A Tale of Two Agencies… Failing Minnesotans.

Tags

401, 404, Aquifer, Aquifer Breach, Breach, Clearbrook, Clearwater County, Enbridge, Health Professionals for Healthy Climate, Honor The Earth, HP4HC, Line 3, Line 93, MN350, MPCA, Pipeline, RISE Coalition, Sierra Club, Tar Sands, Violations

Here’s my latest missive to the MPCA.

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Dear Ms. Kuskie,

I’m wondering if you can answer some of my questions regarding the continued concerns we have along the Enbridge Corridor.

While I’ve been reaching out to the MPCA’s reported Tribal Liaison, I’ve had no response.

As an abutter to the project, who’s been working with my friends, including many Native women leaders, for years now… to stop this project through Indian country, I was hopeful that my that my questions would matter to the MPCA and would get response.

Perhaps you can tell me what, if anything, is being done to address the frac-out conditions that appear to be still rising in the Mississippi Headwaters River Valley here?  The beavers have noted it and are working to mitigate.

11-10-21 Photo of Mizi-Ziibi with Miskwaabiimizh from Amik (Mississippi River with Red Willow from Beaver)

They, Amikwag, seem the only ones doing anything about our environmental concerns along Line 3, or Line 93, as Enbridge had dubbed their new project, as is evidence by the Red Willow (Miskwaabiimizh) being placed in the flow of Misi-ziibi just downstream of the pipeline crossing. 

Let me know if you have any answers regarding the ongoing disturbances to our flora and fauna along this project, which continues to gain attention… especially as Enbridge continues to be ever present in our neighborhoods up here in Clearwater County.

Just yesterday we saw a large Precision Pipeline semi trundling past the house mid-afternoon.

Maybe you can tell me what is happening in the forests and wetlands near my home?

Thanks for your consideration.
☆☆☆☆☆☆☆☆☆☆☆☆☆☆☆☆

While prior to construction the Minnesota Department of Natural Resources was given less attention than the Minnesota Pollution Control Agency (as the agency responsible for the 401 Clean Water Permit), it seems the DNR and MPCA have now switched places with the DNR getting most of the attention and the MPCA getting little.

Not that paying attention to the DNR construction permits would have made a difference… because Enbridge willfully violated those permits in their actions that burst open the Aquifer at the Clearbrook terminal.

But the lack of oversight was clear from both Agencies.

Both Agencies failed to stop this project when, by all rights, they should have.

Problem is… no Minnesota State Agency appears to have wanted to stop the Project.

The story most telling of their unwillingness to stop the Project goes way back to February 5th of last year, almost 2 years ago now.

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A group of Minnesota scientists – including retirees from both MDNR & MPCA as well as Healthcare Professionals for Healthy Climate (HP4HC) and Science for the People – Twin Cities (SftP), joined Indigenous Leaders from RISE Coalition and Honor the Earth, along with state non-profit groups (Sierra Club & MN350), along with legal and spiritual representation, to FINALLY meet with MPCA staff to discuss how they could work to deny the 401 permit for the tar sands pipeline project – opposed by all these groups. 

Our membership included membership from White Earth Reservation, which continues to oppose the Line 3 project to this day, and is supporting multiple legal challenges from the 404 Permit issued by the US Army Corps of Engineers to the White Earth Tribal Court case where Manoomin is suing the state DNR for the Right to Life.

The arrival at the MPCA that morning was different from other times we’d visited the MPCA for meetings. While many of the representatives had traveled hours from Northern Minnesota, hoping to, as usual, gather in the cafeteria for refreshment and review prior to our meeting,  the desk staff refused us entry. The first members of our group were two young white men, one representing MN350 and one Honor the Earth. Others of us – still on the road – were contacted for help and we reached out to MPCA staff to determine what the problem might be. On arrival of my caravan, which included retired MPCA staff, two citizens who live along the Enbridge route, and a pastor (all white), and following some additional discussion, we were eventually led back to the cafeteria by an MPCA staffer.

To show the level of concern and fear of Minnesota Citizens in our Agencies, then-Commissioner Laura Bishop came personally to the cafeteria to explain, “they thought you might be protesters.”

She apologized and left us to our lunch. It was only in hindsight that we’d realize why they may have been so touchy… as they were readying a weapon that aimed to derail the public… and it was just about to launch.

On arrival to the MPCA conference room, we were welcomed and seated. And then came the moment of truth for me in this campaign, the moment that I realized how FUCKED we were when it came to the MPCA.

Commissioner Bishop came into the room as the meeting began and gleefully announced that, AS WE SPOKE [Oh, boy!], the MPCA had just issued a memo noting…

wait for it….

The MPCA had Issued a Draft APPROVAL for Enbridge’s draft 401 permit!

All I could think, as this bombshell exploded was:
Why. THE. FUCK. Are WE even HERE? 
If the decision had already been made by the Agency?

Just another in the short list of “let’s pretend we’re gonna listen to the Water Protectors” meetings that were never intended to truly hear us. Instead, we were left to work on how to make the public hearings as ROBUST for Public Comment as possible. [Though it would later become clear, that testimony would also be largely ignored by the MPCA.]

Peter Tester, who became Commissioner temporarily when Laura resigned the following summer (on the cusp of being fired by the Senate, and likely to assure she could be placed AGAIN in a position of influence, which dismissal by the Senate would preclude) made a couple big promises that day, neither of which were fulfilled.
1) To review and consider any documentation we could provide to show why the permit should not be granted.
2) To be accountable to us.

