ST. PAUL, Minn. (CN) — A controversial oil pipeline replacement had yet another hearing before the Minnesota Court of Appeals Thursday. Environmental groups faced off against regulators and Enbridge Energy, whose Line 3 oil pipeline is under embattled construction in the northern part of the state.
The proposed 340-mile pipeline project, which would replace an existing pipeline built in 1968 and carry 760,000 barrels of tar-sands oil daily from Alberta, Canada to the tip of Lake Superior in Canada, has already weathered several legal challenges to its permitting process, some successful.
At issue Thursday was 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 — in this case, the Army Corps of Engineers, which gave the project its stamp of approval last November.
Attorney Scott Strand of the Environmental Law and Policy Center argued that the MPCA had acted beyond the scope of its discretion by not considering Minnesota’s aquatic life and wetlands protection standards when it granted Enbridge’s 401 certification.
“The whole point of 401 is to go beyond the Corp’s scope of review. The purpose of 401 is not to provide an advisory opinion,” Strand said. “The purpose of 401 is to go beyond those federal requirements and make a determination as to whether it complies with state water quality standards.”
By picking and choosing standards and failing to look for alternatives, he said, the MPCA had neglected that duty.
Representing the MPCA, Assistant Attorney General Pete Farrell discounted that analysis and argued that the issue was mooted by the Army Corps’ approval of the permit.
“Whether this court’s decision will have any effect depends entirely on the determination by the U.S. Army Corps of Engineers,” he said. “The issuance of the federal permit is an event that affects the ability --- fundamentally affects the ability --- of a state court to offer relief.”
Authority over routing of pipelines, he said, was outside the MPCA’s purview but had been considered by the agency. “The Legislature has chosen to vest routing authority in the public utilities commission,” he said. “That regulatory process was followed here. MPCA participated in those proceedings.”
The PUC’s approval of the pipeline also went before the Court of Appeals in March, and a decision in that case is still pending.
Asked by Judge Lucinda Jesson, the most vocal of the court’s three-judge panel on Thursday, about whether the MPCA had the ability to pick and choose what it looked at for a 401 certification, Farrell said that it did and that the agency had done so with an eye for examining the most relevant standards.
“The agency does have wide latitude, and for good reason… to structure the review for the parameters of concern that are most likely to arise from a given project,” Farrell said.
Christy Brusven of local firm Fredrickson & Byron, who represents Enbridge, said that the agency had indeed considered wetland factors.
“That’s all contained within the record. Certainly, there was large and extensive record development around the avoidance of wetland impacts,” she said.
She also said that the ELPC and other environmental groups had missed the boat by failing to request a stay when the certification was first issued.
"The relators here had the opportunity, a procedural opportunity, to avoid this issue…. and chose not to do so,” she said. “Had the relators requested a stay of the PCA prior to the issuance of the 404, that would at least have put the corps on notice that there was an issue with the 401.”
Strand dismissed that briefly, saying that a stay would not have profited any of the parties.
More attention was paid to his allegations that the MPCA had improperly shifted the burden of proof from Enbridge to the pipeline’s opponents during permitting procedures. Judges Jesson and Tracy Smith both asked the parties about that question.
Brusven flatly denied burden-shifting.
“Enbridge bore the burden of proof… and we met it,” she said.
Strand disagreed.
In a statement after the hearing, Enbridge spokeswoman Juli Kellner said the process was airtight.
“The 401 Water Quality Certification for the Line 3 Replacement Project was the most stringent ever issued by the Minnesota Pollution Control Agency,” she wrote. “Extensive conditions in the 401 Certification ensure the project meets state water quality standards, and protects Minnesota wetlands and waterbodies.”
While the proceedings were sometimes contentious, they were easily this week’s least dramatic Line 3 developments. Protests of the pipeline have ramped up over the spring and summer, and hundreds were arrested Monday at protests of the pipeline near a pump station near the city of Park Rapids. Some protesters chained themselves to construction equipment and barricaded roads to construction sites; Enbridge evacuated 44 workers from the pump station as police cracked down on the crowds, which at one point included actress and activist Jane Fonda.
Opponents of the pipeline have said that, like its predecessor, it is likely to contaminate water with spills of the tar sands oil it would carry. They have also pointed to the fossil fuel industry as a major driver of climate change.
Supporters, meanwhile, have said that the new pipeline is a safer alternative to continuing to run the old one and pointed to the thousands of jobs it promises to bring to the area. Construction in Minnesota started in December and is 60% complete, putting it on track to be in service in the fourth quarter of 2021, according to Kellner.
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