Though Enbridge TESTIFIED in 2017 to being able to SAFELY run their current Line 3 – EVEN IF their new pipeline “replacement” project was NOT approved, the PUC used that basis – that their current Line 3 was UNSAFE – for their Line 3 approval order.
Now even Judges Jesson and Kirk appear similarly seduced. All were seemingly so bedazzled by the Enbridge narrative that they agreed it was “REASONABLE” that the MN Public Utilities Commission would agree to allow Enbridge’s new pipeline request… based on their current UNSAFE Line 3!!
It is surely an argument only a cat chasing its tail would comprehend!
One lone soul on the Minnesota Court of Appeals – celebrated Judge Peter Reyes – retained his wits and clearly demonstrated in both words and a simple chart how ARBITRARY AND CAPRICIOUS the PUC had been in their decision.
It’s right in front of our noses and yet there has been no explanation by the PUC on how they made this LEAP to approve Line 3 while getting NONE of the data they’d gotten for their previously submitted Enbridge projects in 2008 and 2012.
How is that reasonable? How is it based on evidence? And how does it possibly adhere to the law? As Reyes notes, It Does Not. While the MN Department of Commerce approved previous projects, this one it did not. And rightfully so as is easily seen here:
Chart could be a depiction of “Regulatory Capture” in the dictionary?
Judge Reyes uses the term “arbitrary and capricious” multiple times throughout his dissent. This is a touchy legal term so it feels almost like he’s really rubbing in the point that this is so CLEARLY a violation of the law… or perhaps he’s expressing how amazed he is to be standing alone in his Dissent opinion? It’s clearly stated here.
In sum, Enbridge knows how to provide demand forecast data in a certificate-of need application, yet conspicuously chose not to do so here. The PUC knows how to evaluate demand forecast data and has in the past, but did not to do so here. The inescapable conclusion is that the PUC acted arbitrarily or capriciously by granting the certificate of need unsupported by substantial evidence. Because we afford an agency no deference if its findings are arbitrary and capricious or unsupported by substantial evidence, I would reverse the PUC’s order granting Enbridge a certificate of need.
Judge Reyes’ Dissent on MN Court of Appeals case challenging PUC approval of Enbridge’s Line 3 Replacement project
When the picture is this easy to see, why is it Enbridge seems to be able to continue their progress?
Want to know more about this brilliant and brave Justice?
Among his recognitions, Minnesota Lawyer named Judge Reyes as one of the “Top Ten Minnesota Attorneys of the Year” in 2001, one of the “Attorneys of the Year” in 2012, 2016, and 2017, and as a recipient of the inaugural “Diversity & Inclusion Award” in 2017. In 2012 and 2013, Poder Magazine named him as one of the 100 Most Influential Hispanics in America.
Judge Reyes received the Ohtli Award in 2016, the highest award given out by the Mexican government to a non-Mexican citizen. He received the “HNBA Latino Judge of the Year Award” in 2018. And in 2019, Judge Reyes received the “MHBA Courage in Leadership Award” and the ABA 2019 “Spirit of Excellence Award.”
Thank goodness for the brave ones. Judge Reyes, you have my heart.
Appointed to the Court of Appeals by Governor Mark Dayton, April 7, 2014. Elected in 2016. Current term expires January 2023. William Mitchell College of Law, Juris Doctor, cum laude (1997) University of St. Thomas, Bachelor of Arts, Major: Chemistry, Minor: Biology
You and PUC Commissioner Schuerger seem in need of more brave ones in the Minnesota government to join you. I hope they do. Perhaps whistle-blowers in State agencies were awaiting the logic of your reasoning? Will we see the Department of Commerce again pursue the case. It seems unlikely in the horrific Walz administration which he continues to fill with corporation-friendly and environmentally ignorant appointments.
Meanwhile, the PUC is now screwing over landowners as well as Tribes in Minnesota? Sounds like Enbridge used the same $10/foot figure to fuck over Canadians too! Yet the PUC doesn’t agree landowners are getting hosed… Basically, Enbridge is giving landowners a pittance (1% of the cost of removal) if they agree to keep the old pipeline in place…but doesn’t sound like many of them understood the bargaining power they had with Enbridge. A story with a long history here in MN… Enbridge selling lies. And getting away with it. Makes one wonder if Enbridge is the only one making out in these deals… I mean, what’s in it for the PUC to continue fucking us all over like this?
Dawn Goodwin’s voice was soft but forceful as she spoke into the camera: “I’m calling on you, Joe Biden, to uphold our treaties, because they are the supreme law of the land.”
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.
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.“
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.
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.”
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.
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.
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.”
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.
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.
While the PUC voted 5-0 that day in favor, their oppression of the public voice was more than clear:
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.”
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.]
Rules for the seats were ever-changing with some allowing restroom breaks, while, for others, a restroom break meant forfeiting your seat.
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…]
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.”
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.
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.”
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.”
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.”
Where police surround buildings and fire “non-lethal” rounds at Minnesotans (sometimes taking out an eye, or inflicting other damage).
Amidst the week’s long trial of the cop that murdered George Floyd – and yes, I use the term murder because we all witnessed what he did… he murdered George, someone with whom he had bad history… [no wonder he didn’t testify, it would have made the premeditation obvious] – we have yet another black man murdered by a cop in Brooklyn Center.
Why would we design a tool meant to only stun to be SO MUCH LIKE a tool meant to inflict potentially lethal damage?
With all the video games in the decades throughout my life, we’ve seen an amazing array of designs, not only for controllers but for new types of fitness gadgets from Wii Fit to Virtual Reality controllers. My wondering as I contemplate the murder of Daunte Wright, is why they didn’t design tasers to be more like a light saber or Wii fit paddle or FUCKING ANYTHING… besides a lot like a God Damn GUN?
I’m not the only one with this idea…
Alpert said a major factor in why officers mistakenly draw their firearm is that stun guns typically look and feel like a firearm. St. Paul, Minnesota, Mayor Melvin Carter brought up the same point during a news conference Monday.
“Why do we even have Tasers that operate and function and feel and deploy exactly like a firearm?” Carter asked. “Why can’t we have Tasers that look and feel different? That you could never mistake for deploying a firearm so that we can ensure that mistake that has happened before can never happen again?”
If there has been confusion – and there has been, as recalled in the above AP piece which mentions police fucking up like this in the past in Oakland, Tulsa, and St. Louis – then WTF are we not doing something about it? Is it because things are operating fine according to the managers? Or is it too much trouble to re-design & re-train? I mean what’s a couple more dead black folks… to the system? Apparently no worry… as we watch settlements instead of solutions.
How many trials will the citizens of Minnesota pay for – and how many settlements to families wronged by police action will be paid – before we see real change?
