It appears that the Minnesota Public Utilities Commission will continue to flout basic ethical practices, as well as the law, as they collude to assure Enbridge can continue its massive tar sands pipeline project in northern Minnesota during the surging pandemic. Friday’s Hearing to consider the White Earth and Red Lake Bands’ Motion for Stay was sickening to observe.
If you’re curious to understand what it was like to watch the Treaties being sold by white men stealing everything good from the Natives while pretending they were being “good neighbors”, you can get an earful and an eyeful if you watch what went down at the PUC Friday.
Today, I’m gonna keep the overview brief. [Well, I’m gonna try. And at the end, I’ll review Enbridge’s hypocrisy as they play the same card in two different ways in their games with Michigan and Minnesota. They’re going for a “Heads, we win… Tails, you lose” scenario, which only works with those who aren’t paying attention and listening closely.] Law 360 did a good piece on it – a bit shorter read, almost as fun.
Here’s my SHORT VERSION of Friday:
Chair Katie Seiben: We RUSHED to HELP YOU and gave a Hearing in 3 short days!! And here we Commissioners are… to hear the Tribal Motion for Stay on our Orders for the Line 3 project!! Anything anyone needs to add for our consideration? And, like, how come you didn’t file sooner guys?
Joe Plumer, attorney for Red Lake Band of the Chippewa: We couldn’t file until all your orders became official and the imminent danger of construction began. If we tried earlier, you would have explained that the project hadn’t even been given approvals yet.
Frank Bibeau, attorney for White Earth Band of the Ojibwe: Saw their filing but I’m not sure Enbridge understands how the Minnesota court systems work. Stays are EXPECTED during Appeals and we’re simply asking for the PUC to allow the Court decisions to play out without becoming moot. Enbridge’s response had only a few sentences about COVID-19… yet our Tribal Chairman’s letter notes that we’re talking about our tribal members dying. The PUC has the right to exercise a Stay and that’s what we’re asking.
Enbridge: We have nothing more to add but sure hope you saw all those letters towns along the right-of-way submitted [thanks, colluders!] about their harms if construction doesn’t start. [Lost wages being more important than lives of our citizens?]
Commissioner Tuma (Enbridge’s best buddy on the PUC): If the Court of Appeals can grant a Stay, why do we have to? Like, what happens if we don’t? [Cause, that’s already your decision, right, Tuma?]
Plumer: Uh, because the law implies that the most important consideration is to maintain the jurisdiction of the Court of Appeals and… it’s your job. If you don’t, we’ll look for a 2-week stay in order to get to the Court of Appeals with our concerns.
Tuma: Well, I don’t think we should obstruct them or their legal authority. Since you’ll be there in a couple weeks, we can take a pass here. How much damage can possibly happen by then?
Katie: Miss Friedlander, can you tell us what’s happening on the ground? Mr. Prantis? Enbridge?
Anna Friedlander, representing United Association: There are about 250 of our members there as of a couple days ago with “up to about 615” expected. And, yes, Commissioner Tuma, if Governor Walz orders a lock down, we’ll surely abide it… but that would have to come as a larger overall shutdown of all construction in the state.
Kevin Prantis of LIUNA: We have a thousand tradesmen out this week and working toward 2000 for next week.
Enbridge: “There are five spreads… and work has started throughout, not only through training as the workforce is arriving but also equipment is also being used to start the clearing process along the right-of-way in each of those spreads…. with issuance of the final permits Monday and it will continue in the weeks to come.”
Commissioner Schuerger (only Commissioner to oppose the project to date… ~30 minutes into the Hearing): So trees are being cleared now. When can we expect digging of trenches? In coming weeks? [Note: this is an irreparable harm as ruled in previous instances for Stay.]
Enbridge: “That has not yet begun as again the preparation work is underway but it will be underway shortly and in the next week to two weeks and beyond. … Work at facilities, Enbridge owned property is underway and that will continue.” [Note: Enbridge owns 1180 acres in Hubbard County alone.]
[There is a lot more discussion on a bunch of notions in the middle like: how come you didn’t file for a stay earlier; will the company and workers comply if the Governor issues a shutdown; and then the bringing in of Leech Lake representatives who explained that as a Member of the Tribe, Joe Plumer doesn’t speak for Leech Lake. How fucking appropriate given all the history I’ve watched as Tribes struggle just like colonizers with their government for protections. And what did Joe reveal? That Enbridge’s promise to Leech Lake was that all 6 of their pipelines would be removed by 2029 from their Reservation Lands. That means the Line 3 “replacement” is just the first of many more “relocations”. Frank Bibeau attempted to explain some treaty law to these imbeciles but they were not listening, it’s clear – as you’ll see from Tuma’s coming comments. You know, when you repeatedly explain, “I’m not trying to cause division,” it kinda makes me wonder if you’re trying to convince ME, or YOURSELF, Tuma… Frank also tried to explain the Federal Consent Decree, which the PUC reads as a REQUIREMENT for them to APPROVE the Line 3 project – and which it is not. Again, only Commissioner Schuerger was listening. Finally, just before the break for consideration, Joe Plumer notes that the Minnesota Chippewa Tribes letter must be removed from the docket as it did not have full tribal committee approval. Again, Tribal “leaders” trying to push through something the “People” (band members) oppose? Let’s return to the Hearing now for their decision.]
