While I was at Rec Lab last week, there was a major step forward in the Minnesota pipeline fight as the Administrative Law Judge (ALJ), Ann O’Reilly, issued her recommendation on the Enbridge Line 3 “Replacement” Pipeline request. While I have yet to read the entire 368-page document, I have read enough to provide a bit of a commentary. Here is her SUMMARY OF FACTS AND RECOMMENDATION:
Applicant has proposed, what it calls, a “replacement project” – a project to replace Line 3 in Minnesota. In reality, Applicant is asking to abandon its current Line 3 and construct an entirely new pipeline – one that is longer and wider, has the capacity to transport more oil, and opens a new corridor through northern Minnesota for nearly half of its route. For Applicant, the new line would replace existing Line 3 within Enbridge’s Mainline System. For Minnesota, as proposed, the Project represents a new oil pipeline and the abandonment of an (old) one.
Line 3 was constructed in Minnesota in the 1960s. Through the years, and as recently as 2009, Enbridge has added additional pipelines alongside Line 3, such that Line 3 is now located within a corridor with five to six other Enbridge lines. This corridor of lines runs through two Indian Reservations: the Leech Lake and the Fond du Lac Reservations. Regardless of whether the Project is approved, five other Enbridge pipelines in the Mainline corridor will continue to run through those two Reservations.
The evidence in this case establishes that Line 3 is currently being used and remains an integrated part of the Enbridge Mainline System. This system of pipelines delivers crude oil to Minnesota and various other states. Line 3, however, is old, needs significant repair, and poses significant integrity concerns for the State. Accordingly, the Judge finds that replacement of the line is a reasonable and prudent action.
The evidence also establishes that “apportionment” on the Enbridge Mainline System currently exists for heavy crude oil, has existed for some time, and will continue to exist if this Project is denied. “Apportionment” means that Canadian oil shippers who use the Mainline System to transport their products are unable to ship all of the crude they seek to export into the United States. Apportionment shows that demand for shipment of oil on the Mainline System exceeds Applicant’s capacity to ship the oil through its pipelines.
The evidence shows that, due to its age and condition, existing Line 3 cannot transport more than 390 kbpd (thousand barrels per day) of light crude oil. Therefore, without significant repair or replacement, Line 3 cannot assist Applicant in resolving apportionment on the Mainline or meeting its customer’s demand for oil transportation services.
A new Line 3 would solve two problems. First, it would remedy the integrity issues related to the old line. Second, it would allow the Mainline System to meet the current and future shipping demands of Applicant’s customers (i.e., shippers), who are predominantly Canadian oil producers.
Based upon these facts, Applicant has established, by a preponderance of the evidence, that the probable result of denial of a Certificate of Need would adversely affect the future adequacy, reliability, or efficiency of the transportation of crude oil by Applicant’s customers; specifically, Canadian crude oil shippers.
Applicant has not, however, established, by a preponderance of the evidence, that Minnesota refiners or the people of Minnesota would be adversely impacted by denial of the Project. The evidence shows that Minnesota refiners are currently receiving sufficient amounts of crude oil to meet their production needs. Therefore, denial of the Project would not result in harm to Minnesota refiners.
While a denial of the Project may not result in harm to Minnesota refiners, granting a Certificate of Need would likely result in benefits to Minnesota’s refiners and refiners in the region. These refiners would benefit from access to more crude and different crude mixes. This increase in supply options would likely yield benefits to the people of Minnesota, as consumers of refined petroleum products.
Based upon this evidence, the Administrative Law Judge concludes that Applicant has met its burden of proof in establishing the first criterion of need under Minn. R. 7853.0130(A).
Applicant has not established, however, that the consequences to society of granting the Certificate of Need are more favorable than the consequences of denial when evaluating the Project, as proposed. As proposed, the Project requires the creation of a new crude oil pipeline corridor through Minnesota for approximately 50 percent of its route (from Park Rapids to eastern Carlton County). The Administrative Law Judge finds that, based upon Applicant’s Preferred Route, the consequences for Minnesota outweigh the benefits of the Project, as it is proposed.
This cost-benefit analysis changes, however, if Applicant replaces Line 3 in its current location. That is, if the Commission were to select Route Alternative 07 as the pipeline route in this case. In such a circumstance, the benefits to Minnesota refiners, refiners in the region, and the people of Minnesota slightly outweigh the risks and impacts of a new crude oil pipeline.
