White Earth and Red Lake join with DoC to appeal Pipeline

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By Winona LaDuke

On Dec. 21, the Department of Commerce joined the White Earth and Red Lake Nations and environmental groups in the Minnesota Court of Appeals. The plaintiffs are asking the Court to overturn the Minnesota Public Utilities Commission (PUC) decision to grant a Certificate of Need for Line 3. If the certificate of need is overturned, there will be no pipeline. This brings the total number of active Line 3 lawsuits against the PUC to seven, with more likely on the way. Meanwhile, the federal government is looking to issue permits (called 40l permits) for this pipeline.

Nationally and internationally, all tar sands pipeline projects have been stalled or stopped in the Courts, most recently, the Keystone XL pipeline was stopped in November by a federal Judge.

Although Enbridge continues to move ahead with contracts, housing for man camp workers, and clearcutting, it is not clear that any of this is legal, nor that any pipeline will proceed.

The lawsuits are mounting. The first 3 were filed in August 2018 by the Fond du Lac, Mille Lacs, Red Lake, and White Earth Bands of Ojibwe, and non-profit organizations Honor the Earth and Friends of the Headwaters, contesting the adequacy of the Environmental Impact Statement (EIS) prepared for Line 3. With the deal made between the Fond du Lac Band and Enbridge, Fond du Lac has agreed to not oppose the pipeline , which throws the rest of the Ojibwe under the bus, in a manner of speaking.

In the meantime, with money flowing around Fond du Lac, the tribe has completed a cultural impact survey of the new route. That survey was expedited to meet the timetable for Enbridge, and had to include a brand new route. It did not include the full proposed route. Tribal leaders are concerned about Fond du Lac’s credibility, based on the agreement. So far, no tribes have seen the survey. Fond du Lac’s agreement is rumored to be $250 million if the new pipe is installed.

The four lawsuits filed in late December contest the Certificate of Need – one filing by the Department of Commerce, one by the Youth Climate Intervenors, one by Friends of the Headwaters, and one joint filing by the White Earth and Red Lake Bands of Ojibwe, Honor the Earth, and Sierra Club. Additional appeals are expected soon.

With December’s solstice filing of the appeal, Governor Dayton said, “Enbridge failed to provide a future demand forecast for its product, which is required by state law. Instead, the company presented its analysis of the future oil supply from Canadian tar sands extractions. It failed to demonstrate that Minnesota needs this pipeline to meet our future oil demand. In fact, most of the product would flow through our state to supply other states and countries.”

95 % of the oil that flows into Line 5 from Enbridge’s Line 3 ends up in Canada. And Canada has cut production by 8 percent, because the price of Canadian tar sands cannot compete with Saudi oil.

While incoming Governor Tim Walz sounds supportive of the the pipeline, legal and liability issues loom large and will likely grow. The proposed TransCanada Keystone Pipeline is now stopped in court. Judge Brian Morris of U.S. District Court for Montana, blocked construction on the 1,179-mile pipeline. In the decision, the Judge noted that the administration failed to present a “reasoned explanation” for the move and “simply discarded” the effect the project would have on climate change.

With the newly issued reports on climate change, the carbon impact of the proposed pipelines exceeds anything which can be supported in Court or in public policy – that’s why insurance companies are leading a charge to divest from fossil fuels. In total, divestment is now at $6 trillion and growing as climate change disasters increase.

Those concerns will shadow this pipeline project, and the militarization of Minnesota to benefit a Canadian corporation is a challenge Walz and Flanagan will face. As Tara Houska, Honor the Earth National Campaigns Director, said, “Enbridge has offered to pay for the $38 million or more it will cost to brutalize Minnesotans over a pipeline that will never happen.”

Down pipe, the Ojibwe, Odawa and Michigan have filed suit against Enbridge’s proposed work on Line 5, asking for it to be closed. Every day, 23 million gallons of oil flow through a pipe built in l953. That’s a huge liability for Enbridge, and more so for the residents of the Great Lakes.

Although they promise that “any adverse effects on historic properties will be resolved prior to USACE authorization,” the Army Corps is starting this public input process before the release of Tribal Cultural Surveys.

Submit your comments on the pipeline, and request a public hearing by January 21, to: CEMVP-L3R-PN-Comments@usace.army.mil.

Or send comments via snail mail to: St. Paul District Corps of Engineers, 180 5th Street E., Suite 700, Saint Paul MN 55101.