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LaDuke: A Pipeline Runs Through It
Monday, June 09 2014
 
Written by Winona LaDuke,
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“This is land that has been in my family for decades. It is prime Red River valley agriculture land. It was handed down to me by my mother and father when they passed away, and I’m intending to hand it down to my children when I pass away …. My wife and I have … told our children that ww will pass this on. Of course if 225,000 barrels of oil bursts through this thing, that certainly is the end of this family legacy.”

-James Botsford, North Dakota landowner in Enbridge Sandpiper right of way

While the national press has kept a focus on the controversy over the Keystone XL pipeline, something is going in northern Minnesota. This has to do with the Enbridge Company, a Canadian Company who is determined to move oil from places where there is no infrastructure, and is showing its determination in some ways which Northerners may not like. That oil is destined for Superior. Lots of it headed this way. This is far more than a single Keystone pipeline, like four times as much oil.

Here’s a bit on the math and the pipelines. Between Gretna, Manitoba and Clearbrook, Minnesota, there are eight Enbridge Pipelines already in a 160-mile swath. Then we get down to a few less lines but those are all being upscaled and expanded. Enbridge (also known as the North Dakota Pipeline Company and several other DBA aliases) is now proposing three pipeline expansions: Line 3, Line 67, Line 13 AKA the Southern Lights increase (that goes the other way carrying dilutent to the tar sands, but still can leak) and a new line called the Sandpiper. This would be an increase of over one million barrels of oil today, or 42 million gallons of oil per day. “Northern Minnesota is becoming the super highway for oil,” Attorney Paul Blackburn tells me. If all the lines go through, the sum total of oil traveling over northern Minnesota’s lakes and waters could be about four million barrels per day. This is about 200 times more than the amount of oil spilled in the Kalamazoo Enbridge spill in 2010. Not surprisingly, there are a number of increasingly concerned northerners.

Do some math, and help me out: All of this oil, say four million barrels a day will end up in Superior, and there is a Calumet refinery there with a capacity for 46,000 barrels per day. So, that means more oil moving from Superior- into an expanded yet aging infrastructure in the Great Lakes, new pipelines maybe and more than that, tankers. Gichi Gummi, as we call it, or Superior is unique in depth and purity. It also doesn’t change the water much, so one spill and well, that’s not a good thing. One-fifth of the world’s fresh water. But let’s not dwell on that. But do note that there are 17 refinery expansions proposed for the Great Lakes region and that is a lot of oil. That is a lot of oil proposed to be moved by a company, which has had many safety violations and holds the records for the worst land oil spill in U.S. history, as well as a number of Minnesota spills, like Cohasset and a big explosion in Clearbrook. In a rare move, PHMSA, the Pipeline and Hazardous Safety Materials Administration, issued a system wide corrective action order against Enbridge, because of the number of violations.

It is also not clear where that oil is going, since the U.S. is now one of the largest producers of oil and it turns out, we’re exporting six times as much finished petroleum products (2.1 million barrels of oil per day) as the need”for the Sandpiper expects to carry 350,000 barrels per day for America’s energy security.

When the Bear and the Seals Escaped

I remember when the polar bear and seals escaped from the Duluth Zoo. Or at least the picture in my mind. It was a good one and a strange one and it had a lot to do with climate change and infrastructure, two basics in our society. It turns out, I am not opposed to pipelines. In fact, I like infrastructure. It would be nice to rely on it. According to the American Society of Civil Engineers the U.S. has a “D” in infrastructure. In the latest Infrastructure Report Card the country got a “D” on drinking and waste water infrastructure and a “D+” on energy infrastructure. Duluth itself had a few infrastructure problems we found out when the big deluge hit the city and the polar bear and seals escaped from the zoo. Climate change shows our weaknesses, and there is more to come.

