Well, the headline sounds more exciting than the actual outcome…
They only rejected the FEIS (Final Environmental Impact Statement) as Inadequate on a few points. However, the fact that it seems they are recognizing Indigenous Rights is a major breakthrough.
The vote on the motion to assess the Line 3 FEIS as Inadequate was 4 to 1 with Commissioners Chair Nancy Lange, Vice Chair Dan Lipschultz, Matt Schuerger, Katie Sieben all supporting the motion to declare the FEIS Inadequate. Commissioner Tuma voted against the motion calling the FEIS “Adequate”.
You can watch the entire proceedings at the MN PUC website. [If you hover above the December 7 event, you’ll see links to Part 1 and Part 2 videos.]
Below I have summarized the proceedings. Meanwhile…
G.E. Cuts Jobs as It Navigates a Shifting Energy Market
The announcement is an acknowledgment that the company has not been properly positioned for where the energy market is headed. Oil and natural gas markets are dealing with a glut of supply and companies like General Electric have been forced to cut prices on their services. The long-term demand for renewable energy is growing globally, even as the American political climate damps its short-term prospects. And G.E. faces a raft of competition from international rivals in all those areas. …
G.E. also recently merged its oil-and-gas unit with a fellow services provider, Baker Hughes, to strengthen the business during the worst slump in the industry in more than two decades.
Now, Baker Hughes is underperforming rivals. And analysts said that G.E. may be looking for ways to exit the marriage.
And… the Valve Turners trial in Bagley (scheduled for 12/11/17) is now on hold until the Appeal can process. The use of the Necessity Defense is being challenged before the Minnesota Court of Appeals.
OK, before we start, Dan says I need some definitions…
- SA-04 is the imaginary route alternative that would flow down from Clearbrook and along the I-94 corridor. Enbridge says they will not build this route.
- DoC – Department of Commerce
- CoN – Certificate of Need
- FEIS – Final Environmental Impact Statement
- PUC – Public Utilities Commission – they are responsible for approving or denying Enbridge’s petition for building the Line 3 “Replacement”. [Note: it’s not truly a replacement as they plan to leave the existing pipeline in the ground and add a NEW pipeline, much of which will be in the original corridor but which also creates a new pipeline corridor through grounds which do not currently have a pipeline.]
- MEPA – Minnesota Environmental Policy Act (The legislation that dictates the requirements for the FEIS.)
Parties Represented in the Meeting
Enbridge: Represented by Eric Swanson & Christina Brusven
Mille Lacs Band: Represented by David Zoll
Scott Strand, Environmental Law and Policy Center, representing the Friends of the Headwaters.
Department of Commerce: Represented by Bill Grant along with Louise Miltich from EERA. [Note, YES, this is a relative to our friend Anthony Miltich! It’s his niece and she has a Masters in Geological Studies. By the way, Anthony recommends Drawdown: The Most Comprehensive Plan Ever Proposed to Reverse Global Warming… and you can learn more Here.]
Leili Fatehi representing the Sierra Club
Sara Von Norman representing the Fond du Lac Band of Lake Superior Chippewa
Paul Blackburn representing Honor The Earth
Brent Murcia & Akilah Sanders-Reed representing the Youth Climate Intervenors
The Opening statements started with a brief rundown from Bill Grant of the MN Department of Commerce on the scope, MN code, and the DoC process. They believe Administrative Law Judge Lipman was accurate in assessing the FEIS as Adequate.
Enbridge reported that the three questions to answer in the evaluation of the FEIS are as follows:
- Have the potentially significant issues raised in scoping been addressed?
- Has the FEIS responded to the substantive comments?
- Has it been prepared in compliance with procedures set forth in Minnesota rules?