Commissioner Schuerger (1:28:50): “I’ve carefully read the joint motion for a stay of the Line 3 Replacement Project and answers to that motion and I’ve reviewed relevant law and discussed this application with our legal counsel. … I support the actions requested by the motion.” [He further argued there is no legislation that gives the Commission authority to require a bond for a stay.] “The Commission clearly does have jurisdiction and the authority to grant a stay – and no parties here have argued that we do not have that jurisdiction and authority. Regarding the legal standard… there is clear guidance from prior Commission orders and prior court cases and notably, um, in one of our recent cases, it was a petition from Excel Energy for approval of solar gardens and the order denied reconsideration and our clarifying on our own motion. In that order, the Commission stated that, um, that we grant a stay when it appears that a stay would provide the most equitable balancing of the interests of the parties. In balancing those interests,” various factors are considered… “In this case there is disagreement between the parties about whether the Commission should evaluate the likelihood of reversal on appeal. In my review of the record and the applicable law, I’m convinced that we should not.” [And he proceeds to give the legal basis for his stance, referencing Webster and other Supreme Court rulings, which give the Commission discretion to review the factors.] … Whether considering if the moving parties, the Tribes, will suffer irreparable harms, or if Enbridge will, or to protect the jurisdiction of the courts, the most important factor is the latter, protecting a legal point from becoming moot during Appeal. “A Stay is necessary to protect the Court of Appeals. … Focusing on relevant and key factors, the Tribes argue Line 3 will cause serious and irreparable harms with both construction and operations, and these cannot be reversed if the Tribes prevail in court. These arguments are in my view persuasive and critically important. And I know that Friends of the Headwaters supports and supplements the Tribes petition with Federal case law demonstrating a pattern of giving more weight to environmental harms than financial ones when conducting this type of analysis.” [Well, that’s too bad, Matt, because all those other Commissioners, they done got together and decided that the lost wages of workers is FAR MORE CONCERNING to them than any ole ndn lives. But please, my friend, continue…] “Overall, as I look at balancing the factors before us, um, just note that the Tribes argue and Enbridge appears to agree, that the Commission should evaluate whether there are irreparable harms to the Tribes or the public and whether there are irreparable or disproportionate harms to Enbridge. … I’ve evaluated the key relevant factors, applied the relevant law, weighed the balance of interests. I believe that the record before us supports a finding of irreparable harms to the Tribes, and importantly, I agree that a Stay is necessary to protect the jurisdiction of the Court of Appeals. Constructing the entire Line 3 replacement before the courts can issue an opinion would clearly limit the courts ability to impact the project, and thus would limit its authority and jurisdiction. In my view colleagues, the record and the law support granting the Stay.” [1:36:53]PUC Hearing on a Motion for Stay from White Earth and Red Lake Tribes.
My favorite line from Commissioner Schuerger? It comes at 1:35:09 “The Tribes and other parties point out that Enbridge has a legal obligation to take all reasonable steps to prevent release from existing Line 3, including, if necessary, shutting the pipeline down.” Amen, Brother. It’s PHMSA’s jurisdiction anyway, not that of the PUC. [More on that below.]
So what did the other Commissioners say? Mainly that they were so concerned about all those folks waiting for jobs up along that ole pipeline route that they are just sure the best decision is to let the project move forward and assure Enbridge gets everything they ask! Commissioner Means explains (again, really, guys, get some new drums, ffs) her bewilderment with why this wasn’t filed sooner (which in her mind renders it ridiculous), along with a bunch of justifications for how the decrepitude of Enbridge’s current Line 3 REALLY, REALLY, REALLY mean they need to build a NEW ONE! [More on that later too…]
Commissioner Means goes on to say, “… the Motion to Stay should be denied. And although I considered all factors [including all the dead people?]… first with respect to the allegations that denying the stay would cause irreparable harms… the balance of the harms favors denial of the Motion because arguments related to this factor largely centered on impacts to the environment.” [Does that mean you DIDN’T consider the impact of COVID deaths?]
Means literally fucking argues that (again because Line 3 is so dangerous), “the record supports that operation of existing Line 3 is more likely to cause environmental harm than construction of the project. Therefore, denying the stay protects the court’s jurisdiction [TF?] because denying the stay would cause LESS HARM than granting the stay. [I think she’s a little confused about the actual law, this petition, and frankly, I just gotta say, if this chick is a lawyer, she’s a shitty one.] She basically says that since the Appeal Court themselves can issue a Stay, then they will maintain their authority.