Since that meeting, one of the VERY FEW given to Minnesota citizens hoping to Stop the unnecessary Enbridge pipeline project, all that we’ve seen from the MPCA and DNR has been failure.

1) Failure to WATCH Enbridge as they worked on one of the largest infrastructure projects to not benefit Minnesota that has ever crossed the state.

2) Failure to pull permits when Enbridge violations were discovered.

There are many places the states agencies failed us and a few of the most egregious during construction were:

1. Enbridge’s frac-out into the Mississippi River at the second crossing. 6000-9000 gallons of drilling mud frac-out into Misi-ziibi… DURING A PERIOD WHEN DRILLING WAS RESTRICTED FROM HAPPENING! [June 25th – violating the April 1- June 30 restriction period.] This was the first of frac-outs that occurring in Mississippi River. [MPCA FAILURE]
2. July frac-outs into Misi-ziibi Headwaters at the first crossing, where frac-out materials were left in the wetlands and, to this day, continue to show presence in the River Valley. [MPCA FAILURE]
3. Unbeknownst to citizens, until the mid-September notice, Enbridge willfully violated their construction permit, not informing the DNR of an aquifer breach for almost 5 months! Even though the DNR knew of the problems and it’s effects by early July, no notice was given to citizens for TWO MORE MONTHS… as Enbridge construction continued along the remainder of their corridor. [MDNR FAILURE]

I ask AGAIN:
IF THESE PERMITS ARE NOT ALLOWING US TO STOP PROJECTS THAT VIOLATE THEM, WHAT IS THEIR PURPOSE?

And now we see:
1) A lack of work to remedy failures to the 401 permit on the frac-out concerns that remain.

2) Continued and apparently failing work by Enbridge to remedy the KNOWN Aquifer Breach in Clearbrook. TEN (10) full months since it happened now! LONGER THAN IT TOOK TO BUILD 337 MILES of Tar Sands Pipeline across our state… which was apparently the priority to remedying the aquifer breach threatening fragile calcareous fens. [FFS. If this doesn’t awaken people to the State’s priorities, will anything? (see more on that at the end of the blog…)]

3) No public transparency to the other two Breaches reportedly in existence per the DNR.

As we saw with COP26, our Agencies and “Leaders” are failing us. Not just here in Minnesota, but around the world, as they appear bound to helping their fossil fuel friends continue to destroy our planetary home.

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Want to read more on the forest devastation being driven by our fossil fueled world? Check this out.

Want to read more on groups working to hold the Minnesota DNR accountable? Check out this recent blog post from Agate‘s Stephanie Hemphill.

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Update: Received a response from Ms. Kuskie on 11/30/21 (after I re-requested a response):

Hi Jami,

Apologies for the delayed response, I was out of office last week. Though primary construction of the line is generally complete, the MPCA continues to review monitoring information and oversee ongoing work, and the independent environmental monitors are still active. HDD work, where pressurized drilling mud was in use, ended in early August, and the MPCA made available information on the “frac outs” reported to us around that time. I apologize for being unable to provide further detail at this time; Minn Stat 13.39 classifies as non-public data related to active investigations.

Thanks for reaching out last week and for sending me a nudge today.

-melissa

Response – or should I say Non-response… from Ms. Kuskie 11/30/21 13:26

Apparently, the public doesn’t need to know anything.

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Legal Status of Line 3 Opposition

Tags

#StayLine3, Enbridge, Honor The Earth, Line 3, MN DNR, MN Legislators, MN OLA, MN PUC, Winona LaDuke

After posting last week’s blog, I got a request to update folks on what the current legal status is for the proposed Enbridge Line 3 project. I will admit my title was a bit deceiving… the Motions for Stay to the Court of Appeals were what I was anticipating, not a Stay decision, which would take a few more days… or longer.

While Enbridge experienced their first fatality on the project, we still hear no word from the Walz Administration to give pause for the project. No stopping for death of any kind it seems… The politics on the Virus and the Project are undeniable these days. 😦

So, where are we exactly with the Line 3 legal fight? This is what Kevin Whelen, former Executive Director for MN350 and current Line 3 Water Protector active in the Palisade, MN area wanted to know after reading last week’s blog.

RE Kevin’s request for an overview:

Friends of the Headwaters hopes that the court will expedite a stay request, but it’s unlikely that our other appeals will get decisions before spring.

Current FOH court appeals regarding the Line 3 oil pipeline:

* A challenge to the MN Pollution Control Agency’s (MPCA) misguided and lackadaisical decisions around the contested case and the water permits.

* An appeal DISPUTING THE ADEQUACY OF EIS, the Line 3 Environmental Impact Statement.

* A STAY ON LINE 3 CONSTRUCTION until the appeals have been heard, argued, and decided.

* An appeal CHALLENGING THE MN PUBLIC UTILITIES COMMISSION (PUC)–its process, its lazy acceptance of incomplete Enbridge data, its willful ignorance regarding the MN Environmental Policy Act, and its incoherent rationale for Line 3.

* A legal complaint regarding the US Army Corps of Engineers’ (USACE) 404 permit.

Friends of the Headwaters’ member response on FB 12-15-20 (my additions)

What does all this mean? And when can we hope for relief from the Enbridge onslaught to our forests and wetlands?

We must first remember how unlikely a Stay is to secure: 50% of requests don’t get the desired ruling. It’s almost always a long-shot. That said, 2020 isn’t like most other times. And the presence of a Global Pandemic, alongside increasing evidence that we need urgent and immediate response by governments as the planet burns, floods, and convulses due to the human activity – may help our cases.