It was made clear that arguments that fall outside these three questions didn’t apply to the day’s hearing. Eric Swanson stated, “The purpose of an FEIS is to inform your decisions on this proposed project… what lies down the road is not applicable.” He quoted from MEPA Code 4410.0300 “Environmental documents shall not be used to justify a decision, nor shall indications of adverse (environmental) effects necessarily require that a project be disapproved. The rule states … Environmental documents shall be used as guides in issuing, amending, and denying permits.” Thus the FEIS needs to provide information, including on alternatives, to make comparisons that will guide the final decision. The FEIS is not to make a decision, determine merits, or make recommendations. He concluded, “We don’t believe any reasonable person looking at this document can say the agency’s failed to take a hard look at this project. … We join in the staff’s recommendation that you find the FEIS Adequate.”
I was especially impressed with the opening statement by Sara K. Van Norman, Attorney for the Fond du Lac Band of Lake Superior Chippewa, an Intervenor in the Line 3 fight against Enbridge. She argued that the work on this project has failed to adequately address the Indigenous People’s Cultural Heritage as a factor in this question. She noted that the Alberta Clipper project was far better in taking care to conduct Tribal Cultural Resource Surveys and the work on this project is a huge backstep in including the Tribes in the process. The resulting risk is another event like the disaster that occurred this past summer in Duluth where human remains were disturbed in a well-known Ojibwe Burial Site during construction of the Highway 23 project. The cemetery was desecrated because MNDOT had not made any effort to involve the Fond du Lac Band in the 5-year planning process, in contradiction to the organization’s own policies. Although construction was halted, the incident could have been avoided with proper protocols.
Also impressive was the lengthy opening statement by Scott Strand, Environmental Law and Policy Center, representing the Friends of the Headwaters.
- To begin, he argued that the question of Scope should remain open until the final decision because if this is not the case, nothing that might be determined to be within scope based on findings can be considered. (see more on this in Blackburn’s testimony below)
- Assigning the DoC to the environmental review is a conflict of interest. Because there is a potential impact on the tax base, the Department of Commerce is potentially more conflicted than would be an independent Environmental Committee drawing up this documentation.
- Lack of inclusion of the recent comments of concern from the Minnesota Pollution Control Agency and Department of Natural Resources and including their analysis of the alternatives to the proposed route is unacceptable. These comments were given to government units behind closed doors but not provided to the public for their review in making commentary on this issue. This is an important part of the Environmental Review Process as the public advocacy is an important part of the discussion.
- He noted Environmental Impact Statement is a misnomer. The documents are for evaluating alternatives and identify mitigation that can reduce the environmental impacts for planning purposes. Purpose and need in this FEIS was, by Enbridge’s definition, to deliver oil to Superior, Wisconsin. But this is not the true need and purpose and this greatly restricted the alternatives that could be evaluated. The evaluation of alternatives should have been based on the actual goals of the project. Federal courts have addressed that the narrowness of purpose drives alternatives to exclude those which should be considered. He charges that “the FEIS assumes Enbridge’s view of the need for the project”, limiting the alternatives to this assumption. (again, more on this from Blackburn and Murcia below)
- It is critical that the FEIS include not just listing of mitigation factors but assurance that they are fully funded. FEIS listed mitigation information but failed to capture and discuss an accounting and analysis of how mitigation will be paid for and that it will actually happen if needed. The Federal EPA has been saying for years that we need, in environmental review documents, not just a listing of mitigation possibilities but also to show how they will be enforced and funded.
- One expert wrote a proposal for this concern in the FEIS for the DoC. However, there was no evidence for other alternatives or even a review of Minnesota past experience of the best methods for assuring financial accountability will be addressed, whether that be trust funds, insurance, other financial vehicles. And in what amounts they will be set.
- He referenced the speed at which an industry can change, noting how the coal industry was flying high a decade ago but now they are looking at bankruptcy. Kalamazoo cost $1.2 B and Taxpayers are on the line for this if the responsible company is unwilling or unable to provide the needed resources for mitigation.
- The FEIS did not have a site-specific discussion of what will happen if oil spills as required, just a generic discussion that could be given for any oil project.
- Easements for Enbridge are expiring soon and the Tribal Bands are taking a stand that they will be opposing renewal. Thus we have a foreseeable consequence of a request for additional routes and this new corridor is very likely to include additional pipelines, which should have been addressed in this FEIS but was not. Finally, there is also no evaluation of the environmental impacts post Superior, Wisconsin processing.