It seems a simple solution is in order:
Design Tasers to look, feel, and deploy DIFFERENTLY than Guns.
Perhaps our children can again light the way as adults seem to continue to fail…
While I was visiting my son in Colorado, we had a chance to experience Virtual Reality via a game called Beat Saber. This game is kind of a Star Wars meets Guitar Hero. The design has music playing with blocks associated to the beat which you slice through with light sabers (blue and red, so use the correct one for each block! And slice in the correct direction and a mid-point for best point totals…) to keep the music going.
Watching Celia play was amazing like a swing dancer cutting those blocks with a flip of the wrist. I too liked the swing of the patterns which guide you – yes, running the game without the slice indicators is FAR HARDER to manage as you must think to decide the best approach. Tom, on the other hand is stiff and robotic aiming for max precision on his blows. We also played Skyrim which was fucking amazing to experience! Running down hills of snow and shooting arrows… too cool.
While we enjoyed our vacation and helping our kids get settled in a new home, it was bittersweet being away from home watching many horrors unfold, from the Chauvin trial to the new daily atrocities facing people of color in the Deep North.
If our children have access to tools that clearly differentiate between gaming systems, is it not reasonable to expect that our police officers can do the same for tasers and guns? Especially as it is literally a matter of life and death?
The Guardian… Remembering Daunte Wright – a loving father whose namesake must now grow up without him.
Journalists are taking a stand against the egregious behavior of Minnesota law enforcement, now ordered by Judge Wilhelmina M. Wright (no irony there?) to obey the law with a Temporary Restraining Order. (FFS – is that what is required for police to obey the fucking law???)
The examples within this document referenced below are a depiction of the unlawful ways Minnesota law enforcement is dealing with protest, including violating the freedom of the press… simply working to document and protect Minnesotans and tell the story for citizens who are not present.
While it is good to see the Minnesota Department of Safety and State Police ordered to obey the law regarding journalists, there is no mention of County or other local law enforcement being held to the requirements of this TRO.
…April 16, District Court Judge Wilhelmina M. Wright issued a temporary restraining order (TRO) enjoining all “agents, servants, employees, and representatives” of the Minnesota Department of Safety and the Minnesota State Patrol from committing violent and threatening acts against journalists, including: (1) “arresting, threatening to arrest, or using physical force—including through use of flash bang grenades, non-lethal projectile, riot batons, or any other means. . . (2) Requiring Journalists to disperse, or arresting Journalists for not dispersing; (3) “using chemical agents” including pepper spray and tear gas; and (4) “Seizing any photographic equipment, audio- or videorecording equipment, or press passes.” Yet as discussed on our call, reports from journalists on the ground indicate that over the last several days—and even last night after the TRO was in effect—law enforcement officers have engaged in widespread intimidation, violence, and other misconduct directed at journalists that have interfered with their ability to report on matters of intense public interest and concern. …
On today’s call, the question was posed whether this type of tension between law enforcement and the media is commonplace these days, or whether Minnesota is a unique example. Certainly, we live in politically and socially tense times and that is true across the country. But the abuses perpetrated by law enforcement officers in the Twin Cities over the past several nights—and going back to last summer—are alarming and, yes, threaten to set this State apart. They also are clear violations of the First Amendment, and for those officers subject to the TRO, they are in direct violation of the TRO.
And where is Walz? On FB, his update on this issue is… pretty quiet… except to blame Republicans… for his inability to manage the situation. And how about protecting the CITIZENS of Minnesota – you know, those people who elected you? Where we at with that, Timmy Four-Fingers? Silence.
Well, I missed my regular Monday blog post day by a couple… as it’s been a whirlwind of a week! [This is only the second miss as I recall… the first was planned, for a Tommy visit, in the early days of blogging… and I want to keep it to a minimum, so I’m counting this as an approved Birthday Delay in posting!!]
So many blessings… and World Water Day coinciding with my birthday! Surprising Serendipity!!
Cards from many and over 100 FB wishes as I recall. {Big thanks for the money, Momma!}
Many donations to my Friends of the Headwaters fundraiser. In case you missed it… you can still donate here.
A beautiful soft shawl to add to my Melodee Collection! [I’m wearing it in the webinar photo below.]
Helpful neighbors and friends bring success in getting a mile+ of No Parking signs at the Mississippi River Valley removed so I can continue to pray at the River without feeling unsafe. And so tourists too can stop and take a photo with the Mighty Mississippi where she’s still narrow and quick! Hurry, before Enbridge rushes to drill under her… more on that at the end. 😉
A Gathering of Spirits, A Festival of Friends at the Mississippi River Valley a week before… [SO GOOD to see some LOVELY FRIENDS! ~35-50 folks showed up!]
Puppets!! Ma’iigan for Dawn… Mukwa and a Jingle Dress dancer too! What a fun blessing.
And… another gathering on my birthday as well! [EVEN MORE FRIENDS!! I’d guess ~200 – with about 75 remaining to sing me Happy Birthday!! WOW – what an overwhelming surprise… The love of this movement never ceases to amaze me.]
And… a Drum Song and Circle Dance for my birthday!!! {Oh, the love… and the lessons in humility. Big thanks to Angel Stevens for capturing the song for me!! :D}
An Honor Treaties Webinar with Dale Greene, Jr., Bob Shimek, and Martin Case speaking. A powerful learning, once again, this time on Kinship with the Land and Honoring Treaty Responsibilities.
A successful tamale casserole recipe made an easy dinner. [Basically, a can of meat (optional), can of pinto beans, can of diced tomatoes with chilis, then smooth cornbread mix (with an extra egg & can of cream corn added) over the top, bake, and enjoy!]
Some fun images for the annual celebration of another successful trip around the sun… and hopes for some fun and love on the next one…
And the fun continues… so thrilled to get a fun shout out from Smart Mark Agee of The Evening Skews (with Trae Crowder). [Love those guys.]
And thrilled to hear what seems like some judges who had done their homework on the Line 3 Challenges in the MN Court of Appeals. [The key is reading the dissent from PUC Commissioner Matt Scheurger, as he laid it out pretty succinctly (Pages D1-11). Here’s a lovely video from seekjoy on the last big public hearing at the PUC… with love going to Commissioner Matt (2:20 of the 2-2:30 coverage marking his courage)] The submitted briefs appear to have been well read as good questions ensued indicating Enbridge had perhaps NOT provided a Demand forecast for their project (as required by law)… and instead gave only a fantasy SUPPLY forecast for the PUC to consider. Sure hoping we see a reversal of the PUC’s Line 3 Certificate of Need order – as it was given capriciously and without proper consideration of Minnesota law. (IMHO)
Hoping you all have a blessed year as well.
