, DNR Conservation Officers have been co-opted to work against the citizens of Minnesota – also illegally – in supporting the Canadian Oil Transport Company, Enbridge, over the People of Minnesota. I will note that the treatment of Water Protectors and Natives, and their culture especially, has been egregious. Officers grabbing a Staff (these revered beings are to be respected) and holding people with hands bound behind their backs in freezing temperatures for almost an hour? WTF? How is THAT humane? Strip searching people for petty misdemeanor offenses? During a pandemic? Taking N95 masks from vulnerable parties and giving them paper masks? These aren’t hardened criminals that required jailing, they are young women and older ladies standing to protect the water! The actions of this Sheriff were beyond comprehension and truly are criminal. It is clear the intention was to dissuade further voice to those opposing the Line 3 project. I do not think their actions will be successful. I think mainly they will reveal the inhumanity of our law enforcement officers acting as goons… for a few Enbridge dollars.
Three Honor the Earth and Minnesota Interfaith Power & Light volunteers accessed the waaginogaan area for prayer. We were up the river bank – 150 yards from ANY construction – and were besieged by eight DNR Officers crashing through the woods yelling at us, citing us. Definitely a show of force.”
Shared after an early December experience at the proposed Line 3 Mississippi River Crossing
The Global Situation
Big news this past week regarding Lloyd’s of London:
Caving to pressure from climate action campaigners, Lloyd’s of London, the world’s largest insurance market, announced Wednesday that it will no longer cover coal-fired power plants and mines, tar sands, or Arctic energy exploration activities from January 2022 onward, with plans to fully phase out such businesses by 2030.
Meanwhile, Climate Justice Advocacy groups bemoan the announcement as still too little, too late:
We welcome Lloyd’s new policy of no longer providing new insurance cover for coal-fired power plants, thermal coal mines, oil sands, and new Arctic energy exploration as a step in the right direction,” said Lindsay Keenan, European coordinator for Insure Our Future, in a statement. “However, the policy should take effect now, not 2022.”
“Additionally, the target date for Lloyd’s to phase out existing policies should be January 2021 for companies still developing new coal and tar sand projects,” she said. “Lloyd’s 2030 deadline is not justified by climate science and the urgent need for action. We will continue to hold Lloyd’s accountable until it has met these recommendations.” …
Flora Rebello Arduini, senior campaigner consultant for SumOfUs… “Lloyd’s needs to prohibits all members of its market from renewing insurance for the Adani Carmichael coal mine, the Trans Mountain tar sand pipeline extension, and other such climate-wrecking projects when they come up for renewal in 2021, not in 2030.” …
Elana Sulakshana, energy finance campaigner at Rainforest Action Network, put it: “Lloyd’s is sending a message to the U.S. insurance industry that it cannot continue its unchecked support for climate-wrecking projects under the Lloyd’s name.”
“Building on today’s momentum, we will continue pressuring the U.S. insurance industry to match and exceed Lloyd’s policies across their entire fossil fuel underwriting and investment portfolios,” Sulakshana vowed. …
Lloyd’s announcement is “a step in the right direction” but “not enough,” said Bernadette Demientieff, executive director of the Gwich’in Steering Committee. ” As Indigenous Peoples, we are living in ground zero of climate change while fighting to protect our sacred lands and our ways of life. People need to understand that the land, the water, and the animals are what makes us who we are.”
“Our human rights have been violated not just by our government but by corporations and people that are not educated on Indigenous issues,” she added. “We urge Lloyd’s to join AXA and Swiss Re to exclude themselves from any Arctic Refuge energy development or exploration immediately and show the world that they respect the rights of Indigenous peoples whose lives will forever change if drilling is to occur.
The piece notes: “AIG, Liberty Mutual, and other U.S. insurers that operate Lloyd’s syndicates will be forced to abide by the new rules for their underwriting.”
So that could mean Enbridge will no longer have insurance for their pipelines NEAR-TERM. THIS should be a good reason to evaluate whether we REALLY want a Tar Sands pipeline pushed through Minnesota forests and wetlands. I mean, who is gonna pay for the spill if Enbridge no longer has an insurance policy?
Enbridge can’t even file their fucking compliance paperwork correctly:
If they can’t even complete their compliance filings correctly – something they’d done hundreds of times over the decades – How On EARTH can we trust them to comply with the complex things like engineering documents and environmental permits… or novel things like COVID protocols? For crying out loud, they’ve already RUSHED to their FIRST Fatality on the Project… Days ago now, yet no details have emerged. [As of Sunday evening.]
And what of our own Minnesota DNR? I hear they were threatening newly-elected Minnesota Legislators with arrest this past weekend. Guess they’ll see how that threatening nature goes for them moving forward. [My money is on the Legislative Ladies! Bunch of STRONG VOICES willing to speak up for THE PEOPLE.]
#StayLine3 #DelayLine3 #Pause4Pandemic
Since it is Solstice time, I’m passing along the greetings we sent to the Relay for Our Water participants. It was the fun part of the last week… making this with good friends and allies.
Line 3 project has Enbridge lackeys currently eating through our forests here in Northern Minnesota. If you want to witness the destruction, you can review Facebook pages for RISE Coalition, Shanai Matteson, Ellen Hadley and many others. Lots to see as these Warriors hold the line until we can resolve the legal battles around the project. The Court we hope will rule quickly on filings made. Today I will focus on the various legal filings to the Minnesota Court of Appeals, specifically on their arguments regarding the Certificate of Need – or more precisely, the lack thereof, for this project.
It is clear from MN Statute 7853.0130 that when the PUC grants a Certificate of Need for an oil pipeline, the applicant must provide evidence of a demand forecast.
The Department of Commerce filing notes the PUC’s illegal approval and improper resulting action:
The Commission granted a certificate of need, holding that, although Enbridge did not submit an energy demand forecast, Enbridge’s forecasts on other topics and other evidence provided a sufficient substitute. …
The Department of Commerce consistently challenged Enbridge’s proposed forecasts for failing to account for demand, raising the issue in testimony, in briefing, in exceptions to the administrative law judge’s recommendation, and during Commission hearings. … The Department preserved the issue for review, as required by statute, in reconsideration petitions to the Commission’s orders granting a certificate of need. …
The Commission held that forecasts based on supply were sufficient to show demand for oil and that other parties failed to introduce sufficient evidence to show demand would be reduced in the future. …
The Department initially raised this issue in its exceptions to the administrative law judge’s report. Because the Commission adopted the administrative law judge’s legal position on this issue and reiterated it in its order, the Department raised the issue in reconsideration petitions to the Commission’s three orders granting the certificate of need.”
The DOC filing notes: “In 2016, a federal court in Michigan issued a consent decree that required Enbridge to seek all necessary approvals to replace the existing Line 3.” What this means is that they were ordered by the federal government to try to get a new pipeline for safety concerns on their current line. What it DOES NOT MEAN is that Enbridge gets a free pass to securing permits for a new pipeline.