In-trench replacement of the line allows Minnesota the benefits of the Project, including the replacement of an aging and infirm line; elimination of apportionment on the Mainline System; and the economic benefits of removal and replacement. (Note that removal of the line will substantially increase the economic benefit to Minnesota.)
Moreover, in-trench replacement mitigates, to a large degree, the detrimental impacts that abandonment of an old line and creation of a new oil pipeline corridor would have on the State.
In-trench replacement will: (1) allow Applicant to utilize its existing pipeline corridor where at least five other Enbridge pipelines currently operate; (2) isolate the environmental risks of an oil pipeline to an existing, active oil pipeline corridor; (3) prevent the abandonment of nearly 300 miles of steel pipeline; and (4) avoid establishing a new oil pipeline corridor in a particularly sensitive region of the State that could be used, in the future, for additional pipelines.
In 2029, Enbridge’s easements with the federal government, allowing it to run six pipelines through the two Indian Reservations, will expire. Thus, sometime before 2029, Applicant will need to either renegotiate those easements with the Tribes and the federal government; or remove those lines from the Reservations. Approval of the Project, as proposed, would result in a partially new oil pipeline corridor being created in the State where Applicant could someday request to relocate its other pipelines. This is especially true if negotiations with the Tribes before 2029 are unsuccessful.
Applicant seeks to decommission and abandon its old Line 3 in place. That would mean nearly 300 miles of steel infrastructure being abandoned in Minnesota, where it will remain for hundreds, if not thousands, of years. In addition, the easements that Applicant has obtained from landowners for the new Line 3 allow it to “idle in place” the new line, thereby signaling to the Commission that Applicant also intends to someday abandon the new Line 3 when it no longer serves Applicant’s needs.
The abandonment of the old Line 3 and the creation of a new corridor leaves open the possibility of thousands of miles of Enbridge pipelines someday being abandoned inplace when they are no longer economically useful to Applicant. This is particularly true in a carbon-conscious world moving away from fossil fuels; a move that Minnesota aspires to follow.
To that end, the Administrative Law Judge recommends that the Commission GRANT Applicant’s Application for a Certificate of Need but only if the Commission also selects Route Alternative 07 (in-trench replacement) as the designated route. The ALJ finds that Route Alternative 07 best satisfies the legal criteria for selection of a pipeline route, as compared to Applicant’s Preferred Route and the other route alternatives.
An approval of Route Alternative 07 does not, in any way, infringe on the sovereignty of the various Indian Tribes to disapprove permits or other approvals required for construction of the Project through land over which the Tribes maintain jurisdiction. Just like the Commission cannot bind the federal government, the Commission does not have the authority to require the Indian Tribes to permit the replacement of Line 3 within the Reservations. It would, however, likely encourage the Tribes and Applicant to accelerate discussions that must inevitably occur prior to 2029 related to the five other lines.
Absent the existence of five other lines within the same corridor, and absent Applicant’s request to abandon its old line, the Administrative Law Judge may have made a different recommendation. But under the facts as presented by the parties, this result best balances the public interest in the transportation of energy and the protection of Minnesota’s people and environment.
Applicant states that it is seeking a “replacement” of Line 3. This recommendation endorses such an approach – it provides for a true replacement of the line.
So basically, there is a need to replace the leaky pipeline as a prudent way to eliminate the integrity concerns if crude transport is to continue in Line 3. However, because of it’s fragility, Line 3 is unable to supply Enbridge customers, predominantly Canadian crude oil shippers, their desired demand. So Enbridge has shown that they cannot safely transport to meet the needs of these customers. What they haven’t done is prove that Minnesota refiners or Minnesotans NEED the project. In fact, denying this project would not harm Minnesota though she finds that granting the Certificate of Need “would likely” benefit Minnesota refiners and refiners in the region… BUT, she finds issue with their proposed new corridor, which if approved would have consequences that outweigh the benefits for Minnesota. IF they do an actual replacement of the current Line 3, the benefits “slightly outweigh” the risks and impacts of a new crude oil pipeline. She does note that pipeline removal will substantially increase the economic benefit to Minnesota, something Minnesotans for Pipeline Cleanup have been saying for some time now, including in their recent March 8th Press Conference. When Dan gave his testimony for the ALJ last year, he noted that the number of jobs for pipeline removal was three times the number for pipeline construction. Looks like his point got good coverage here with the ALJ! Unfortunately for me, and more importantly our future generations, there is little in her summary referring to the massive effects on climate change.