The LTEs are fast and furious, with most of the Enbridge support focusing on jobs and profits and most of the opposition focused on the risks for death and environmental destruction. Which do YOU find “Irreparable”? I think it’s pretty clear we can fix jobs and financial problems while death is hard to remedy… whether it’s an 80-year old tree or your 80-year old Grandma.

A temporary Stay for cultural reasons was issued recently when on December 5th the project encountered a lodge (waaginogaan) near the proposed SECOND crossing under the Mississippi River. [Why cross once when you can cross TWICE? FFS. This project is a bad idea for SO MANY FUCKING reasons.] To my knowledge, Enbridge has YET to produce their Cultural Resources Monitor to review the location with The People, though work continues to the west of the lodge, including on a drill pad at the Mississippi River. [18:55 is a summary by Winona of the project. Permits with no enforcement power… No protection of the Water. The details on the Cultural Resources Monitor is at 26:30 (24:24-28:00 covers the topic). So far, no response for the White Earth Tribal Historic Preservation Officer on a name for that Enbridge representative, who is supposed to be leading any work that involves digging? Who can call Enbridge to task for NOT having the Appropriate Cultural personnel to do a project of this magnitude through Indian Country??? It seems no one. It’s been more than two weeks and no response from the MPCA, PUC, DNR, or even Enbridge – as they barrel on with their work.

Winona also mentioned the death at Hill City and the speed Enbridge is using on this project. She notes (28:25) that Transmountain had two workers die and an injury (12/16/20) and they have closed their project down this week. That article notes the injury occurred after MULTIPLE COVID violations were discovered on inspections. There was also a father of 4 lost in late October on the project – “That injury comes seven weeks after an employee of SA Energy — the contractor leading the pipeline expansion work in the Edmonton region — died at a work site on the outskirts of the Alberta capital. Samatar Sahal, 40, was caught and pinned under a crossbeam of a trench box that was being disassembled at a Trans Mountain site on Oct. 27.” Rushing pipelines IS a dangerous thing.

Trans Mountain is suspending all work in Burnaby and across the entire pipeline route starting Friday, Dec. 18 until Jan. 4, 2021, says a statement. …

The accident follows revelations that federal regulators recently found “systemic non-compliances” of COVID-19 mask rules at Trans Mountain worksites in Burnaby and the Lower Mainland.

Four workers were sent home following an inspection that found more than three dozen violations by contractors in three days.

Canadian Energy Regulator staff conducted a compliance inspection at the Westridge Marine Terminal (Dec. 1) and the Burnaby Terminal (Dec. 2) on Burnaby Mountain. The inspection also focused on “Spread 7,” the section of the pipeline expansion construction being done in the Lower Mainland, on Dec. 3. Work at each of these sites is contracted out to Kiewit-Ledcor Trans Mountain Partnership (KLTP).

Over the course of those three days, the inspector found 37 violations of three COVID protocols set out by Trans Mountain’s COVID-19 response plan.”

Trans Mountain suspends project in Burnaby and across pipeline route after worker hurt Are they being considerate humans? Or screwing workers out of holiday pay?

And is this kind of COVID violation happening in Minnesota on the Line 3 project? Some photos have been secured on non-complying contractors locally. Regardless of whether or not protocols are followed, COVID is a real risk in our communities. This is a screenshot from a recent FB posting for an employee on the Line 3 project:

Crews falling victim to the Virus… what does this mean for the local community?

State of the Current Legal Cases

As noted above, there are multiple fronts in this tar sands pipeline opposition:

1. Appeals disputing the Adequacy of the EIS, the Certificate of Need, and Route Permit are currently filed with the MN Court of Appeals. [Initial Briefs on these cases were just recently filed (Red Lake, White Earth, & Mille Lacs Bands, along with Youth Climate Intervenors, Friends of the Headwaters, Sierra Club, Honor the Earth, and the Minnesota Department of Commerce) though the cases will take many months for completion. Hence, a Motion for Stay on the project until the judicial process can make a ruling.] These filings challenge all aspects of the PUC process, which the Office of Legislative Auditors reported did not adhere to the law with regard to public engagement.
2. A Motion for Stay on Line 3 Construction to assure all appeals have been heard, argued, and decided was filed November 25th and heard 12/4/20 in an expedited Hearing by the PUC who promptly refused it on a 4-1 vote. This past Thursday, Parties filed a Motion for Reconsideration to the PUC to give them ONE LAST CHANCE to grant a Motion to Stay the project by holding their Orders of approval for the project. This hearing happens on December 23rd [though I doubt the obstinate PUC Commissioners will budge]. Red Lake and White Earth Bands will have ability to act once the PUC a decision on the Motion for Reconsideration has been decided; filing in court if denied again, or celebrating a change of heart by the four Enbridge-programmed Commissioners if approved. This could happen by Christmas Eve! [Don’t hold your breath though!]
3. Challenging the MPCA ruling on the contested case hearing and their water permits has pushed out as the MPCA has asked for an extension on their response, pushing this case into the new year for briefs. [And, based on a recent MN350Action report on the MN Chamber of Commerce, this avenue may be a long-shot given Laura Bishop’s long-standing ties to Big Business.]
4. A legal complaint regarding the US Army Corps of Engineers’ 404 permit. This is still in the works as it regards Federal courts as opposed to Minnesota Courts as the USACE is a Federal Agency. This work may also depend on additional factors (which I’m just too tired to investigate at this point… and I guess we have time, though perhaps by next week I can give an update).

Once filed with the Minnesota Court of Appeals, estimates are 15-20 days being about as quick as the Stay could be issued – not much less as Enbridge will be offered a chance to respond. Based on all the reading I have done, the case seems pretty cut-and-dried. And the scientific evidence is certainly piling up against it being a good idea to 1) build a tar sands pipeline ever again, and 2) to even consider doing that unnecessary work during a global pandemic.

