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If you ever wondered what it’s like, to live as an abutter to the Line 3 project in Northern Minnesota, here’s my take.

It feels every day as if I awaken on Death Row awaiting an answer. However, the answer is not for my own execution nor for something quick and (hopefully) painless.

No, the waiting I have is to see if we will be given a reprieve to the continued building of a Tar Sands Pipeline at the End of the World.

A friend that encourages… by Heidi

There was an injection of hope in a recent piece by Jessica Intermill entitled “When the Public Interest Isn’t: Minnesota’s approval of a new Line 3“. This week, I’ll dive into her piece and a bit of other good news.

Published in Bench & Bar of Minnesota, the official publication of the Minnesota State Bar Association, the piece lays out exactly how the Minnesota Public Utilities Commission FAILED to heed the public voice – even stifled it to the greatest degree it could, despite huge public outcry on the Line 3 project’s risks.

This is only Part 1 in a 2-part series so I anxiously await the second half of her critique. From the article: “This is the first installment of a two-part article exploring structural bias and racism within the law in the context of the Line 3 oil pipeline expansion. Part 1 examines the agency approval process and the role of the public in that process. Part 2 explores the racialized impact of that facially neutral approval in the context of Minnesota’s legal history.

Enbridge has a history of trouble with their pipelines – from the Alberta Clipper (here’s a more detailed piece) to the current long-time opposition on Line 3. [Not to mention all those pesky spills…]

Now, it seems the entire world may be pushing back as we see global decisions in opposition to the continuation of Big Oil’s consumption of our carbon budget. And that could spur their many opponents across the U.S., especially across the Northern Midwest as Enbridge faces pushback from Minnesota through Wisconsin to Michigan. Citizens are speaking up across the region… on a national platform.

The tides seem to be turning as, just this past week, we saw Exxon get slapped with reality…

Market reality has finally collided with the most important U.S. energy company. Yesterday, Exxon Mobil shareholders elected at least two of the dissident directors proposed by the activist hedge fund Engine No. 1. Investors have lost patience with the basic business assumption that oil and gas will rule forever. But investor confidence in corporate boards is eroding on other contentious public policies issues as well. Boards should take note.

Exxon’s Shareholder Revolt Is a Warning for Boards Everywhere by Heidi Welsh 5-27-21

…and Royal Dutch Shell lose their case in the Netherlands.

Royal Dutch Shell PLC must slash its greenhouse gas emissions 45% by 2030 from 2019 levels, The Hague District Court ruled in a decision that could reverberate around the world.

“This is a turning point in history,” Roger Cox, a lawyer for the nonprofit Friends of the Earth Netherlands, said in a statement after the decision. “This case is unique because it is the first time a judge has ordered a large polluting corporation to comply with the Paris Climate Agreement. This ruling may also have major consequences for other big polluters.”

Court Orders Shell to Slash Emissions in Historic Ruling By Maxine JoselowE&E News on May 27, 2021

Among the most far-reaching aspects of this ruling is the court’s order for how Shell must account for its emissions, …(taking) account of what are known in climate parlance as Scope 1, 2, and 3 emissions. Shell must consider the emissions of its parent company, all its global subsidiaries, all its suppliers, and all its customers across the entire chain of its enterprise everywhere that it operates throughout the globe.

That would include, for example, the climate-harming emissions released when it … builds a pipeline… and when its consumers burn its gasoline in their cars, trucks, or airplanes. When every one of these sources is considered, the court said, Shell’s global emissions must decline by nearly 50 percent over 2019 levels in just nine years. …

The ruling will also likely increase the risk calculation that investors, policymakers, financiers, and others apply to fossil-fuel activities… The individual responsibility component, argues lawyer Roger Cox, may also increase the likelihood that individual corporate executives and board members are held liable for a company’s harmful activities, further increasing the risks associated with fossil fuels.

