Though Enbridge TESTIFIED in 2017 to being able to SAFELY run their current Line 3 – EVEN IF their new pipeline “replacement” project was NOT approved, the PUC used that basis – that their current Line 3 was UNSAFE – for their Line 3 approval order.
Now even Judges Jesson and Kirk appear similarly seduced. All were seemingly so bedazzled by the Enbridge narrative that they agreed it was “REASONABLE” that the MN Public Utilities Commission would agree to allow Enbridge’s new pipeline request… based on their current UNSAFE Line 3!!
It is surely an argument only a cat chasing its tail would comprehend!
One lone soul on the Minnesota Court of Appeals – celebrated Judge Peter Reyes – retained his wits and clearly demonstrated in both words and a simple chart how ARBITRARY AND CAPRICIOUS the PUC had been in their decision.
It’s right in front of our noses and yet there has been no explanation by the PUC on how they made this LEAP to approve Line 3 while getting NONE of the data they’d gotten for their previously submitted Enbridge projects in 2008 and 2012.
How is that reasonable? How is it based on evidence? And how does it possibly adhere to the law? As Reyes notes, It Does Not. While the MN Department of Commerce approved previous projects, this one it did not. And rightfully so as is easily seen here:
Judge Reyes uses the term “arbitrary and capricious” multiple times throughout his dissent. This is a touchy legal term so it feels almost like he’s really rubbing in the point that this is so CLEARLY a violation of the law… or perhaps he’s expressing how amazed he is to be standing alone in his Dissent opinion? It’s clearly stated here.
In sum, Enbridge knows how to provide demand forecast data in a certificate-of need application, yet conspicuously chose not to do so here. The PUC knows how to evaluate demand forecast data and has in the past, but did not to do so here. The inescapable conclusion is that the PUC acted arbitrarily or capriciously by granting the certificate of need unsupported by substantial evidence. Because we afford an agency no deference if its findings are arbitrary and capricious or unsupported by substantial evidence, I would reverse the PUC’s order granting Enbridge a certificate of need.
Judge Reyes’ Dissent on MN Court of Appeals case challenging PUC approval of Enbridge’s Line 3 Replacement project
When the picture is this easy to see, why is it Enbridge seems to be able to continue their progress?
Want to know more about this brilliant and brave Justice?
Among his recognitions, Minnesota Lawyer named Judge Reyes as one of the “Top Ten Minnesota Attorneys of the Year” in 2001, one of the “Attorneys of the Year” in 2012, 2016, and 2017, and as a recipient of the inaugural “Diversity & Inclusion Award” in 2017. In 2012 and 2013, Poder Magazine named him as one of the 100 Most Influential Hispanics in America.
Judge Reyes received the Ohtli Award in 2016, the highest award given out by the Mexican government to a non-Mexican citizen. He received the “HNBA Latino Judge of the Year Award” in 2018. And in 2019, Judge Reyes received the “MHBA Courage in Leadership Award” and the ABA 2019 “Spirit of Excellence Award.”
Thank goodness for the brave ones. Judge Reyes, you have my heart.
Appointed to the Court of Appeals by Governor Mark Dayton, April 7, 2014. Elected in 2016. Current term expires January 2023. William Mitchell College of Law, Juris Doctor, cum laude (1997) University of St. Thomas, Bachelor of Arts, Major: Chemistry, Minor: Biology
You and PUC Commissioner Schuerger seem in need of more brave ones in the Minnesota government to join you. I hope they do. Perhaps whistle-blowers in State agencies were awaiting the logic of your reasoning? Will we see the Department of Commerce again pursue the case. It seems unlikely in the horrific Walz administration which he continues to fill with corporation-friendly and environmentally ignorant appointments.
Meanwhile, the PUC is now screwing over landowners as well as Tribes in Minnesota? Sounds like Enbridge used the same $10/foot figure to fuck over Canadians too! Yet the PUC doesn’t agree landowners are getting hosed… Basically, Enbridge is giving landowners a pittance (1% of the cost of removal) if they agree to keep the old pipeline in place…but doesn’t sound like many of them understood the bargaining power they had with Enbridge. A story with a long history here in MN… Enbridge selling lies. And getting away with it. Makes one wonder if Enbridge is the only one making out in these deals… I mean, what’s in it for the PUC to continue fucking us all over like this?
Published in Bench & Bar of Minnesota, the official publication of the Minnesota State Bar Association, the piece lays out exactly how the Minnesota Public Utilities Commission FAILED to heed the public voice – even stifled it to the greatest degree it could, despite huge public outcry on the Line 3 project’s risks.
This is only Part 1 in a 2-part series so I anxiously await the second half of her critique. From the article: “This is the first installment of a two-part article exploring structural bias and racism within the law in the context of the Line 3 oil pipeline expansion. Part 1 examines the agency approval process and the role of the public in that process. Part 2 explores the racialized impact of that facially neutral approval in the context of Minnesota’s legal history.“
Now, it seems the entire world may be pushing back as we see global decisions in opposition to the continuation of Big Oil’s consumption of our carbon budget. And that could spur their many opponents across the U.S., especially across the Northern Midwest as Enbridge faces pushback from Minnesota through Wisconsin to Michigan. Citizens are speaking up across the region… on a national platform.
The tides seem to be turning as, just this past week, we saw Exxon get slapped with reality…
Market reality has finally collided with the most important U.S. energy company. Yesterday, Exxon Mobil shareholders elected at least two of the dissident directors proposed by the activist hedge fund Engine No. 1. Investors have lost patience with the basic business assumption that oil and gas will rule forever. But investor confidence in corporate boards is eroding on other contentious public policies issues as well. Boards should take note.
Royal Dutch Shell PLC must slash its greenhouse gas emissions 45% by 2030 from 2019 levels, The Hague District Court ruled in a decision that could reverberate around the world.
“This is a turning point in history,” Roger Cox, a lawyer for the nonprofit Friends of the Earth Netherlands, said in a statement after the decision. “This case is unique because it is the first time a judge has ordered a large polluting corporation to comply with the Paris Climate Agreement. This ruling may also have major consequences for other big polluters.”
Among the most far-reaching aspects of this ruling is the court’s order for how Shell must account for its emissions, …(taking) account of what are known in climate parlance as Scope 1, 2, and 3 emissions. Shell must consider the emissions of its parent company, all its global subsidiaries, all its suppliers, and all its customers across the entire chain of its enterprise everywhere that it operates throughout the globe.
That would include, for example, the climate-harming emissions released when it … builds a pipeline… and when its consumers burn its gasoline in their cars, trucks, or airplanes. When every one of these sources is considered, the court said, Shell’s global emissions must decline by nearly 50 percent over 2019 levels in just nine years. …
The ruling will also likely increase the risk calculation that investors, policymakers, financiers, and others apply to fossil-fuel activities… The individual responsibility component, argues lawyer Roger Cox, may also increase the likelihood that individual corporate executives and board members are held liable for a company’s harmful activities, further increasing the risks associated with fossil fuels.
Others see a clear pathway to U.S. climate litigation. Calling the court’s decision “earth-shaking”, Kathy Mulvey of the Union of Concerned Scientists notes… The essence of the Dutch court’s ruling, she says, is that “if you dig it up and sell it and profit from it, you’re responsible for it.”
Dr. Geoffrey Supran, research fellow at Harvard University, agrees. In an email, he called the “individual responsibility” aspect of the ruling “a game-changer,” which “legally and rhetorically inverts Big Oil’s decades-long propaganda campaign” to switch responsibility for the climate crisis from themselves to individual consumers.
“It is precisely this sort of corporate accountability, for the climate damages caused by Big Oil’s products, that dozens of cities, counties, and states are seeking in U.S. climate litigation. So, in my view, this Shell verdict provides powerful precedent,” Supran argues.