Chi-Miigwech Miinawaa, Indinawemaa Odinawemaaganan! {I’m learning… and believe this translates to… Big Thanks, again, to All my Relatives! Chi-Miigwech to Naabek who is teaching me. You can join us… every Wednesday… That’s TONIGHT! 7PM Passcode: 054633 Bring your emikwaanensan! :D}
For those who may not be aware, I do a daily FB update on the Covid situation here in northern Minnesota along the Enbridge Tar Sands pipeline project proposed corridor.
In case you missed it… February had a closure of the Thief River Fall’s Walmart for Valentine’s Day weekend because they couldn’t staff the store… even with support from other locations.
At that time, MPR reported: “There’s been an uptick in cases in northwestern Minnesota recently, though it’s unclear why just yet. All other regions of the state have been seeing cases decline.” [2/16/21]
You can see how their coverage changed over time… with little concern or investigation…
On February 16th, warning of “Something worth watching”
Letting us know again on the 17th there’s an uptick…
And then apparently changing their minds by the 18th and removing the graphic entirely.
While the graphic did re-appear in their coverage, no further news until the 27th, when it was noted Dan Huff of Minnesota Department of Health (MDH) sharing “concern”.
Two day’s later, concerns disappear and then, as MPR again dropped any level of concern for NW MN from their reporting yesterday… On the same day…MDH noted the area as a COVID-19 hotspot!
~ MPR Misses the boat on investigating what would become our current COVID-19 hotspot 2/16/21 to 3/7/21 Timeline
For days, this MPR notice went uninvestigated. In my daily COVID updates, I noted the unmasked Enbridge workers throughout the project corridor, the WalMart closure, the upticks in cases… and Pennington County went unaddressed. Tagging the MDH got me nowhere. Emailing the MDH got no direct meaningful response, and certainly not engagement.
Now, a few weeks later, we see an even more critical sounding situation and I continue to wonder…
Pennington County – 5X the rate of Minnesota at large, 6X the rate of Hennepin County – JHU CRC
Will SOMEONE in the Minnesota State Government POSSIBLY CONSIDER that it might be a result of Enbridge Pipeliners from all over the country? Will ANYONE???
You know, those guys who swing home for a quick weekend if they can get an extra day off to see the kids… and bring back to Minnesota whatever is going on in Texas, or Oklahoma, or North Dakota, Covid-wise? Maybe?
Maybe that holiday trip is what caused this spike for the last month?
Enbridge Coviding our Communities?
Will anything be done? As Enbridge races across our state in hopes to install a pipeline before the Courts can determine that, in fact, there is NO NEED FOR A TAR SANDS PIPELINE.
Let’s suppose, for sake of argument, that it isn’t pipeliners spreading COVID-19. With Tar Sands being described – even in industry news – on a DAILY NOW, as “stranded assets”, we see Shell and Exxon divesting these assets from their books. Climate science dictates these oil sands resources cannot be extracted… at least, not if we want to keep humanity living on this third rock from the sun. This alone is reason enough to halt construction – at least until the court cases can be heard.
The Line 3 Relocation and Expansion Tar Sands Pipeline is NOT an ESSENTIAL project during a Pandemic!
While Covid feels to many to be less of a concern every day as we hear of increasing vaccination levels, there is still so much we do not yet know.
What level of protection is offered by each vaccine? {We know none are boasting 100% protection.}
How long does the immunity from each vaccine last? {When will one need a booster shot to re-immunize?}
How will complacency among the vaccinated affect community spread?
OK, so you can see there are still lots of questions…
As we’re already seeing upticks in many counties along Enbridge’s proposed Line 3 corridor.
Counties like Norman and Polk saw early but seemingly controlled spikes. Of late, larger spikes in places where typically very few cases are seen is bringing more concern. Counties like Roseau, Red Lake, and Marshall have also seen jumps. Becker and Beltrami have seen spikes. And Clearwater County already had National Guard in late last year, when staffing was unable to keep up at the Cornerstone Rehabilitation and Nursing Home in Bagley.
With few still comprehending the dangers of this steadily mutating virus, let’s hope we see a stop to this fossil fool madness… and soon. #StopLine3
As humans race with track-hoes to pretend they can keep doing what they’ve always done… And the world floods and burns and withers from drought.
As engines beep in movement all around me, building a pipeline for the dirtiest of crude – Tar Sands… it’s hard to pretend we have any notion of saving ourselves.
As we cut down the very beings that provide us oxygen to breathe.
As many grow excited for schools to open… ready to go back to a “normal” economy… [Normal? Are we psychopaths? Apparently so.] … we see the numbers in cases and infections beginning to surge again.
We watch millions focus on dollars and economics… giving not a thought to the water, trees, plants, and bees that make everyday life possible. Will we soon realize how dependent we have become on systems that do not support life but instead bring death?
The fossil fuel industry is taking itself out… as the climate chaos we saw in Texas – and throughout the middle of the country – was a result of the burning we’ve done for centuries now.
And for decades now – longer for those selling the fossil fuels – while we knew exactly what they were delivering… we did nearly nothing? Simply burning fossil fuels faster and faster?
How will our children forgive us? Or rather, will they?
In addition to the fuels and plastics, the oil industry brings death and extinction for life of all kinds. And now – are we realizing… that “life” is ours?
As loads of freight remain in place, unmovable with no electricity to fill tanks with gas, ratios of loads to drivers go to astronomical figures… Indy shoots from 7 loads per driver to 37… while in Cincy reefer trucks, normally around the mid-30s, report their status as not available… with over 200 loads and zero drivers to move them. Watch those store shelves as we “catch up” from the backlog caused by the polar vortex we created?
Or will we get to watch as production lines slow… because there is no shipment of already done freight… and before you can make more, you need to move out what you have?
And will we again have loads of milks and potatoes dumped and buried as we have no way to move food in the massive system we’ve created… so un-localized and heavily reliant on fuels?
Can many of us foresee how much worse 2021 will be in comparison to 2020? Even with the vaccinations… and the talk of environmental justice… and green paths going forward… from the all-hands-on-deck portrayed administration that is calming and encouraging so many?
The new managers don’t calm us. Not those of us who’ve seen that already [!!!] we’re headed for 5-6° warming… with 1.5° being a dream scenario that we lost in decades past.
It’s been 875 days since the IPCC 1.5° report was issued giving us a dozen years. And I heard this past week that the UN is now giving us 10 months to get it together? Anyone noticed the Atlantic Meridional Overturning Circulation (AMOC) slowing? Faster than many can predict? [Well, than many are realizing… The scientists always have someone quietly saying, “You might want to consider this…”]
As we watch a Tar Sands pipeline project proceed across the state of Minnesota… just outside the living room window.
