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Everyone says that Tar Sands need to stay in the ground.
Greta is on week 136 of Skolstrejk for Klimatet.
I’m on week 323 of fighting this dumb idea Enbridge calls their New Line 3.

So how on Earth did Minnesota end up approving Enbridge to build a Tar Sands pipeline… as the oil industry is massively divesting from and abandoning Tar Sands assets? Science for the People issued a video giving us part of the story. In it, you can see the process and the deceptions that led to an illegal and erroneous approval of a tar sands pipeline through some of Minnesota’s best remaining waters.

Key to the Enbridge spin, though kept largely under wraps until more recently, is their misrepresentation of a 2017 Federal Consent Decree made between Enbridge and the US Government. While Enbridge purports that the Decree REQUIRED them to DECOMMISSION their current Line 3 and BUILD a New Line 3… it’s not quite that simple.

We ordered Enbridge to SEEK a replacement for Line 3, not that permits be given. State Agencies must still conduct all reviews and follow applicable regulations. We’ve implemented some restrictions to the current Line 3 and additional requirements should Enbridge fail to secure said permits.”

Federal Consent Decree explanation portion of Science for the People video plea to President Biden to pull the 404 permit for Line 3 (my emphasis)

This blog gives a bit more of a high level explanation on how things went wrong regarding understandings of the Consent Decree and also a deep dive into the Decree for those more curious to get into the weeds.

Here’s the basics if you want the cliff notes version:

  • The Consent Decree is a settlement agreement crafted, over a half dozen years, by and between Enbridge and the U.S. Government (on behalf of the EPA and the Coast Guard who protect our environment and waters) to allow Enbridge’s continued operation of pipelines after a couple BIG, QUICK failures (6/25/10 near Marshall, Michigan and two months later, near Romeoville, Illinois).
  • The agreement literally says: “Enbridge shall replace… Line 3… provided that Enbridge receives all necessary approvals to do so.”  The problem? Enbridge convinced Minnesota officials and regulators, media and citizens, with a campaign that this “required Line 3 be replaced.” No matter what. Implying approvals were required. [Did no one find it ironic that a company whose pipelines were found to be inadequate would use THAT FAILURE as an excuse for another opportunity to… fail with a NEW pipeline?]
  • If the Courts rule the approvals were not legal, as challenged by many parties against multiple Minnesota Agencies and Commissions, all the current Line 3 construction would be illegal as well. The parties arguing against the project include the Minnesota Department of Commerce, which has alleged for years that there is no Need for the project. Cases begin arguments next week.
  • Bottom line: While the Decree required Enbridge to seek replacement Line 3, it added provisions should approval for replacement NOT HAPPEN, including increased inspections, maintenance, and training, along with other actions to prevent recurring failures of Enbridge’s “Lakehead System”. Enbridge seems anxious for those requirements to go away with a New Line 3.

Now let’s deep dive…

You’ve seen it in comments on FB posts, heard it from the PUC as their justification for approving the project, and seen this idea in news reports… that the Federal Consent Decree “ordered” Enbridge to replace an “unsafe” Line 3.

Enbridge Energy said Biden’s decision on Keystone will have no impact on Line 3 or a similar Line 5 project in Michigan. Unlike the Keystone project, lines 3 and 5 are currently operating, the company said, and the Line 3 replacement was ordered by a consent decree during Obama’s administration.”

Buoyed by Keystone XL, pipeline opponents want Biden to act By AMY FORLITI January 31, 2021 (my highlight)

Enbridge says the work is necessary for safety reasons, and the company also notes the project passed six years’ worth of permit and regulatory reviews, including dozens of public comment meetings and an Obama-era consent decree.”

Canada backs Enbridge Line 3 pipeline project as opposition mounts in Minnesota By Carl Meyer February 2nd 2021 (my highlight)

Kellner added that the project was ordered by consent decree during the Obama administration, and has passed every test during six years of regulatory and environmental reviews.”

As Biden cancels Keystone XL, what’s next for Line 3? by Jennifer Eisenbart  Jan 27, 2021 Aitkin Age (my highlight)

“We owe it to future generations, to the Indigenous communities we’ve signed treaties with, and to every living being on this planet to stop building fossil fuel infrastructure,” Omar tweeted during the day. …

Enbridge Energy spokeswoman Juli Kellner told the Pioneer on Sunday that the projects differ as, “unlike Keystone XL, Line 3 is a currently operating pipeline and its replacement was ordered by a federal consent decree during the Obama Administration.”