The reality is that infrastructure failure is causing gas explosions and water main ruptures around the country. Infrastructure failure is when our I-35 Bridge collapses in Minneapolis, and infrastructure failure is when ten thousand gallons of oil spills in down town Los Angeles, 7,000 barrels spills in Mayflower Arkansas, or a train track crumbles under the weight of massive additional cars carrying, well fossil fuels like fracked oil and coal, and it turns out we’ve not invested in rail infrastructure for fifty years or so. We have an infrastructure problem generally in the country. Some folks would say we should fix old pipelines before we make new ones. One example of that might be Enbridge Line 3, which according to the Bemidji Pioneer is 46 years old, and has been “undergoing almost constant maintenance.” Or perhaps that 50 year old Enbridge line under the Great Lakes. If I had a chance, I’d take a look see at that one.

(There is something called the PIG, or the pipeline inspection gauge, by the way, which Enbridge does use to check the lines … but then they have to repair them. It turns out that the company knew about weaknesses in the Kalamazoo area, but failed to take corrective action, according to the National Transportation Safety Board.

There was a study done on the Keystone XL route, which asked some of these questions, and found some interesting answers. The study found that spending money on unmet water and gas infrastructure needs in the five relevant states along the KXL pipeline route will create more than 300,000 total jobs across all sectors, or five times more jobs than the KXL, with ninety five times more long term jobs. Similar statistics might apply in Minnesota, which has a reported $6 billion in infrastructure needs, about the equivalent of projected Enbridge investments into oil pipelines. “It’s sort of a question of which infrastructure and jobs we want,”Michael Dahl, an Anishinaabe who works on the pipeline issues explains, “if we want infrastructure for Enbridge, or infrastructure for our towns, cities and homes.”

The Enbridge Way

Enbridge is in the business of moving fossil fuels, and is intent upon the Great Lakes region. Their 50,000 miles of pipelines span the continent, but the stronghold for the 65 year old corporation is the Great Lakes. They are aggressive.
“I got a call from the attorneys at Enbridge, recently, advising me that they are about to file a condemnation suit against us. This was followed by a FedEx package with a final offer ... The Enbridge attorneys said they could file their suit within a week or two. I reiterated that I was not going to give them anything, they would have to take it."

That’s James Botsford’s story, a Wisconsin Attorney and Supreme Court judge for the Mesquakie Nation. Botsford has a North Dakota farm, which he inherited from his parents, back a few generations before that. Botsford is facing Enbridge on the Sandpiper line, an entirely new line they would like to push across the north. He is looking at a huge legal battle and Enbridge has told him directly “our rights trump your rights,” after the company filed a restraining order against Botsford to prevent him from enjoying his own land. The Sandpiper, as a new line, is very contentious, as the other Enbridge lines all cross Red Lake, Leech lake and Fond du Lac reservations, along the Highway 2 corridor. This one is new terrain, through the south and across North Dakota.

At last count, Enbridge needs 2,000 easements and rights of way, and a lot of permits for the Sandpiper. All of those can be difficult to get, denied or challenged. Besides that, the Sandpiper is proposed to cross 137 public lands, including Mississippi Headwaters State Forest, and 76 public waterways. That is a lot of public water and treaty protected water. And, the company is proceeding confidently … without an approved route, clearing land, setting up outposts, etc.

It’s possible that Enbridge is a bit concerned about process, or might be, since the Keystone routing fiasco of this February. That’s when Nebraska court judge Stephanie Stacy declared unconstitutional a law that had given Nebraska Gov. Dave Heineman the power to push the project through private land. “The interests in oil profits should not supersede the rights of property owners … It is not in America’s national interests to allow a foreign oil company to condemn American farms and ranches to take foreign oil to the Gulf Coast for sale on the global market,” wrote Sen. Hogg in a letter to Congressman Bruce Braley of Iowa’s First Congressional District.

Meanwhile, in Minnesota, there are a growing number of landowners who are concerned about the Sandpiper proposal. Among them, are the Carleton County Landowners Association, Friends of the Headwaters (about 1,200 friends on their Facebook page) and a number of lakes associations. That’s because the pipeline proposal runs through the lakes with the highest water quality in Minnesota, outside the boundary waters. As well, Honor the Earth a national native environmental organization has intervened in the Public Utilities Commission process and six Anishinaabeg governments have come out opposing the project.

