Enbridge pays Bad River band $5.1 million in Line 5 profits, moves pipeline by 2026: Judge
WASHINGTON – Calgary-based Enbridge Inc. A Wisconsin native band must pay more than $5 million in Line 5 profits and move the controversial cross-border pipeline within the next three years, a US judge says.
A breach in territory belonging to the Bad River Band of the Lake Superior Chippewa would constitute a clear public nuisance under federal law, District Court Judge William Conley said in a decision Friday.
But while the order confirms that Enbridge has been encroaching on Bad River lands since 2013, when certain permits for the 70-year-old pipeline were allowed to expire, it is not causing “economic havoc” with an immediate closure.
“Using violation of a few lots to bring about the effective closure of all of Line 5 has always been about a wagging tail from a much bigger dog,” Conley writes in his op-ed.
In other words, there are “much bigger public policy issues” surrounding cross-border pipelines like Line 5 that the band’s arguments, while valid, don’t have the strength to overcome, he said.
Those issues “concern not only the sovereign rights of the band, but also multi-state rights and international relations between the United States and Canada.”
Enbridge has already agreed to reroute the line, a vital energy conduit for much of the Midwestern United States, as well as Ontario and Quebec. But Conley wants the project to be completed sooner than currently planned.
“Given all the evidence, the court cannot tolerate or even justify an infinite delay of what would amount to a five-year forced easement with little realistic prospect of a diversion proceeding, even then,” he wrote.
“The court gives Enbridge another three years to complete a diversion. If Enbridge fails to do so, the three years will at least give the public and other affected market players time to adjust to a permanent closure of Line 5.”
Enbridge’s lawyers continue to dispute the finding that the company is entering indigenous territory and plan to appeal the decision, as well as requesting a suspension pending the outcome, spokesman Juli Kellner said.
“Enbridge’s position has long been that a 1992 contract between Enbridge and the band gives legal permission for the line to remain at its current location,” Kellner said.
“Timely government permit approvals” would be needed to complete the diversion within three years, while relocating the conduit currently in Bad River territory would take about a year, she added.
Any closure before then “would jeopardize the supply of reliable and affordable energy to U.S. and Canadian homes and businesses, disrupt local and regional economies, and violate the Transit Pipeline Treaty.”
Talks between the two countries have been going on for months under the terms of that treaty, a 1977 agreement that effectively prohibits either side from unilaterally cutting off the flow of hydrocarbons.
In previous court documents, Enbridge has accused the band of being focused on a single outcome: the permanent closure of the pipeline in their territory “while refusing far less extreme alternative measures”.
The band argues that several weeks of spring flooding along the Bad River washed away so much of the riverbank and supporting terrain that a breach is “imminent” and a closure order is more than warranted.
Enbridge insists the dangers are overstated — and even if they were real, the company’s court-ordered contingency plan, which spells out the steps it would take, would be a much more rational solution.
Conley’s order Friday included adjustments to that plan to set a more “conservative” threshold for the conditions that would trigger it, such as lower water levels and flow rates on the river.
“The court is particularly concerned that Enbridge’s plan fails to account for unavoidable delays that may occur due to weather conditions, supply and equipment problems, and human error.”
Enbridge has also been repeatedly rebuffed in its efforts to carry out remedial work at the site, including using sandbags and trees to reinforce the riverbanks — decisions the band has defended as its sovereign right.
Severe flooding that began in early April washed away significant portions of the riverbank where Line 5 crosses the Bad River, a meandering, 75-mile loop that feeds Lake Superior and a complex network of ecologically sensitive wetlands.
The band has been in court with Enbridge since 2019 in an attempt to force the pipeline’s owner and operator to reroute Line 5 around its traditional territory – something the company has already agreed to.
But the flood has turned a theoretical risk into a very real one, the band argued, and time is now of the essence.
Line 5 meets the river just past a location the court has come to know as the ‘meander’, where the river bed meanders back and forth several times, separated from itself only by a few yards of forest and the pipeline itself.
But it was clear both from Friday’s order and from a personal hearing last month, when Conley openly questioned the band’s motives, that he blamed the band for rejecting Enbridge’s proposed plans to mitigate the danger. .
“The band has refused to approve Enbridge’s restoration and prevention proposals, let alone propose even one project of its own to prevent or at least slow further erosion of the meander,” he wrote.
The neighboring state of Michigan, led by Attorney General Dana Nessel, is waging its own war against Line 5, fearing a leak in the Mackinac Strait, the ecologically delicate waterway where the pipeline crosses the Great Lakes.
The economic case against shutting down the pipeline, which carries 540,000 barrels of oil and natural gas daily through Wisconsin and Michigan to refineries in Sarnia, Ont. transport are now well known.
Line 5’s defenders, including the federal government, say a shutdown would cause major economic disruption in the prairies and midwestern United States, where it supplies raw materials to refineries in Michigan, Ohio and Pennsylvania.
It also supplies key refining facilities in Ontario and Quebec, and is vital to the production of jet fuel for major airports on both sides of the Canada-US border, including Detroit Metropolitan and Pearson International in Toronto.
This report from The Canadian Press was first published on June 17, 2023.