Others see a clear pathway to U.S. climate litigation. Calling the court’s decision “earth-shaking”, Kathy Mulvey of the Union of Concerned Scientists notes… The essence of the Dutch court’s ruling, she says, is that “if you dig it up and sell it and profit from it, you’re responsible for it.”

Dr. Geoffrey Supran, research fellow at Harvard University, agrees. In an email, he called the “individual responsibility” aspect of the ruling “a game-changer,” which “legally and rhetorically inverts Big Oil’s decades-long propaganda campaign” to switch responsibility for the climate crisis from themselves to individual consumers.

“It is precisely this sort of corporate accountability, for the climate damages caused by Big Oil’s products, that dozens of cities, counties, and states are seeking in U.S. climate litigation. So, in my view, this Shell verdict provides powerful precedent,” Supran argues.

The Shell case now joins a burgeoning international body of law conferring the basic and fundamental human right to survive the climate crisis and hold fossil-fuel companies accountable for causing it. Critical to this broad and increasingly successful movement was the decades-long struggle of Indigenous peoples to secure the United Nations Declaration on the Rights of Indigenous Peoples, which confirms rights not only to their lands but also the natural resources found on and within it.

A Court Ruled Shell Is Liable for Its Contributions to Climate Change. What Happens Now? by Antonia Juhasz 5/27/21

So let’s hope those globally turning tides will bring us a verdict soon that stop the Line 3 project from any further devastation. I’m especially concerned as we see evidence of high Covid cases in Alberta pipeliners and we watch anxiously as the India variant makes its way around the world. That, however, is a topic for another day.

The Intermill piece rekindles hope that at least some in the Minnesota judiciary comprehend the reasons why the Enbridge project is such a gross negligence of the public. She opens with an overview of perhaps the most horrific of days in this process – the “gun to our head” day, as is how the Minnesota Public Utilities Commissioners explained their fear causing them to support granting Enbridge’s order.

Jessica then goes on to explain the history of the Public Utilities Commission:

Since its beginning, the PUC’s predecessor agencies prioritized expansion of cheap utilities—often over public opposition. 

One of the earliest “public interests” that Minnesota courts identified was railroad expansion. That interest was so strong that it displaced otherwise ordinary landowner remedies like ejectment.9 

The PUC traces its origin to this interest. Its ancestral predecessor was established by 1871 legislation that began with rail safety inspections, but just three years later turned to railroad-rate oversight. An 1885 law continued to focus on rate discrimination without any countervailing concern that utility expansion could undermine other public interests. But even then, contemporary critics noted that expansion of utilities like railroads prioritized the interests of capital over people. A 1907 political cartoon showed railroad baron J. J. Hill demur at the “timid creature” while the railroad industry knocked “the public” off its feet.

The PUC’s interest in utilities – Jessica Intermill 5/26/21

In turning to Line 3, Intermill notes several reasons for denying the project including, 1) the greenhouse gas concerns for the project, 2) the infringement on Indigenous population in Minnesota, and 3) even the Minnesota Department of Commerce’s own opposition to the project, which concluded:

“in light of the serious risks and effects on the natural and socioeconomic environments of the existing Line 3 and the limited benefit that the existing Line 3 provides to Minnesota refineries, it is reasonable to conclude that Minnesota would be better off if Enbridge proposed to cease operations of the existing Line 3, without any new pipeline being built.”

Minnesota Department of Commerce opinion 9/11/2017

Not only did the PUC FAIL to recognize the Department of Commerce (currently suing the PUC in the Minnesota Court of Appeals, alongside other opposition parties), they also failed to heed the Administrative Law Judge assigned to oversee and review the public input on the project.

[The ALJ] conducted 16 hearings across the state attended by about 5,500 people, building a record of public comment from 724 speakers that was over 2,600 pages long. In each city, she held separate hearings in the afternoons and evenings to accommodate the schedules of people who work both days and nights. After the three-month process, she completed a 300-plus-page report that included more than 40 pages summarizing public comments concerning the new Line 3. …

“The importance of these economic benefits to northern Minnesota are not insubstantial,” the ALJ found, but rather “would exist with respect to any infrastructure project of this magnitude.”16 Thinking past Line 3 to build a renewable-energy infrastructure with union-protected prevailing-wage jobs would satisfy the public interest in economic development and water quality. But only Line 3 was on the table.