Here’s hoping that the Court of Appeals will represent a branch of Minnesota government showing reason and an adherence to the law – kinda their balliwick, eh? – as we’ve not seen that to date from the Executive or Legislative branches. The politics of collusion with Enbridge is thick and includes our media – even resulting in Osterholm NOT being asked about the effect of Line 3 pipeliners coming into the state on River Radio… though a local politician had asked for the question to be presented. Though he did mention that, even with the vaccine, we’ll be seeing the effects from COVID for “many years to come”. He also worried about the tremendous damage we’re doing with PTSD to our health care professionals. Yet, still no #DelayLine3 effort from the Walz Administration? Perhaps they can get Ellison and Osterholm on TOGETHER and talk the Science of Climate Change and COVID and how the Enbridge Line 3 project makes NO SENSE on either front. The focus of the program was on economics, not life, it seems. 😦

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Resistance Along the Enbridge Corridor of Death

Rather than write much, I’ll direct you to Healing Minnesota Stories’ Monday blog post about their last weekend’s experience. Sadly, DNR Conservation Officers have been co-opted to work against the citizens of Minnesota – also illegally – in supporting the Canadian Oil Transport Company, Enbridge, over the People of Minnesota. I will note that the treatment of Water Protectors and Natives, and their culture especially, has been egregious. Officers grabbing a Staff (these revered beings are to be respected) and holding people with hands bound behind their backs in freezing temperatures for almost an hour? WTF? How is THAT humane? Strip searching people for petty misdemeanor offenses? During a pandemic? Taking N95 masks from vulnerable parties and giving them paper masks? These aren’t hardened criminals that required jailing, they are young women and older ladies standing to protect the water! The actions of this Sheriff were beyond comprehension and truly are criminal. It is clear the intention was to dissuade further voice to those opposing the Line 3 project. I do not think their actions will be successful. I think mainly they will reveal the inhumanity of our law enforcement officers acting as goons… for a few Enbridge dollars.

Three Honor the Earth and Minnesota Interfaith Power & Light volunteers accessed the waaginogaan area for prayer. We were up the river bank – 150 yards from ANY construction – and were besieged by eight DNR Officers crashing through the woods yelling at us, citing us. Definitely a show of force.”

Shared after an early December experience at the proposed Line 3 Mississippi River Crossing

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The Global Situation

Big news this past week regarding Lloyd’s of London:

Caving to pressure from climate action campaigners, Lloyd’s of London, the world’s largest insurance market, announced Wednesday that it will no longer cover coal-fired power plants and mines, tar sands, or Arctic energy exploration activities from January 2022 onward, with plans to fully phase out such businesses by 2030.

Under Pressure From Climate Activists, World’s Largest Insurance Market to Ditch Coal, Tar Sands, and Arctic Projects 12/17/20 Common Dreams

Meanwhile, Climate Justice Advocacy groups bemoan the announcement as still too little, too late:

We welcome Lloyd’s new policy of no longer providing new insurance cover for coal-fired power plants, thermal coal mines, oil sands, and new Arctic energy exploration as a step in the right direction,” said Lindsay Keenan, European coordinator for Insure Our Future, in a statement. “However, the policy should take effect now, not 2022.”

“Additionally, the target date for Lloyd’s to phase out existing policies should be January 2021 for companies still developing new coal and tar sand projects,” she said. “Lloyd’s 2030 deadline is not justified by climate science and the urgent need for action. We will continue to hold Lloyd’s accountable until it has met these recommendations.” …

Flora Rebello Arduini, senior campaigner consultant for SumOfUs… “Lloyd’s needs to prohibits all members of its market from renewing insurance for the Adani Carmichael coal mine, the Trans Mountain tar sand pipeline extension, and other such climate-wrecking projects when they come up for renewal in 2021, not in 2030.” …

Elana Sulakshana, energy finance campaigner at Rainforest Action Network, put it: “Lloyd’s is sending a message to the U.S. insurance industry that it cannot continue its unchecked support for climate-wrecking projects under the Lloyd’s name.”

“Building on today’s momentum, we will continue pressuring the U.S. insurance industry to match and exceed Lloyd’s policies across their entire fossil fuel underwriting and investment portfolios,” Sulakshana vowed. …

Lloyd’s announcement is “a step in the right direction” but “not enough,” said Bernadette Demientieff, executive director of the Gwich’in Steering Committee. ” As Indigenous Peoples, we are living in ground zero of climate change while fighting to protect our sacred lands and our ways of life. People need to understand that the land, the water, and the animals are what makes us who we are.”

“Our human rights have been violated not just by our government but by corporations and people that are not educated on Indigenous issues,” she added. “We urge Lloyd’s to join AXA and Swiss Re to exclude themselves from any Arctic Refuge energy development or exploration immediately and show the world that they respect the rights of Indigenous peoples whose lives will forever change if drilling is to occur.

Under Pressure From Climate Activists, World’s Largest Insurance Market to Ditch Coal, Tar Sands, and Arctic Projects 12/17/20 Common Dreams

The piece notes: “AIG, Liberty Mutual, and other U.S. insurers that operate Lloyd’s syndicates will be forced to abide by the new rules for their underwriting.”

So that could mean Enbridge will no longer have insurance for their pipelines NEAR-TERM. THIS should be a good reason to evaluate whether we REALLY want a Tar Sands pipeline pushed through Minnesota forests and wetlands. I mean, who is gonna pay for the spill if Enbridge no longer has an insurance policy?

