By Winona LaDuke
“…They are a Canadian company taking Canadian oil from Canada to Canada through my back yard…. a company like Enbridge should not be trusted at all. If they are trespassing over Bad Rivers land. If I did the same thing, they would probably lock me up for years and years. You watch them breach aquifers in Minnesota over the past few ears, and you want us to accept their studies and their word. There are artesian wells bubbling up all over around here. This is a stronghold of water, and I know that you don’t know about most of those wells. …” Pete Rasmussen, Army Corps of Engineers Hearing, Enbridge Line 5.
It was an Orwellian hearing. Packed into the technical college in Ashland Wisc. in June, the Army Corps of Engineers held a hearing on the proposed reroute of Enbridge Line 5, around the Bad River Reservation. The hearing officers had no names, the lead officer decked in the military uniform of the Army Corps. There was a lottery to speak and a three minute limit. Welcome to Enbridge 5.0, where the Canadian multinational beset with legal challenges by the state of Michigan and the Bad River Tribe works to game the system to keep the oil running.
The veterans of Enbridge battles came to say a few words. Dawn Goodwin from the Rise Coalition, spoke from experience, “ I am here today to warn you all…. You are all here because we signed treaties to live in peace. We are in a climate emergency, and we need to protect what’s left. The monitors of Line 3 construction, reported frack out and aquifer breaches, and still Enbridge was allowed to take 5 billion gallons of hour in extreme drought….” Those problems continue and Enbridge damage worsens.
The room had a typical green shirts for Enbridge crowded split and Anishinaabe, and other local people who want to protect the fragile ecosystem. The complications of Line 5 are many, and the proposed reroute is essentially a noose around the Bad River reservation, allowing Enbridge to cross 200 separate stream beds, and add 44 miles of pipe in places where there should be no pipelines. The pipe is old. And the problem is older.
Enbridge’s Line 5 became operational in l963, back in the day, when you could throw a pipeline across the reservation with little regard. It transports over 20 million gallons of oil and gas through Michigan, Wisc., and Bad River Band territory. Line 5 has leaked 29 times, and also crosses under the Straits of Mackinac, where it’s precariously anchored, and Enbridge has yet another proposal which is being challenged by the state of Michigan and the Anishinaabe in that region.
Enbridge’s Legal Problems:
In 2019, the Bad River Band filed a federal lawsuit against Enbridge and called for the immediate shutdown of the pipeline. That’s because the easement for Line 5 expired in 2013, meaning Enbridge has been trespassing for eleven years without a valid easement. While U.S. District Court Judge William Conley opined in 2022 that Enbridge was trespassing and required the company to pay out $5.1 million, he did not grant the immediate pipeline injunction. Instead, he stated that Enbridge must remove the pipeline by 2026,
Both the Band and Enbridge have appealed this decision, with the Band showing that the corporation has made significantly more than $5.1 million, more like $1.1 billion in profits since 2013. Moreover, they note that climate change-related flooding has caused a river to move within 11 feet of the pipeline, significantly increasing the risk of spill damage. They are requesting both an immediate shutdown and the rest of the $1.1 billion in settlement costs. Having been personally charged with trespassing on Enbridge’s “critical infrastructure” and going to jail for it, it seems that a ten year trespass would have some consequences.
In February 2024, 30 tribal leaders called on President Biden to submit an Amicus Curiae brief in support of the Band’s appeal. The federal brief “acknowledge[d] the trespass of Line 5, [but] stopped short of requiring the company to end its trespassing.”
Pipeline Tunnel Appeal
In further effort to “fix” the pipeline (and extend its lifetime), Enbridge has proposed a tunnel for the line beneath the Straits of Mackinac. Michigan Attorney General Dana Nessel sued Enbridge in 2019, over Line 5’s safety risks in the Great Lakes. The Michigan Circuit Court granted a temporary injunction, requiring that the pipeline be closed in summer of 2020. This ruling was quickly undermined when Enbridge moved the case to federal court. There Enbridge argued that it was protected by a cross border treaty to protect pipelines between the US and Canada, not the treaties with the Anishinaabe.
Enbridge’s move to federal court, was “long after the deadline … had passed.” with an In a Amicus Curiae brief from over 60 tribes, argued that this late action violated proper procedure and the federal Trial Court agreed. They sent the case to the federal Court of Appeals. Then, on June 17th of this year, that Court of Appeals remanded the case back to the Michigan 30th Circuit Court.
A legal tangle, that’s what we have, and the very pertinent question in a time when temperatures are rising, of how much more oil do we need? And, are corporations subject to the same laws as humans?
For the green shirt guys looking for those Enbridge jobs, many of those testifying at the hearing, pointed out that removal of the pipeline would result in significant jobs as well. I “I think that removal of Line 5 will bring a lot of good union jobs. I am not opposed to water pipelines o sewer I am just opposed to this oil,” explained one resident. Perhaps the summary is easy,” I believe that God spent a little more time in northern Wisconsin. When we are enjoying the outdoors, we try and leave it as we found it. “ We will see how it goes.