Mr. Blackburn presented on Scoping. The requirements under Minnesota Environmental Policy Act 4410.2800 subsection C states: “The final EIS shall be determined adequate if it: … was prepared in compliance with the procedures of the act and parts 4410.0200 to 4410.6500“… which is essentially ALL of MEPA. Note that the final section there, 6500, discuses who pays for the EIS process.
Breaking this down, Scoping is included in 4410.2000, which means that Scoping must be considered in the Certificate of Need and Routing Permits. The Sunrise Powerline Case in CA was reviewed as an example which reviewed consistent alternatives but the Line 3 FEIS does not have consistency among these three areas (FEIS, CoN & Route Permit). Since this EIS is based only on Enbridge’s purpose and need, it violates MEPA as there are no other considerations of the underlying need. It just assumes Enbridge’s information is accurate and current. MEPA 4410.2300 G states (emphasis is mine):
Alternatives: the EIS shall compare the potentially significant impacts of the proposal with those of other reasonable alternatives to the proposed project. The EIS must address one or more alternatives of each of the following types of alternatives or provide a concise explanation of why no alternative of a particular type is included in the EIS: alternative sites, alternative technologies, modified designs or layouts, modified scale or magnitude, and alternatives incorporating reasonable mitigation measures identified through comments received during the comment periods for EIS scoping or for the draft EIS. An alternative may be excluded from analysis in the EIS if it would not meet the underlying need for or purpose of the project, it would likely not have any significant environmental benefit compared to the project as proposed, or another alternative, of any type, that will be analyzed in the EIS would likely have similar environmental benefits but substantially less adverse economic, employment, or sociological impacts. Alternatives included in the scope of the EIS as established under part 4410.2100 that were considered but eliminated based on information developed through the EIS analysis shall be discussed briefly and the reasons for their elimination shall be stated. The alternative of no action shall be addressed.
There are a couple concerns which can be addressed in litigation should this Line 3 be approved:
- The alternatives that were considered (truck and rail) were not REASONABLE (is it truly reasonable to have a truck leaving North Dakota every 21 seconds for Clearbrook?) thus violating sentence 1 in the clause above.
- Alternatives that were reasonable, i.e., expansion of existing pipelines, were not considered in the FEIS.
Blackburn then presented a summary table of alternatives and whether or not they are being considered in the FEIS. With regard to System, Routing, CoN, Routing alternatives… if no party has put evidence against an alternative (besides the requesting party), it cannot be considered in the CoN. Since no information was put in for trucking or rail (both deemed unreasonable, so why would anyone waste time on that?), they cannot be considered. Since SA-04 (the imaginary alternative route that all parties agree will never truly be implemented) wasn’t included as an alternative for the Routing document. Alternative Pipelines were rejected by the FEIS… so also not considered.
Also, a potential spill into Lake Superior, Duluth Harbor, or St. Louis Estuary were not evaluated and no other place in the FEIS gives a description that could be categorized as comparable to a spill of these types. Thus, they were not fully evaluated.
The DoC says that the FEIS responded to all Substantive Comments from the Public as required by MEPA 4410.2800 Subpart 4b. However, Honor the Earth put in 150 pages (more than any other party) yet there is no response to them in the record. It does not exist. It appears the DoC prepared responses but they are not in the record. This is another area of incomplete and thus inadequate work by the DoC.
Mr. Zoll of the Mille Lacs Band had three exceptions:
- Failure of FEIS to incorporate the substance of the Department’s testimony regarding need for this project. No consideration of how to fulfill current need with existing pipelines. Though there is commentary the indicated if an alternative is found, it WILL be evaluated. However, the FEIS reports that it wasn’t clear these pipelines could support this – though their expert testified that it was potentially possible. While addressed in the Evidentiary Hearing, it is not addressed in the FEIS. Even MEPA 4410.3000 Subpart 3.A.2 denotes: “An RGU shall prepare a supplement to an EIS under any of the following circumstances: A. whenever after a final EIS has been determined adequate, but before the project becomes exempt under part 4410.4600, subpart 2, item B or D, the RGU determines that either: … there is substantial new information or new circumstances that significantly affect the potential environmental effects from the proposed project that have not been considered in the final EIS or that significantly affect the availability of prudent and feasible alternatives with lesser environmental effects”.