Indigenous voices express opposition to Line 3 during Congresswoman Ilhan Omar visit to Bemidji  Written By: Hannah Olson | Feb 1st 2021 (my highlight)

And now even U.S. District Court Judge Colleen Kollar-Kotelly seems to be confused by it mentioning it in her ruling for the Tribes request for a 404 Injunction on the Line 3 project.

Overall, the Court finds the balance of harms and public interest considerations to be a close call. Plaintiffs offer numerous examples of potential environmental harms stemming from the Project’s construction. But the Corps presents persuasive evidence that delaying construction—and in doing so, continuing to rely on Existing Line 3 which Enbridge is required to decommission pursuant to its Consent Decree—also causes ongoing environmental harm and safety risks. And, as noted above, the Court cannot ignore the potential financial losses and harmful economic effects on the local community if construction on the Project were to be delayed. Taking into account all these considerations, the Court finds that Plaintiffs have not definitely tipped the scale in their favor.”

Civil Action No. 20-3817 (CKK) Ruling assumes legality of the permit seeking… (my emphasis)
She fails to grasp that the Consent Decree ALSO allows for additional safety measures while that process is unfolding to assure safety, which is really in the hands of Enbridge and PHMSA (Pipeline and Hazardous Materials Safety Administration). And Enbridge testified that Line 3 was capable of running safely IF a “replacement” were not approved. She fails to see her circular argument, continuing the Enbridge spin for a “replacement” pipeline to simply be handed to them. The judge seemingly failed to grasp that the challenge was to the illegalities of the Army Corps’ permitting process itself.

So what is the truth? Did the Obama administration’s Consent Decree Order the Replacement of Line 3? The answer is complex. And that’s how Enbridge has apparently successfully deceived the State of Minnesota.

It seems clear to me that Minnesota Media has become beholden to the Enbridge half-page ads that provide revenue as they drink their messaging kool-aid, rarely investigating (or even asking the opposition parties really) on the bigger questions. Not sure why else they would have remained so silent throughout this process… rarely sharing the scientific facts and promoting the Enbridge narrative. And limiting – for years now – the voices of Minnesota citizens themselves, showing that most of us oppose this project.

So let’s start with the basics. What is a Consent Decree?

consent decree is an agreement or settlement that resolves a dispute between two parties without admission of guilt (in a criminal case) or liability (in a civil case), and most often refers to such a type of settlement in the United States.

Consent Decree – Wikipedia [Because here in the US we are quick to assure that rich, guilty people (or in this case, a Canadian corporation – same thing if you ask the US Supreme Court…) don’t get tarred with the dirtiness of their acts? While we still get some bit of compensation for them? It’s like a game: You’re guilty but we’re gonna pretend you’re not if you just make some promised amends going forward!]

What does the Consent Decree between the Federal Government and Enbridge actually say?

First, filed on behalf of the United States Environmental Protection Agency (EPA) and United States Coast Guard (USCG), it sets as Plaintiff the United States of America and the Defendants as a list of nine Enbridge parties (LLCs created for a variety of reasons… mostly, I believe, to avoid financial consequences or burdens that result from not creating additional LLCs). The complaint alleges that Defendants own and operate the Enbridge Mainline System – one of the world’s largest pipeline systems with more than 3,000 miles of pipeline corridors in the United States and Canada. The complaint asserts claims against Enbridge under the Clean Water Act Sections 309, which grants Federal Enforcement Authority, and 311 (along with other statutes and regulations):

CWA § 311(c)(2) authorizes the President (delegated to EPA for discharges in the inland zone, as defined in the NCP), to direct all Federal, State, and private action to remove a discharge or to mitigate or prevent a substantial threat of discharge of oil or a hazardous substance that is a substantial threat to the public health or welfare of the United States. This authority includes responding to discharges or a substantial threat of discharges from a vessel, offshore facility, or onshore facility.