And the tribes are, once again, given a back seat with the ALJ’s conclusion that more pipeline work on both the Leech Lake and Fond du Lac Reservations would be her recommendation, at least through 2029 when the easements expire, though she does note that they have the right to deny the new construction. Red Lake has made it clear that Enbridge needs to remove their lines from the Band’s land immediately so it will be interesting to see how this all plays out.
It is possible that Dan may have an idea of what might happen. One scenario is to put in a new terminal in North Dakota who would likely be very supportive of new fossil fuel infrastructure and thus eliminate Clearbrook, MN. [Boy! They’d never see that one coming!! “Enbridge is our friend!”] By following the Red River (as Friends of the Headwaters had suggested), they can bypass much of the Minnesota issues and route more directly into Joliet, IL. The good news for the U.S. is that, should there be a rupture into the Red River, it flows north to Canada so their dirty oil would then cause issues for them, not us.
Enbridge originally made clear that they would not proceed unless their proposed new corridor route was approved. So this may be a line in the sand from the ALJ. Enbridge will have to decide how truly important it is to build a Line 3 Replacement… a true replacement that is.
The second piece of good news this week was that the State of Minnesota has supported the use of the Necessity Defense by the Valve Turners in the trial pending in Clearwater County. MPR did a summary story that explains the history – it’s worth the four minutes to update yourself by listening to the embedded link in this story on what may be the case of the century in the little county seat of Bagley, Minnesota, population 1574 according to the signs at the edge of town (though the 2016 census puts the population at 1400).
The gist of the case is that the activists admit to their attempt to shut down the pipeline but they argue that this is Necessary because all other efforts to prevent climate change have failed. Our legislators and corporations continue business as usual, pumping fossil fuels from the ground and into our atmosphere while millions are dying from the effects of climate change. None of our marches, letters, or actions have been able to stop the increasing dangers and loss of life due to climate change. Thus, these types of civil disobedience are the only way to bring the issue to light so that real efforts to mitigate climate change are implemented. This is a Climate Emergency! The use of the Emergency Shut Off Valves on the pipeline was the proper response to the emergency.
This cross-country shutdown of the Tar Sands pipeline last October was done as a sign of solidarity with the people of Standing Rock. Thus far, three other activists in the action have been tried and sentenced with varying degrees of punishment:
- Ken Ward ~ time-served along with community service and supervision in Washington.
- Michael Foster ~ currently serving a one-year sentence in North Dakota. (Got my second letter of response from him while at Rec Lab too!!)
- Leonard Higgens ~ received a three-year deferred sentence with probation. He was also ordered to pay $3,755.47 in restitution. [Note that Leonard’s attorneys filed two appeals which may keep this issue in the public eye – the true goal of the non-violent civil disobedience – to persuade as many people as possible that we must address climate change now… and in a massive way.]
Personally, we’re hoping to provide housing and support for those coming to defend the four in Bagley: Annette Klapstein (activist), Emily Johnson (activist), Benjamin Joldersma (support person), and Steve Liptay (documentarian videographer). Maybe I can even get Bill McKibben to sign the giant poster I have of him in our kitchen! Rumor is that he and James Hanson could be brought in to testify.
The one bad piece of news – though maybe another ugly angel that turns out to help the pipeline fights – were the explosions at the Husky Energy oil refinery in Superior, Wisconsin. At first there was no urgency in evacuation but it soon became clear that an evacuation would be needed. Which makes me ponder, “what do you do when you get this notice?” Hell, how do you even KNOW there IS a notice? And how far away do you have to go to be “safe”? Is Duluth far enough away? How long do you have to be gone? If you’re at work, do you go home to rescue pets and take them with you to a safer place? What if you have no where to go? Does Husky Energy have to foot your bill for a hotel in Duluth? So much to consider – one of the many things most of us don’t give a second thought to in our day-to-day operations. But perhaps these citizens were better prepared as some may have also survived the 1992 “Toxic Tuesday” event when a train carrying benzene gas derailed just south of the city forcing the evacuation of about 30,000 people. It’s important to remember that benzene is part of the chemical concoction that will be mixed with the Tar Sands to allow them to “flow” through the Line 3 Pipeline Enbridge is proposing…
In 1992, the situation was a disaster of unknown proportion when it happened.