The Shell case now joins a burgeoning international body of law conferring the basic and fundamental human right to survive the climate crisis and hold fossil-fuel companies accountable for causing it. Critical to this broad and increasingly successful movement was the decades-long struggle of Indigenous peoples to secure the United Nations Declaration on the Rights of Indigenous Peoples, which confirms rights not only to their lands but also the natural resources found on and within it.
So let’s hope those globally turning tides will bring us a verdict soon that stop the Line 3 project from any further devastation. I’m especially concerned as we see evidence of high Covid cases in Alberta pipeliners and we watch anxiously as the India variant makes its way around the world. That, however, is a topic for another day.
The Intermill piece rekindles hope that at least some in the Minnesota judiciary comprehend the reasons why the Enbridge project is such a gross negligence of the public. She opens with an overview of perhaps the most horrific of days in this process – the “gun to our head” day, as is how the Minnesota Public Utilities Commissioners explained their fear causing them to support granting Enbridge’s order.
Jessica then goes on to explain the history of the Public Utilities Commission:
Since its beginning, the PUC’s predecessor agencies prioritized expansion of cheap utilities—often over public opposition.
One of the earliest “public interests” that Minnesota courts identified was railroad expansion. That interest was so strong that it displaced otherwise ordinary landowner remedies like ejectment.9
The PUC traces its origin to this interest. Its ancestral predecessor was established by 1871 legislation that began with rail safety inspections, but just three years later turned to railroad-rate oversight. An 1885 law continued to focus on rate discrimination without any countervailing concern that utility expansion could undermine other public interests. But even then, contemporary critics noted that expansion of utilities like railroads prioritized the interests of capital over people. A 1907 political cartoon showed railroad baron J. J. Hill demur at the “timid creature” while the railroad industry knocked “the public” off its feet.
In turning to Line 3, Intermill notes several reasons for denying the project including, 1) the greenhouse gas concerns for the project, 2) the infringement on Indigenous population in Minnesota, and 3) even the Minnesota Department of Commerce’s own opposition to the project, which concluded:
“in light of the serious risks and effects on the natural and socioeconomic environments of the existing Line 3 and the limited benefit that the existing Line 3 provides to Minnesota refineries, it is reasonable to conclude that Minnesota would be better off if Enbridge proposed to cease operations of the existing Line 3, without any new pipeline being built.”
Not only did the PUC FAIL to recognize the Department of Commerce (currently suing the PUC in the Minnesota Court of Appeals, alongside other opposition parties), they also failed to heed the Administrative Law Judge assigned to oversee and review the public input on the project.
[The ALJ] conducted 16 hearings across the state attended by about 5,500 people, building a record of public comment from 724 speakers that was over 2,600 pages long. In each city, she held separate hearings in the afternoons and evenings to accommodate the schedules of people who work both days and nights. After the three-month process, she completed a 300-plus-page report that included more than 40 pages summarizing public comments concerning the new Line 3. …
“The importance of these economic benefits to northern Minnesota are not insubstantial,” the ALJ found, but rather “would exist with respect to any infrastructure project of this magnitude.”16 Thinking past Line 3 to build a renewable-energy infrastructure with union-protected prevailing-wage jobs would satisfy the public interest in economic development and water quality. But only Line 3 was on the table.
Of 72,249 written public comments submitted, 68,244 opposed a new Line 3.17 The ALJ recommended against Enbridge’s request because it did not “minimize the impacts on human settlement, the natural environment, the economics within the route, the State’s natural resources, and the cumulative potential effects of future pipeline construction.” She favored a “true replacement” in the existing trench.
While ALJ O’Reilly noted there was public interest in construction, it didn’t equal an endorsement of Line 3. YES, people up here are desperate for jobs but could we get some for the 21st century instead of the 19th? It’s time to END investment in the energy of the past, especially as more investment there simply hastens our demise!
Jessica next explains how the PUC denied the public a voice, as had previously been done historically in rural Minnesota.
The PUC’s embedded bias toward utility expansion has long blinded it to the interests of any larger public. In the 1970s, electrical co-ops sought to build a 430-mile-long high-voltage line through 476 farm properties in west-central Minnesota. Powerline opposition, described in scholarship by the late U.S. Sen. Paul Wellstone, was broad.19
The law was, conceivably, in the farmers’ favor. The 1971 Minnesota Environmental Rights Act applied to the project and declared the state’s policy “to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of human beings[.]”20 A law requiring that the agency’s power plant and transmission siting decisions consider and “comport with the public interest” also applied to the project.21
More than 60 percent of all Minnesotans and 70 percent of rural Minnesotans opposed the line.22 The Minnesota Energy Agency, the agency then designated to review applications for certificates of need, approved it anyway.
So it was for the new Line 3.
…The PUC staff took (the ALJ’s) 400-page report and ground it—and 55 other documents—into 46 pages of “staff briefing papers” that recommended granting Enbridge the certificate of need and its preferred expansion route.23
The staff briefing did not include any discussion of the extensive public comment on the case. But it did note that “the Commission need not engage in the exercise of reviewing the ALJ Report” itself since “[t]he Commission traditionally leaves it to staff to ensure that the final written order identifies the parts of an ALJ Report that have been adopted, with or without modification, and the parts [that] have not been adopted.”24
That filtered record moved forward to the five PUC commissioners who sat on the dais in June 2018 to decide whether to grant the certificate of need and route permit.
While the PUC voted 5-0 that day in favor, their oppression of the public voice was more than clear:
The PUC, despite large public interest, failed to secure a large-enough venue, “leaving only around 70 “general admission” seats for the public who had submitted tens of thousands of comments.”
These seats, available on a first-come, first-serve basis, required earlier and earlier arrivals for anyone interested in securing one. [You can guess who this favors… those of means and those paid to be there.]
Rules for the seats were ever-changing with some allowing restroom breaks, while, for others, a restroom break meant forfeiting your seat.
The prohibitions on water bottles for these meetings, “which would often stretch for hours and sometimes the whole day”, were especially frustrating. [And remind one of newly enacted (though not likely to stand constitutional review?) voter laws in Georgia that prohibit one from bringing water or food to those in line awaiting a chance to vote. I’m sensing a pattern…]
Of notable interest was the fact that Enbridge was allowed 10 tickets while to “Red Lake Band of Chippewa Indians and White Earth Nation—two different parties, both of whom the ALJ had allowed to intervene to defend their separate interests—a total of five tickets to share between the two.”
As the public clamored to be let into the meeting, “seats reserved for the parties went unoccupied.”
Though the public didn’t really have a voice anyway. In fact, the attendance enforcement by the PUC got so bad that at one point the intervening parties could not get into the meeting themselves!
After opening statements, though, the commissioners directed the hearing, posing their own questions to the parties they wanted to hear from, and making their own statements into the record. The public could not comment at the hearing and parties could not rebut or cross-examine the testimony of other parties. …
Tensions escalated when, at PUC staff direction, St. Paul police removed two individuals with party badges from the building “because they were holding more than one ticket at a time.”30 Here too, the “rule” purportedly violated was not contained in any notice. PUC staff nonetheless refused to let the party representatives return.
Unsure who to contact to get their clients back into the building, the affected parties docketed a letter addressing the commissioners they appeared before.31 When the chair reopened the meeting the following day, she acknowledged the filing but said the commission would not address it because it was not the subject of the hearing. One intervenor responded with “an irregular oral objection[.]”32 When the chair began to call the docket, counsel for the Sierra Club interrupted, pleading, “I am in this room as a contract attorney without a client.”33 The meeting recessed.
Throughout all this time and up unto this unanimous decision, the public had still NEVER HAD THE DIRECT RIGHT OF CONFRONTING THE PUBLIC UTILITIES COMMISSIONERS.
The fight was not over. In fact, it was becoming clearer all the time how egregious the Public Utilities Commission had been in dismissing the public.
