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Scientists say that Tar Sands need to stay in the ground.

So how 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 in their narrative until quite recently, is their deceptive misrepresentation of a 2017 Federal Consent Decree made between Enbridge and the US Government.

While Enbridge has purported 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 an 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 “Obama 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... as they RUSH to build through Northern Minnesota before the courts can rule.

Now let’s deep dive…

[As some of the below is for thoroughness, if you seek specifics on the Line 3 replacement details, click here to skip ahead. For an even deeper dive, click here for a less abridged version of this blog post. For more on why the USACE should have DENIED the 404 permit, click here.]

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)

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) Judge’s ruling seems to assume legality of the permit seeking process… erroneously. (my emphasis)

The Judge failed to grasp that the Consent Decree ALSO allowed for additional safety measures while that process unfolded, to assure safety, which is legally in the hands of Enbridge and PHMSA (Pipeline and Hazardous Materials Safety Administration). Enbridge testified that Line 3 was capable of running safely indefinitely IF a “replacement” were not approved. Judge Kollar-Kotelly fails to see her own 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.

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. I’m not sure why else they have remained so silent throughout this process… rarely sharing the scientific facts while consistently 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. (Mostly LLCs created for a variety of reasons… generally to avoid financial consequences or burdens that result from not creating additional LLC middlemen.)

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, one might ask?

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.

While the Consent Decree notes some Enbridge actions, subsequent to the 2010 spills, it’s concerning that much of this work wasn’t done at Enbridge’s discretion but only after PHMSA corrective action orders, in some cases, after additional spills. For example, 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 – with additional checks at the discretion of the company… unless ordered by the Pipeline and Hazardous Materials Safety Administration to do so, as in this case.

In the half-dozen years it took the agreement to be drafted, 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. [Only after their current practices were found to fail on a massive scale in Michigan and Illinois.] And Enbridge 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. Maybe next time the now “trained” public will be believed?]

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 exactly does the Consent Decree say about Line 3?

“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.

Here is the specific language on Line 3 Replacement.

Did you catch that key phrase? This one: “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 in a legal sense, they are not the entire story, and Enbridge has used this to deceive.

In fact, the United States ordered Enbridge to “seek all approvals necessary for the replacement of Original US Line 3″. They were also ordered to “provide approval authorities with complete and adequate information needed to support such approvals.” However, Enbridge was less than forthcoming with information provided to authorities – including a failure to accurately account for their current pipeline capacities (both planned and already implemented expansions in capacity, thus deceptively influencing need) and Environmental Impact Statement information, which was gleaned of significant factors that would have provided reasons for DENIAL.

The Consent Decree SETTLEMENT 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 used 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 further restrictions called out in the Decree. “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…
As 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.  

We continue to await a response on the injunction request from the Friends of the Headwaters Challenge to the U.S. Army Corps of Engineers 404 Permit approval process. Meanwhile, as new pipelines spill more frequently than old, it’s hard to comprehend how a New Line 3 – with 5X less required inspection than current Line 3, and a RUSHED installation process – will protect Minnesotans from a spill.

PHMSA Spill Data shows that, for pipelines, NEWER does NOT mean SAFER.