You can read more about these hazardous substances & their controls in 33 U.S. Code § 1321 – Oil and hazardous substance liability

Why the complaint, you might ask?
[As a general FYI, much of the below is for thoroughness. You who seek specifics on the Line 3 replacement details can skip to Section Heading: So what exactly does the Consent Decree say about Line 3? for quickest read.]

Because of Enbridge’s 2010 unlawful discharges of oil from two Lakehead system pipelines. The first was from a rupture on Line 6B near Marshall, Michigan on July 25, 2010 which over two days repeatedly discharged harmful quantities of oil to the navigable waters of the United States, including Talmadge Creek and the Kalamazoo river and adjoining shorelines. The second spill, occurring two months later, when Enbridge’s Line 6A developed a large leak near Romeoville, Illinois discharging harmful quantities of oil to navigable waters of the United States, including an unnamed tributary to the Des Plaines River, and adjoining shorelines.

The decree goes on to provide details of the failures, the cleanup efforts, and references to previous natural resources damages (see Background paragraph h in the Consent Decree). Details include costs associated with restoration work and monitoring requirements, along with other settlements.

On a side note: The National Transportation Safety Board determined that the probable cause of the Line 6A Discharges was erosion caused by water jet impingement from a leaking 6-inch diameter water pipe located 6 inches below the Line 6A pipe and that interruption of the cathodic protection currents by the close proximity of the improperly installed water pipe contributed to the discharges. While Enbridge did not own or operate the water pipe, the “NTSB did not issue any safety recommendations to Enbridge or any other entity concerning the Line 6A Discharges.” Gee, wonder how problems keep happening? FFS.

The Consent Decree notes that subsequent to the 2010 spills, Enbridge took several actions [skip if too weedy for your tastes… or read just my emphasized comments bold, bracketed and/or italicized?]:

  1. Pursuant to a corrective action order issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA), Enbridge developed and implemented the “Lakehead Plan” outlining specific actions and timelines for safety improvements to specified pipelines within the Lakehead System, including procedures for ongoing inspection, replacement, and testing of Enbridge’s lines.
  2. Enbridge, rather than repairing Line 6B, replaced the pipeline which had been operating for 43 years. In 2014, Enbridge completed construction of a 285-mile pipeline (“New Line 6B”) to replace the entirety of original Line 6B, thereafter ceasing operations of Original 6B and removing remaining oil from it. [Kind of like they plan to abandon current Line 3? Clear out oil but leave pipe in place?]
  3. Enbridge expanded and improved upon its use of in-line inspection (ILI) for maintaining the Lakehead System pipelines. These are the “pig” tools which identify and size flaws like cracks or corrosion that require excavation and repair. As of 9/2014, Enbridge had completed 180 ILI runs since 2010 with 5,700 associated excavations.
  4. In 2012, after a third oil transmission pipeline known as Line 14 on the Lakehead System ruptured in a pasture near Grand March, Wisconsin [FFS, Enbridge!?!], PHMSA ordered Enbridge to implement various remedial measures, including hydrostatic testing of the pipeline. This testing is mandatory for new pipelines to test where ruptures might occur at unrepaired or undiscovered features. 196 miles of Line 14 were tested in 2012 without a leak or rupture. In accordance with another PHMSA corrective action order, [does Enbridge require PHMSA to order ALL their inspections???] Enbridge also used testing to confirm integrity on 326 miles of Lakehead System Line 2 in 2015.
  5. Enbridge spent $50M since 2010 spills to improve equipment, training, and overall response for spill events on the Lakehead System. In September 2015, Enbridge, EPA and USCG, along with state and local officials, conducted a full-scale exercise to test plans to respond to a spill in the Straits of Mackinac. Enbridge also revised Integrated Contingency Plans (ICPs) for emergency response which were approved by PHMSA and developed Tactical Response plans for specific areas within the Lakehead System, including the Straits of Mackinac. Enbridge also implemented spill response training recommended by U.S. Federal Emergency Management Agency (FEMA) to improve coordination between the company and government emergency responders. Enbridge also purchased additional emergency response equipment including trailers, boats, portable dam systems, tanks, boom, skimmers, and rig mats. Enbridge also reorganized its emergency management department to improve planning and response capabilities, hiring 20 additional staff that included four Emergency Response Coordinators in its U.S. operations. [Uh, good idea, as they failed so miserably!] They also formed an internal Emergency Response Advisory Team that meets quarterly to ensure emergency preparedness and planning. Enbridge also conducted outreach to the public so they can better recognize warning signs of leaks, potential hazards, and the location of Enbridge pipelines, along with methods of notifying Enbridge of a leak. [As was clear in the 2010 Kalamazoo spill, the response team on the Enbridge end didn’t ‘believe’ it was a real leak after it was reported, resulting in a surge of oil being pushed… instead of the pipeline being shut down.] Also pursuant to another Corrective Action Order by PHMSA, Enbridge installed 55 new remotely controlled valves to reduce potential impacts of spills on certain water crossings. Enbridge also created a role of VP, Enterprise Safety and Operational Reliability and two new committees (Operations and Integrity Committee and Safety Reliability Committee) which include senior executive participation. Finally, Enbridge established a Pipeline Control department with increased staffing dedicated to leak detection, including on-shift personnel dedicated to technical support for pipeline operators and aiding in analysis of leak detection systems. [Maybe now they can figure out that when the public reports a leak, it might BE a leak, and not simply resort to BLOWING out the pipeline in an attempt to dislodge a jam?]