Minnesota’s Office of the Legislative Auditor issued a report detailing the PUC’s public-participation processes in general, and the Line 3 processes in particular.39 It wasn’t pretty. …
The legislative auditor concluded its report with a punch list of concrete recommendations to improve the PUC’s public-participation process.42
Reviewing courts, too, must also be alert to biases that can hide behind, and skew, agency decisionmaking. “PUC officials told [the legislative auditor] the Line 3 case was an anomaly and that the agency’s practices, which they believe generally work well, should not be judged on this one case alone.”43 Various courts, though, are reviewing this case.44 A self-confessed anomaly can all too easily cross into an abuse of discretion.
Last year, the PUC revisited its approval of Line 3 to consider a revised EIS. It held the first—and only—public hearing that allowed citizens to speak directly to the commissioners about whether to approve Line 3. Again, most public commenters opposed the project.”
FINALLY! The public was given a voice. And once they were given that voice, CHANGE HAPPENED.
The Public Utilities Commission’s vote this time was NOT Unanimous. While he stood alone, Commissioner Matt Schuerger HAD listened to the people… and likely read more of the record that newest Commissioner Valerie Means claimed to have read – though she claimed to have read the whole thing! [FFS]
Commissioner Schuerger voted against Line 3 three times, concluding that the revised EIS was inadequate, that Enbridge had not proven its case for a certificate of need, and that Enbridge’s preferred route was not in Minnesota’s interest.”
We’ll see what Ms. Intermill brings with Part 2. Meanwhile…
Advocacy groups have also requested intervention from the Biden administration to prevent construction from moving forward.
“We’ve tried everything up to this point, now we’re calling on the people to stand with us because the process failed us,” said Dawn Goodwin, co-founder of the Resilient Indigenous Sisters Engaging (RISE) coalition and a member of the Indigenous Environmental Network. “We’ve discovered that the process was never made to work in our favor. … We’ve called on people to come and stand and learn what it means to be treaty people.”
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.
The Complaint begins with a review of the situation detailing the proposed pipeline, noting that “Although the Corps purports to find that the Project will have no significant impact on the environment”, construction and operation would have significant impacts (§ 8) clarifying in § 9:
Construction would require clearcutting vegetation from a 50 foot-wide permanent right-of-way and a 95- to 125-foot temporary construction right-of-way for the entire route of the Project; excavation of a minimum 7 foot-deep trench; stockpiling of removed soils; transportation of approximately 60 foot-long, 36-inch diameter pipe segments to the trench; welding the pipe segments into a continuous pipeline; re-filling of the trench; and construction of ancillary facilities, including pump stations, valves, electrical substations, access roads, horizontal directional drilled waterbody crossings, cathodic protection equipment, and communications facilities. These activities also would utilize a substantial amount of heavy equipment that will produce noise and air emissions, damage roads, and compact soils. These construction-related activities alone make the Corps’ finding of no significant impact indefensible.”
Ignoring concerns like impacts to drinking water quality, among other things, the Complaint challenges that the USACE improperly decided to NOT prepare an Environmental Impact Statement (§ 11), which also fails to meet the requirements of NEPA (National Environmental Protection Act) that requires the USACE to take a hard look at impacts, again rendering the approvals unlawful (§ 12). Along with this failure, the USACE also failed to evaluate impacts of construction to meet Clean Water Act 404 and evaluate alternatives that would be less environmentally damaging (§ 13), whether the pipeline is in the public interest (§ 14), thus making the USACE approval of the 404 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law in violation of the Administrative Procedure Act (“APA”), NEPA, the CWA, and the Corps’ own permit regulations” (§ 14). They ask that the project be vacated and that construction be enjoined. [This last word means they would prohibit the Project with an injunction.]
Next follows a review of the Jurisdiction and Venue and information on the Parties: Red Lake Band of the Chippewa (§ 18-22), White Earth (§ 23-30, Honor The Earth (§ 32), Sierra Club (§ 33-34). The USACE is noted as Defendant (§ 36).
The next sections cover the Statutory and Regulatory Background, starting with NEPA (§ 37-63) which requires a “hard look” at environmental consequences prior to taking major action… which the Line 3 project CLEARLY is. A deep dive of the process required of the USACE in permitting approvals ensues, noting the Environmental Assessment (EA) done by the USACE was insufficient, as proper review of the factors – that regulations require -warranted an EIS, which “must include a ‘range of actions, alternatives, and impacts.’” per 40 C.F.R. § 1508.25, including, I’ll note, a “No Action alternative” (b1). § 51 notes that impacts of GHG emissions on climate change is one of the cumulative impacts analysis NEPA requires… and one the USACE failed to do. Precedent also says that NEPA analysis requires that oil spill risks and impacts be completed (§ 56) and requires analysis of cultural resource impacts (§ 57).
Next up for review is the Clean Water Act (CWA; § 64-75), which regulates discharges of pollutants in the waters of the United States and quality standards for surface waters and requires the USACE to permit only after taking “all appropriate and practicable steps to avoid and minimize adverse impacts to waters of the United States.” 40 C.F.R. § 230.91(c)(2) First, the CWA says that the USACE may not issue a 404 permit “if there is a ‘practicable alternative’ to the project with less impact” (§ 69) and that there must be a definition of the project’s overall purpose. Furthermore, if a project is not water dependent, the Corps “must presume that a practicable alternative that does not involve a special aquatic site is available and will have less adverse environmental impact on the site and its ecosystem.” If this is the case, the “applicant must rebut the presumption with detailed, clear, and convincing information proving that a less adverse practicable alternative is not available.” (§ 70) Second, the Corps cannot permit if the project could result in discharge that adversely impacts U.S. waters (§ 73), and that, if no less damaging alternative is available, the applicant is required to show all steps that would minimize potential adverse impacts. (§ 74) Finally, the USACE “must independently verify all the information in the permit application.” (§ 75)
The Rivers and Harbors Act (RHA) (§76-81), our “nation’s oldest environmental law”, covers prohibitions for actions that impair navigable waters. The USACE approval of the Section 408 permit requires predetermination that “the use or occupation at issue will not be injurious to the public interest” (§ 80) and is subject to NEPA (§ 81).
Next are the USACE’s own Permitting Regulations (§ 82-88). Here, the Complaint charges that the USACE must assure the project is in the “public interest” (§ 82) after evaluating “probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest”, (§ 83) balancing benefits against “reasonably foreseeable detriments”, (§ 84) including consideration of effects “on historic, cultural, scenic, and recreational values, including Indian religious or cultural sites.” (§85) The District Engineer is to make an independent review of need based on public interest, (§ 86) and must “independently verify the information submitted by the permit applicant” (§ 87).
With regard to Treaty Rights and Federal Government Trust Obligations (§ 89-105), the Complaint makes clear the history of US treaties with the Chippewa – giving a good read to educate yourself on this history – and explaining that Native People’s usufructuary rights (to hunt, fish, and gather) are just as critical to their continued existence as “the atmosphere they breathed”. Of special note are § 96 “Treaties are ‘the supreme Law of the Land.’ U.S. Const. art. VI, cl. 2.” and § 98 “The federal government, including federal agencies, cannot abrogate treaty rights without specific and clearly expressed Congressional authorization.” This section also notes the courts deference to the Indians in settling matters of Treaty Law (§ 99) and that the USACE “is responsible for ensuring treaty rights are given full effect and not abrogated or impinged upon by agency actions absent an act of Congress.” (§ 100) There is special mention of the Winter’s Doctrine (§ 101) which protects Tribes’ uses of their water. [I won’t go into it again here, but this is CRITICAL, as noted in a previous blog on the MEQB and their erroneous approval of the Minnesota 2020 Water Plan.] § 105 mentions the requirements of the “The United Nations Declaration on the Rights of Indigenous Peoples, endorsed by the United States in 2011” requiring good faith consultation with Indigenous Peoples to assure free and informed prior consent – which doesn’t seem to have happened… as multiple Tribes are suing for a Stay on the Line 3 project.
