404, ACE, Army Corps, Clean Water Act, CWA, Enbridge, Line 3, MN PUC, NEPA, Rivers and Harbors Act, US Army Corps of Engineers, USACE
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.
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)
Let’s look now at the Earthjustice filing in Federal Court, challenging the 404 Permit granted by the US Army Corps of Engineers (USACE). [And I should clarify that as a non-lawyer, I’m not sure my § is used correctly but I use it to refer to the sections of the Complaint filing. It would have been INSANE reading if I’d used “at” instead…]
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.”Earthjustice 404 Complaint filing p. 3
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?]
The Corps goes so far as to state in their Permit (§ 143):
The Decision Document shows the USACE failed to:
- 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.”State EIS, Chapter 11 Environmental Justice (p. 17) (my emphasis)
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.”The Complaint, Section V Climate Impacts (§ 175)
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.”