The DOC lays it out pretty plainly. They explain that the statutes require “a ‘long-range energy demand forecast on which the necessity for the facility is based.’ Minn. Stat. § 216B.243, subd. 3.” More simply put: “To approve the construction of a crude oil pipeline, the Commission must determine that crude oil is needed.” However, Enbridge provided the Muse Stancil Report which projected utilization – NOT DEMAND. This report also noted that oil not used in the US could be exported… So… NOT for the 5-state region Enbridge claims to be supporting? For GLOBAL export?!? And they report that the author of the report “acknowledged that he ignored demand for refined product”!
The PUC failed: “By relying only on a single supply forecast based on oil producers’ expectations, the report ignored external factors affecting pipeline utilization, such as the expansion of other pipelines or the demand for refined products.” The PUC failed to consider either demand or global gluts of refined products (Thanks, Coronavirus!) that we are now seeing as our reality. So, they were WRONG. And in their errors, they violated the law and FAILED to protect Minnesotans from a Canadian corporation running roughshod over us here in the North Country.
the Commission granted the certificate of need, despite the Department’s objections that Enbridge failed to introduce an energy demand forecast.”
They add: “The Commission cited the Muse Stancil Report and evidence of apportionment on Enbridge’s mainline as sufficient bases to substitute for an energy demand forecast. The Commission reached this conclusion despite recognizing that a “key” input into the Muse Stancil Report was a crude oil supply forecast, rather than a demand forecast.” The PUC error seems pretty clear. The DOC filing goes on to reiterate the continued failings of the PUC throughout the process, relying “on the supply forecasts in the record to conclude that the oil supply will continue to increase and future demand will be equal to or exceed that supply”, which is so obviously NOT the case as 2020 has made QUITE clear. The PUC refused to be swayed by science or reason. Again and again. [We could have avoided YEARS of wasted taxpayer dollars if they’d just applied the law and said, Nope.]
Regarding the law, the DOC provides multiple cases that conclude the Court of Appeals is not bound by PUC decisions or required to defer to the PUC’s expertise (or lack thereof in this case). In fact, the DOC notes that the PUC’s shift to burden the opposition parties is another blunder for them to consider. They go on to do just that after explaining – in a way even a 2nd grader can understand it – why the PUC violated the law when not requiring Enbridge to provide a DEMAND forecast for their transportation of tar sands and approving the project anyway. They get pretty detailed… providing an entire paragraph on how various dictionaries define “energy” to confirm the statute details (page 13-14). They do point out the many idiotic ways some Commissioners tried to define the “need” for a new Line 3.
This fun section (starting mid-page 17) explains how Enbridge duped most of the Commissioners [but not us Water Protectors!]. “Even though his report’s model assumed crude oil demand would automatically absorb supply, the Muse report’s author puzzlingly agreed that future demand for crude oil would ultimately drive use of Line 3. … Rather than assisting the Commission in determining whether the crude oil supplied by the proposed project will be needed, the Muse Stancil Report’s assumption of continuous high demand assumes the project is needed.”
If it wasn’t so fun to read of the PUC failings over and over again, you might get sick of how many ways and how thoroughly the DOC explains the Commissioners’ repetitive reliance on the supply forecast – in error. Here’s one more…
Because the Commission committed legal error by failing to evaluate a forecast of demand for the type of energy to be supplied by the proposed facility, and instead relied on the pipeline utilization forecast based on crude oil supply in the Muse Stancil Report, the Court should reverse.”
OK, OK. Thanks for indulging me. The DOC goes on to write about how neither Apportionment nor the Desires of Enbridge’s Customers is a Demand Forecast. [DUH… unless you are one of our four erroneous (idiot/bought?) PUC Commissioners] Then they close with a review of the PUC’s SHIFT, placing the burden on opposition parties to prove the pipeline WASN’T needed, noting this too gives one pause. For Fucks Sake. Statutes require the Applicant to prove a need for their requested relief. [This ain’t Rocket Science! Though this sure reminds of the PUC! Had to stick some recent fun in…]
This says it pretty clearly:
Despite Enbridge’s legal obligation to provide an energy demand forecast to prove need, an erroneous legal standard pervaded the proceeding—that parties other than Enbridge must show that demand for crude oil would be reduced in the future, and therefore the pipeline would not be needed. This shift of the burden of producing a demand forecast and the burden of persuading the decision-maker to show the project would not be needed began with the ALJ. Relying on the Muse Stancil Report’s assumptions that refineries would operate at capacity, the ALJ required intervening parties to quantify how demand for oil would be reduced. …
While the ALJ recognized that global forces reducing demand for oil are ‘very real,’ she nevertheless stated that ‘no party has presented any data actually quantifying this possibility.’ The ALJ went on to find that ‘raw claims alone do not negate [Enbridge’s expert’s] assumption that (at least through 2035) surplus oil can be exported outside the U.S.’ …
In other words, the ALJ required the other parties to prove that crude-oil demand would decrease, instead of requiring Enbridge to forecast the demand for crude oil from Line 3.
The Commission carried through this burden shift to its orders, concluding that intervenors failed to introduce into the record “sufficient evidence of the extent to which … forces could reduce demand during the forecast period.”
The DOC goes on to really hammer the point home… a couple more times. For the real legal/word nerds, the last full paragraph on page 28 is a favorite. 😀
The filing submitted by Red Lake Band, White Earth Band, Honor the Earth and Sierra Club (The Parties) presented on the issue of Need, along with two other considerations that ask the court to reverse the PUC’s decisions. With regard to Need, there is a great explanation of Enbridge’s erroneous reliance on the Canadian Association of Petroleum Producers (CAPP) forecast of “supply” as their proof of “demand” for their product, a new pipeline. (pages 4-6) There follows a rational explanation of why neither Enbridge nor its customers are who drive demand. Don’t we all understand that demand is decided by all of us in how we choose to use the final products? This is driven home by quotes from the Administrative Law Judge who heard the testimony:
It is commonsense that reduced demand for refined products would impact the price, supply, and profitability of crude oil. By ignoring the demand for refined products –and focusing only on the supply of Canadian crude –Mr. Earnest’s analysis ignores an important factor in forecasting the need for additional transportation of crude.”
They further note: “In the Muse Stancil model, “demand for crude oil” is a modelling assumption, not a model output.” & “This forecast assumes that if U.S. demand is not sufficient to consume all supplied Canadian crude oil, then overseas demand would be sufficient in all future years to demand this supply.” (page 9) Which is none of their business really, as the PUC is only authorized to consider the energy needs for citizens in our region, not the whole fucking planet. [my emphasis]
Following the plain language of the law, the Court will reverse this capricious PUC decision. (pages 14-15)
The Arguments made by The Parties are strong and clear, and similar to the DOC filing, include definitions, this time for “demand”, “forecast”, and “accuracy”. They claim:
… the legislature, when it enacted Minn. Stat. § 216B.243, intended for determinations of “need” for energy transportation infrastructure to be based on a forecast of consumer (public) demand for energy, because it is society that demands energy, not the companies that supply it.”