As if we can all just… Go back to “normal”.
The worst of the 1918 Spanish Flu were the deaths in the Spring of 1920. Does this still await?
While some caw about vaccines, we also watch as these quick-whip cures kill with cytokine storm jump starts via injection. I see why some aren’t ready… even if they aren’t on the list… of those who can get the magic elixers.
Every day, we watch… as it seems we lose ground… sacrificing the trees and wetlands of Northern Minnesota… to a Canadian corporation treating this place like it’s their colony.
Bought and paid for agencies beholden to their regulatory captors got us into this mess. Will they have the courage to save us? If not, will the courts?
If not, we will simply keep trudging toward extinction… like the elephants seeking water in African deserts… or polar bears seeking another ice island on which to take a breather?
Or will we be running from the flood as it wipes our house away?
There were a whole host of other debacles this past week that have left me feeling beaten down. Hopeless in moments, disturbed in others, darkly sad and alone in many others. When it rains, it pours. So, overall, a pretty rough time.
It’s been a hard couple months but I haven’t felt so much like just walking away from it all in a while. Trouble is, how does one walk away from accountability to the land, the trees, the water, the animals? I truly don’t think we’ve got much chance remaining to really save ourselves as a species. Though I focus on helping and not harming as much as possible these days, in hopes of leaving more for those who remain after us. Some weeks are more successful than others.
Perhaps one of the most heartbreaking pieces of the puzzle of dismay in the last week, was the sinking of a piece of Enbridge equipment in the LaSalle Creek Aquatic Management Area just south of us. We got word from a friend who’d seen the iNewzTV coverage. I was concerned about the person, in fact, so concerned that I’m surprised he was treated and released, one bit of good news in the last week. I was telling a friend Sunday, some things are so horrific, you are better off not recovering. Based on the reporting, it seemed this might be one of those cases. It reminded me of a friend I had who survived an explosion with pretty severe burns over a large portion of her body. She spoke of not wanting to survive. Dan too speaks to his own struggles in surviving his burns. While the physical pain was the driver in the beginning, in a society where trauma is not acknowledged and superficial beauty is so valued, pain is not the only concern as time passes. Some of those scars can last a lifetime.
Nonetheless, a bigger piece of my sad this week is for the beavers who were affected by this equipment failure. The pipeliner was trapped in the equipment and could not be freed. [Um, OSHA anyone? Perhaps some quick release latch on the plexiglass enclosures for emergency submerging situations? FFS has no one ever thought of this before?]
According to a report from iNewz.TV, the vehicle’s shatterproof plexiglass windows made it difficult for workers to free the victim, forcing them to break a nearby beaver dam in order to lower the water level inside the cab.”
No mention in the coverage on how the beavers fared. And what was the effect on the surrounding environment? Was the Minnesota Pollution Control Agency or Department of Natural Resources on site to monitor the releases of oil into the water? Assure proper containment? We will see. My guess is no, based on how little they’ve done to protect Nature and how much they’ve done to accommodate industry in the years I’ve been civicly involved in Minnesota. And what I heard at the MPCA Rule Change meeting Thursday.
Dan and I went to see what we could document and found what appeared to be further work on trying to remove the equipment – at least that was our assessment.
A few years back a neighbor blew a beaver dam. I was shocked. It was early winter as I recall – snow on the ground. Those beavers were left homeless – or dead? – in a time when it would be harsh conditions to find new housing. As I said, perhaps some things are better off not surviving. And here again, we hear no plea for the beavers. No concern for their situation? Perhaps this is why we find ourselves in this mess.
Another Water Protector emailed her own dismay this weekend saying, “Sometimes I wish all the animals could rise up and defend themselves. All at once!” I replied:
I too wish the animals could defend against us. We’re too powerful and destructive. And they are not. That’s not how they live. Or how we should… Regardless of how things go, we can be very proud of stopping so much of the Tar Sands these past half dozen years. That in itself has helped postpone the end of our species. Perhaps giving enough of us time to awaken, get serious, and listen to the Animals, Plant Nation, Nibi, and Aki. These are the things that give me hope.
I will close with big thanks to all the lovely Water Protectors who have come to my aid this week in the struggle. We rely on each other in these times of darkness and I appreciate all who have given me support, strength, love, care, and hope. You help keep me sane as I make sense of all that is happening. And thanks also to all the others who brought me love, laughs, or perspective. And those who also are doing good… always an encouragement. I have some cards to make and send…
While I had another idea for the blog this week, with all the news around the changing of administrations here in the U.S., I felt a general update was more in order. So, here’s what’s happening from my perspective.
Enbridge continues to build their Tar Sands Pipeline in Northern Minnesota – while many in the state continue to be largely unaware that it’s happening. Or that it’s happening SO QUICKLY. I spoke with a local familiar with previous pipeline projects who noted that the SPEED of this project is “breakneck… much faster than when Koch was installing their pipeline”. What could go wrong? Stuff like this. And this:
Pipe truck carrying three pipeline segments speeding into Bagley as Enbridge rushes to gain a new corridor.
On January 21st, we discovered Access Road 38B at the first of two proposed crossings of the Mississippi River. This is in the LaSalle Valley, which is depicted below in “Figure 15” with the proposed LaSalle Creek crossing.
While work at the second crossing is far more destructive thus far, it sure was horrible to see this as we’ve been happy to have quiet mostly since the State of Minnesota illegally approved this pipeline for construction.
Photo submitted as part of a federal court filing seeking an injunction against Line 3 construction. Photo by Alexander Aman. Interpretation by Laura Triplett. From Healing MN Stories 1/23/21
The game is now one of waiting and watching. And what are we seeing? So many stories. I will keep it to a brief few.
DNR began enforcing an area, at the second proposed Mississippi River crossing by this abominable project, initially in response to people being in the area expressing their first amendment rights. This sign was soon put up to create a Exclusion Zone – apparently by Enbridge, creating a No Trespassing Zone and gobbling up public space… which is illegal.
This zone DOUBLES the easement for Enbridge making it illegal for any “normal people” to get close enough to see what is going on and complain. Enbridge created a buffer zone against public scrutiny.
LATER the DNR sticker appeared on the sign. and LATER still “ENBRIDGE ENERGY LLC” was whited out.
We are also hearing of vehicles being hooked up to tow trucks WHILE PEOPLE ARE STILL INSIDE THEM. No notice, just… We’re gonna take you and your car away! WTF!?!?
And at an early gathering, Water Protectors dispersed after a warning by Aitkin County Sheriff Department. Some time later, and without a second dispersal order, DNR began rounding people up in the area, taking them to Aitkin County Jail where multiple problems were reported by Healing Minnesota Stories.