“It is not possible to identify, let alone to avoid sites of historic, archaeological and cultural significance, without consulting with the Tribal Historic Preservation Office. Not doing so, raises serious concerns about Enbridge ‘s ability,” Susan Klapel, Commissioner of Natural Resources for the Mille Lacs band of Ojibwe would write in a letter to the Public Utilities Commission. The pipeline route runs through the center of wild rice territory. All of the Ojibwe bands are concerned and most have also questions if the Public Utilities Commission would have the sole authority to grant permits over tribal lands within reservation borders and also within the 1855 treaty area. “I ask you to not grant Enbridge (Sandpiper) permits through the proposed southern route,” Klapel wrote.

A Flawed Process?

Native people are not the only ones concerned about the Enbridge way or the Public Utilities Commission. In mid April, 20 state legislators wrote a letter to the Public Utilities Commission asking “that all federal, tribal and state laws be followed” and expressing concern about the process. “That process has been designed largely to fast track permitting, and seems to be set up for the company,” Willis Mattison, a technical advisor to the Friends of the Headwaters said. He is a feisty retired guy. Turns out, he retired as a regional director of the Minnesota Pollution Control Agency and the pipeline goes through his region. He is not pleased, either with the company or the state agencies.

Let’s put it this way. The Sandpiper project was announced, with a pretty quick timetable, with a few public meetings. There was no public meeting held on the White Earth reservation, which specifically requested one, since the pipeline crosses the reservation. Then there was a lack of access to information, and a short period of comment on a 610-mile route. The route was announced, but there was no detailed map associated with the route.

Here’s how it worked: Bob Merritt, and former Minnesota DNR hydrologist requested the GIS Shape File for the proposed Sandpiper line and was refused on the basis that the information was declared a “trade secret” and protected by Code of Federal Regulations covering sensitive public infrastructure vulnerable to terrorist attack. Actually, this is how the correspondence from the Public Utilities Commission goes: “ Thank you for your e-mail to the Minnesota Public Utilities Commission. Enbridge will not provide GIS shape files, as it deems this information as Trade Secret (Minn. R. 7829.0500). This information falls under Critical Energy Information (18 C.F.R. § 388.113) and is exempt from mandatory disclosure under the Freedom of Information Act. You may certainly contact Enbridge to request this information.” That’s what Brian Swanson of the PUC explained to Merrit. It’s hard enough to comment on the hydrology of a 610-mile pipeline in a couple of months, it’s harder without a map.

Willis Mattison explained the problems to the Public Utilities Commission, “The overall experience of FOH members throughout their involvement in the matter of the proposed Sandpiper pipeline has ranged from frustration to befuddlement, to confusion, rejection, and exclusion. Having our state government department staffs perform in ways that have been outwardly defiant, defensive, obfuscating and off putting has created a deep sense of distrust, suspicion and at times utter outrage. Our members and organization representative’s attempts to fully participate in the decision-making process have been rebuffed on numerous occasions … This defiance of citizen’s right to be heard on the part of government agencies not only violates First Amendment rights but works to destroy the general public’s trust in fair and equal treatment under the laws that govern us as a people."

It appears that there are a lot a lot of lakeshore owners, who are realizing that after a 30-inch fracked oil pipeline runs near your land, property values are going down and that is without a spill. And some of those property owners feel like they should be able to make comments. The Enbridge Company, however, has opposed an extension of the comment period.

When Treaties Matter

Manoominikewag. They are making wild rice. There are few places in the world, with the wealth of the north. One-fifth of the world’s fresh water, wildlife, a fishery worth hundreds of millions of dollars, tourism and wild rice. That is the food that grows on the water and is central to Anishinaabeg people and culture as well as the ecosystem. Wild rice is, well sort of a gift, which is amazing. There is no cultivation, just a care for the lakes and a careful prayer.

