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.