- Failure to conduct a Traditional Cultural Property Survey as part of the FEIS. There has been no survey completed. It’s underway but not incorporated in the FEIS which would allow the PUC to best consider the properties along the preferred route. FEIS states they provided all information that can be “reasonably obtained”. However, the information from the surveys is reasonably obtainable. He noted that this work was not started until the FEIS was essentially complete.
- Failure to distinguish between corridors with the existing pipelines and greenfield corridors where no pipelines currently exist. Comparative analysis does not take into account the greenfield vs. current pipeline corridor differences – eliminating a review of the increased risk of putting pipeline into a non-pipeline utility corridor. The public cannot comprehend the risks unless this is clearly presented in the EIS.
He noted a request for option A4: Direct the department to prepare an adequate EIS.
Leili Fatehi presented next for Sierra Club stating that the FEIS is incomplete and “places the public rights far behind those of Enbridge and its financial interests”. In 2014, there was an attempt to make a decision on two new pipelines without any environmental review… until a court challenge required them to do a FULL EIS. Reasonable alternatives and environmental and socioeconomic alternatives have not been addressed. This is a product of a rushed/flawed process which is missing basic tenets of MEPA and its regulations.
She noted that this is not a procedural step to “get out of the way”. It is the Commission’s responsibility to assure a “hard look” at this project. MEPA 4410.0200 Subpart 65 defines the Project. In this case, Enbridge’s need to move oil was the sole subject for consideration in the EIS as opposed to the government actions, which were more appropriately the purpose and need. ASSUMING the need to move oil from Alberta to the Midwest requires that the actual need for this project is NOT evaluated. Rather than looking at alternatives, this is the alternative being evaluated. Enbridge has controlled which alternatives are included in the FEIS. The public interests are not given consideration. No Action alternative SHOULD have included a review of renewable energy options.
Every agency (including the Department of Natural Resources & the Pollution Control Agency) has submitted comments and concerns. There are many indications that SA-04 is a less dangerous to the environment than the company’s proposed route. EIS can take years but this has been a rushed project.
Youth Climate Intervenors Brent Murcia presented last further agreeing that the timeline was rushed. Comments on the DEIS were due July 10th (after 22 public meetings – more than there were on the CoN and Route Permit) and there were many people in the process left without their voice being heard as some public meetings ended before all parties could be heard. Yet on August 17th, the Final Environmental Impact Statement was issued, less than one month from getting the public comments which were all to be addressed in the Final document.
“Your comment was considered in the development of the FEIS.” was a frequent response on many of the comments submitted. These were not properly addressed, indicating not enough time was allowed. On August 3rd, there was a proposal to extend the timeline by the Commission but it was declined, apparently indicating the DOC-EERA had plenty of time to complete their work.
What’s Wrong and Needs Improvement per the Youth Climate Intervenors? (Keep in mind that these kids are potentially fighting for their constitutional rights to clean air, water, a liveable planet – and a similar defense presented by kids has in the past been successful).
- The EIS is supposed to address the direct, indirect, and cumulative effects of the project and compare the project with reasonable alternatives.
- Impacts of spills, effect to known cultural properties, and the impacts of climate change – NONE are adequately addressed. Even Enbridge agreed that spill data should be protected as trade secret as every site is different and some would be worse than others. There was not a full assessment of each type of site and the impacts a spill might have.
