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Friday, July 12, 2024 | Back issues
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Controversial Minnesota Pipeline Clears Appellate Hurdle

After Monday's ruling, just one more court challenge of Enbridge's Line 3 replacement remains pending as construction continues amid protests.

ST. PAUL, Minn. (CN) — A controversial tar sands oil pipeline cleared one more legal hurdle Monday as the Minnesota Court of Appeals affirmed a state energy regulator’s approval of the project. 

The court ruled 2-1 that the Minnesota Public Utilities Commission’s issuance of a certificate of need for Enbridge Energy’s Line 3 replacement project, which is currently under construction and would run a 340-mile oil pipeline across much of Northern Minnesota, adequately considered environmental factors and tribal sovereignty. 

“In making its decisions, the commission did not write on a clean slate. With an existing, deteriorating pipeline carrying crude oil through Minnesota, there was no option without environmental consequences,” Judge Lucinda Jesson wrote in her conclusion to the majority opinion. “There was no option without impacts on the rights of indigenous peoples.... And there was no crystal ball to forecast demand for crude oil in this ever-changing environment.” 

“When balancing harms and predicting future demand, the commission is due deference. It is the agency tasked with these difficult decisions,” Jesson continued. She was joined in the majority by Judge Michael Kirk.

The court’s decision drew sharp critique from the coalition of environmental groups and Native American bands who challenged the PUC’s determination.

“Fossil fuel companies' profit-driven desire to ship more oil does not equal a need for a new pipeline,” law student attorney Brent Murcia said in a statement. Murcia is part of and represents a group called the Youth Climate Intervenors, and argued on their behalf during oral arguments in March. 

“The world is changing, and now more than ever, we know that building an unnecessary new tar sands pipeline with the emissions of 50 coal plants represents an old and reckless way of thinking,” he continued. 

At issue in this case was whether Enbridge and the PUC had sufficiently corrected issues that led the Court of Appeals to reject Enbridge’s original certificate of need in 2019. Those included a determination by the court that the permit’s environmental impact statement hadn’t adequately considered the potential impacts of an oil spill on Lake Superior and its watershed. Following that decision, Enbridge modeled a spill on Little Otter Creek, a small tributary near the city of Cloquet, 20 miles west of Duluth. 

Also among the issues raised was whether Enbridge had established that the existing Line 3, built in the 1960s, needed to be replaced. The Minnesota Department of Commerce argued that it hadn’t, and that that Enbridge’s calculations of the demand for crude oil were centered on suppliers rather than consumers.

“We are reviewing the Court of Appeals' decision that was issued today and will then determine next steps," Department of Commerce spokesperson Mo Schriner said.

In a dissenting opinion, Judge Peter Reyes excoriated the majority decision, the pipeline and the PUC.

“This case is about substitution. Substituting supply for demand. Substituting 'shippers' for 'refineries.' Substituting 'pipeline capacity' for 'crude oil.' Substituting conclusory, unsupported demand assumptions for reviewable 'long-range energy demand forecasts.' And substituting an agency’s will for its judgment,” he wrote. 

Enbridge and the PUC, he said, had not established that a replacement of Line 3 was necessary and had cherry-picked data to support approval. 

“Enbridge needs Minnesota for its new pipeline. But Enbridge has not shown that Minnesota needs the pipeline,” Reyes concluded. 

Enbridge offered a muted celebration of the decision. Company spokeswoman Juli Kellner wrote in an email that the ruling "is not unexpected."

“Line 3 has passed every test through six years of regulatory and permitting review including 70 public comment meetings, appellate review and reaffirmation of a 13,500-page [environmental impact statement], four separate reviews by administrative law judges, 320 route modifications in response to stakeholder input, and multiple reviews and approvals by the Minnesota Public Utilities Commission for the project’s certificate of need and route permit,” Kellner wrote. 

A spokesman for the PUC declined to comment on the ruling, saying only that the commission is reviewing the decision.

Construction on the replacement pipeline is 60% complete, according to Kellner. It began in December 2020, and has been opposed by protesters. Those protests have ramped up during the spring and summer. About 2,000 protesters showed up for a rally last week, according to the Minneapolis Star Tribune, and almost 180 were arrested. Sixty-eight others were cited.

Still pending before the Court of Appeals is another dispute over the pipeline's permits. Enbridge faced off against a similar coalition in oral arguments last week over the Minnesota Pollution Control Agency's certification of the project under Section 401 of the Clean Water Act, which requires state regulators to evaluate whether a project meets state water quality standards before they can apply for a permit from federal authorities. Opponents argued that Army Corps of Engineers' approval of the pipeline under that statute should be voided in light of inadequate scrutiny from the state agency, while Enbridge and the MPCA told the appellate panel that those critiques were too little, too late.

While the pipeline enjoyed support from the Trump administration and remains popular among Minnesota Republicans, it’s a hot-button issue in an ongoing schism in Minnesota’s Democratic Farmer Labor Party, formed in the 1940s through the merger of the successful left-wing Farmer Labor Party and the Democratic Party. Environmental issues in northern Minnesota have driven a wedge between liberal environmentalists and racial-justice advocates and the labor interests that have long been cornerstones of the party’s northern support.

DFL Governor Tim Walz, a centrist whose former congressional seat in southern Minnesota went to a Republican after his election to the governorship in 2018, has stopped short of taking a public stance on either side of the Line 3 controversy. The Department of Commerce is a part of Walz’s administration. 

In a statement issued Monday, state Sierra Club director Margaret Levin aimed her comments at a figure still higher in the Democratic Party.

“Construction on Line 3 is underway - all eyes now turn to the Biden administration to live up to their commitments to climate action and Indigenous rights by stopping Line 3,” she wrote.

Categories / Appeals, Energy, Environment, Government

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