There follows an edifying explanation of energy demand and consumers. And… some additional piling on of how asinine the approving Commissioners have been to obediently lap up Enbridge’s “proof” of “demand” without giving consideration to either A) facts or B) Enbridge’s obvious self-aggrandizement. Personally loved this line: “The CAPP production and supply forecasts should be seen for what they are: the Canadian oil industry’s black box estimates of its own future crude oil production and exports.” [aka Wishful Thinking, Thanks, Paul!]
Bottom line: The Parties ask the court to “remand this matter to the Commission for hearings to allow presentation of a forecast of consumer demand for petroleum supported by adequate disclosure of its underlying data, assumptions, calculations, and methodology”. So mote it be.
And… since I cannot seem to stop myself from reading all these legal documents that give me such hope, and more importantly because I am a HUGE FAN, I’m gonna go on to also read the filing from Friends of the Headwaters’ Scott Strand. Yep. And you know what? I can summarize it in a couple shots of the Table of Contents!! Here we go…
What the PUC did:
Why they were Wrong:
How they were Criminal Assholes about it all:
As you can see from the descriptive titles on each section, Scott eats their fucking lunch legally. But this seems to be where the brashness ends as he cuts to facts and serious arguments for the narrative. I’ve enjoyed watching this guy argue in front of the PUC for YEARS and I gotta give BIG kudos to FOH for paying him to keep doing it. Support them if you can. They’re literally a bunch of old folks down in Park Rapids spending their own time, green, and energy trying to stop a pipeline. And begging for more money to keep doing that. And they’re old now because they been doing this shit for too many fucking years. Seriously, give them some money. Do it today. It’s all I want for Christmas. Really. [OMFG… am I channelling Helen? Did Margaret’s BFF die? Please tell me no because I LOVE that mouthy bitch!]
While the longer narrative is a bit drier, it’s still a joy to read for this nerd. Now go give some money to Friends so we can WIN this Legal Battle once and for all!!
And what can Minnesota expect should the Court fail to adhere to the law and grant a Stay? The results we saw in Pembina County, North Dakota for Enbridge’s short 13-mile stretch there may tell the tale. At 26 times the length they had, our 337-mile project could lead to thousands of deaths, exponentials being what they are…
It appears that the Minnesota Public Utilities Commission will continue to flout basic ethical practices, as well as the law, as they collude to assure Enbridge can continue its massive tar sands pipeline project in northern Minnesota during the surging pandemic. Friday’s Hearing to consider the White Earth and Red Lake Bands’ Motion for Stay was sickening to observe.
If you’re curious to understand what it was like to watch the Treaties being sold by white men stealing everything good from the Natives while pretending they were being “good neighbors”, you can get an earful and an eyeful if you watch what went down at the PUC Friday.
Today, I’m gonna keep the overview brief. [Well, I’m gonna try. And at the end, I’ll review Enbridge’s hypocrisy as they play the same card in two different ways in their games with Michigan and Minnesota. They’re going for a “Heads, we win… Tails, you lose” scenario, which only works with those who aren’t paying attention and listening closely.] Law 360 did a good piece on it – a bit shorter read, almost as fun.
Here’s my SHORT VERSION of Friday:
Chair Katie Seiben: We RUSHED to HELP YOU and gave a Hearing in 3 short days!! And here we Commissioners are… to hear the Tribal Motion for Stay on our Orders for the Line 3 project!! Anything anyone needs to add for our consideration? And, like, how come you didn’t file sooner guys?
Joe Plumer, attorney for Red Lake Band of the Chippewa: We couldn’t file until all your orders became official and the imminent danger of construction began. If we tried earlier, you would have explained that the project hadn’t even been given approvals yet.
Frank Bibeau, attorney for White Earth Band of the Ojibwe: Saw their filing but I’m not sure Enbridge understands how the Minnesota court systems work. Stays are EXPECTED during Appeals and we’re simply asking for the PUC to allow the Court decisions to play out without becoming moot. Enbridge’s response had only a few sentences about COVID-19… yet our Tribal Chairman’s letter notes that we’re talking about our tribal members dying. The PUC has the right to exercise a Stay and that’s what we’re asking.
Enbridge: We have nothing more to add but sure hope you saw all those letters towns along the right-of-way submitted [thanks, colluders!] about their harms if construction doesn’t start. [Lost wages being more important than lives of our citizens?]
Commissioner Tuma (Enbridge’s best buddy on the PUC): If the Court of Appeals can grant a Stay, why do we have to? Like, what happens if we don’t? [Cause, that’s already your decision, right, Tuma?]
Plumer: Uh, because the law implies that the most important consideration is to maintain the jurisdiction of the Court of Appeals and… it’s your job. If you don’t, we’ll look for a 2-week stay in order to get to the Court of Appeals with our concerns.
Tuma: Well, I don’t think we should obstruct them or their legal authority. Since you’ll be there in a couple weeks, we can take a pass here. How much damage can possibly happen by then?
Katie: Miss Friedlander, can you tell us what’s happening on the ground? Mr. Prantis? Enbridge?
Anna Friedlander, representing United Association: There are about 250 of our members there as of a couple days ago with “up to about 615” expected. And, yes, Commissioner Tuma, if Governor Walz orders a lock down, we’ll surely abide it… but that would have to come as a larger overall shutdown of all construction in the state.
Kevin Prantis of LIUNA: We have a thousand tradesmen out this week and working toward 2000 for next week.
Enbridge: “There are five spreads… and work has started throughout, not only through training as the workforce is arriving but also equipment is also being used to start the clearing process along the right-of-way in each of those spreads…. with issuance of the final permits Monday and it will continue in the weeks to come.”
Commissioner Schuerger (only Commissioner to oppose the project to date… ~30 minutes into the Hearing): So trees are being cleared now. When can we expect digging of trenches? In coming weeks? [Note: this is an irreparable harm as ruled in previous instances for Stay.]
Enbridge: “That has not yet begun as again the preparation work is underway but it will be underway shortly and in the next week to two weeks and beyond. … Work at facilities, Enbridge owned property is underway and that will continue.” [Note: Enbridge owns 1180 acres in Hubbard County alone.]