There are MANY and MORE DISTURBING stories to tell. And do you see Minnesota media covering these incidents? More on that at the end of the blog.
Meanwhile, the ugly face of the Minnesota Nice Deep North comes in the form of Representative Stauber in Washington, D.C. giving example of the audacity of white supremacy in a memo to his colleagues:
“(Y)our opposition to the first and only American Indian ever nominated to a cabinet position is likely to reverberate across Indian country,” said the letter to Stauber signed by Melanie Benjamin, Cathy Chavers, Robert F. Deschampe, Kevin R. Dupuis Sr., and Faron Jackson Sr. — tribal chairs representing, respectively, the Mille Lacs Band of Ojibwe, Bois Forte Band of Chippewa, Grand Portage Band of Lake Superior Chippewa, Fond du Lac Band of Lake Superior Chippewa and Leech Lake Band of Ojibwe.
“Most concerning is that you did not consult with us as the sovereign federally recognized tribal governments in your district in advance of initiating this effort that has such a direct impact on us as your American Indian constituents,” the letter added.
The U.S. Department of the Interior oversees management and conservation of most federal lands and natural resources.
A separate letter from the Midwest Alliance of Sovereign Tribes, based in Wisconsin, referred to Stauber’s efforts as “unprecedented,” and “a direct affront” to Indian Country. The alliance worked hard to advance Haaland’s nomination, it said, and asked Stauber to “step back” from leading the campaign against Haaland. It referenced Stauber’s position on the House Committee on Natural Resources.
“We are unaccustomed to any member of Congress serving in a leadership position on a committee or subcommittee with jurisdiction over Indian tribes taking such a public role in leading an attack that diametrically opposes the wishes of nearly all of Indian country,” it wrote.”
Well, Fuck Pete Stauber and his racist white supremacy agenda. Here’s hope for maybe saving the planet’s ability to maintain a habitat safe for humans? It sure looks and sounds like Biden is promising to do his best to make it so. Let’s hope that Haaland is appointed and… we have some good news already:
WASHINGTON, Jan. 25, 2021 — The U.S. Department of Agriculture today announced the appointment of Heather Dawn Thompson as Director of the Office of Tribal Relations (OTR) reporting to the Secretary of Agriculture. Thompson is a member of the Cheyenne River Sioux Tribe, a Harvard Law School graduate, and an expert in American Indian law, tribal sovereignty, and rural tribal economic development. With Thompson in place, USDA will return OTR directly under the Secretary, restoring the office’s important government-to-government role.
Meanwhile, Joe’s already starting to reverse the horrors of the last 4 years. Looks like his Executive Order on the Climate Crisis notes that the “heads of all agencies shall immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions” that are inconsistent with Biden’s policy “to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals. ” This work will be done using the “best science” thus protecting the “integrity of the Federal decision-making”.
Within 30 days of the date of this order, heads of agencies shall submit to the Director of the Office of Management and Budget (OMB) a preliminary list of any actions being considered … that would be completed by December 31, 2021, and that would be subject to OMB review. Within 90 days of the date of this order, heads of agencies shall submit to the Director of OMB an updated list of any actions being considered … that would be completed by December 31, 2025, and that would be subject to OMB review.
… (d) The Attorney General may, as appropriate and consistent with applicable law, provide notice of this order and any actions taken … to any court with jurisdiction over pending litigation related to those agency actions identified … and may, in his discretion, request that the court stay or otherwise dispose of litigation, or seek other appropriate relief consistent with this order, until the completion of the processes described in this order.
(e) In carrying out the actions directed in this section, heads of agencies shall seek input from the public and stakeholders, including State local, Tribal, and territorial officials, scientists, labor unions, environmental advocates, and environmental justice organizations.”
And… looks like Big Oil continues to suffer losses.
The International Energy Agency on Tuesday cut its 2021 global oil demand forecast, citing soaring Covid-19 cases and renewed lockdown measures that will further limit mobility.”
Meanwhile, CBS Sunday Morning aired a piece on white middle-class climate refugees. Everyone can perhaps relate to the family from Paradise as each of us faces more potential for a climate disaster happening to us.
Sunday evening, the PBS Newshour spent most of their program on the TRUTH OF THE DANGERS of the Fossil Fuel industry. May Boeve from 350.org (6:20) gave REALLY good coverage of how Line 3 and DAPL are the SAME as KXL. You may recognize the “equivalent to 50 coal plant” reference – same as Line 3! Giving good credit to the Natives who started this work on KXL, and noting the alliance of folks across the board with that pipeline, just like we’re seeing here in Minnesota as more and more gather along the route to protest this bad idea. [10:40 is the focus on Line 3.] Governor Tim Walz is gonna have a hard time as Joe and his own state reps turn against his ongoing collusion with Enbridge to give them a new pipeline corridor through our lovely Indian country.
Later in the episode, it looks like Shell and BP are the places to buy gas? They pushed back on 45’s deregulation… [as they are DOING the improvements already? So those de-regs would favor the losers who weren’t? Thus boosting the part of the industry that is doing the LEAST for reducing GHG emissions.] Listen as the President of Shell gets honest. When Ari presses, Gretchen Watkins maintains. Great close for that show too – on the effect of the pandemic on a family.
“The reason the commission doesn’t authorize construction in the absence in a permit is that it makes no sense to enable a developer to begin digging up land and laying down the pipe when it may be that the subsequent permit is never obtained or it may be that the route of the project has to change because of the conditions associated with the subsequent permit,” Glick said.
Glick has been consistent on that point, but he was joined in opposing Mountain Valley’s request by a commissioner who was sworn in last month, Allison Clements. The commission’s newest member, Mark C. Christie, abstained from voting.”
Let’s hope they feel that not-yet-recognized Treaty Rights are as important… in issuing an Injunction on the Line 3 project for the 404 Permit.
I want to close with a bit of a teaser. We got some really good insights today that may indicate we have an advantage over Enbridge in preventing their project from its most dangerous work. I will likely say more about this next week… or in an upcoming EMERGENCY Blog. For now, please keep hope. I know this is hard work and patience is wearing thin as we watch the destruction in our midst.
You know, I always wondered how Hilter happened and after 45, I can see how. I had also always wondered how the Homestead Strike was allowed to happen.
But that was in an era before we could all communicate immediately and widely.