Of 72,249 written public comments submitted, 68,244 opposed a new Line 3.17 The ALJ recommended against Enbridge’s request because it did not “minimize[] the impacts on human settlement, the natural environment, the economics within the route, the State’s natural resources, and the cumulative potential effects of future pipeline construction.” She favored a “true replacement” in the existing trench.

The public’s interest in Line 3 – Jessica Intermill 5/26/21 (my emphasis)

While ALJ O’Reilly noted there was public interest in construction, it didn’t equal an endorsement of Line 3. YES, people up here are desperate for jobs but could we get some for the 21st century instead of the 19th? It’s time to END investment in the energy of the past, especially as more investment there simply hastens our demise!

Jessica next explains how the PUC denied the public a voice, as had previously been done historically in rural Minnesota.

The PUC’s embedded bias toward utility expansion has long blinded it to the interests of any larger public. In the 1970s, electrical co-ops sought to build a 430-mile-long high-voltage line through 476 farm properties in west-central Minnesota. Powerline opposition, described in scholarship by the late U.S. Sen. Paul Wellstone, was broad.19 

The law was, conceivably, in the farmers’ favor. The 1971 Minnesota Environmental Rights Act applied to the project and declared the state’s policy “to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of human beings[.]”20 A law requiring that the agency’s power plant and transmission siting decisions consider and “comport with the public interest” also applied to the project.21

More than 60 percent of all Minnesotans and 70 percent of rural Minnesotans opposed the line.22 The Minnesota Energy Agency, the agency then designated to review applications for certificates of need, approved it anyway.  

So it was for the new Line 3. 

…The PUC staff took (the ALJ’s) 400-page report and ground it—and 55 other documents—into 46 pages of “staff briefing papers” that recommended granting Enbridge the certificate of need and its preferred expansion route.23 

The staff briefing did not include any discussion of the extensive public comment on the case. But it did note that “the Commission need not engage in the exercise of reviewing the ALJ Report” itself since “[t]he Commission traditionally leaves it to staff to ensure that the final written order identifies the parts of an ALJ Report that have been adopted, with or without modification, and the parts [that] have not been adopted.”24 

That filtered record moved forward to the five PUC commissioners who sat on the dais in June 2018 to decide whether to grant the certificate of need and route permit. 

The PUC’s interest in the public – Jessica Intermill 5/26/21 (my emphasis)

While the PUC voted 5-0 that day in favor, their oppression of the public voice was more than clear:

  1. The PUC, despite large public interest, failed to secure a large-enough venue, “leaving only around 70 “general admission” seats for the public who had submitted tens of thousands of comments.”
  2. These seats, available on a first-come, first-serve basis, required earlier and earlier arrivals for anyone interested in securing one. [You can guess who this favors… those of means and those paid to be there.]
  3. Rules for the seats were ever-changing with some allowing restroom breaks, while, for others, a restroom break meant forfeiting your seat.
  4. The prohibitions on water bottles for these meetings, “which would often stretch for hours and sometimes the whole day”, were especially frustrating. [And remind one of newly enacted (though not likely to stand constitutional review?) voter laws in Georgia that prohibit one from bringing water or food to those in line awaiting a chance to vote. I’m sensing a pattern…]
  5. Of notable interest was the fact that Enbridge was allowed 10 tickets while to “Red Lake Band of Chippewa Indians and White Earth Nation—two different parties, both of whom the ALJ had allowed to intervene to defend their separate interests—a total of five tickets to share between the two.”
  6. As the public clamored to be let into the meeting, “seats reserved for the parties went unoccupied.”