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Meanwhile…

Enbridge can’t even file their fucking compliance paperwork correctly:

Enbridge can’t even get the paperwork filed accurately…

Enbridge says the mainline is 6.8% complete and Right-of-Way clearing is 14% complete.
If we don’t get a Stay soon, Enbridge could clear all our trees before we can save them.

If they can’t even complete their compliance filings correctly – something they’d done hundreds of times over the decades – How On EARTH can we trust them to comply with the complex things like engineering documents and environmental permits… or novel things like COVID protocols? For crying out loud, they’ve already RUSHED to their FIRST Fatality on the Project… Days ago now, yet no details have emerged. [As of Sunday evening.]

With a safety track record like theirs, is it any wonder they’ve already experience a fatality on the project?

And what of our own Minnesota DNR? I hear they were threatening newly-elected Minnesota Legislators with arrest this past weekend. Guess they’ll see how that threatening nature goes for them moving forward. [My money is on the Legislative Ladies! Bunch of STRONG VOICES willing to speak up for THE PEOPLE.]

#StayLine3 #DelayLine3 #Pause4Pandemic

Since it is Solstice time, I’m passing along the greetings we sent to the Relay for Our Water participants. It was the fun part of the last week… making this with good friends and allies.

A Stay is Days Away…

Tags

DelayLine3, Enbridge, Friends of the Headwaters, Honor The Earth, Line 3, Minnesota Public Utilities Commission, MN Department of Commerce, MN PUC, MNDOC, Red Lake Band of the Chippewa, Scott Strand, Sierra Club, White Earth Band of the Ojibwe

Line 3 project has Enbridge lackeys currently eating through our forests here in Northern Minnesota. If you want to witness the destruction, you can review Facebook pages for RISE Coalition, Shanai Matteson, Ellen Hadley and many others. Lots to see as these Warriors hold the line until we can resolve the legal battles around the project. The Court we hope will rule quickly on filings made. Today I will focus on the various legal filings to the Minnesota Court of Appeals, specifically on their arguments regarding the Certificate of Need – or more precisely, the lack thereof, for this project.

BIG Thanks to all the Legal Folks making this work happen…
from Friends of the Headwaters to Tribal Bands to Minnesota’s own Department of Commerce.
[Update: Fuck that last one as they never did get on board for a Stay?]

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It is clear from MN Statute 7853.0130 that when the PUC grants a Certificate of Need for an oil pipeline, the applicant must provide evidence of a demand forecast. 

_{(1) More on that below…
(3) Enbridge’s CONSTANT half-page ads, buying media goodwill in ad dollars, to assure Minnesotans remain confused about their project being a “replacement”, and not a RELOCATION (to be followed by additional pipelines if they can manage… before to totally fuck up the planet). FFS
(4) Enbridge’s current 400K BPD excess on their mainline system, for example.}

The Department of Commerce filing notes the PUC’s illegal approval and improper resulting action:

The Commission granted a certificate of need, holding that, although Enbridge did not submit an energy demand forecast, Enbridge’s forecasts on other topics and other evidence provided a sufficient substitute. …

The Department of Commerce consistently challenged Enbridge’s proposed forecasts for failing to account for demand, raising the issue in testimony, in briefing, in exceptions to the administrative law judge’s recommendation, and during Commission hearings. … The Department preserved the issue for review, as required by statute, in reconsideration petitions to the Commission’s orders granting a certificate of need. …

The Commission held that forecasts based on supply were sufficient to show demand for oil and that other parties failed to introduce sufficient evidence to show demand would be reduced in the future. …

The Department initially raised this issue in its exceptions to the administrative law judge’s report. Because the Commission adopted the administrative law judge’s legal position on this issue and reiterated it in its order, the Department raised the issue in reconsideration petitions to the Commission’s three orders granting the certificate of need.”

~ DOC Filing to MN Court of Appeals on their Illegal approval of a Certificate of Need for Line 3 (page 1)

The DOC filing notes: “In 2016, a federal court in Michigan issued a consent decree that required Enbridge to seek all necessary approvals to replace the existing Line 3.” What this means is that they were ordered by the federal government to try to get a new pipeline for safety concerns on their current line. What it DOES NOT MEAN is that Enbridge gets a free pass to securing permits for a new pipeline. 

The PUC appears to admit, in their testimony from 12/4, that they ASSUMED this consent decree meant they MUST approve the new pipeline because of safety.  They have not READ THE LAW correctly on that assumption.  And as the saying says about assuming… they do look like four stupid asses. [Cause, you know, Commissioner Schuerger has READ THE LAW and APPLIED IT and READ THE RECORD and decided that there is NO NEED for a new tar sands pipeline through Minnesota.  The Demand forecast is just ONE of his many reasons for denying the project.]

The DOC lays it out pretty plainly. They explain that the statutes require “a ‘long-range energy demand forecast on which the necessity for the facility is based.’ Minn. Stat. § 216B.243, subd. 3.”  More simply put: “To approve the construction of a crude oil pipeline, the Commission must determine that crude oil is needed.”  However, Enbridge provided the Muse Stancil Report which projected utilization – NOT DEMAND. This report also noted that oil not used in the US could be exported… So… NOT for the 5-state region Enbridge claims to be supporting? For GLOBAL export?!? And they report that the author of the report “acknowledged that he ignored demand for refined product”!