Now it seems DNR, Aitkin County Sheriff Dan Guida, and his Deputies have allowed themselves to become Enbridge’s “Pinkerton” forces. Media has been used in this case as well with most Minnesota papers so beholden to Enbridge half-page ads that they cannot even bring themselves to go outside Enbridge terminology. They refer to this pipeline as a replacement. But this is NOT a RE-PLACEment – indicating in the SAME PLACE – but a RELOCATION of a pipeline. The goal is to secure a new corridor as the Leech Lake leases expire in just 8 years. And they have 6 pipelines to remove by then…
This weekend, the Star Tribune re-printed Louise Erdrich’s December 28th NY Times piece where she shared thoughts on her recent visit to the proposed crossing of Enbridge’s Line 3 at the Mississippi River near Palisade, MN. We live near the first proposed crossing, in the LaSalle Valley near Alida, Minnesota, where taxpayers spent millions to purchase and restore the land after Jack Pine blowdowns. Tim Walz and his administration have given Enbridge a green light for this unnecessary tar sands pipeline project… and we watch as Water Protectors remain, standing in the way of this horrible idea.
At 9 minutes in, you can see how close Enbridge is to drilling under the Mississippi River. Thankfully the holiday festive Letters of Unusual Size (LOUs!) are being held as a blockade by committed Water Protectors standing in their way. 12-31-20 Drone footage by Move for Justice News
In November, Minnesota Gov. Tim Walz’s administration signed off on final water permits for Enbridge to complete an expansion of its Line 3 pipeline. … Lawsuits — including one by the White Earth and Red Lake nations and several environmental organizations, and another by the Mille Lacs Nation — are pending. But construction has already started.
This has been a brutal year for Indigenous people, who have suffered nearly double the COVID-19 mortality rate of white Americans. … Nevertheless, tribal people worked hard on the elections. The Native vote became a force that helped carry several key areas of the country and our state.
On the heels of those victories, the granting of final permits to construct Enbridge’s Line 3, which will cross Anishinaabe treaty lands, was a breathtaking betrayal. The Land of 10,000 Lakes is already suffering from climate change. Yet Minnesota’s pollution control and public utility agencies refused to take the future of our lakes into account, or to consider treaty rights, in granting permits.
This is not just another pipeline. It is a tar sands climate bomb; if completed, it will facilitate the production of crude oil for decades to come. …
The state’s environmental impact assessment of the project found the pipeline’s carbon output could be 193 million tons per year. That’s the equivalent of 50 coal-fired power plants or 38 million vehicles on our roads, according to Jim Doyle, a physicist at Macalester College who helped write a report from the climate action organization MN350 about the pipeline. He observed that the pipeline’s greenhouse gas emissions are greater than the yearly output of the entire state.
If the pipeline is built, Minnesotans could turn off everything in the state, stop traveling and still not come close to meeting the state’s emission reduction goals. …
And if the pipelines were to leak, the sludgy mixture is almost impossible to clean up. The state’s environmental impact statement notes that the pipeline will run through two watersheds that drain into Lake Superior. Any spill in the vicinity of the Great Lakes, which contain 84% of North America’s available freshwater, is an existential threat to our water supply. …
“There is nowhere worse on earth to have an oil sands pipeline system than the Great Lakes region,” says Rachel Havrelock, the founder of the University of Illinois Freshwater Lab. “It is, everything else aside, the world’s worst planning.”
The thing is, there was no plan. There is no plan. It’s clear to me that with the Keystone XL Pipeline on hold and Line 5 challenged in Michigan, Enbridge is building as fast as it can to lock in pipeline infrastructure before regulatory agencies and governments institute rules on climate change.
Global financial institutions have been realizing the environmental cost of the fossil fuel industry. Last year, Moody’s downgraded Alberta’s creditworthiness to its lowest level in 20 years, citing (among other issues) the province’s reliance on oil sands. Black Rock, HSBC, Deutsche Bank and many other global financial institutions have taken steps to divest from fossil fuels.
But instead of pulling back their production levels, many oil sands companies, with the support of Canadian banks, doubled down, producing a surplus. These Canada-based corporations are perpetrating a vast ecological crime, and Minnesota is their accomplice. But we could cross over to something better. Tar sands do not have to flow through this pipeline. The rivers can heal, the great scars gouged into the wetlands regenerate.
Excerpts from Louise Erdrich’s NY Times piece on Line 3 December 28, 2020 (reprinted by Strib 1/3/21 (my emphasis)
The Complaint begins with a review of the situation detailing the proposed pipeline, noting that “Although the Corps purports to find that the Project will have no significant impact on the environment”, construction and operation would have significant impacts (§ 8) clarifying in § 9:
Construction would require clearcutting vegetation from a 50 foot-wide permanent right-of-way and a 95- to 125-foot temporary construction right-of-way for the entire route of the Project; excavation of a minimum 7 foot-deep trench; stockpiling of removed soils; transportation of approximately 60 foot-long, 36-inch diameter pipe segments to the trench; welding the pipe segments into a continuous pipeline; re-filling of the trench; and construction of ancillary facilities, including pump stations, valves, electrical substations, access roads, horizontal directional drilled waterbody crossings, cathodic protection equipment, and communications facilities. These activities also would utilize a substantial amount of heavy equipment that will produce noise and air emissions, damage roads, and compact soils. These construction-related activities alone make the Corps’ finding of no significant impact indefensible.”
Ignoring concerns like impacts to drinking water quality, among other things, the Complaint challenges that the USACE improperly decided to NOT prepare an Environmental Impact Statement (§ 11), which also fails to meet the requirements of NEPA (National Environmental Protection Act) that requires the USACE to take a hard look at impacts, again rendering the approvals unlawful (§ 12). Along with this failure, the USACE also failed to evaluate impacts of construction to meet Clean Water Act 404 and evaluate alternatives that would be less environmentally damaging (§ 13), whether the pipeline is in the public interest (§ 14), thus making the USACE approval of the 404 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law in violation of the Administrative Procedure Act (“APA”), NEPA, the CWA, and the Corps’ own permit regulations” (§ 14). They ask that the project be vacated and that construction be enjoined. [This last word means they would prohibit the Project with an injunction.]
Next follows a review of the Jurisdiction and Venue and information on the Parties: Red Lake Band of the Chippewa (§ 18-22), White Earth (§ 23-30, Honor The Earth (§ 32), Sierra Club (§ 33-34). The USACE is noted as Defendant (§ 36).
The next sections cover the Statutory and Regulatory Background, starting with NEPA (§ 37-63) which requires a “hard look” at environmental consequences prior to taking major action… which the Line 3 project CLEARLY is. A deep dive of the process required of the USACE in permitting approvals ensues, noting the Environmental Assessment (EA) done by the USACE was insufficient, as proper review of the factors – that regulations require -warranted an EIS, which “must include a ‘range of actions, alternatives, and impacts.’” per 40 C.F.R. § 1508.25, including, I’ll note, a “No Action alternative” (b1). § 51 notes that impacts of GHG emissions on climate change is one of the cumulative impacts analysis NEPA requires… and one the USACE failed to do. Precedent also says that NEPA analysis requires that oil spill risks and impacts be completed (§ 56) and requires analysis of cultural resource impacts (§ 57).