[There is a lot more discussion on a bunch of notions in the middle like: how come you didn’t file for a stay earlier; will the company and workers comply if the Governor issues a shutdown; and then the bringing in of Leech Lake representatives who explained that as a Member of the Tribe, Joe Plumer doesn’t speak for Leech Lake. How fucking appropriate given all the history I’ve watched as Tribes struggle just like colonizers with their government for protections. And what did Joe reveal? That Enbridge’s promise to Leech Lake was that all 6 of their pipelines would be removed by 2029 from their Reservation Lands. That means the Line 3 “replacement” is just the first of many more “relocations”. Frank Bibeau attempted to explain some treaty law to these imbeciles but they were not listening, it’s clear – as you’ll see from Tuma’s coming comments. You know, when you repeatedly explain, “I’m not trying to cause division,” it kinda makes me wonder if you’re trying to convince ME, or YOURSELF, Tuma… Frank also tried to explain the Federal Consent Decree, which the PUC reads as a REQUIREMENT for them to APPROVE the Line 3 project – and which it is not. Again, only Commissioner Schuerger was listening. Finally, just before the break for consideration, Joe Plumer notes that the Minnesota Chippewa Tribes letter must be removed from the docket as it did not have full tribal committee approval. Again, Tribal “leaders” trying to push through something the “People” (band members) oppose? Let’s return to the Hearing now for their decision.]
Commissioner Schuerger (1:28:50): “I’ve carefully read the joint motion for a stay of the Line 3 Replacement Project and answers to that motion and I’ve reviewed relevant law and discussed this application with our legal counsel. … I support the actions requested by the motion.” [He further argued there is no legislation that gives the Commission authority to require a bond for a stay.] “The Commission clearly does have jurisdiction and the authority to grant a stay – and no parties here have argued that we do not have that jurisdiction and authority. Regarding the legal standard… there is clear guidance from prior Commission orders and prior court cases and notably, um, in one of our recent cases, it was a petition from Excel Energy for approval of solar gardens and the order denied reconsideration and our clarifying on our own motion. In that order, the Commission stated that, um, that we grant a stay when it appears that a stay would provide the most equitable balancing of the interests of the parties. In balancing those interests,” various factors are considered… “In this case there is disagreement between the parties about whether the Commission should evaluate the likelihood of reversal on appeal. In my review of the record and the applicable law, I’m convinced that we should not.” [And he proceeds to give the legal basis for his stance, referencing Webster and other Supreme Court rulings, which give the Commission discretion to review the factors.] … Whether considering if the moving parties, the Tribes, will suffer irreparable harms, or if Enbridge will, or to protect the jurisdiction of the courts, the most important factor is the latter, protecting a legal point from becoming moot during Appeal. “A Stay is necessary to protect the Court of Appeals. … Focusing on relevant and key factors, the Tribes argue Line 3 will cause serious and irreparable harms with both construction and operations, and these cannot be reversed if the Tribes prevail in court. These arguments are in my view persuasive and critically important. And I know that Friends of the Headwaters supports and supplements the Tribes petition with Federal case law demonstrating a pattern of giving more weight to environmental harms than financial ones when conducting this type of analysis.” [Well, that’s too bad, Matt, because all those other Commissioners, they done got together and decided that the lost wages of workers is FAR MORE CONCERNING to them than any ole ndn lives. But please, my friend, continue…] “Overall, as I look at balancing the factors before us, um, just note that the Tribes argue and Enbridge appears to agree, that the Commission should evaluate whether there are irreparable harms to the Tribes or the public and whether there are irreparable or disproportionate harms to Enbridge. … I’ve evaluated the key relevant factors, applied the relevant law, weighed the balance of interests. I believe that the record before us supports a finding of irreparable harms to the Tribes, and importantly, I agree that a Stay is necessary to protect the jurisdiction of the Court of Appeals. Constructing the entire Line 3 replacement before the courts can issue an opinion would clearly limit the courts ability to impact the project, and thus would limit its authority and jurisdiction. In my view colleagues, the record and the law support granting the Stay.” [1:36:53]
PUC Hearing on a Motion for Stay from White Earth and Red Lake Tribes.
My favorite line from Commissioner Schuerger? It comes at 1:35:09 “The Tribes and other parties point out that Enbridge has a legal obligation to take all reasonable steps to prevent release from existing Line 3, including, if necessary, shutting the pipeline down.” Amen, Brother. It’s PHMSA’s jurisdiction anyway, not that of the PUC. [More on that below.]
So what did the other Commissioners say? Mainly that they were so concerned about all those folks waiting for jobs up along that ole pipeline route that they are just sure the best decision is to let the project move forward and assure Enbridge gets everything they ask! Commissioner Means explains (again, really, guys, get some new drums, ffs) her bewilderment with why this wasn’t filed sooner (which in her mind renders it ridiculous), along with a bunch of justifications for how the decrepitude of Enbridge’s current Line 3 REALLY, REALLY, REALLY mean they need to build a NEW ONE! [More on that later too…]
Commissioner Means goes on to say, “… the Motion to Stay should be denied. And although I considered all factors [including all the dead people?]… first with respect to the allegations that denying the stay would cause irreparable harms… the balance of the harms favors denial of the Motion because arguments related to this factor largely centered on impacts to the environment.” [Does that mean you DIDN’T consider the impact of COVID deaths?]
Means literally fucking argues that (again because Line 3 is so dangerous), “the record supports that operation of existing Line 3 is more likely to cause environmental harm than construction of the project. Therefore, denying the stay protects the court’s jurisdiction [TF?] because denying the stay would cause LESS HARM than granting the stay. [I think she’s a little confused about the actual law, this petition, and frankly, I just gotta say, if this chick is a lawyer, she’s a shitty one.] She basically says that since the Appeal Court themselves can issue a Stay, then they will maintain their authority.
My FAVORITE line from her is on the harms to non-moving parties… where she notes that any ideas that pipeline workers would contribute to the spread of COVID-19 are “simply unsupported”… [except by the MN Department of Health data?] and that these pipeline workers are “beneficial for Minnesota’s economy”! [apparently the only fkn thing this commission is considering.] She asks that we allow her to “be plainspoken for a moment”:
I think it would be an unconscionable disregard for the irreparable harm to these workers if the Commission grants the Motion to Stay.”
Commissioner Means [1:43:02] [Nothing a little unemployment check can’t fix? But… Irreparable? Really, Ms. Means? REALLY???
Commissioners Sullivan and Tuma go on with further similar justifications, citing the begging community letters. These revenues will go to schools! [Note: These same communities are being sued by Enbridge for back taxes and thus are in dire economic straits to begin.] Tuma (lying that he “won’t belabor it”) made a BIG PRODUCTION (as usual) with some bullshit ass kissing, this time for Governor Walz – as the Lone Republican, no less!! He spoke of how serious COVID is and that it needs to be addressed and then how the last thing the Governor needs is the PUC second-guessing his decisions or trying to claim authority over his powers. He noted it would be “extremely dangerous” for a motion to come through a back door via state agency to disrupt the Governor’s emergency powers, “bordering on treason.” [1:53 See what I mean about this Queen?] Even dramatically explains that HE HAS COVID NOW!