The PUC failed: “By relying only on a single supply forecast based on oil producers’ expectations, the report ignored external factors affecting pipeline utilization, such as the expansion of other pipelines or the demand for refined products.” The PUC failed to consider either demand or global gluts of refined products (Thanks, Coronavirus!) that we are now seeing as our reality.  So, they were WRONG. And in their errors, they violated the law and FAILED to protect Minnesotans from a Canadian corporation running roughshod over us here in the North Country.

the Commission granted the certificate of need, despite the Department’s objections that Enbridge failed to introduce an energy demand forecast.”

~ DOC filing (page 7)

They add: “The Commission cited the Muse Stancil Report and evidence of apportionment on Enbridge’s mainline as sufficient bases to substitute for an energy demand forecast. The Commission reached this conclusion despite recognizing that a “key” input into the Muse Stancil Report was a crude oil supply forecast, rather than a demand forecast.” The PUC error seems pretty clear.  The DOC filing goes on to reiterate the continued failings of the PUC throughout the process, relying “on the supply forecasts in the record to conclude that the oil supply will continue to increase and future demand will be equal to or exceed that supply”, which is so obviously NOT the case as 2020 has made QUITE clear.  The PUC refused to be swayed by science or reason. Again and again. [We could have avoided YEARS of wasted taxpayer dollars if they’d just applied the law and said, Nope.]

Regarding the law, the DOC provides multiple cases that conclude the Court of Appeals is not bound by PUC decisions or required to defer to the PUC’s expertise (or lack thereof in this case).  In fact, the DOC notes that the PUC’s shift to burden the opposition parties is another blunder for them to consider.  They go on to do just that after explaining – in a way even a 2^nd grader can understand it – why the PUC violated the law when not requiring Enbridge to provide a DEMAND forecast for their transportation of tar sands and approving the project anyway.  They get pretty detailed… providing an entire paragraph on how various dictionaries define “energy” to confirm the statute details (page 13-14).  They do point out the many idiotic ways some Commissioners tried to define the “need” for a new Line 3.

This fun section (starting mid-page 17) explains how Enbridge duped most of the Commissioners [but not us Water Protectors!].  “Even though his report’s model assumed crude oil demand would automatically absorb supply, the Muse report’s author puzzlingly agreed that future demand for crude oil would ultimately drive use of Line 3. … Rather than assisting the Commission in determining whether the crude oil supplied by the proposed project will be needed, the Muse Stancil Report’s assumption of continuous high demand assumes the project is needed.”

If it wasn’t so fun to read of the PUC failings over and over again, you might get sick of how many ways and how thoroughly the DOC explains the Commissioners’ repetitive reliance on the supply forecast – in error.  Here’s one more…

Because the Commission committed legal error by failing to evaluate a forecast of demand for the type of energy to be supplied by the proposed facility, and instead relied on the pipeline utilization forecast based on crude oil supply in the Muse Stancil Report, the Court should reverse.”

~ DOC Filing (page 20)

OK, OK. Thanks for indulging me. The DOC goes on to write about how neither Apportionment nor the Desires of Enbridge’s Customers is a Demand Forecast. [DUH… unless you are one of our four erroneous (idiot/bought?) PUC Commissioners] Then they close with a review of the PUC’s SHIFT, placing the burden on opposition parties to prove the pipeline WASN’T needed, noting this too gives one pause.  For Fucks Sake.  Statutes require the Applicant to prove a need for their requested relief. [This ain’t Rocket Science! Though this sure reminds of the PUC! Had to stick some recent fun in…]

This says it pretty clearly:

Despite Enbridge’s legal obligation to provide an energy demand forecast to prove need, an erroneous legal standard pervaded the proceeding—that parties other than Enbridge must show that demand for crude oil would be reduced in the future, and therefore the pipeline would not be needed. This shift of the burden of producing a demand forecast and the burden of persuading the decision-maker to show the project would not be needed began with the ALJ. Relying on the Muse Stancil Report’s assumptions that refineries would operate at capacity, the ALJ required intervening parties to quantify how demand for oil would be reduced. …

While the ALJ recognized that global forces reducing demand for oil are ‘very real,’ she nevertheless stated that ‘no party has presented any data actually quantifying this possibility.’ The ALJ went on to find that ‘raw claims alone do not negate [Enbridge’s expert’s] assumption that (at least through 2035) surplus oil can be exported outside the U.S.’ …

In other words, the ALJ required the other parties to prove that crude-oil demand would decrease, instead of requiring Enbridge to forecast the demand for crude oil from Line 3.

The Commission carried through this burden shift to its orders, concluding that intervenors failed to introduce into the record “sufficient evidence of the extent to which … forces could reduce demand during the forecast period.”

~ DOC filing (page 26-27) 

The DOC goes on to really hammer the point home… a couple more times. For the real legal/word nerds, the last full paragraph on page 28 is a favorite. 😀

The filing submitted by Red Lake Band, White Earth Band, Honor the Earth and Sierra Club (The Parties) presented on the issue of Need, along with two other considerations that ask the court to reverse the PUC’s decisions.  With regard to Need, there is a great explanation of Enbridge’s erroneous reliance on the Canadian Association of Petroleum Producers (CAPP) forecast of “supply” as their proof of “demand” for their product, a new pipeline. (pages 4-6)  There follows a rational explanation of why neither Enbridge nor its customers are who drive demand. Don’t we all understand that demand is decided by all of us in how we choose to use the final products?  This is driven home by quotes from the Administrative Law Judge who heard the testimony:

It is commonsense that reduced demand for refined products would impact the price, supply, and profitability of crude oil. By ignoring the demand for refined products –and focusing only on the supply of Canadian crude –Mr. Earnest’s analysis ignores an important factor in forecasting the need for additional transportation of crude.”