- DOC-EERA looked only at a 30-year window for operational impacts including the impacts of climate change. They chose 30 years to match the economic life of the project, which Enbridge indicated. However this is the minimum life, not the maximum. Line 3 is 50 years old. Enbridge has 60-year-old pipelines in operation. Thus, adding 30 years to the operation of Line 3 would have extensive impacts to climate change, yet this is not addressed in the FEIS. Costs of burning the oil for an additional 30 years is a part of the impact. DOC-EERA responded to a comment on this concern saying, “… extending the timeframe and redoing the analysis doesn’t appear to add any value in this comparison.” But extending the timeframe is the ONLY way to understand the impacts which will more extensively affect the generation of the Youth Climate Intervenors. The fate of the line is an impact of the project and that was not considered or evaluated.
- An EIS is supposed to consider “reasonable” alternatives. Truck and Rail are not reasonable. REASONABLE Alternatives like SA-04, in-trench replacement, expansion of existing pipes, or a No Action alternative are not adequately addressed or not addressed at all.
Sara Van Norman further noted that the impacts are not considered adequately in light of past projects.
These opening statements were followed by hours of questions – like 5 hours of debate. One of my favorite areas was watching two women debate this issue:
Ms. Van Norman raised the issue of the Cultural Property Survey.
Ms. Brusven testified that the scope for the CPS would be only the applicant’s preferred route. She says the recent calls on the issue have noted that the agreement would be for the 200 miles and doesn’t understand why the Fond du Lac Band is not aware of this. [I’m just taking a stab in the dark here, but I’m guessing Indians don’t trust the Government so would like to have it in writing… not that getting it in writing has been perfectly successful in the past…] She then noted the consultation started in 2014 and that some meetings were scheduled and then cancelled, though she was “not implying fault”. 100% survey may not ever be achievable due to the nature of private property. She also noted: December 2008 was the Clipper decision. April 2009 had a change to run through the Fond du Lac tribal areas and the CPS work was not indicated until May and June of 2009.
Ms. Van Norman responded that it was not until this summer, of 2017, that the tribes were included in this process.
Hours into this discussion, Commissioner Lipshultz put forth a concept of a motion, reminding everyone that the EIS is not the only tool that will be used by the PUC in making their decisions moving forward, but that a clear and complete EIS is needed for that work and that adoption of the modification by the ALJ will be included:
Find the EIS Inadequate and supplement with the following things:
- Clarification of how far the SA-04 would need to be moved to avoid the Karst Topology, including an updated impact assessment in this new location.
- Clarify that quantitative representations of route alternative impacts do not necessarily reflect the actual qualitative impacts of those alternatives. (For example, acreage of HCA drinking water sources impacted by SA-04 might be less than HCA drinking water sources impacted by other routes. [This was a big part of their discussion during the debate.])
- Clearly identify the extent to which resource route alternatives in the existing Line 3 corridor are or are not additive and how these impacts are affected by adding a new Line 3. (Basically, denoting what is affected by the current pipeline situation and how a new Line 3 will change things, which was not clear in the current FEIS submitted.)
They discussed for a time further and then broke so the Commissioners could consult with Counsel on the various legalities regarding the motion alternatives.
In the Part 2 video, there was a final hour of discussion on which motion should be made.
Sara Van Norman asked if there could be an inclusion in the recommendation for a request that has been brought up by all the Intervenor parties, which is a to add a statement that requires that the Traditional Cultural Property Survey be done before the Certificate of Need and Route Permit can be issued. This would address part of the concern, including the many public concerns.
Scott Strand then also clarified the difference between judging the FEIS as Adequate or Inadequate noting that calling the FEIS Adequate but in need of x, y, and z creates confusion. He believes that Inadequacy assessment gives clarity to the administrative process and also assures the PUC has all it needs to make their decisions.
Bill Grant noted that the DoC would agree with Enbridge that the FEIS should be deemed Adequate. [Well, duh! We wrote it like you told us, so it’s awesome! Right, Enbridge!?!]
Commissioner Tuma noted that Public Comment could be added to the process even if the FEIS is declared Adequate. Bill Grant noted that, with an Inadequacy assessment, the revision would take 60 days while, with the Adequacy assessment, it could allow them to make their own schedule and possibly complete their work in 45 days. [Which totally makes no sense to me. If you’re allowed 60 days doesn’t that also allow you to finish in 45 days?? Sheesh!]