This is an emergency, this is a crisis, this is a war we’re fighting. It is a serious war. OK? And I’m losing my breath a little bit because I HAVE COVID! OK! … We should NOT, through a Stay Motion, even be doing this. And I think it was inappropriate to even ask us to consider that.”
Commissioner Tuma [It’s a TUMA! Drama QUEEN – sorry Queens to dirty us with this designation but for realz!]
So Tuma argues on the serious dangers of COVID-19 but CANNOT SEEM TO GRASP that those are the dangers for which the Tribes are ASKING FOR A FUCKING STAY!
Meanwhile, as Commissioner Schuerger noted, Friends of the Headwaters stood with the Tribes:
Friends of the Headwaters make a clear and concise argument:
The Tribes’ motion contains a detailed explanation and review of the relevant law. But the standards for granting a stay pending appeal are straightforward: (1) Does the appeal raise substantial issues? (2) Will there be injuries to one or more parties absent a stay? (3) Would a stay promote the public interest in preserving the appellate court’s jurisdiction? (Referencing Webster…) In today’s circumstances, the answer to each of those questions is yes. Therefore, a stay pending appeal is fully justified.
…there are many indications that the issues in the multiple appeals meet the “substantiality” test: * The PUC itself was divided on the issues now on appeal; * The PUC has already been reversed twice on the environmental review of the Line 3 project and the previous Sandpiper project that would have followed much of the same route; * The government agency with the acknowledged expertise on the need/demand question has concluded that the project does not meet the requirements of the statute and the rules, and is appealing the PUC decision itself, not a regular occurrence; * The relevant facts keep changing, but the PUC does not want to consider the changed circumstances.”
FOH Filing clearly reiterates that the Motion for Stay by the Tribes has substantial legal grounds. Thanks, Scott Strand and FOH. [my emphasis]
And the motion passed, just as their orders did, with a 4-1 vote and one lone Commissioner retaining love from the public… as he’s the only one listening to our concerns and properly applying the law to our requests.
Should we be surprised? Nah. Are we heartbroken? Yeah.
This is par for the course for Minnesota’s Public Utilities Commission on the Line 3 project approval process (with the exception of Commissioner Schuerger in 2020). They use the arguments that make them look like they care but fail to recognize that these same arguments show how little they care for people – as they ignore the pleas of Tribes begging for a pause for life, they praise themselves for accommodating the Tribes they FORCED to choose the least of pipeline evils facing them, all while ignoring any Treaty Rights and Responsibilities.
This is also par for the course for Enbridge – using arguments differently to suit their fancy. When decisions are in their favor, they have no issue with a State agency thinking they have more power than they truly do… but when the decision is not in their favor, they are happy to cite law. They applauded the PUC’s decision, based mainly on the unsafe condition of their current Line 3 [which truly should surely mean we don’t give them ANOTHER chance to FAIL?] but… sue Michigan noting:
“The attempt to shut down Line 5 interferes with the comprehensive federal regulation of pipeline safety and burdens interstate and foreign commerce in clear violation of federal law and the US Constitution,” an announcement from the company states.
In its filing, the company argued Michigan’s shutdown order interferes with federal authority in a way that “would create a disturbing precedent” and encourage “copycat” actions in other states.
Enbridge is basically arguing that Michigan is attempting to thwart the power, authority, and jurisdiction of the Pipeline Hazardous Materials Safety Administration (PHMSA) with their removal of an easement that complies with state law. Meanwhile, in Minnesota, the company constantly encouraged the PUC to act out of concern for safety of their current Line 3 in approving a New Line 3 “replacement”, which would also be a clear upsurping of PHMSA authority. Can’t have it both ways, Enbridge.
Over the weekend, I issued an Urgent Blog Post as opposed to waiting until today. So glad that I did because today requires another URGENT Blog Post. FFS. [This, ladies and gentlemen, is your indicator. For those of you unfamiliar, from here on out, it’s Sailor Style, Trucker Style, Steel Worker Style, which means I’m not filtering the outrage. Proceed at your own risk. I know some of you quite enjoy this version of me, so, read on if you’re not familiar.]
We’re about to see a terrible collision of two things that cannot peacefully coexist: Pipeline Construction and a Pandemic.
My Saturday blog, Need is Clear… for a Stay on Line 3, explained why the Motion for Stay, filed by White Earth Band of the Ojibwe and Red Lake Band of the Chippewa, was just and valid. Even without many of the reasons noted in their Memorandum, a Stay on the Line 3 project is so obviously necessary to protect the health, safety, and well-being of Minnesotans as Mr. Walz is fond to spout.
We are seeing great increases in cases and casualties here in northern Minnesota at the virus surges. And with so many having little regard for masks, or even the virus itself as legitimate, the dangers were high in the region to start. Now, even with recent legal complaints, petitions, and motions filed and Coronavirus surging throughout the Midwest, Tim Walz seems compelled to rush through all the approvals Enbridge needs to start their tar sands pipeline ASAP. Is he trying to surpass the death figures seen in North Dakota after their recent construction project with Enbridge? It was only a 12-mile stretch so our 337-mile stretch is sure to do the trick.
Our highest daily death total yet plowed us into a 4-day holiday weekend, yet with Monday’s ALMOST ALWAYS our lowest figures for COVID, Tim Walz felt NO NEED WHATSOEVER to ask his Pollution Control Agency to consider a wait-and-see approach on their Stormwater Permits – the last ones needed by Enbridge for the project? Not even until we can see how many dead accummulate by tomorrow? Is One Thousand One Hundred Thirty-Three dead – 1133 DEAD – in November NOT ENOUGH FOR YOU, Tim???
Did the Governor give ONE FUCKING SECOND of consideration to the lives of NORTHERN MINNESOTANS. NOPE! He callously WENT AHEAD with Enbridge’s plans for a November 30th start date. And, to add salt to the wound, he also made sure his Climate Subcabinet could get started ON THE SAME MOTHERFUCKING day – in further ruse of giving an actual FUCK about Climate Change.
Ya’ think people at the funerals are going to think that was funny, Tim?
As if things could not get any more fucked up, the PUC has ordered a Hearing on the Motion for Stay for THIS FUCKING FRIDAY. So… Department of Commerce, the challenge is ON! Can you produce a Brief to join the Tribes in their urgent call for a Stay? In under 48 hours? When you likely expected that the Stormwater Permit might take a bit more consideration for a project so controversial. I feel your pain. And I sure hope you can.
It seems Tim Walz is ALL IN with Enbridge on literally “killing it” in Northern Minnesota with their new pipeline project. Who Gives a FUCK about anybody up here, eh? Just a bunch of rocks and cows, right Timmy?
“How many of your constituents are you willing to sacrifice to the Enbridge God of Oil?”