~ The Parties Filing (page 8)

They further note: “In the Muse Stancil model, “demand for crude oil” is a modelling assumption, not a model output.” & “This forecast assumes that if U.S. demand is not sufficient to consume all supplied Canadian crude oil, then overseas demand would be sufficient in all future years to demand this supply.” (page 9) Which is none of their business really, as the PUC is only authorized to consider the energy needs for citizens in our region, not the whole fucking planet. [my emphasis]

• 

• 

Following the plain language of the law, the Court will reverse this capricious PUC decision. (pages 14-15)

The Arguments made by The Parties are strong and clear, and similar to the DOC filing, include definitions, this time for “demand”, “forecast”, and “accuracy”. They claim:

… the legislature, when it enacted Minn. Stat. § 216B.243, intended for determinations of “need” for energy transportation infrastructure to be based on a forecast of consumer (public) demand for energy, because it is society that demands energy, not the companies that supply it.”

~ The Parties filing (page 18)

There follows an edifying explanation of energy demand and consumers. And… some additional piling on of how asinine the approving Commissioners have been to obediently lap up Enbridge’s “proof” of “demand” without giving consideration to either A) facts or B) Enbridge’s obvious self-aggrandizement. Personally loved this line: “The CAPP production and supply forecasts should be seen for what they are: the Canadian oil industry’s black box estimates of its own future crude oil production and exports.” [aka Wishful Thinking, Thanks, Paul!]

Bottom line: The Parties ask the court to “remand this matter to the Commission for hearings to allow presentation of a forecast of consumer demand for petroleum supported by adequate disclosure of its underlying data, assumptions, calculations, and methodology”.  So mote it be.

And… since I cannot seem to stop myself from reading all these legal documents that give me such hope, and more importantly because I am a HUGE FAN, I’m gonna go on to also read the filing from Friends of the Headwaters’ Scott Strand.  Yep.  And you know what? I can summarize it in a couple shots of the Table of Contents!! Here we go…

What the PUC did:

Why they were Wrong:

How they were Criminal Assholes about it all:

As you can see from the descriptive titles on each section, Scott eats their fucking lunch legally.  But this seems to be where the brashness ends as he cuts to facts and serious arguments for the narrative. I’ve enjoyed watching this guy argue in front of the PUC for YEARS and I gotta give BIG kudos to FOH for paying him to keep doing it.  Support them if you can. They’re literally a bunch of old folks down in Park Rapids spending their own time, green, and energy trying to stop a pipeline. And begging for more money to keep doing that. And they’re old now because they been doing this shit for too many fucking years.  Seriously, give them some money.  Do it today.  It’s all I want for Christmas.  Really. [OMFG… am I channelling Helen? Did Margaret’s BFF die? Please tell me no because I LOVE that mouthy bitch!]

While the longer narrative is a bit drier, it’s still a joy to read for this nerd. Now go give some money to Friends so we can WIN this Legal Battle once and for all!!

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And what can Minnesota expect should the Court fail to adhere to the law and grant a Stay? The results we saw in Pembina County, North Dakota for Enbridge’s short 13-mile stretch there may tell the tale. At 26 times the length they had, our 337-mile project could lead to thousands of deaths, exponentials being what they are…

Updates in the Pipeline Fight

Tags

Enbridge, Honor The Earth, Line 3, Pipeline

On March 4th, Honor The Earth held a fundraising event to mark the 27th Anniversary of the largest inland oil spill in these United States.

And when they say “Feast”, they mean Feast!!  We ate from real dishes and drank from real cups – part of HTE’s goal to reduce waste, but it made the whole event feel more elegant and like a family dinner.  I feel so good to be a part of THIS community.

Frank Bibeau brought smoked whitefish and bread from Ball Club, MN that was so delicious… wonderfully balanced salt and fat ~  morsels that greased your fingers as you plucked the flesh from the skin.  I’d never had this before but I am already looking forward to the next chance I will have to try it.  Annie Humphrey made a thick and hearty pork stew with hominy, carrots and potatoes and a mildly sweet, full of fruit wild rice pudding with whipped cream.  Oh! And she brought fry bread.  It looked wonderful but, alas, I could not partake of it.  Dan says it was good!

But the real draw was not the food, as wonderful as it was. With speakers like Scott Hall, retired KAXE journalist, who described the scene and its aftermath from first hand experience, to Frank Bibeau, Leech Lake Tribal Attorney, who spoke on the 1855 Treaty Rights giving  us all a historical perspective, it was a very informative event.

Annie Humphrey’s musical interlude was beautiful and again I was brought to tears as she player her Helper Song, a spiritual chant calling for support in times of need.  An unexpected speaker from the crowd, a young man named Dallon (I am likely screwing up this spelling) spoke from the heart about the losses of Tullibee he has noted since the oil spills have occurred.  These fish (aka Cisco, Herring, Lake Herring) are a part of the ecosystem and when they drop in population, it affects the other species of fish who depend on them for food.  These Tullibee are the canary in the coal mine so to speak for Minnesota’s waters.

“Even slight changes in temperature and oxygen levels can cause die-offs of this sensitive fish.” ~ Jim Umhoefer, Star Tribune 2/3/2015

 

The keynote speaker was Winona LaDuke, Executive Director of Honor the Earth, a a non-profit organization founded by Winona and The Indigo Girls (Amy Ray and Emily Saliers) to raise awareness and financial support for Indigenous environmental justice.