The portion on Environmental Justice references Executive Order 12898 noting the 1994 effort, enacted under President Clinton and still in effect, to identify and address adverse effect of programs, policies, and activities on minority and low-income populations, which indicates agencies, under NEPA, require a “hard look” at EJ issues. (§ 106-108)
The Factual Allegations notes (§ 109-111): Enbridge submitted a permit application on 9/21/18 (Section 404 of CWA, Section 10 of RHA, Section 14 of RHA) for their project and in January 2020 supplied updated materials, for which the USACE has sole pre-construction permitting authority and which must comply with NEPA.
The Project is described (§112-127), including a history of current Line 3 and noting the differences that this “replacement” project would include (basically making it a NEW and DIFFERENT pipeline than current Line 3, not a replacement). The route and capacity, as well as the transported substance are each explained showing this project is an EXPANSION which includes new facilities (§ 117): “including eight pump stations (four adjacent to existing pump stations and four at new locations), electric transmission lines, access roads, and 37 mainline valves. Enbridge also proposes to expand the Clearbrook Terminal.” § 121 explains the wetland conversions proposed which would cause “loss of critical wetland functions, including decrease in above-ground biomass; loss of forest interior habitat; decrease in structural diversity; loss of visual screening and aural screening from human activity; decrease in local climate amelioration; loss of evergreen winter cover for wildlife; loss of habitat for shade-tolerant or shade-loving plants; loss of wildlife food sources (e.g., acorns); and increase in and replacement of native plants by invasive and exotic plant species.” Also mentioned are Fond du Lac impact (§ 122), wetlands and the Mississippi Headwaters region (§ 123), calcareous fen wetlands – highly susceptible to disturbance and thus more protected by Minnesota law (§ 124), groundwater resources (§125), the “Straight River Basin, an important Minnesota aquifer (§ 126), and wild rice beds (§127).
Regarding the Permit Application (§ 128-138), the Complaint charges that Enbridge’s permit application “largely consists of generic and conclusory statements that do not provide the information the Corps must have to evaluate the Project”, which precluded meaningful public comment on 404 compliance, and ignored the “numerous alternatives”, such as upgrades to other pipeline systems (which they have already done based on Enbridge’s reported shipments since 2016) or repair and replacement of the current Line 3 pipeline. Enbridge has not shown that these alternatives are not practicable though, in fact, some would be cheaper. There is also no explanation for Enbridge’s insistence on their preferred route, though many alternative routes are evidenced to be “less environmentally damaging”. The Complaint notes that Enbridge plans to use HDD (horizontal directional drilling, which most avoids impacts and limits vegetation disturbance) at only 21 of the 227 water crossings, “based on inadequately conducted wetland delineation surveys.” It also mentions the risk associated with HDD for “frac-out… when pressurized fluids and drilling lubricants escape the active bore,” which the Corps did not consider a threat.
The issuance of the USACE permit (§139 -162), referenced a November 2020 Environmental Protection Plan, which was not publicly available at the time of the Complaint’s filing (Christmas Eve 2020). In addition, the USACE issuance of the Section 408 authorization for the Lost River, Minnesota Flood Control Project was made in reliance on information Enbridge provided in its 9/21/18 application. (§ 141) [So no independent review… WTF?] The USACE also failed to make public the documents used to determine their decision – “a combined Environmental Assessment, Section 404(b)(1) Guidelines Evaluation, Public Interest Review, and Statement of Findings for the Project (“Decision Document”)”, indeed refusing “to make them public except pursuant to a request made under the Freedom of Information Act” (FOIA), even though their own internal policies provide that Tribes not be required to seek such documents via FOIA. When these documents were provided to fulfill Sierra Club’s FOIA request, “the Corps indicated that it is still reviewing documents for potential redactions and will provide those documents at a later date.” (§ 142) [Yet construction continues in Minnesota at present time. TO WHOM do we turn for ACCOUNTABILITY?]
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.”
Next the Complaint discusses Risk of Oil Spills (§ 163-173). Perhaps most striking was this: “Effective clean-up methods simply do not yet exist and may never exist for the type of oil that Enbridge plans to transport in large quantities through the Line 3 pipeline.” [So, if we DO get a spill, we got FUCK ALL for cleanup.] Following is a summary of tar sand properties and the risks associated with spill using the 2010 Enbridge catastrophe in Kalamazoo as example where cleanup costs exceeded $1B and required “more than 2000 personnel, over 150,000 feet of boom, 175 heavy spill response trucks, 43 boats, and 48 oil skimmers.” There is also reference to the millions of dollars in Minnesota tourism revenue that are risked with a spill, noting the Corps failed to account for these economic losses in their permit decision, as they did not consider oil spill risks associated with the Project.
On Climate Impacts (§ 174-182), the Complaint shares the current threats of climate change and Minnesota’s disproportionate experience with average temperature, noting:
Every county in Minnesota is experiencing more climate-related stresses: extreme storms, flash floods, excessive heat, and droughts. Lake Superior has warmed substantially and Great Lake ice cover has dropped precipitously.”
As tar sands oil production generates almost triple the warming pollution of conventional crude – and the Complaint describes the extraction process for our edification – there is a causal connection between the Project and increased GHG emissions. While the USACE has studies that estimate the well-to-wheel GHG emissions for tar sands crude, and the “social cost of carbon” is commonly used by government agencies to evaluate projects, the USACE “failed to consider information showing that approval of the Project will result in hundreds of billions of dollars in social costs.” (§ 182)
There are four main areas of relief sought with this complaint:
Find the USACE in violation of the law WRT a failure to “Adequately Consider the Direct, Indirect and Cumulative Impacts of Its Permit Action Violated the National Environmental Policy Act and the Administrative Procedure Act” (§ 183-195) as they: unlawfully segmented NEPA by not including the segments of the Project outside Minnesota; failed to evaluate risks and impacts of oil spills; failed to factor in the significant difference between conventional and tar sands crude; failed to analyze the threats of crossing methods (i.e., frac-outs during HDD), failed to analyze alternatives; failed to quantify cumulative and incremental effects of climate change; failed to assess the impacts of approval on Tribal Treaty Rights; and restricted the scope of review (giving no explanation of its analysis and failing to provide rational EJ review).
Find the USACE “acted arbitrarily, capriciously, and contrary to the evidence before it, in violation of NEPA and contrary to the APA, 5 U.S.C. §§ 706(2)(A), (D), in failing to prepare a full EIS on the Project” (§ 196-203) though the Project would involve extensive environmental impacts, crossing 78.3 linear miles of wetlands, and impacting lands where Tribes retain usufructuary rights.
Find the USACE violated Clean Water Act § 404 and the Administrative Procedure Act (§ 204-210) in its failure to: conduct an alternatives analysis, including those that are practicable and less environmentally harmful to fulfill the Project’s purpose; assess any off-site alternatives and limiting to the route corridor designated by the Minnesota Public Utilities Commission; or independently verify information necessary to determine the least damaging alternative.
Find the USACE acted arbitrarily and capriciously in failing to undertake a lawful and rational public interest review of the actions authorized by the Permit (§ 211-217) as required by its own governing regulations. Specifically, “The Corps’ public interest review unlawfully limited the scope of its consideration of detrimental effects to water impacts associated with construction of the Project, even though the Corps considered beneficial effects beyond the construction, such as “services provided not related to the Project” and benefits to others in the United States who would use the products of crude oil transported by the pipeline. Decision Document at 48.”
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.”
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:
State of the Current Legal Cases
As noted above, there are multiple fronts in this tar sands pipeline opposition:
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.
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.]
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. 😦
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
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.
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.
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?
Enbridge can’t even file their fucking compliance paperwork correctly:
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.]
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.
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.
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.
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.”
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 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.”
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 2nd 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.”
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.”
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.”
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.”
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!!
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…
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 jurisdiction? (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: * 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 route; * 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 circumstances.”
FOH Filing clearly reiterates that the Motion for Stay by the Tribes has substantial legal grounds. 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 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.
So I started reading through the recent Line 3 documents once the Petitions for Reconsideration were all added to the docket – Memorial Day Weekend. I’d even made a desperation effort myself at submitting such a request in the minutes before the 4:30 PM deadline on 5/21/20. I simply emailed my request to the Public Utilities Commission’s Executive Secretary – and I was THRILLED to be included on the eDocket!