While these corrections are all great, it’s concerning that much of this work wasn’t done at Enbridge’s discretion but only after PHMSA corrective action orders and several major spills. [FFS.]

There is evidence that Enbridge itself seems to grasp the potential dangers as they have, as a part of their final work in the Pipeline Control department, also implemented additional training requirements for operators, such as:

  1. pipeline hydraulics
  2. column separation analysis
  3. incident investigation
  4. emergency response
  5. fatigue management (not sure if this is operator fatigue or metal fatigue)
  6. leak detection

And they now require “semi-annual control room personnel team training that includes a focus on allowing operators to recognize and respond to unexpected conditions that may arise on the Enbridge system, including leaks alarms from the SCADA or MBS systems.” There is also specific mention of actions regarding the Straits of Mackinac:

  1. “regular inspections using ILIs , divers, and remotely-operated vehicles to confirm integrity of Line 5 in the Straits”
  2. increased “frequency of inspections and pipeline repairs above and beyond what is otherwise required by law” and
  3. “partnering with Michigan Technological University to develop new technology that will aid in inspecting the line.”

Resolution of the Complaint is noted to be made by (in addition to civil penalties paid by Enbridge and reimbursement of the US relating to Line 6B discharges) the measures set forth in Section VII of this Decree.

So… what is Decreed in Section VII?

“The obligations of this Consent Decree apply to and are binding upon the United States, and upon Enbridge and any successors, assigns, or other entities or persons otherwise bound by law. … No transfer of ownership or operation … shall relieve Enbridge of its obligations to ensure that the terms of this Decree are implemented.” Enbridge shall require that third-parties and contractors flow down these same requirements to subcontractors.

Injunctive Measures – Section VII of the Consent Decree

We’ll return momentarily to Section B Replacement of Line 3 (pages 25-28), our main concern. [Sorry, it’s a customary process to hold the best bits until the end, eh? Though I did give you that short bullet point version so, no whining, right?!?]

First a bit on the Consent Decree as a whole. NOTE: “Except as specifically provided in this Consent Decree, requirements of this Section VII shall apply to all of the Lakehead System.”

Section A of the Injunctive Measures, Original US Line 6B, notes that Enbridge is “permanently enjoined from operating or allowing anyone else to operate Original US Line 6B for the purposes of transporting oil, gas, diluent, or any hazardous substance.” The meat of the Consent Decree consists of details regarding Hydrostatic Pressure Testing (Section C pages 28-30), inspections and dig requirement details (Section D pages 30-74), and 5 pages dedicated in Section E to the Measures to Prevent Spills in the the Straits of Mackinac. [This and other requirements are the reason for five subsequent modifications to the Consent Decree to report details and changes, none of which affect Section VII B.]

Section F discusses Data Integration (pages 80-83) and Section G the Leak Detection and Control Room Operations details (pages 83-110), with Section G III detailing “Requirements for New Lakehead Pipelines and Replacement Segments” that calls out specific equipment required to mitigate spill prevention.

Section H discusses Spill Response and Preparedness (pages 110-124) and Section I, New Remotely Controlled Valves (on Lines 5, 6A, and 14; pages 124-125). Section J details the Independent Third Party Consent Decree Compliance Verification ordered (pages 126-136).

