I’ve been writing this blog for a while now… [Since June 2015] and much of it has been in opposition to the proposed Enbridge Line 3 project in Northern Minnesota. Throughout 2020, the blog has also focused on the global pandemic and its effects. Coronavirus has been providing much of the needed change that many of us have awaited; working from home, spending more time with family, and a HUGE reduction in fossil fuel usage to name but a few.
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?
As I wrote in the LTEs to the Park Rapids Enterprise this past week:
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?”
We’re begging for our lives. Please #DelayLine3. Now.11-26-20 PR Enterprise LTE Pandemic should delay Line 3
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
Hospitalizations still growing…FB Post 11-28-20 on MN COVID Figures