So, read along with me if you will as I share tidbits that I find interesting… Let’s begin with the PUC’s Order approving the EIS as adequate and approving the Certificate of Need and Route Permit for the project. This was at the top of page 3.
Not sure if you see the immediate red flag… But Condition #1 – removal of exposed segments of Existing Line 3 should be read with some concern I’d think. If the pipeline is supposed to REMAIN UNEXPOSED – FULLY IN THE GROUND – then HTF did these “segments of Existing Line 3” become exposed? Was it IMPROPER MAINTENANCE? Well, if it was, why don’t we just put the horses back in the barn because the cart is BROKEN. WHY oh WHY would we allow a company that is NOT PROPERLY MAINTAINING its CURRENT pipeline to BUILD A NEW ONE???
OK, let’s keep reading… 27 pages to go… Top of page 6 stops me a moment to chuckle – it’s still pretty funny that they put this in writing AS IF it is ADEQUATE. It literally says why it is not by noting it only considered streams that would allow oil to reach Lake Superior within 24 hours… Why? Does oil spilled into the watershed but not into Lake Superior NOT affect the watershed? [Oh, also no mention here yet that the DOC failed to define the watershed in this EIS revision… specifically about the Lake Superior watershed. And they also seem to make it sound as if nine new sites were evaluated but it was ONE additional site – Little Otter Creek… which runs into the St. Louis River… which runs into Lake Superior – ALL these water bodies are IN THE WATERSHED so if they are affected, the watershed is affected, regardless of whether oil gets all the way to Lake Superior.]
Now this! No science, arguments that are dead now (and were on 5/1/20 when this issued). Love that last line… It wouldn’t surprise me if Enbridge asked the PUC to include that “extra” ALJ session just to be able to cement this comment into the Order (and knowing it would be in their back yard so easy to fill with orange shirts and blue jackets. Makes one wonder if there is some kind of caste system to the Enbridge wear. Do worker bees get orange shirts while supervisors get blue jackets?
This is just egregious… NO MENTION that most of those who wanted the Line 3 to be approved worked for Enbridge or were hoping for financial benefit from the project.
On page 12, things get silly. I mean, while the data in February was already showing steady or reducing fossil fuel usage, to release this report on May 1st, when the oil price went to almost ($40)/barrel… Well, that just makes you look stupid. But, maybe they’ll reconsider?
Then, while it ends sounding like a commercial for Enbridge, the safety of the current Line 3 is NOT IN THE PUC’s JURISDICTION.
They go on to discuss all the “compensatory” programs that will make up for the environmental losses, never worrying that the PRISTINE wetlands they were destroying cannot be easily “replaced” by manmade “wetlands”… The Commission, “after carefully reviewing the record concluded that denying the certificate of need would not significantly reduce the demand for crude oil and would therefore not significantly reduce climate change impacts.” But it sure would impact supply and thus, would impact demand – which needs to go DOWN, not UP… [Our children must look at these discussions and wonder how adults got so stupid… If FF use needs to go down, and we need to keep them in the ground, especially Tar Sands, doesn’t it make sense to NOT BUILD ANY MORE TAR SANDS PIPELINES???
And they conclude with this:
Oh, FFS. REALLY??? MEPA says…
How do humans and nature exist in productive harmony if you leak poisons into the waters of the Indigenous Peoples of Minnesota? Shitty try pushing the “support of Leech Lake” as you FUCK OVER ALL THE TRIBES with this NEW Pipeline Corridor.
OK, let’s see what the PUC says about the Parties’ Comments.
Well, that seems like quite a lot of legitimate concerns… What did the Supporters say?
Hmmm… I wonder if some of the materials submitted by FoH were NOT AVAILABLE WHEN THE COURT OF APPEALS REVIEWED THE CASE? There has been a LOT of change in recent years. And, with the Pandemic, we can see that those Shippers and Enbridge are likely gonna be disappointed with their expected worldviews…
What did the PUC decide?
Uh, PUC, don’t know if you recall this but… it’s ENBRIDGE’S JOB to PROVE DEMAND, not Friends of the Headwaters! WHERE is Enbridge’s proof that FoH is WRONG about demand concerns? Remember, this report from the PUC was issued on May 1, 2020. Amid the GLOBAL Pandemic that has shut down not only the oil industry but pretty much LIFE AS WE KNEW IT.
EXPENSE is NOT MINNESOTA’S CONCERN? WHY should WE care if it costs Enbridge MORE to ship by truck or rail? If they are forced to, will they? NO. So… is that demand REALLY so critical? Or it is the requirement that Enbridge make as much money as possible that is driving their arguments? The PUC goes on…
So, again, WTF do we Give A Fuck about efficient and economical concerns of Enbridge’s CUSTOMERS?? Do THEY give a FUCK about our Wild Rice Beds??? Are THEIR needs for profit more critical than those of the PEOPLE OF MINNESOTA for CLEAN WATER? And the PUC Executive Secretary FAILS TO MENTION that that ALJ who concluded no reasonable and prudent alternatives to the Project ALSO RECOMMENDED Replacing the CURRENT LINE 3 IN-TRENCH – basically – NO NEW CORRIDOR, NO NEW ROUTE. Put a New pipeline where your OLD pipeline is… No mention of that… Hmmm. Interesting.
The PUC AGAIN say how IMPORTANT this is for Leech Lake and how DANGEROUS the current Line 3 is… Again, PUC, NOT YOUR FUCKING BALIWICK. THAT IS THE CONCERN of the PHMSA. And actually, there are probably a LOT MORE MN jobs REPAIRING a leaky pipeline and MUCH LESS environmental damage than BUILDING a new one through a largely NEW corridor. Oh, and WHY IS THE CURRENT LINE 3 in SUCH SHITTY SHAPE if ENBRIDGE IS SUCH A GREAT COMPANY who CARES about Safety and the Environment?? If they let THIS pipeline get so old and decrepit, WTF would we expect they wouldn’t DO THAT AGAIN if we give them a chance??? Come On, PUC, This ain’t hard work.
And this is just RIDICULOUS!!! THE CURRENT LINE 3 is PHMSA’s CONCERN!!
Landowners now have another year until their deadline to decide if Enbridge should remove the OLD Line 3 from their property at decommissioning. ]But I bet they have a number they can throw at you to help you decide to just let them leave it in the ground…]
Enbridge had to fund the Public Safety Escrow Trust Account by 5/11/2020 – well, at least an initial deposit of $250K – wonder if that happened. And, if it did, can we keep those funds until we decommission and remove Line 3 entirely? You know, just to assure we don’t get left holding the bag?
So… it looks like we’ve given the reigns to the Secretary on this project. You gotta give Seuffert credit – he’s taking charge here but, the writing is REALLY reflective of a rookie.
Now comes the fun part – and the part that isn’t coerced by Enbridge.
OH, YEAH!!! This guy is talking serious stuff! And he ain’t FUCKING AROUND!
A1 is about demand forecast – critical to determining Need and C(1) and C(2) are about societal impacts. His arguments include:
The record showing that MN refiners ARE getting the oil they need.
“…we do not have clear, crossexamined evidence in this record of refinery expansion. A forecast that assumes a future of infinite global demand for Western Canadian crude oil is not reasonable.”
“the absence of a clear, transparent, independent forecast of demand… was a significant shortcoming in the record.”
Commissioner Schuerger goes on to discuss the significant new material available, which “at a minimum, requires a focused contested case to develop the record.” [Oh, be still my heart!!] He notes specifically:
“significant new information on climate change, and on related public policy, and their impact on demand for oil and its refined products”
MN action to reduce GHG emissions
The IPCC 1.5°C report
MN Executive Order 19-37 establishing a Governor’s Advisory Council on Climate Change
Minnesota’s Pollution Control Agency and Department of Commerce reported “transportation is now the largest source of [greenhouse gas] emissions generated within the borders of Minnesota.” [WAIT FOR IT…]
The 2018 National Climate Assessment finding that substantial and sustained global efforts to reduce greenhouse gas emissions are required to prevent climate change from causing further losses in infrastructure and property, as well as economic growth.