Next up for review is the Clean Water Act (CWA; § 64-75), which regulates discharges of pollutants in the waters of the United States and quality standards for surface waters and requires the USACE to permit only after taking “all appropriate and practicable steps to avoid and minimize adverse impacts to waters of the United States.” 40 C.F.R. § 230.91(c)(2) First, the CWA says that the USACE may not issue a 404 permit “if there is a ‘practicable alternative’ to the project with less impact” (§ 69) and that there must be a definition of the project’s overall purpose. Furthermore, if a project is not water dependent, the Corps “must presume that a practicable alternative that does not involve a special aquatic site is available and will have less adverse environmental impact on the site and its ecosystem.” If this is the case, the “applicant must rebut the presumption with detailed, clear, and convincing information proving that a less adverse practicable alternative is not available.” (§ 70) Second, the Corps cannot permit if the project could result in discharge that adversely impacts U.S. waters (§ 73), and that, if no less damaging alternative is available, the applicant is required to show all steps that would minimize potential adverse impacts. (§ 74) Finally, the USACE “must independently verify all the information in the permit application.” (§ 75)
The Rivers and Harbors Act (RHA) (§76-81), our “nation’s oldest environmental law”, covers prohibitions for actions that impair navigable waters. The USACE approval of the Section 408 permit requires predetermination that “the use or occupation at issue will not be injurious to the public interest” (§ 80) and is subject to NEPA (§ 81).
Next are the USACE’s own Permitting Regulations (§ 82-88). Here, the Complaint charges that the USACE must assure the project is in the “public interest” (§ 82) after evaluating “probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest”, (§ 83) balancing benefits against “reasonably foreseeable detriments”, (§ 84) including consideration of effects “on historic, cultural, scenic, and recreational values, including Indian religious or cultural sites.” (§85) The District Engineer is to make an independent review of need based on public interest, (§ 86) and must “independently verify the information submitted by the permit applicant” (§ 87).
With regard to Treaty Rights and Federal Government Trust Obligations (§ 89-105), the Complaint makes clear the history of US treaties with the Chippewa – giving a good read to educate yourself on this history – and explaining that Native People’s usufructuary rights (to hunt, fish, and gather) are just as critical to their continued existence as “the atmosphere they breathed”. Of special note are § 96 “Treaties are ‘the supreme Law of the Land.’ U.S. Const. art. VI, cl. 2.” and § 98 “The federal government, including federal agencies, cannot abrogate treaty rights without specific and clearly expressed Congressional authorization.” This section also notes the courts deference to the Indians in settling matters of Treaty Law (§ 99) and that the USACE “is responsible for ensuring treaty rights are given full effect and not abrogated or impinged upon by agency actions absent an act of Congress.” (§ 100) There is special mention of the Winter’s Doctrine (§ 101) which protects Tribes’ uses of their water. [I won’t go into it again here, but this is CRITICAL, as noted in a previous blog on the MEQB and their erroneous approval of the Minnesota 2020 Water Plan.] § 105 mentions the requirements of the “The United Nations Declaration on the Rights of Indigenous Peoples, endorsed by the United States in 2011” requiring good faith consultation with Indigenous Peoples to assure free and informed prior consent – which doesn’t seem to have happened… as multiple Tribes are suing for a Stay on the Line 3 project.
The portion on Environmental Justice references Executive Order 12898 noting the 1994 effort, enacted under President Clinton and still in effect, to identify and address adverse effect of programs, policies, and activities on minority and low-income populations, which indicates agencies, under NEPA, require a “hard look” at EJ issues. (§ 106-108)
The Factual Allegations notes (§ 109-111): Enbridge submitted a permit application on 9/21/18 (Section 404 of CWA, Section 10 of RHA, Section 14 of RHA) for their project and in January 2020 supplied updated materials, for which the USACE has sole pre-construction permitting authority and which must comply with NEPA.
The Project is described (§112-127), including a history of current Line 3 and noting the differences that this “replacement” project would include (basically making it a NEW and DIFFERENT pipeline than current Line 3, not a replacement). The route and capacity, as well as the transported substance are each explained showing this project is an EXPANSION which includes new facilities (§ 117): “including eight pump stations (four adjacent to existing pump stations and four at new locations), electric transmission lines, access roads, and 37 mainline valves. Enbridge also proposes to expand the Clearbrook Terminal.” § 121 explains the wetland conversions proposed which would cause “loss of critical wetland functions, including decrease in above-ground biomass; loss of forest interior habitat; decrease in structural diversity; loss of visual screening and aural screening from human activity; decrease in local climate amelioration; loss of evergreen winter cover for wildlife; loss of habitat for shade-tolerant or shade-loving plants; loss of wildlife food sources (e.g., acorns); and increase in and replacement of native plants by invasive and exotic plant species.” Also mentioned are Fond du Lac impact (§ 122), wetlands and the Mississippi Headwaters region (§ 123), calcareous fen wetlands – highly susceptible to disturbance and thus more protected by Minnesota law (§ 124), groundwater resources (§125), the “Straight River Basin, an important Minnesota aquifer (§ 126), and wild rice beds (§127).
Regarding the Permit Application (§ 128-138), the Complaint charges that Enbridge’s permit application “largely consists of generic and conclusory statements that do not provide the information the Corps must have to evaluate the Project”, which precluded meaningful public comment on 404 compliance, and ignored the “numerous alternatives”, such as upgrades to other pipeline systems (which they have already done based on Enbridge’s reported shipments since 2016) or repair and replacement of the current Line 3 pipeline. Enbridge has not shown that these alternatives are not practicable though, in fact, some would be cheaper. There is also no explanation for Enbridge’s insistence on their preferred route, though many alternative routes are evidenced to be “less environmentally damaging”. The Complaint notes that Enbridge plans to use HDD (horizontal directional drilling, which most avoids impacts and limits vegetation disturbance) at only 21 of the 227 water crossings, “based on inadequately conducted wetland delineation surveys.” It also mentions the risk associated with HDD for “frac-out… when pressurized fluids and drilling lubricants escape the active bore,” which the Corps did not consider a threat.