Nimanoominike omaa. I harvest wild rice here. In fact, I harvest wild rice on the Crow Wing chain, because it is abundant and because it ripens earlier than the manoomin on my own reservation. That is how our people have been. We go to where the rice is and that is not always on the reservation. Those are reserved treaty or usufructary rights. It turns out that this is where Enbridge wants to put a pipeline and the Sandpiper line goes not only there, but within a mile of the largest wild rice bed in Anishinaabeg territory: Rice Lake on the White Earth reservation. Then the line would cross lakes, creeks and watersheds, including those where tribes have worked to restore sturgeon and protect wild rice.

Imagine that one day you wake up and find out that a pipeline company wants to run a thirty inch pipe with 375,000 barrels of oil per day through your burial grounds, sacred sites, medicinal plant harvesting areas, and, a mile from your biggest wild rice harvesting areas. And they didn’t even bother to mention it.

That’s pretty much what Mille Lacs found out. Then the Mille Lacs Band was also probably a bit surprised, to find that Enbridge had hired Randy Jorgensen, an attorney who specializes in Indian fighting in this millennium and was a lead counsel for landowners opposing the Mille Lacs Band in the landmark Supreme Court case. Jorgenson, argued (on behalf of his new client Enbridge) at the Public Utilities Commission, that tribal rights and interests should not be considered by the PUC. It’s a rather small world in Indian fighting apparently, and an expensive one.

The proposed Enbridge Sandpiper line is within the 1855 treaty area of the Anishinaabeg, and the rights to harvest wild rice in that region remain with the Anishinaabeg, they were never relinquished. Someone asked tribal member Michael Dahl if he was protesting the pipeline proposal. That was when he was riding his horse along one of three pipeline rides taken this past fall by Honor the Earth. Dahl responded, “We are not protesters, we are protectors.”

Wild rice needs clean water and perhaps the treaty (and federal trust responsibility) will help protect it, along with Michael Dahl. “… Treaties are the law, equal in statutes to federal laws under the U.S. constitution, and … the U.S. has the responsibility to honor the rights and resources protected by the treaties.” Bob Perciasepe, Deputy Administrator of the EPA, wrote to all regional administrators in 2013, continuing, “While treaties do not expand the authorities granted by the EPA's underlying statutes, our programs should be implemented to protect treaty covered resources where we have the discretion to do so.” It would appear that the EPA has a broader obligation scope than it has been taking and for that matter the EPA might want to consider cumulative impact of pipelines and mines on the Lake Superior Basin.

Got a Plan?

Consider that there’s about 2.65 billion barrels of oil in the Bakken. There are possibly 3.73 billion barrels of oil in the Three Forks, which underlays the Bakken. That is if we can get that out. In the end, the U.S. uses around 6.8 billion annually. Twice as much as the whole asset. So that $2.5 billion 30-inch pipeline called the Sandpiper, for a 20-year oil boom is, well a bit of a wonder in the math. Enbridge will likely use the line for tar sands oil, if they can, and when the Bakken runs out. The company just hopes to have customers, to keep a level 10 percent profit, pretty much guaranteed under federal regulations.

And, then there is the spill question. There will be spills because – quite frankly – Enbridge has had over 800 spills in the past 15 years, so that is a given. The way it works with pipelines is that the profit is at the beginning and at the end, the middle is a lot of risk. Someone told me that pipelines are better than tankers. Then someone else said, “It’s like the choice of driving the car with bad brakes, or driving the car with bad steering.”

That’s the choice between moving oil from the Bakken by train or by pipeline. Choices are not good and maybe we need to all have a bit of a discussion on what’s going on here. For instance, Minnesota oil consumption has dropped 10 percent in the past decade and that is making some folks wonder why the north should have all this risk without a clear benefit. All in all, it might be time to have a good discussion about oil infrastructure and water in Duluth, before 4 million barrels of oil heads this way.


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