Well, a bunch of the people who live by those rocks and cows are dying. So I ask you, “How many of your constituents are you willing to sacrifice to the Enbridge God of Oil?” Their God seems to be losing steam in recent years but you don’t seem to be able to find a way out of their pocket? Even when the very lives of your citizens are at risk from the project continuing? During a MOTHERFUCKING GLOBAL PANDEMIC? FOR FUCK SAKE, Tim. Are you even gonna give us a goodbye kiss? Can you at least ACKNOWLEDGE your Negligent Homicide as we experience it?
How do you possibly look at the state of the world, the dying tar sands, the dying people – which eventually means less oil use, eh? – and NOT COMPREHEND that an ALLIANCE with Enbridge is going to send your soul straight to Hell? There is NO FUCKING WAY you can PRETEND that people aren’t dying. You can’t pretend that bringing a bunch of potential COVID super-spreaders from TX, OK, ND, WI aren’t gonna really FUCK US HARD up here in the few hospitals, clinics, and nursing homes we have.
I really don’t know what else to say. It seems there is nowhere else to turn. We’re basically being sacrificed to the Oil Gods, and no on can seemingly do a thing to stop it. Not even Tim. Not even if you give him the verbiage to clarify that his Executive Order 20-20 DOES NOT say Pipeline CONSTRUCTION is Essential. Because it is NOT. And pretending it is will cause irreparable harm to many Minnesota families. Damage that will sting for years to come as we consider the results of his heartless decision-making. Though I’m guessing even the rocks and cows might give a bit more of a Fuck than Governor Walz.
If you give a fuck about anyone up here along Enbridge’s Corridor of Death, can you give Tim a call and ask him to give a fuck too? 1-800-657-3717.
Today we see how work done in opposition to Enbridge’s Line 3 tar sands pipeline proposal and documentation of the global Coronavirus pandemic intertwine with this week’s submission to the Minnesota Public Utilities Commission from White Earth Band of Ojibwe and Red Lake Band of Chippewa. A Motion for Stay… perhaps just in the nick of time as Enbridge proposes to begin… Monday.
MN Healing Stories wrote the first breaking news as the filing was shared to the public docket at 4:51 PM… the day before Thanksgiving. Good thing we are watching things close as things progress very quickly on the ground up here. I stayed up until 3AM reading the well-written Motion and Memorandum to the PUC. And I’ve spent the last two days writing this up so it can hopefully make easy sense for the general populace.
I’m going to break it down in outtakes and photos from the Memorandum in Support of a Motion to Stay (“Memo”), which clearly and strongly states a valid case for the PUC to STAY their orders “finding the Environmental Impact Statement adequate and approving the Certificate of Need for the Line 3 Replacement Project (“L3RP”) proposed by Enbridge Energy, Limited Partnership (“Enbridge”), pending a final order by the Minnesota Court of Appeals.”
Here We Go.
Following the introduction and procedural background, there is a Statement of Law that describes Minnesota Statute § 216B.53 regarding Suspension of Commission Order.
The second paragraph of Minn. Stat. § 216B.53 governs whether security bonds are required for a stay. It grants this authority only to the reviewing court and not to the Commission. Rather than require bonds for all stays, the statute indicates that the security bonding requirement applies to “the public utility petitioning for review” and then specifies the particular types of damages and compensation allowed to be included in such bond. Thus, Minn. Stat. § 216B.53 does not authorize or require the Commission to impose a security bond as a term of a stay, and it limits the entities that may be required to pay a security bond to public utilities.
Statement of Law Section I.A.2 Authorization to Stay in Minn. Stat. § 216B.53 (p. 6) my emphasis
The Memo further explains (Statement of Law section I.A.3) that the Minnesota Environmental Policy Act‘s authorization to Stay mirrors that in the Minnesota Administrative Procedure Act (specifically Minn. Stat. § 14.65) and Minn. Stat. § 562.02 on Bonding, which do not authorize the PUC to impose terms on a stay as a “bond requirement applies only when agency action relates to bond transactions, government contracts, and alterations to school districts and only the defendant public body may move the court for such bond.”
So basically, no authorization of the PUC for a bond in this instance. There is much more in the Memo regarding the legalities in Statement of Law section I.B “Authorization to Stay in Rule of Civil Procedure 62 and Rule of Civil Appellate Procedure 108” and the final ribbon in the bow comes in section I.C.
Moving on to Judicial and Administrative Precedent.
In regards to Minnesota Judicial Precedent, the PUC is urged to follow the precedent set in State v. Northern Pacific Railroad Company where the MN Supreme Court “confirmed that the courts have inherent discretionary power to stay enforcement of an agency order pending appeal.” And here is the text from Webster v. Hennepin County detailing said ruling:
For real legal junkies, the Memo explains, in addition to Northern Pacific and Webster, the Court of Appeals ruling in DRJ, Inc. v. City of St. Paul, noted protection of the courts when:
Moving on to a consideration of public interest, [Statement of Law section II.A.2] specifically regarding their risk of injury, the Memo notes the Supreme Court’s suggestion that “a failure to favor stays in cases where actions cannot be undone would as a practical matter severely reduce or eliminate the Court of Appeals’ role within our government”, creating a “precedent that the Court of Appeals will generally grant a stay in (Data Practices Act) cases where an order cannot be undone”. It seems that if a stay is not favored where an agency’s ordered action cannot be undone, it eliminates the jurisdiction of the courts and preserving “court jurisdiction weighs heavily against parties that seek to take irreversible actions under agency orders.”
When it comes to risks to the public (Statement of Law section II.A.3), the court in the DRJ decision held that financial impact on denying a stay “must be balanced against the public interests,” indicating the PUC too must weigh the public interest in evaluating this motion. Going further in assuring the public interest is upheld, the Memo notes the PUC should consider:
whether denial of a stay would block the purpose of an appeal;
whether denial of the stay would cause the moving party (Tribes) to suffer irreparable and serious injury;
whether a failure to grant a stay would void the Court of Appeals’ jurisdiction over a case;
whether other risks to the public interest exist, such as safety and welfare matters; and then
weigh these factors against the degree to which the nonmoving party (Enbridge) would suffer “irreparable or disproportionate injury.”
On point 5, the Memo notes that in considering harm to Enbridge, mere adverse impacts do not provide grounds for a stay, and instead, the “irreparable harm” to Enbridge “must be so great and disproportionate” as to moot the Court of Appeals’ jurisdiction and prevent the Tribes “from gaining relief.”
One thing that Minnesota Courts do not allow, as noted in Statement of Law section II.A.4) is consideration of whether the Tribes will prevail on the merits of their case as this is a factor used for an injunction, not a stay.
And as if that were not enough, the Memo further explains that “motions for injunctions typically arise… between private parties” while “motions to stay agency action are typically public matters” where the courts hold a responsibility to ensure agency compliance to the law.