From the Duluth News Tribune “20 years later, benzene spill still stings in Duluth-Superior memories” b
It was a flammable liquid mixture that was 45 percent benzene, which, splashing into the river, created the cloud.
Another car had liquefied petroleum gas, which made cleanup extremely difficult and dangerous. Another contained crude butadiene, a compound used to make synthetic rubber and also dangerous to handle.
But in Superior and Duluth, no one knew any of this.
At command headquarters at Duluth City Hall, Lyons’ staff was having a difficult time getting answers.
“Communication was the hardest thing,” he said. “You had an incident in another state.”
Finally, frustrated, a team went to the site. A call was made to Canada and the manufacturer of the benzene. More than 21,800 gallons of it had spilled through a foot-wide gash in the tank. Officials wanted to know what it was and what health dangers it possessed.
“They were evasive,” Lyons said of the manufacturer. “Either they didn’t want to tell or they didn’t know.”
The command center certainly knew it was an irritant, given the reaction of the officers on Park Point as the cloud passed over. Lightheadedness, flushed faces.
Finally, chief deputy Bob Larson made it plain, Lyons said. He asked the company representative what he’d do if his family was in Duluth with the cloud looming.
“He said he’d get them the heck out of there,” Lyons said.
Now, an extensive evacuation was on.
“It was a movement of 30,000 people with one sentence,” Lyons said, still praising Larson, who died last year.
Of course, Enbridge is assuring everyone they are not affected… but the fact is, they supply this refinery. Thanks to Ellen Zoey Holden Hadley for this FB post:
“Confused about Enbridge’s role in yesterday’s disastrous Husky refinery fire? See the large white storage tanks to the left and right of the black plume? Those are Enbridge’s. Husky refinery gets its oil from the Enbridge terminal across the street. The Enbridge pipelines that cross Minnesota deliver the oil to the Enbridge terminal. And see that dark line of trees behind the big white tanks? The Nemadji River is behind those trees, and flows into Lake Superior, about 1/2 mile to the left of this picture. THIS IS WHY WE MUST STOP LINE 3!!!!”
And there’s this from the Twin Cities Pioneer Press:
HYDROGEN FLUORIDE A CONCERN
The Superior refinery is one of about 50 nationally that uses hydrogen fluoride to process high-octane gasoline. An acid catalyst, hydrogen fluoride is one of several federally regulated toxic chemicals at the refinery, such as propane and butane.
The refinery can handle about 78,000 pounds of hydrogen fluoride, according to federal Environmental Protection Agency records.
Schade, the refinery manager, would not answer specific questions on hydrogen fluoride Thursday, only saying its presence at the refinery was one reason the evacuation was underway.
A Superior Fire Department official said having the fire spread to the hydrogen fluoride tank would be the worst-case scenario for the situation to worsen, with other experts saying the fumes could spread a toxic cloud of gas for miles downwind.
A 2011 report from the Center for Public Integrity called hydrogen fluoride an “extremely toxic” chemical that, if released into the atmosphere, can spread rapidly.
“It’s like chlorine gas. It’s an extremely toxic gas cloud that can move for miles downwind,” Fred Millar, a Washington, D.C.-based independent consultant and activist on refinery toxicity issues, told the News Tribune. “If your local officials aren’t explaining how concerned they are about that, then they should be. It would be a disaster. That’s what the evacuation (distances) should be based on.”
So, is it worse to be a dictator in Syria purposefully releasing chlorine gas to kill citizens or to purposefully build infrastructure that could literally cause the same end result? This article makes clear that the corporations involved realize the danger they have created. If they choose to continue business as usual, and it seems there is no reason to think they would do otherwise, are they not just as culpable as Assad?
It is perhaps time we all begin contemplating what we might need to do should some similar type of event happen in our community. And maybe that consideration will lead us to discovering less hazardous ways of living, safer ways of life, and more sustainable methods of enjoying each day.