My FAVORITE line from her is on the harms to non-moving parties… where she notes that any ideas that pipeline workers would contribute to the spread of COVID-19 are “simply unsupported”… [except by the MN Department of Health data?] and that these pipeline workers are “beneficial for Minnesota’s economy”! [apparently the only fkn thing this commission is considering.] She asks that we allow her to “be plainspoken for a moment”:
I think it would be an unconscionable disregard for the irreparable harm to these workers if the Commission grants the Motion to Stay.”Commissioner Means [1:43:02] [Nothing a little unemployment check can’t fix? But… Irreparable? Really, Ms. Means? REALLY???
Commissioners Sullivan and Tuma go on with further similar justifications, citing the begging community letters. These revenues will go to schools! [Note: These same communities are being sued by Enbridge for back taxes and thus are in dire economic straits to begin.] Tuma (lying that he “won’t belabor it”) made a BIG PRODUCTION (as usual) with some bullshit ass kissing, this time for Governor Walz – as the Lone Republican, no less!! He spoke of how serious COVID is and that it needs to be addressed and then how the last thing the Governor needs is the PUC second-guessing his decisions or trying to claim authority over his powers. He noted it would be “extremely dangerous” for a motion to come through a back door via state agency to disrupt the Governor’s emergency powers, “bordering on treason.” [1:53 See what I mean about this Queen?] Even dramatically explains that HE HAS COVID NOW!
This is an emergency, this is a crisis, this is a war we’re fighting. It is a serious war. OK? And I’m losing my breath a little bit because I HAVE COVID! OK! … We should NOT, through a Stay Motion, even be doing this. And I think it was inappropriate to even ask us to consider that.”Commissioner Tuma [It’s a TUMA! Drama QUEEN – sorry Queens to dirty us with this designation but for realz!]
So Tuma argues on the serious dangers of COVID-19 but CANNOT SEEM TO GRASP that those are the dangers for which the Tribes are ASKING FOR A FUCKING STAY!
Meanwhile, as Commissioner Schuerger noted, Friends of the Headwaters stood with the Tribes:
Friends of the Headwaters make a clear and concise argument:
The Tribes’ motion contains a detailed explanation and review of the relevant law. But the standards for granting a stay pending appeal are straightforward:
(1) Does the appeal raise substantial issues?
(2) Will there be injuries to one or more parties absent a stay?
(3) Would a stay promote the public interest in preserving the appellate court’s
(Referencing Webster…) In today’s circumstances, the answer to each of those questions is yes. Therefore, a stay pending appeal is fully justified.
…there are many indications that the issues in the multiple appeals meet the “substantiality” test:FOH Filing clearly reiterates that the Motion for Stay by the Tribes has substantial legal grounds.
* The PUC itself was divided on the issues now on appeal;
* The PUC has already been reversed twice on the environmental review of the Line 3
project and the previous Sandpiper project that would have followed much of the same
* The government agency with the acknowledged expertise on the need/demand question
has concluded that the project does not meet the requirements of the statute and the rules,
and is appealing the PUC decision itself, not a regular occurrence;
* The relevant facts keep changing, but the PUC does not want to consider the changed
Thanks, Scott Strand and FOH. [my emphasis]
And the motion passed, just as their orders did, with a 4-1 vote and one lone Commissioner retaining love from the public… as he’s the only one listening to our concerns and properly applying the law to our requests.
Should we be surprised? Nah. Are we heartbroken? Yeah.
This is par for the course for Minnesota’s Public Utilities Commission on the Line 3 project approval process (with the exception of Commissioner Schuerger in 2020). They use the arguments that make them look like they care but fail to recognize that these same arguments show how little they care for people – as they ignore the pleas of Tribes begging for a pause for life, they praise themselves for accommodating the Tribes they FORCED to choose the least of pipeline evils facing them, all while ignoring any Treaty Rights and Responsibilities.
This is also par for the course for Enbridge – using arguments differently to suit their fancy. When decisions are in their favor, they have no issue with a State agency thinking they have more power than they truly do… but when the decision is not in their favor, they are happy to cite law. They applauded the PUC’s decision, based mainly on the unsafe condition of their current Line 3 [which truly should surely mean we don’t give them ANOTHER chance to FAIL?] but… sue Michigan noting:
“The attempt to shut down Line 5 interferes with the comprehensive federal regulation of pipeline safety and burdens interstate and foreign commerce in clear violation of federal law and the US Constitution,” an announcement from the company states.
In its filing, the company argued Michigan’s shutdown order interferes with federal authority in a way that “would create a disturbing precedent” and encourage “copycat” actions in other states.Enbridge sues Michigan over Line 5 shutdown order 11/24/20
Enbridge is basically arguing that Michigan is attempting to thwart the power, authority, and jurisdiction of the Pipeline Hazardous Materials Safety Administration (PHMSA) with their removal of an easement that complies with state law. Meanwhile, in Minnesota, the company constantly encouraged the PUC to act out of concern for safety of their current Line 3 in approving a New Line 3 “replacement”, which would also be a clear upsurping of PHMSA authority. Can’t have it both ways, Enbridge.