“significant new information on transportation electrification and its impact on demand for oil and its refined products”
“The landscape is changing rapidly, and at an accelerating rate. Because these facts have not been made part of the record, none of these developments have been incorporated into the Commission’s analysis of the reliability of the applicant’s demand forecast, or of the effects of state conservation programs, and therefore the Commission’s evaluation of Minn. R. 7853.0130, item A. [Is it weird that this legalese is really turning me on???]
“Changes to, and continuing efforts to change, the pipeline reservation system materially affect the reliability of evidence that the Commission relies upon” [Here Schuerger uses the Commission’s OWN PREVIOUS conclusion from 9/2/2018 that “governmental initiatives to reduce fossil fuel consumption to address climate change, and expanded adoption of electric vehicles could, in the future, influence whether the type of supply forecast evidence submitted in this case will be sufficient to support conclusions about demand.” REALLY now??? You don’t SAY??? What exactly DO you say, Matt?
“The Commission is deciding anew whether this certificate of need should be granted, and is not bound by its prior decision to grant it. The Commission is also not bound to make a certificate-of-need decision today based on a record that closed nearly two years ago.15 The reliability of the evidence of demand has been reasonably called into question.16 The Commission should not rely again on a tenuous inference drawn from an aging forecast of supply, given the Commission’s own earlier recognition of the evidence’s weakness as evidence to support a finding of need, and in light of the new evidence available.
He also calls into question Enbridge’s Apportionment argument – which says their Shippers aren’t getting the needed throughput as “Enbridge is pursuing a change to the terms by which it supplies oil over its mainline pipeline system, to allocation of capacity mostly by long-term contracts.”
“Not minimizing the cost to consumers of one particular form of energy is not a cognizable adverse effect under Minn. R. 7853.0130, Item A”
Finally, “The consequences to society are significant and severe”
This is NOT a “replacement” -HALLELUJIAH! We’ve been saying that this WHOLE TIME!! In fact, he argues this project is an expansion “along a new route in a new corridor. The consequence is that the project has a greater negative effect on the natural and socioeconomic environments than a simple replacement.”
And there are a number of concerns.
Climate Change effects from the oil transported and delivered by the project would have “significant negative consequences for society.”
“The project is not consistent with Minnesota policy as established by the Legislature” and Commissioner Schuerger notes that, “by promoting consumption of oil, it will thwart the aims and responsibilities of the state established in many Minnesota energy and environmental policies.
“Minnesota and its citizens have legal alternatives, if needed, to address the dangers of the existing line.” [We DO???]
In the end, without further contested case proceedings, the Commission cannot reasonably grant a Certificate of Need. And there’s MORE!!
Well, that’s as far as I got in my reading – I’m a few weeks behind but this is a REALLY WONDERFUL READ! I will next look at the many filed requests for Reconsideration and, hopefully the PUC is thoughtfully considering these recently submitted documents. Perhaps we will even get the REAL response warranted by the current global situation of COVID-19, a pending Greateat Depression, and… the ever present Climate Change.
This past week, Minnesota Environmental Justice advocates got some good news. Yeah, we lost with the PUC, but we saw the tide turn with the actions of one PUC Commissioner with not only a smart brain and big heart, but also some HUGE balls. (And boy, was Enbridge upset! Hope they’re envisioning the hard work of packing up and taking their Line 3 project back to Canada… where, you might have noticed, there is growing opposition to fossil fuel corporations. And the Wet’suwet’en People are grateful for those supporting their Sovereignty.)
So I decided to send a little Valentine to Matt Schuerger from our Minnesota Waters.
You can send one too! Need some help figuring out how? Click Here. Please help make my dream come true – let’s flood the docket with Valentines for Commissioner Schuerger.
I can imagine little groups everywhere making valentines for Matt. Maybe your youth group could have a learning session on Line 3 to share information about the dangers a Tar Sands pipeline brings to our wetlands. Do your friends know there are 227 water crossings for this pipeline proposed route? Could you take an hour to make some valentines as you learn about the myths* of “Safety of New Pipelines” and BitCrude technology, which allows completely safe transport of solid bitumen (tar sands in sold form are not flammable or explosive AND are safe for marine life if the containers go overboard!). No more concerns about train derailment!! The worst that happens is you have to pick up a bunch of hockey pucks and put them back in the rail car! [Then next month your group can write letters to our Governor asking for new green energy jobs instead of dirty old fossil fuel energy jobs for Northern Minnesota.]
* Myths of Pipeline Safety:
New Pipelines are safer than Old Pipelines. Not necessarily. Spill Data show that new pipelines are just as susceptible for spills as the old. [Perhaps it is related to the corrosive asphalt from Alberta being pushed through them…] As has been clearly demonstrated by failures on newer pipelines Dakota Access and Keystone 1 – the spills can be big on New Pipelines too… like 210,000 gallons big. Keystone would suffer a second large failure of 383,000 gallons just two short years later.
Old Line 3 is a Safety Risk!! Well, ever since the Consent Decree was put into place, we’ve seen a massive drop in spills on Line 3. In fact, in the last 12 years, there have only been 66 gallons spilled, less than 2 barrels!! And that is likely due to the requirement that Enbridge 1) run at reduced pressure and 2) inspect via 3D microscopic images every inch of pipe every year. This pipeline is the devil we know.
It is clear that a new Line 3, once it passed its pressure testing, could run UNINSPECTED for 5 full years – FIVE! – before Enbridge would be required to inspect it. It would be the devil we don’t know. [The bottom line is that, as Paul Blackburn reported in his testimony, the PUC cannot make decisions on pipeline safety… as supported by many 8th Circuit decisions.]
Enbridge has lied to us for long enough about their safety and jobs. PUC Commissioner Schuerger has done his homework to come to the following findings on their proposed project, which led him to vote in opposition. Note: The time stamps correspond to the video of the 2/3/20 full PUC meeting with the parties. I encourage you to check out some of the powerful testimony, especially the favorites I share below.
On the Second Revised Final Environmental Impact Statement (2R FEIS) for Enbridge’s Proposed Line 3:
1:46:37 Louise Miltich (DOC EERA) admits the 2R FEIS DID NOT EVEN DEFINE the Lake Superior watershed!!! Now, how the heck are ya’ supposed to comment on the “adequacy” of the revision to address the “impacts to the Lake Superior watershed” if there is no definition of what exactly constitutes the “watershed”?
1:54:10 Schuerger asks about the Superior/Duluth Harbor being noted as an “industrialized” site… indicating that it is less important? 1:54:40 Miltich argues her case. 1:55:18 Schuerger argues sociological and economic impacts also being important. Miltich later admits the Harbor could be an important site.
1:56:30 Referencing recently available bitumen and dilbit studies, Matt asks about their inclusion in the evaluation. 1:57:18 Miltich admits no additional studies or bodies of work were included and 1:57:55 that a literature review was not done to assure inclusion of recent analysis.
1:58:15 The Commissioner discussed the possible 193 MT CO2 and $287B social carbon cost associated with Line 3, eventually asking where in the 2R FEIS we can see an understanding that we have now on the impacts of Climate Change incorporated in the EIS? 2:00:32 Miltich admits that they used all the original modeling approaches.
After Tuma makes a motion to approve EIS Adequacy, Sieben asks for discussion (of which there is none) and Matt gives his “deliberation” (as the Chair referred to it several times during the meeting). 2:28:52 “I disagree.” He notes impacts of Lake Superior watershed being critically important.
The Record and Law do not support a conclusion that the single site selected adequately represents the Lake Superior watershed or that the 2R FEIS adequately assess the consequences of a spill into the Lake Superior watershed.