Winona brought the Honor The Earth biodiesel bus with gorgeous artwork by Votan; a copy of the mural in Duluth.  We love supporting HTE events whenever we can.  And while Winona cannot possibly make all the events for this large organization, it is nice when she does.  She has been at many I have attended and she never fails to give a down-to-earth discussion of what’s happening in the movement.

Today she spoke about how we are done with “bad ideas”.  It’s not a good idea to put a pipeline through the wetlands and watersheds of northern Minnesota, especially when the dangerous poison being transported is not supporting this region.  I agree, why risk our clear waters for Enbridge’s tarry sludge that will only increase the effects of climate change?  I do live in Clearwater County for goodness sake.

Winona explained that if Enbridge brought an idea for renewable energy to Minnesota we’d like them a lot more.  Indeed.  But what she did fail to mention was her recent Letter to the Editor that we found in the Bemidji Pioneer’s online page on arriving home that evening.  She may not have realized it had been posted.

It looks like our neighboring Beltrami County is gearing up to support Enbridge, a Canadian Corporation.  At the February 20th County Commissioners meeting, a request from the Sheriff’s Department to beef up their forces with a mutual aid agreement was approved by the Commissioners.

“It’s to respond to matters such as protest activities that we perceive may occur in the future. It’s about sharing resources among the law enforcement agencies in northern Minnesota, if the need arises.”  ~ Sheriff Phil Hodapp

Sheriff Hodapp feels that the possibility for protests is “very likely” as he references the pending decision on Enbridge Energy’s Proposed Line 3 request.

Winona’s LTE recognized the lone “No” vote by Commissioner Tim Sumner (District 4) saying, “it is nice to see courage.”

“Beltrami County’s decision sends a message that protecting the rights of corporations over the rights of people is acceptable. It is troublesome. Many of us were at Standing Rock and experienced extreme violence at the hands of police, military, paramilitary and other forces upon us. Northern Minnesota is not North Dakota; we neither have the oil interests slathering our politicians (one would hope), nor do we have the hatred for native people that earned North Dakota the nickname “the Deep North.” Or do we? Now is the time, Beltrami County, to decide if you are willing to seize people’s land, and shoot at them, to ensure the profits of a Canadian pipeline company. Now is the time to make a decision not to do that. ” ~ Winona LaDuke, LTE Bemidji Pioneer 3/4/18

Here is a story from two days after the hearing.  It appears that Commissioner Reed Olson (District 2) quickly regretted his “Yes” vote.

“When I was driving home that Tuesday night, I thought about it and I wished that I had not voted for it. I don’t know if we understand the power that we’ve given over to the office of sheriff,” Olson said. “It gives the sheriff, and this has nothing to do with Phil (Hodapp), but the sheriff position in Beltrami County the ability to declare a perceived future state of emergency, to put together law enforcement in a preemptive move to block what might be unrest.”

“So, what I wish we would have discussed, instead of how quickly can we get police and sheriff deputies out for protests, maybe a better discussion could have been about engaging the community and ensuring we have a safe environment for people to peacefully and legally protest.”

“My concern is when we’re looking at the potential for determining peaceful protests as a state of unrest.  If there are going to be protests in Beltrami County over pipelines, what we really need is for people to understand on all sides is that law enforcement is there to protect the rights of individuals to peacefully protest and demonstrate as well as to protect the rights of property owners. That they’re a neutral party there to keep people safe and not there to act as the security service for multinational corporations.”  ~ Beltrami County Commissioner Reed Olson

I bet the officers in North Dakota thought they were not acting “as the security service for (a) multinational corporation”.  But that’s what it looked like.  And with Tiger Swan agents at their sides, that is indeed what they ended up becoming.

I am wondering how this affects Clearwater County and if OUR County Commissioners must give their own concurrence vote.  Of course, Clearwater County is largely in Enbridge’s pocket since we’ve been sucking on their teat for so many years.  They think of Enbridge as a “friend”, even though the recent closing of an old folks home in their base city of Clearbrook showed NO INVOLVEMENT by Enbridge to save the place. Not a very good friend for our elderly…

Reed Olson said to the Bemidji Pioneer, “But, sometimes we have to stop and think out what are all the implications.”  RIGHT?!?  I believe that’s what your job is!  It angers me that no one thought to slow down the process in order for enough information to be gathered to truly understand what was being voted on at the Commissioner’s meeting.

Ironically, in January, Reed Olson brought up the idea of televising the County Board meetings and having them available for live streaming.  What a concept!  Letting the public SEE what their Commissioners were doing.  The motion failed in a 3-2 vote.  And, yes, it was Tim Sumner who was also in favor of Reed’s idea.

These are scary times in my neck of the woods.  But there is also much to give hope.

The Water Protectors are ready to Stand for Clean Water.  The Tribes are ready to Fight for Treaty Rights.  And the Valve Turners are ready to Risk Freedom to Stop Fossil Fuels.  Many voices are crying out in support of Mother Earth.  Many letters are being written, posters are being raised, steps are being taken… in hopes we can help prevent the further destruction of our planet.

Minnesotans for Pipeline Cleanup (MPC) is a group that gives me hope.  Along with St. Andrews Lutheran Church in Grand Rapids, MPC held a press conference this past week.  They are spreading awareness about a new report that explains abandonment and its risks.

“A new study released today by Minnesotans for Pipeline Cleanup outlined the different results and consequences of abandonment, including from an economic standpoint, as well as environment and wildlife standpoint.” ~ Clayton Castle, Lakeland Public Television

In conjunction with a release of their report, MPC is releasing a video series telling the stories of landowners, their experience with Enbridge, and the expectations they now have.  This first trailer exposes you to these landowners and an upcoming blog will give more details on their concerns.   Stay tuned.