The issuance of the USACE permit (§139 -162), referenced a November 2020 Environmental Protection Plan, which was not publicly available at the time of the Complaint’s filing (Christmas Eve 2020). In addition, the USACE issuance of the Section 408 authorization for the Lost River, Minnesota Flood Control Project was made in reliance on information Enbridge provided in its 9/21/18 application. (§ 141) [So no independent review… WTF?] The USACE also failed to make public the documents used to determine their decision – “a combined Environmental Assessment, Section 404(b)(1) Guidelines Evaluation, Public Interest Review, and Statement of Findings for the Project (“Decision Document”)”, indeed refusing “to make them public except pursuant to a request made under the Freedom of Information Act” (FOIA), even though their own internal policies provide that Tribes not be required to seek such documents via FOIA. When these documents were provided to fulfill Sierra Club’s FOIA request, “the Corps indicated that it is still reviewing documents for potential redactions and will provide those documents at a later date.” (§ 142) [Yet construction continues in Minnesota at present time. TO WHOM do we turn for ACCOUNTABILITY?]
So, huh? Does this mean Enbridge WON’T make permanent impacts? Who has access to this November 2020 EPP? Not the public, it seems.
The Corps goes so far as to state in their Permit (§ 143):
Perform environmental analysis where they thought they lacked “sufficient control and responsibility to expand its analysis” [what does this even mean exactly?] (§ 144)
Include in their scope “the entire pipeline construction, or operation” again noting their lack of sufficient control and responsibility [Who the hell HAS THE CONTROL AND RESPONSIBILITY if not the USACE, FFS?] (§ 145)
“evaluate the direct, indirect, and cumulative impacts of the Project… instead (limiting) … scope of its analysis to segments of the pipeline over which the Corps determined it has control and responsibility.” [Again, why would it NOT have control and responsibility as the SOLE Federal Agency issuing pre-construction permits?] (§ 146)
“analyze or provide any evidence that the construction method Enbridge plans to use at each water crossing location will be sufficiently protective.” (§ 147)
“consider the Project’s impacts on wetlands that are hydrologically connected to trout streams, wild rice, lakes, and other protected waters of high or outstanding biological significance (§ 148)
“evaluate the Project’s potential to result in oil spills” or “analyze whether Enbridge has measures in place to adequately guard against or respond to such spills (§ 149)
Account for GHG emissions of the Project, noting reliance on the “State EIS” for this analysis (which the PUC ignored). (§ 152)
Evaluate cumulative impacts of the Project (§ 153)
Evaluate social costs of climate impacts of the project (§ 155)
Evaluate the infringement on Treaty Rights, specifically usufructuary rights ( 156)
“consider the impact of an oil spill on the Tribes’ rights to hunt, fish, and gather and to clean water.” (§ 160)
The Decision Document states on Environmental Justice: “Based on information available to the Corps, including the information provided in the State EIS, as well as the details of the Project that is within the Corps’ regulatory authority, the Project would not have disproportionately high and adverse impacts to minority populations.” (my emphasis) Yet the ‘State EIS’ acknowledged:
The EJ analysis indicates that American Indian populations residing in the census tracts noted in Table 11.3 will experience disproportionately high and adverse impacts. As described in Chapter 9 of this EIS, the intensity of impacts felt by American Indian populations will be greater than depicted by quantitative analysis alone because of their cultural and spiritual relationship with the natural environment.”
Next the Complaint discusses Risk of Oil Spills (§ 163-173). Perhaps most striking was this: “Effective clean-up methods simply do not yet exist and may never exist for the type of oil that Enbridge plans to transport in large quantities through the Line 3 pipeline.” [So, if we DO get a spill, we got FUCK ALL for cleanup.] Following is a summary of tar sand properties and the risks associated with spill using the 2010 Enbridge catastrophe in Kalamazoo as example where cleanup costs exceeded $1B and required “more than 2000 personnel, over 150,000 feet of boom, 175 heavy spill response trucks, 43 boats, and 48 oil skimmers.” There is also reference to the millions of dollars in Minnesota tourism revenue that are risked with a spill, noting the Corps failed to account for these economic losses in their permit decision, as they did not consider oil spill risks associated with the Project.
On Climate Impacts (§ 174-182), the Complaint shares the current threats of climate change and Minnesota’s disproportionate experience with average temperature, noting:
Every county in Minnesota is experiencing more climate-related stresses: extreme storms, flash floods, excessive heat, and droughts. Lake Superior has warmed substantially and Great Lake ice cover has dropped precipitously.”
As tar sands oil production generates almost triple the warming pollution of conventional crude – and the Complaint describes the extraction process for our edification – there is a causal connection between the Project and increased GHG emissions. While the USACE has studies that estimate the well-to-wheel GHG emissions for tar sands crude, and the “social cost of carbon” is commonly used by government agencies to evaluate projects, the USACE “failed to consider information showing that approval of the Project will result in hundreds of billions of dollars in social costs.” (§ 182)
There are four main areas of relief sought with this complaint:
Find the USACE in violation of the law WRT a failure to “Adequately Consider the Direct, Indirect and Cumulative Impacts of Its Permit Action Violated the National Environmental Policy Act and the Administrative Procedure Act” (§ 183-195) as they: unlawfully segmented NEPA by not including the segments of the Project outside Minnesota; failed to evaluate risks and impacts of oil spills; failed to factor in the significant difference between conventional and tar sands crude; failed to analyze the threats of crossing methods (i.e., frac-outs during HDD), failed to analyze alternatives; failed to quantify cumulative and incremental effects of climate change; failed to assess the impacts of approval on Tribal Treaty Rights; and restricted the scope of review (giving no explanation of its analysis and failing to provide rational EJ review).
Find the USACE “acted arbitrarily, capriciously, and contrary to the evidence before it, in violation of NEPA and contrary to the APA, 5 U.S.C. §§ 706(2)(A), (D), in failing to prepare a full EIS on the Project” (§ 196-203) though the Project would involve extensive environmental impacts, crossing 78.3 linear miles of wetlands, and impacting lands where Tribes retain usufructuary rights.
Find the USACE violated Clean Water Act § 404 and the Administrative Procedure Act (§ 204-210) in its failure to: conduct an alternatives analysis, including those that are practicable and less environmentally harmful to fulfill the Project’s purpose; assess any off-site alternatives and limiting to the route corridor designated by the Minnesota Public Utilities Commission; or independently verify information necessary to determine the least damaging alternative.
Find the USACE acted arbitrarily and capriciously in failing to undertake a lawful and rational public interest review of the actions authorized by the Permit (§ 211-217) as required by its own governing regulations. Specifically, “The Corps’ public interest review unlawfully limited the scope of its consideration of detrimental effects to water impacts associated with construction of the Project, even though the Corps considered beneficial effects beyond the construction, such as “services provided not related to the Project” and benefits to others in the United States who would use the products of crude oil transported by the pipeline. Decision Document at 48.”