The 2R FEIS fails to accurately characterize the current scientific understanding of climate change. PUC is required under MEPA to follow the guidance in its first paragraph:
“…to create and maintain conditions under which human beings and nature can exist in productive harmony…”
“This FEIS in this revision does not yet do that in my viewpoint.” And he noted his opposition. [Several in the audience voted Aye! alongside Matt which was so good to hear. [2:38:47]
On the Certificate of Need for a New Line 3: [3:53:09 – 4:25:50, 4:29:40 – 4:42:48, Commissioner Means interrupts to throw Enbridge a bone…]
Schuerger confirmed with both Mike Aherns, representing the Shippers, and Eric Swanson, representing Enbridge, that they do not believe the demand situation has changed.
Schuerger confirmed with Enbridge that the applicant’s forecast of demand for the proposed facility means demand for crude oil, energy products from crude oil for MN and the 5-state area. He also confirmed with Enbridge and the Shippers that they believed there was no new pertinent information of concern to add to the record.
Then he reads through a list of changes in MN including the Transportation Department commitment to an 80-100% reduction in GHG emissions and the Clean Cars Initiative, confirming with Swanson that Enbridge doesn’t believe any of these things show any less need for the project. Then Commissioner Schuerger walked through the many climate change insights since the last approval including the IPCC 1.5 Report and Walz’ Climate Change subcabinet. Again, Swanson indicated… No further record development needed.
Then the Commissioner read to Mr. Swanson about the past week’s trade news reporting: ‘Enbridge … publicly acknowledged the transition may happen more quickly than expected… which could strand existing or future assets.’
Finally, on the integrity concern that the current Line 3 must be replaced to prevent a spill. Commissioner Schuerger confirmed with Mr. Swanson that Enbridge understands their responsibility to prevent discharge from their pipelines “whether or not the Commission approves a new Line 3”.
In “deliberation” 5:23:23, Commissioner Schuerger makes clear on this “immensely important and intensely consequential” decision:
It is entirely about the law and the evidence.
5:24:57 The record shows MN refiners to be getting the oil they need. [He indicated this is a fatal flaw… just before Katie interrupted him before he was finished.]
The science on climate change is entirely clear– we must take action to reduce climate change. There is evidence toward electrification and toward a new system which would eliminate apportionment (relied on heavily in the last decision). All indicate a contested case hearing with a focus on the demand forecast.
5:27:27 We are facing a seachange in the world, around the country, and especially in this state to act and change the way we use energy. “When we have this significant scientific political understanding, which we have, we are not only accelerating this transition but it means that it no longer makes sense to invest and build new infrastructure such as this new project.”
“I do not support the motion before us and I’d ask that we vote this motion down and that we refer to this to contested case with a focus on gathering additional information on the changed circumstances around the change in the applicant’s business and contract structures, potential impact of electrification of transportation or other sectors, and the impact of climate change on demand.”
Commissioner Schuerger’s closing on the Certificate of Need for Line 3, 2/3/20 5:28:56
On the Route Permit for a New Line 3: [6:33:52 – 6:37:07]
As there were no questions, I’d like to include an approximation of Schuerger’s statement [discussion/deliberation, whatever Katie wants to call it] as it is so good!!
We have before us a preferred route and 4 alternatives that we are required to consider (APR, RA-03AM, RA-06, the In-Trench Replacement RA-07, & RA-08). “When we look at the evidence before us and the criteria, the impacts we are required to consider are overwhelmingly minimized by the In-Trench replacement option RA-07. Overwhelmingly minimized. RA-07 & RA-08 have not been removed from our consideration. We’re required to consider them all. I believe, that when we apply the law, we have to designate the In-Trench replacement option and, under the law, we are required to recognize the sovereignty of tribal governments, ALL tribal governments. We’re required to consider all the routes and apply the criteria AND we’re required to recognize the sovereignty of tribal governments – ALL OF THEM! I believe we can accomplish what’s required of us by applying our criteria and designating In-trench replacement RA-07 and, in that same act, requiring Enbridge to obtain explicit written consent from all Tribal governments along the designated RA-07 route prior to Enbridge receiving the Route Permit. I heard, I’ve read the testimony, I’ve read the record, I heard the opening arguments today. I do not believe under the law it is this Commission’s problem that they may not get that consent.”
Summary of Commissioner Schuerger’s comments on Route Permit, 2.3.20 6:34:34
I have watched hours of testimony. I have watched over and over some pieces of testimony. And I am much encouraged by some of that testimony on February 3rd. Here are a few of my favorites:
Starting at 32:10 you can see two of my faves – Paul Blackburn and Scott Strand. Together they explain why the EIS was inadequate based on the location site (no WI sites were selected, even though these locations would have a potential for harm). Little Otter Creek picked as the farthest east and first site in MN. Not sufficient. Scott also talks about response times noting that history of Enbridge should have been used, including a reflection of their 17 hour response time, much longer than the 13 minutes used by the modeling. This failed to capture the fact that most spills are not caught by the pipeline company but citizens happening upon the spill. Scott recommended a 2-hour response time with a range of possible alternatives, specifically referencing the Michigan model. He also mentioned the requirement to include the latest information as part of the ongoing responsibility of the EIS process, which the DOC EERA decided deliberately to not include, a likely legal error.
56:20 Gaagigeyaashiik Dawn Goodwin spoke eloquently about the Indigenous historical, cultural, and spiritual connection to the land. She also spoke to the lack of study on tar sands which negates the idea that we have an adequate understanding of the impacts of tar sands on our living organisms per the National Academy of Science. Thanks to Frank Bibeau for giving her some time after he walked through the legal aspects of the Treaties along the Line 3 proposed route.
1:03:48 Brent Murcia, A Youth Climate Intervenor, who explained that they’ve watched as their government has done nothing again and again and again. These youth have participated in this process. All have finished HS now and at 18-26 years old, they should have bright futures ahead. But Brent walked through how little time remains to respond to our climate crisis along with the many shortcomings they have identified in the 2R FEIS. He also stressed the No Action Alternative has been in place for 3 years and we have not seen “1900 trucks per day” of oil driving the MN or several hundred oil train cars per day. The actuality looks a lot more like the YCI estimates than those of Enbridge, which indicates an inadequacy. Finally, when Enbridge plans for run the line for 5- years, why is the FEIS not including 50 years of effects but only 30?
3:09:25 Paul Blackburn argues that the safety of the current Line 3 is NOT the decision of the PUC, not within their jurisdiction and they have no expertise. How much safe is this new pipeline – by what metrics? This is the most important thing per Enbridge. Data of the oil spills from this pipeline are NOT YET IN THE RECORD. Corrosion and age related spills are your concern but there are many other things that factor into spills. In fact, with the current Line 3 requiring 3-D microscopic images of this line EVERY YEAR. A new Line 3 would not be covered by the consent decree so it would only be inspected once every 5 years. Records from Canada shows shipment as a solid safely and there are two technologies to ship by rail. Rail safety is yesterday’s argument.
5:55 Just following another round of testimony from Scott Strand and a short message from Brent Murcia, “… we will see you all soon.” [In court!!], Winona LaDuke and Dawn Goodwin again address the commission. Winona bringing a Midewiwin scroll, a map of the migration story of the Ojibwe People. They both recognized the value of all the life in our land, most of whom have not been asked here to testify. Threading a needle to meet regulatory framework is not an adequate assessment of the issue.
“We’re a Living Culture! You’re putting that at risk. What don’t you get about the 1855 Treaty?”
Gaagigeyashiik Testimony, 2/3/20 Watch it here .- it’s powerful stuff! Thanks, Seekjoy!
One of the BEST moments of the day was when Akilah Sanders-Reed explained to Chair Katie Sieben – as Ms. Sieben tried to deny the Youth Climate Intervenors their rights, that YCI would take the 5 minutes ceded to them by the Northern Water Alliance. [So, fuck you, Katie Sieben! Oh, sorry, did I say that out loud?? I did in my living room as I watched it happen!]