So what exactly does the Consent Decree say about Line 3?

Did you catch that key phrase… “provided that Enbridge receives all necessary approvals to do so.”

This is really the crux of the matter, as the PUC and others in Minnesota government have seemingly been persuaded by Enbridge to believe, the US Government “ordered” the replacement of Line 3.

While those words are not untrue, they are not the entire story.

In fact, the United States has ordered Enbridge to “seek all approvals necessary for the replacement of Original US Line 3″. They were ordered to “provide approval authorities with complete and adequate information needed to support such approvals.” However, we can show that Enbridge has been less than forthcoming with their information provided to authorities – including pipeline capacity expansions and EIS information that was gleaned of significant factors that would have provided reason for DENIAL.

[If you go to the letter of the law, does that mean they only were to provide information to SUPPORT the approvals, and not to DENY the approvals? Is that how Enbridge justified their inaccuracies provided to State agencies and commissions? Maybe that is the insane legal authority Enbridge is claiming? Does any reasonable person see that as reasonable? This shit gets deep sometimes, y’all.] Keep in mind though…

The ORDER cannot be used as rationalization for the pipeline approvals as that would imply that the Federal Government has jurisdiction and authority over the State of Minnesota that it DOES NOT.

And if the Consent Decree is the REASON for approvals, then we can see the circular certainty of Enbridge’s approvals. That appears to be exactly what has happened.

While Enbridge worked on getting said approvals, there remain some further restrictions. “Until decommissioning, … Enbridge shall limit the operating pressure in each segment of Original US Line 3.”

And what if they don’t secure approvals for a replacement pipeline? The Feds have an answer for that too!

If Enbridge has not taken all portions of Original US Line 3 out of service by December 31, 2017, Enbridge shall comply with the additional requirements set forth below:

1. On an annual basis with the exception of the final year of service for the Original US Line 3, Enbridge shall complete valid ILIs of all portions of Original US Line 3 that Enbridge continues to operate, using the most appropriate tools for detecting, charactering (sic), and sizing all of the following: Crack Features, Corrosion Features, and Geometric Features;

2. Enbridge shall identify, excavate and mitigate or repair all Features Requiring Excavation detected in the ILIs required pursuant to Subparagraph 22.d.(1), in accordance with the requirements of Subsection VII.D; and

3. Enbridge shall clean all portions of Original US Line 3 that Enbridge continues to operate and shall use biocide treatments to reduce microbiological activity on a quarterly basis.

Consent Decree Section VII, subparagraph 22.d p. 26-27

“Meanwhile… and likely BECAUSE of the Federal Consent Decree Section VII which added inspection requirements for Enbridge’s current Line 3 pipeline:

Line 3 has spilled only 66 gallons in the last dozen years!  Well under 2 barrels!!  Are we really willing to risk destruction of so much valuable natural infrastructure to get better than that – less than 2 barrels in over a decade?

{So, Old Line 3 is trending well… And is Enbridge’s responsibility for safety… Thanks, Consent Decree!}

In fact, the current Line 3 may very well be out-performing new pipelines because it is operating under a Consent Decree from the United States government, which requires Enbridge to fully inspect every inch of their Original Line 3 each year – inspection only required every five years for new pipelines. Original Line 3 is the devil we KNOW.  Intimately.  Enbridge knows every inch of that pipeline and gets to know it better – as well as how it is changing over time – as they perform the thorough annual inspections mandated under the Federal Consent Decree.  

And we still await the response on the Friends of the Headwaters Challenge to the U.S. Army Corps of Engineers 404 Permit approval process.

Perhaps with the Confirmation of Deb Haaland… we will see some action this week.

Congratulations, Deb!! Our FIRST Native Cabinet Member – far too late, but… WE READY!!!!

Pressure builds on Biden to name Native American Deb Haaland as Interior leader By JENNIFER A. DLOUHY on 11/19/2020

P.S. BIG Thanks to all who helped make this blog possible. My ever-patient and helpful husband Dan for reading and re-reading blogs each week, Friends who gave input and ideas and helped with my understanding (you all know who you are…), and a special thanks to Shannon Peterson for trudging through the draft version and making a WAY Better end product and FB post.