Minnesota courts have stated a clear priority for using stays to preserve judicial review of agency action, and have rejected a requirement that motions for stay show a likelihood of success on the merits.”
Statement of Law Section II.A.4 The Minnesota Courts Do Not Include Consideration of the Likelihood of Success on the Merits as a Required Stay Factor (p. 19)
The final Statement of Law section (II.A.5) on MN Judicial precedent explains, citing Minnesota Supreme Court case No Power Line, Inc. v. Minn. Envtl. Quality Council, that when “unique circumstances of a particular case makes it in the public interest to order such a stay”, the Court “has inherent power to order a stay… without… a… bond.” [And, gee, the circumstances in that case sound awful familiar to those we’ve seen in the Line 3 proceedings… a highly controversial project, with citizen appellants, in a case claiming agency error of law in approving a corridor and certificate of need, and with appellants raising questions around agency jurisdiction, non-compliance with MEPA and the certificate of need statute, and the scope of considered alternatives.]
With regard to the Public Utilities Commission, which understands it is governed by the same standards applicable to the Courts, it is clear that a review based on merits would be redundant and that, rejection of the motion for stay – based on a unlikelihood to prevail on appeal – would be over-ridden by the factors noted in Northern Pacific, specifically, as has been laid out explicitly in the Memo, items 1-5 above in the discussion of risks to the public.
The Arguments within the Memo state that the PUC should grant the motion for stay due to multiple factors:
The need to maintain meaning for the Tribal Appeals. An appeal that the Need for the pipeline has not been proven is meaningless if the pipeline is already built. The claim that the PUC decision – made in fear of the safety of the current Line 3 – was outside their jurisdiction means nothing if the pipeline is simply constructed anyway. And if the appeal that the Environmental Impact Statement did not accurately analyze the impacts of a spill is correct, it does nothing to protect us when said pipeline is already carrying oil, regardless of the risks.
The irreparable harms to the Tribes, both as noted in the Line 3 Record and because of the COVID-19 pandemic. The Memo reiterates how the Line 3 project record and EIS are full of outright admissions that the effects of this pipeline would bring “disproportionate and adverse impacts” to the Anishibaabeg whose “culture and belief system is dependent upon the natural environment.” In addition, the Memo clearly notes: “Death is irreparable.” And death is marching across this country in the form of a global pandemic. While Minnesotans are being asked to not visit with family for the winter holiday season, the Walz Administration continues to fail in asking for a Delay for the Line 3 project during the pandemic. The Memo notes that, even with Executive Orders and other state efforts to control spread, “COVID-19 is spreading faster and faster,” showing current methods insufficient “either in their terms or because of a lack of compliance by people within the state.”
The potential harms to Enbridge, their customers, and petroleum customers are not irreparable or disproportionate. Due to a host of reasons, including the “ongoing low crude oil prices as exacerbated by the global reduction… in response to the COVID-19 pandemic” and “efficiency improvements and upgrades” which leave Enbridge with a current excess unused capacity of more than what the Line 3 project would add, “a stay would not have irreparable or disproportionate impacts on Enbridge’s financial circumstances or on the oil industry.” The Memo further states, “If a stay is granted, the impact on Enbridge would be temporary and economic,” as Enbridge could “recover the costs resulting from the stay through its federal tariffs … or via another cost recovery arrangement with its customers.” [There is much to learn about how well our government has always and endlessly propped up the oil industry to keep it afloat. Those old-timey lobbyists were not fucking around!] Enbridge themselves admitted in their Q2-2020 Form 6Q filing with the Federal Energy Regulatory Commission that, while they anticipated some uncertainty around the L3 permitting process, “we do not anticipate any capital cost impacts that would be material to our financial position and outlook.” The Memo further notes that “it appears that Enbridge and its customers have agreed to allow Enbridge to recover the L3RP’s development costs on an ongoing basis, and that these costs are rolled into the overall tariff for use of the Mainline System.” [See quote below from Memo, page 45.]
That a decision in the Tribes’ favor would require a reversal. As noted above in item 1, the Tribes have “raised a number of important questions of law” necessitating a Stay because, as noted in the Memo, “If any one of these questions of law is decided in Tribes’ favor, the Commission’s error would be significant and require remand for a contested case hearing and decision in accordance with law. A stay pending resolution of judicial appeal is necessary to preserve these issues for judicial determination.”
A stay protects the Court of Appeals’ jurisdiction. Because it concerns “actions that cannot be undone”, a stay of these orders is necessary until proceedings in the Court of Appeals can conclude whether “the Commission has violated the law, and if it has, to require Commission action in compliance with law. Absent a stay, it would be impossible for the Court of Appeals to exercise its jurisdiction here.” As the Court of Appeals would favor a Stay “where its jurisdiction will be lost, the Commission should stay the L3RP Orders pending a decision by the Court of Appeals.”
The balance of equities favors a Stay. A Stay would prevent the Tribal appeals from becoming moot, protect Tribes from irreparable harms (in this instance, death), not cause irreparable or disproportionate harms to the Applicant (Enbridge) [if Tribal appeals are not affirmed], preserves important questions of law, and serves the public interest protecting both the judiciary jurisdiction and the health and welfare of the public (again, from literal death).
Tribes are extremely concerned about the potential for construction of the L3RP to exacerbate the spread of the COVID-19 pandemic, which is currently ravaging the people of northern Minnesota and worsening by the day. Importing thousands of workers from out-of-state and moving thousands more within the state during the ongoing surge in infections increases the risk that Tribal members will contract COVID-19, including the elderly and those with pre-existing health conditions that substantially increase the risk of severe infection and death.”
Argument Section I.I The Balance of Equities Favors a Stay (p. 53)
Given Enbridge’s past and planned capacity additions, the ongoing reduction in demand for its services, the dramatic worsening of the COVID-19 pandemic, and the likely long-term suppression of North American and global oil demand, it is unlikely that Enbridge’s customers will need the additional capacity that would be provided by the L3RP in 2021, and very likely they will never need more import capacity on the Mainline System than currently exists.”
Argument Section I.C.2 (p. 45)
There is a final section on why the PUC may not require a security bond, in large part because of Tribal exemption, before requests for Relief in the form of a Stay to the Line 3 PUC Orders pending the 2020 Appeals and a denial of any security bond Enbridge might present and a final appeal for an Expedited Decision.
As COVID-19 ravages Northern Minnesota, it seems clear that a Stay MUST be granted if – as Governor Walz is fond of reminding us – Minnesota hopes to preserve the Health, Safety, and Well-Being of its citizens.
The messaging is mixed, that is clear. Yet it is consistent in maintaining conflicting standards. MDH can take a day off while workers caring for victims of the pandemic cannot. And while Minnesotans are on a new lock-down, Enbridge seems free to flood the state with their workers, many who are coming from COVID-19 hot-spot states like Texas, North Dakota, and Wisconsin.
