Calgary

Wisconsin judge rules against Enbridge on Line 5, but stops short of shutdown

A Wisconsin judge has ruled in favour of an Indigenous band in its dispute with Enbridge over Line 5, but stopped short of shutting down the controversial cross-border pipeline.

Bad River Band of the Lake Superior Chippewa filed lawsuit against Enbridge in 2019

Tanks at the Enbridge terminal in Superior, Wis., are seen in June 2018. (Jim Mone/The Associated Press)

The Line 5 pipeline has won a stay of execution in Wisconsin, where a federal judge sided with an Indigenous group's complaint but stopped short of ordering the controversial cross-border energy link shut down entirely.

The Bad River Band of the Lake Superior Chippewa was within its rights to revoke permission for the pipeline to cross its territory back in 2013, District Court Judge William Conley said in a written decision issued late Wednesday.

And the pipeline's owner and operator, Calgary-based Enbridge Inc., should have known that its 1992 agreement with the band would not by itself be a guarantee of Line 5's continued operation, Conley ruled.

But the judge balked at the request for an injunction to stop the pipeline from operating, citing the risk of "widespread economic consequences" and "significant public and foreign policy implications."

He also acknowledged the decision late last month by Foreign Affairs Minister Melanie Joly to invoke a 1977 Canada-U. S. energy transit treaty in the case, a move designed to stave off the risk of a wholesale closure.

"It is possible to craft injunctive relief that would not interfere with the transit treaty or Canada's concerns about the economic impact of an immediate shutdown," Conley wrote, noting that Enbridge has already been working on rerouting the line around Bad River territory.

Band entitled to compensation, judge finds

Conley also found that the band is entitled to financial compensation from Enbridge, although the decision does not go into detail on that front.

He said the court is "inclined" to order that the planned rerouting be completed within five years, and that Enbridge also pay an interim easement fee that would double if the deadline for the work isn't met. But he held off, pending the outcome of a status conference with the parties.

"The band looks forward to engaging in that process and educating the court as to the imperatives of ceasing operation of Line 5 on the reservation with all deliberate speed," said Claire Newman, a member of the Bad River legal team.

She called the decision "fair-minded and well-reasoned," describing it as a "resounding affirmation" of her client's sovereignty and treaty rights.

Line 5, she said, "remains an urgent threat to the band and to the fragile network of wetlands and waterways surrounding the pipeline, including the Kakagon-Bad River Sloughs and Lake Superior, a source of drinking water to millions."

Not everyone who stands opposed to Line 5's continued operation, however, was completely satisfied with the decision.

"We can tell you right now that we will continue to work for a complete shutdown for as long as it takes," said Phyllis Hasbrouck, part of the team heading up the Line 5 effort for the environmental group 350 Wisconsin.

"Whether it happens through a lawsuit, denial of permits, or Enbridge realizing that the age of fossil fuels is over and switching their business to 100 per cent renewable energy, remains to be seen. But we and our many allies won't stop until Line 5 is decommissioned."

Environmental concerns

In Canada, the group Environmental Defence also cheered the decision while arguing that the pipeline must nonetheless be shut down entirely.

"Not only should Enbridge swiftly comply with the judge's orders to compensate the band for 10 years worth of illegal profits, they must also immediately start planning for a swift Line 5 shutdown," said water program manager Michelle Woodhouse.

The group issued a report earlier this year arguing that the company's existing pipeline network could be retooled to handle the capacity lost without Line 5, a conclusion Enbridge has strenuously rejected.

Simply rerouting Line 5 around Bad River territory will do nothing to mitigate the environmental and climate dangers the pipeline poses, Woodhouse added.

"It is also a new fossil fuel project that is directly at odds with what is needed for collective climate action."

Environmental concerns have long been top of mind in Wisconsin, where the pipeline runs directly through the Bad River Reservation, more than 500 square kilometres of pristine wetlands, streams and wilderness.

'Enbridge knew of the risk'

The band has been in court with Enbridge for more than three years, arguing that the company is trespassing, having violated the terms of the easements that allowed the pipeline to traverse the reservation beginning in 1953.

Enbridge had insisted that its 1992 agreement with the Bad River Band allows the pipeline to keep operating until 2043 — an argument Conley rejected outright.

"The agreed-upon purpose was not, as Enbridge now asserts, to permit it to operate across the entire reservation for 50 years," he wrote.

"Moreover, Enbridge knew of the risk that its 20-year easements might not be renewed, and yet failed to protect itself from that risk."

In a statement, the company cheered the decision to keep Line 5 operational and said it remains committed to resolving the dispute "amicably" with the Bad River band.

The company's plans for a 66-kilometre detour of Line 5 around the reservation are already two years along, with 100 per cent of private landowners along the new route having already signed agreements.

"The relocation project will be built by a Wisconsin contractor and create approximately 700 family-supporting union jobs and millions in construction-related spending in northern Wisconsin," the company said.

"Roughly US$46 million will be spent with tribally owned businesses and on hiring and training Native American workers who will make up at least 10 per cent of the project workforce."

Line 5 under siege

Line 5 has been under legal siege in both Wisconsin and neighbouring Michigan for the better part of the last three years, and with opponents in both cases arguing for a shutdown, the ruling Wednesday is likely to be seen as a win.

Business groups and chambers of commerce on both sides of the border, provincial governments and Ottawa have rallied behind Enbridge in its effort to portray Line 5's survival as a mission-critical matter of continental energy security.

Allies have argued in court filings as well as public forums that Line 5 is a vital source of energy for several Midwestern states, and an essential link for Canadian refineries that fuel some of Canada's busiest airports.

Late last month, the company won a key battle in the suit in Michigan, where a federal judge rejected Attorney General Dana Nessel's efforts to get the case removed back to circuit court, where the state stands a better chance of success.

Nessel has since indicated she plans to appeal that decision.

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