“You have 5 minutes to present your opening statement. We’re not going to allow for more compression of time at this time because we don’t have the Northern Water Alliance folks here.”
PUC Chair Kaite Seiben tries to silence the Youth Climate Intervenors – pretty much in line with how they’ve treated the YCI over and over again – Oh! kinda like the government has always treated our kids – as best seen and not heard. They didn’t pull this shit with any of the male lawyers using this tactic. Watch from 3:26:04
“We’ve communicated with them explicitly and I would be happy to show you the communications where they asked us to absorb their time so that we could cover issues that are of interest to both of us. So we’ll be taking the ten minutes as was stated in the notice from the Commission that parties could combine arguments for the sake of fluidity.”
Akilah Sanders-Reed explains to Chair Sieben how this process works. Once again, youth speaking to truth and power in these days where adults have seemingly lost that ability.
So we lost, but we’re seeing the tide turn. We’re losing better each time. And now we have a Commissioner on our side.
Today is a short one. Mostly because the time I have for writing is being consumed by the work of activism. But there was some seemingly good news on the Line 3 front last week.
The Minnesota Pollution Control Agency and the Minnesota Department of Natural Resources issued a joint statement on Tuesday (6/18/19) to publicly state that the schedule had changed for their permitting work for Enbridge’s proposed Line 3.
While noting that they are committed to their work, they agreed that the Minnesota Court of Appeal’s decision declaring the current Line 3 Environmental Impact Statement inadequate means that they cannot release draft permits and the 401 water quality certification on July 1 as previously scheduled. They MUST wait for the additional PUC environmental analysis before the MPCA/MDNR can initiate their public comment process.
While the exact path of getting to an “adequate” Environmental Impact Statement was not made clear, and while my inquiry to the PUC revealed they do not yet have a plan from the Department of Commerce, the bottom line is that delay is good. The longer we delay, the more people will awaken to the fact that Fossil Fuels are killing the planet. We MUST TRANSITION FROM THEM NOW and continue our progress toward a clean energy economy.
My favorite paragraph in the public notice was this:
“More generally, both agencies will fully review any additional information that becomes available through the PUC’s EIS revision process, including public input to the PUC, prior to making decisions on the pending applications. Neither agency will take final action on the Line 3 Replacement license and permit applications until there is an approved EIS.”
MPCA/DNR Joint Statement on Line 3 Decision, my emphasis added
What this seems to indicate to the PUC is that their process must be robust, “including public input to the PUC”, which means that we should again have space to comment on the EIS proposed changes. We will again be able to state if We the People have determined that the supplemental information does indeed make the EIS adequate. Based on past performance, I am not sure this will be as quick or easy a process as Enbridge and their cronies keep saying in the news coverage. I’m pretty sure this one may be the delay that causes Enbridge financiers to perhaps realize their investment in Line 3 is NEVER going to pay off.
Not sure why they haven’t yet determined this. It seems clearer to me each day that the “ole boy” way of doing things, with lots of bribes and payoffs and public deception, is no longer working. There are too many of us watching, waiting to see what happens. Too many digging into the hidden memos, too many researching the science to refute the findings of the corporation, too many sending in public comments that reveal the shortcomings of the work done in collusion with corporations. We are waiting with pens poised to write to the Governor, the Attorney General, our Senators and Representatives, our Facebook Followers, our Blog Readers. Yes, the public has revitalized the idea of civic engagement. And our Young People are once again realizing the only way to make government work for you is to be in its face when it isn’t doing things that actually help YOU. The Tide is Turning.
And there are front line camps waiting too, watching the pre-construction efforts and live streaming their work to assure the public can see what is happening in “Indian Country” – largely where this work is happening now. They will show you a group of a half dozen water protectors holding protest against the Line 3 pre-work. And they will show you the law enforcement that engages them in full riot gear. The visual gives a peek into the astoundingly excessive reaction of law enforcement to citizens in this arena.
This is a war. But it is not to protect We the People. It’s to protect the Corporate interests. And you, dear Taxpayer, are supporting this work.
It’s time to speak up against our law enforcement being used against our fellow citizens who are working to prevent environmental destruction. They are protecting a future for ALL of our children. Please support the citizens standing for climate justice if you can. Click below to learn more.
In the ongoing saga of the Sandpiper/Line 3 Tar Sands Pipeline of Enbridge dreams, we are facing another unexpected road block. Well, it’s not a road block really, more of a detour. While back on the campaign trail, then-Congressman Walz showed opposition to Line 3, we’re not so sure where he’s going to land now that we’ve given him the job as Governor. Below, I explain why.
You may recall that the MN Department of Commerce (DOC)
filed a lawsuit (late in then-Governor Dayton’s term) against the Public
Utilities Commission for illegally approving Enbridge’s Line 3 Tar Sands
pipeline. The DOC noted: “Enbridge did not introduce, and the Commission did
not evaluate the accuracy of, a long-range demand forecast for the type of
energy that would be supplied by the proposed facility.”
Proof of demand was required in order to justify a
Certificate of Need (CoN) be approved by the PUC. The PUC did approve the CoN and, subsequently
approved the Route Permit while stating that they did “not believe the climate
science” brought by the Youth Climate Intervenors and other groups who are
adamantly opposed to building a New Line 3.
This line would be the first of many as Enbridge moves all
its oil pipelines OFF the Leech Lake Reservation where Enbridge’s easement ends
in 2029. Their newly approved route
would be a new corridor, destroying hundreds of thousands of plants and
animals. With the fossil fuel industry
in its death throes, it seems illogical to invest in a bunch of new
infrastructure that will not end up serving its lifetime and will likely be
left as Enbridge slides into insolvency.
So why did the MN Court of Appeals decide to dismiss all the
appeals? Well, it’s a legal technicality
thing. The PUC (against normal
practices) divided their approval into two parts – basically because Enbridge
came to the last meeting with a bunch of extra promises to push their proposal
over the line for approval. (Sad part is that none of these offerings is enough
to mitigate the damage their pipeline brings as the CO2 equivalent is the same
as 50 coal-fired power plants being installed in Minnesota.)
The now-dismissed appeals were filed against the PUC approval from June but the Court is saying the REAL decision to appeal was the one the PUC finalized in January (during Walz’ term). (Sadly, this approval was on a value of insurance liability that will not cover the needed losses should we have a catastrophic failure like the one Enbridge had in Marshall, MI years ago. God forbid we have such a major spill. It will be impossible to remedy. But we all know… ALL pipelines leak.)
So, the Court of Appeals noted that they would waive the filing fees. They were surely expecting all the parties to re-file their appeals with the court. To do so, the first step is filing a Petition of Reconsideration by Tuesday at 4:30 PM. (This merely gives them the option to re-file their appeal; it does not require them to do so. Thus, this could turn into a longer waiting game…)
However, Walz is looking awful wishy washy on Line 3. As one of his first decisions made in office was to ask the new DOC Commissioner to “review” the appeal to see if they still wanted to pursue it, he seems to be pushing to FAST-TRACK Line 3. One can only assume that he’s doing this to pay back laborers for their support during his campaign. However, far more jobs are available in the green infrastructure we’re going to need to transition away from fossil fuels, as directed in the IPCC’s October Report.
A full-court press has been in progress with MANY Minnesotans calling the Governor’s office the past few week. Walz had promised to meet with advocacy groups regarding Line 3 before he made his decision but, other than a rumored meeting Friday afternoon with unknown Tribal representatives, he has not yet done this for any groups. Perhaps he’s meeting with pro-pipeline groups, but none of the anti-Line 3 groups that I’ve heard from have had an opportunity to meet with Walz to date, though I have watched the multiple requests made by MN350 during livestreams. The Transition Team months ago and now Walz’ Administrative Team more recently have both promised the group that a meeting would happen… but no. Not yet.
Tuesday will tell if The Great and Powerful Walz will have Dayton’s Backbone or Enbridge’s Money, as my friend Brian recently commented. If you want to make a last minute call, you can reach him at 651-201-3400 (toll free at 800-657-3717).