Black Friday’s figures showed our highest death count yet – 101 in a single day. Some thought it was a combination of Wednesday and Thursday data but, the @Minnesota Department of Health reported: “In observance of the Thanksgiving holiday, we did not update the data on this page on Thursday, Nov. 26. Today’s post will be for data as of Wednesday, Nov. 25.” I’m not expecting much good news, though weekends do tend toward lower figures. Perhaps that is what drives our misunderstanding of the dangers?
The human brain finds exponential growth difficult to fathom, so communities across the country and around the world have found themselves fine one day and completely overwhelmed the next.
Here in Minnesota, our first thousand COVID-19 dead occurred over four to five months (May 30); the second thousand in four months (Sept. 26). Our third thousand died in just the past 7.5 weeks (Nov. 18). And if the trend continues, we’ll exceed 4,000 dead by Christmas… or sooner.
If you’re a local politician pushing for Line 3, have you considered how many of your constituents you are willing to sacrifice to a Canadian oil corporation?”
I suspect, I may have been far too generous with my original thought of Santa Lucia harkening the arrival of our 4000th COVID-19 death here in Minnesota. At the rate we’re going, I’m not sure she’s gonna wait until December.
Update: Today’s MN COVID figures – for Thursday and Friday – showed a 25.1% positivity rate but lower than expected figures… perhaps due to the holiday? Perhaps due to limited staff? Surely coming days will inform. Here’s the details:
9040 new infections (466 probable cases)… here’s the counties along the pipeline proposed route:
Aitkin 36/0, Becker 59/0, Beltrami 90/1, Carlton 63/8, Cass 50/1, Clearwater 23/0, Crow Wing 86/5, Hubbard 44/0, Itasca 62/0, Kanabec 38/1, Kittson 11/0, Mahnomen 6/0, Marshall 26/0, Mille Lacs 45/1, Morrison 39/1, Norman 11/0, Otter Tail 116/3, Pennington 13/1, Pine 32/3, Polk 102/4, Red Lake 2/1, Roseau 36/2, St. Louis 262/28, Todd 45/0, Wadena 27/0
60 of the 466 probable cases are along the pipeline route – where FEW ppl live, compared to the Cities (Anoka & Hennepin accounted for 160 of the cases)
45 new dead … Split between LT care and private homes. Only one under 65 yo. Losing a bunch of our elders today – a dozen over 90 yo. Low day along route counties, thank goodness and… RIP: Carlton 1, Clearwater 1, Hubbard 1, Kittson 1, Morrison 2, Otter Tail 2, Todd 1
Well, I’ve been focusing in recent blogs on the failings of Minnesota government (from the PUC – yeah, them – to the MEQB to the MPCA to the Governor) to protect not only the environment, but citizens as well. This week I thought a HARN update would be good as many use this time of year to give thanks.
Though it’s a hard time to be thankful as we watch cases and dead continue to pile up this week along the proposed Line 3 corridor, more and more voices are speaking on the subject, and that gives me gratitude.
Minnesotans are calling the Governor (1-800-657-3717), the Attorney General (1-800-657-3787), and now the Minnesota Department of Health (1-800-657-3504) regarding the atrocity of continuing to support an unnecessary pipeline project during a pandemic. Flooding northern Minnesota – and its fragile health care resources – with thousands of pipeliners from states like Texas and North Dakota can only be described as INSANE, when you are, at the SAME FUCKING TIME, dialing back the citizens of said region as Governor Walz is doing. How that is not negligent homicide is beyond me.
Our nearest neighbors — North Dakota, South Dakota, Iowa, and Wisconsin— are experiencing some of the highest nationwide per capita increases in COVID-19 cases, and 48 states are now in the Task Force “Red Zone” for new COVID-19 cases. It is simply not a good time for out-of-state travel that is anything short of essential, so this Order clarifies my recommendation that Minnesotans refrain from unnecessary out-of-state travel for the next four weeks and self-quarantine upon their return if they do decide to travel.”
We have to STAY HOME but it’s OK for… thousands of pipeliners from these “hot” states to come HERE… for an UNESSENTIAL TAR SANDS PIPELINE? WTF?
No amount of industry protocols can protect if we’re seeing nurses and doctors, in the most critically sanitized workplaces, falling to this illness. Community spread is a real thing and, with limited enforcement or willingness in this region to wear a mask [even among those who should know better (FFS)], we are all at high risk.
So I spent the last week writing about this, calling folks myself, praying at the river, and seeing what I can do to help mitigate the dangers that COVID-19 and Enbridge’s Tar Sands Pipeline threaten. I got confirmation today of one LTE that WILL be printing!!! So… not for naught I guess.
And… we got a KITTEN!!!
This is Gaazhagens (Ojibwemowin for Cat), Gaazh (or Gaazhii) for short!
He’s VERY HAPPY today as a package arrived from my mom (Thanks, Mom!!) with lots of goodies. So far we opened one that he spent LOTS of time on… until he was exhausted! I replaced the crazy red flashy ball with a golf ball for my own sanity but late night disco ball will come out tonight! (Thanks, Dad! I wondered what the box of golfballs would be good for when I cleaned up the HARN in preparation for Gaazh… now I know! I have no doubt he will be able to pull it from the groove in no time! We’ll need replacements.)
The biggest issue is his eating. Gaazh is a rescue cat [Thanks, Ralph & Paulette Friday!] and he eats like everything MUST BE KILLED and INHALED. He is learning to slow down. Even chewing sometimes!
The decision to bring in a new roomie was predicated on cleaning and rearranging the entire house.
This was cathardic, calorie-burning, and, in the end, energizing! It’s so nice to have everything organized again. And dusted! Chests have been swept clear of underlying dustbunnies, the living/craft room is now one giant space instead of divided (…may that bring good unifying energy for all!), and Gaazh has his own private bathroom space! I am loving the little hand vac we picked up at a sale somewhere for $3 as it helps keep the minimal litter in front of the box swept up – or was that gifted to us by someone else who spent the $3? Who knows… I’m even doing dishes more than once a week now as we keep things organized… for as long as possible!
We don’t use many dishes here… though Gaazh has made clear that dishes on the counter are his… once everyone goes to bed!! Dan tried leaving out leftovers the first night and someone left little tongue prints in the dish after flipping back the towel over it. Three times! 😀
GG is so little but he sure can tear through – pushing rugs and such this way and that – as he speeds through the HARN. And I’m sure he’ll be a big cat before we know it but for today, we’re enjoying how tiny and fun he is. And preparing him to be a lap kitty as much as we can. Every body brings good warmth to the HARN.
Wishing you all good warmth in this season of thanks.
And giving thanks for a good year… regardless of all that we’ve been through. There is good in every day. And every thing. And every one.