Christina Brusven for Enbridge added a revision to Van Norman’s request noting that the Cultural Property Survey should be completed prior to the “start of construction” [which we have seen, oil companies like to start early…]. She noted that, at present, Enbridge does not have access to all the property needed for their project but once there is an issuance of a Certificate of Need and Route Permit, then they would be allowed to pursue Eminent Domain to secure access to the needed property. Until the PUC determines the route, the survey needs are not identified.
Commissioner Lipshultz noted that if they went with Adequacy, he would need to add about including a public comment period and the more clear move forward would be to assess the FEIS as Inadequate, which would include the public comment requirement. He also added item “d” to his original motion that would require the Survey prior to construction beginning.
The Youth Climate Intervenor spoke up to testify that the language on this inclusion of the Survey does not allow for public comment and does not allow this to be considered for the ALJ decision (pending from Judge Ann O’Reilly). Blackburn for HTE also noted that the Survey needs to be required in the record PRIOR to the consideration of the decision for the PUC. Having the survey done prior to construction is not sufficient for a full consideration of the alternatives.
Commissioner Lange suggested that the available survey results could be included for consideration.
Sara Van Norman noted that there has already been a summary of the information in the earlier proceedings, however, without agreement for more than the current 66 miles – the applicant’s route and which disregards the over 200 miles being considered as alternatives for the route – this survey work would not be complete.
Blackburn noted that the way Enbridge has managed this process with the Army Corps of Engineers, who’ve been pretty silent about what they are doing in this process, has allowed for the concerns on the Cultural Resources issues to “slip through the cracks”… even though they were brought up as concerns by Indigenous People as long ago as 2014. Without including this information earlier than “before construction begins”, there is no possibility for public comment or review with regard to any briefings that may be required.
It wasn’t clear from the commentary on what the final motion was exactly, but the minutes will be out soon and perhaps that will make it more clear. Regardless, there is some comfort in getting an “Inadequate” assessment which indicated that, at least in part, this FEIS was not what it needed to be. I foresee many lawsuits to come…
12/15/17 Update from the PUC:
In the Matter of the Application of Enbridge Energy, Limited Partnership for a Certificate of Need for the Proposed Line 3 Replacement Project in Minnesota from the North Dakota Border to the Wisconsin Border
In the Matter of the Application of Enbridge Energy, Limited Partnership for a Route Permit for the Proposed Line 3 Replacement Project in Minnesota from the North Dakota Border to the Wisconsin Border
PUC Docket Number: PL-9/CN-14-916 and PL-9/PPL-15-137
NOTICE IS HEREBY GIVEN that at its December 7, 2017 agenda meeting, the Minnesota Public Utilities Commission (Commission) found that the following four deficiencies in the Final Environmental Impact Statement (FEIS) for the Line 3 Replacement Project must be remedied before the FEIS can be considered adequate under Minnesota Rule 4410.2800:
1. The FEIS needs to include additional information to (i) indicate how far and where SA-04 would need to be moved to avoid the karst topography it would otherwise traverse and (ii) provide a revised environmental-impact analysis of SA-04 specifically to reflect the resulting relocation of that alternative.
2. The FEIS needs to clarify that quantitative representations of route and system
alternatives do not necessarily reflect the actual qualitative impacts of those alternatives. For example, the acreage of HCA drinking water sources impacted by SA-04 may be less than the same acreage of HCA drinking water sources impacted by other routes based on the nature of those water sources.
3. The FEIS needs to clearly identify the extent to which resource impacts of route
alternatives in the existing Line 3 corridor are or are not additive—i.e., the extent to which that route alternative would introduce new or additional impacts beyond the impacts of the existing pipelines in that corridor.
4. The FEIS needs to clarify that the traditional cultural properties survey must be
completed before the start of any construction pursuant to any permit granted in this
The Minnesota Department of Commerce shall submit the information identified above by February 12, 2018. The Commission will then reconvene to evaluate the adequacy of the information submitted.