Though the public didn’t really have a voice anyway. In fact, the attendance enforcement by the PUC got so bad that at one point the intervening parties could not get into the meeting themselves!

After opening statements, though, the commissioners directed the hearing, posing their own questions to the parties they wanted to hear from, and making their own statements into the record. The public could not comment at the hearing and parties could not rebut or cross-examine the testimony of other parties. …

Tensions escalated when, at PUC staff direction, St. Paul police removed two individuals with party badges from the building “because they were holding more than one ticket at a time.”30 Here too, the “rule” purportedly violated was not contained in any notice. PUC staff nonetheless refused to let the party representatives return. 

Unsure who to contact to get their clients back into the building, the affected parties docketed a letter addressing the commissioners they appeared before.31 When the chair reopened the meeting the following day, she acknowledged the filing but said the commission would not address it because it was not the subject of the hearing. One intervenor responded with “an irregular oral objection[.]”32 When the chair began to call the docket, counsel for the Sierra Club interrupted, pleading, “I am in this room as a contract attorney without a client.”33 The meeting recessed.

The PUC’s interest in the public – Jessica Intermill 5/26/21

Throughout all this time and up unto this unanimous decision, the public had still NEVER HAD THE DIRECT RIGHT OF CONFRONTING THE PUBLIC UTILITIES COMMISSIONERS.

The fight was not over. In fact, it was becoming clearer all the time how egregious the Public Utilities Commission had been in dismissing the public.

Minnesota’s Office of the Legislative Auditor issued a report detailing the PUC’s public-participation processes in general, and the Line 3 processes in particular.39 It wasn’t pretty. …

The legislative auditor concluded its report with a punch list of concrete recommendations to improve the PUC’s public-participation process.42 

Reviewing courts, too, must also be alert to biases that can hide behind, and skew, agency decisionmaking. “PUC officials told [the legislative auditor] the Line 3 case was an anomaly and that the agency’s practices, which they believe generally work well, should not be judged on this one case alone.”43 Various courts, though, are reviewing this case.44 A self-confessed anomaly can all too easily cross into an abuse of discretion.

Last year, the PUC revisited its approval of Line 3 to consider a revised EIS. It held the first—and only—public hearing that allowed citizens to speak directly to the commissioners about whether to approve Line 3. Again, most public commenters opposed the project.”

Toward a broader public interest – by Jessica Intermill 5/26/21 (my emphasis)

FINALLY! The public was given a voice. And once they were given that voice, CHANGE HAPPENED.

The Public Utilities Commission’s vote this time was NOT Unanimous. While he stood alone, Commissioner Matt Schuerger HAD listened to the people… and likely read more of the record that newest Commissioner Valerie Means claimed to have read – though she claimed to have read the whole thing! [FFS]

Commissioner Schuerger voted against Line 3 three times, concluding that the revised EIS was inadequate, that Enbridge had not proven its case for a certificate of need, and that Enbridge’s preferred route was not in Minnesota’s interest.”

Our Friend Commissioner Matt Schuerger!!

We’ll see what Ms. Intermill brings with Part 2. Meanwhile…

Advocacy groups have also requested intervention from the Biden administration to prevent construction from moving forward.

“We’ve tried everything up to this point, now we’re calling on the people to stand with us because the process failed us,” said Dawn Goodwin, co-founder of the Resilient Indigenous Sisters Engaging (RISE) coalition and a member of the Indigenous Environmental Network. “We’ve discovered that the process was never made to work in our favor. … We’ve called on people to come and stand and learn what it means to be treaty people.”

Protests expected in northern Minnesota as Enbridge presses to complete Line 3 by Dana Ferguson 5/28/21

Perhaps you will find your voice? Maybe you will answer Gaagigeyaashiik’s call and join the Treaty People’s Gathering June 5th through 8th?

It’s gonna take more than just a few of us… to bring the change needed to save our species.

[Though I’d argue perhaps we aren’t worth saving… if this is how we manage things.]