‘A fight for the Great Lakes’: How a legal battle over 12 miles of oil pipeline could have international implications

"You can't fish if there isn't an environment for the fish to live in," she said.

Enbridge — and the appellate judges — have criticized the Band for not taking steps to address that looming environmental threat at the meander. But Gravelle and Bad River Band Tribal Council vice chair Patrick Bigboy argued the Band shouldn't be responsible for Enbridge's potential mess.

More to the point, Bigboy said doing so would only give Enbridge cover to extend their trespass.

"I didn't like how they expected us to fix the meander when they're the pipeline experts," Bigboy said. "Plus that would only stretch [the trespass] out. The only for sure way to do it is to get rid of it."

Gravelle also argued a ruling in Enbridge's favor, either to suspend the 2026 shutdown deadline or to avoid paying the Bad River Band more than $5.15 million, would send a signal to the broader oil industry that the courts are on their side. Beth Wallace, Great Lakes freshwater campaigns manager for the environmental nonprofit National Wildlife Federation, agreed.

"$5 million for years of trespass? Every oil company will look at that and say, 'Well, we'll just keep trespassing because that's just the price of doing business,'" Wallace said. "It's a threat to Indigenous communities across the country."

Wallace has been monitoring Enbridge since 2010, when another of its pipelines in Michigan — Line 6B — ruptured and spilled over a million gallons of oil into the Kalamazoo River. It was one of the worst inland oil spills in U.S. history. The National Wildlife Federation and Enbridge have competing narratives on Line 5 itself, with Enbridge claiming that since the pipeline's construction in 1953, it has operated safely for "more than six decades."

But the federation, citing data from the U.S. Pipeline and Hazardous Materials Safety Administration, claims the line has leaked more than a million gallons of fossil fuels over its lifetime.

Enbridge also argues that Line 5 is cleaner and more efficient than transporting oil by truck or rail.

"If we were to transport the same amount of product by tanker truck, an estimated 2,100 trucks would need to travel east every day on US-2 from Superior to transport products currently carried by Line 5," Enbridge stated in an online acknowledgement of the Bad River controversy. "That’s the equivalent of 90 trucks an hour leaving our Superior Terminal."

It's a another claim Wallace deemed "completely false," citing an October 2023 analysis on Line 5 by the logistics consulting firm PLG Consulting. The study found that with advance notice, energy markets could "adapt" to a Line 5 shut down "without supply shortages or price spikes."

It also concluded that in the event of a Line 5 shut down, the alternative logistics infrastructure for delivering oil products to the area "largely already exists."

Looming over all these arguments is the Canadian government, which has a vested interest in the case. Before the appellate hearing it filed an amicus brief supporting Enbridge's position, claiming that to interrupt the flow of oil through Line 5 would violate a 1977 resource treaty between the U.S. and Canada. A decision in the Band's favor, Enbridge attorney Alice Loughran told the panel, could risk an international dispute. She further argued it would prioritize the Bad River Band's grievances over the interests of the greater, transnational Great Lakes region like "a tail wagging a big dog."

"The district court's shutdown order in this case will cause a massive disruption in energy supplies and economies in the Midwest and Canada," Loughran told the appellate judges.

So far the U.S. government has remained relatively silent over the issue, a fact that vexed all parties including the appellate panel. Easterbrook said the panel wanted to hear from the government before making its decision; how the U.S. weighs the competing interests of Indigenous peoples, energy corporations, the environment and international relations will undoubtedly have some bearing on that decision.

But regardless of how the appellate court rules — and what the ramifications of that ruling might be — Blanchard said he and the rest of the Bad River Band would continue to fight for their land.

"We would continue to do what we have to do," the chairman said.

Follow @djbyrnes1

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