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Federal judge: Great Lakes pipeline may have to move

U.S. District Judge William Conley found that oil giant Enbridge is trespassing on tribal lands, but said he wouldn’t chase it out right away.

MADISON, Wis. (CN) — A Wisconsin federal judge declined to shut down a controversial oil and gas pipeline that runs through one of the state’s Native American reservations on Wednesday, but didn’t rule out ordering fossil-fuel giant Enbridge Energy to reroute the pipeline. 

Enbridge’s Line 5 pipeline currently stretches 645 miles from Superior, Wisconsin to Sarnia, Ontario. Twelve of those miles cross the Bad River Reservation, home to the Bad River Band of Lake Superior Chippewa. Wary of the pipeline’s environmental impacts, the Band let the easements allowing it to use that land expire in 2013, but Enbridge has continued operating it. 

The Band sued in 2019, accusing Enbridge of trespassing and violating the Band’s regulatory authority over its reservation, among other claims. On Wednesday afternoon U.S. District Judge William Conley issued an order agreeing that the continued pipeline operations constituted trespass and unjust enrichment, but declining to issue an injunction that would have shut the pipeline down immediately. 

Conley, a Barack Obama appointee to the Western District of Wisconsin, wrote that “an immediate shutdown of the pipeline would have significant public and foreign policy implications” but that he would consider input from Enbridge and the Band on the terms of a permanent injunction, requiring a reroute of the pipeline outside the reservation. 

Enbridge already has a reroute in the works, according to its website, and company spokeswoman Juli Kellner wrote in a statement that Conley’s order “recognized that the Line 5 relocation project needs to move forward in a timely fashion.” 

The 41-mile reroute project is well underway, Kellner said, and the company had reached agreements with all of the private landowners on the new route. 

“Enbridge remains open to resolving issues amicably with the Bad River Band,” Kellner wrote, “as we also continue to focus on providing consumers and industry in the region with safe, reliable energy.” 

She also name-checked the Canadian government, saying that Enbridge appreciated its home country’s invocation of the 1977 Transit Pipelines Treaty’s dispute settlement provision. The provision, which Prime Minister Justin Trudeau’s government cited in response to a Michigan order to shut down the pipeline in May, requires the U.S. and Canada to negotiate disputes over energy pipelines. 

Conley granted the Band summary judgment on an unjust enrichment claim, but dismissed its claims of state law nuisance, ejectment and violation of regulatory authority. Enbridge, he wrote, had correctly argued that the Band was not a “person” under Wisconsin’s nuisance statute and that the ejectment claim duplicated the trespass claim. He also found that the Band’s regulatory-authority claim was not ripe, something the Band had conceded, but declined to dismiss a federal nuisance claim at the summary judgment stage. 

“Certainly, the mere possibility of a rupture occurring would not be sufficient to sustain a nuisance claim,” Conley mused. “Ultimately, though, whether a pipeline rupture is sufficiently imminent to sustain a public nuisance claim depends on whether the risk is ‘unreasonable.’” 

If the Band succeeds on its nuisance claim, Conley noted, he still would not require Enbridge to immediately remove its pipeline.

“The court will consider requiring Enbridge to work with the Band to create an effective mitigation plan that could be implemented on the pipeline while Enbridge completes its reroute,” he said, and it was up to the Band whether to continue pursuing the nuisance claim. 

Conley roundly rejected Enbridge’s argument that the 1968 Pipeline Safety Act displaced the common-law basis of the Band’s claims.

“Enbridge’s argument relies primarily on cases concluding that different statutes– not the Pipeline Safety Act– preempt certain types of federal common law claims,” he wrote. “In this instance… the Band seeks a solution to the threat posed by the alleged imminent exposure of the pipeline at the Bad River meander. Enbridge identifies no provision of the Act that provides a legislative solution to that issue.” 

More directly, Conley pointed out, the Pipeline Safety Act’s savings clause “expressly preserves tort claims,” which he found included the Band’s. 

Line 5 was first opened in 1953 and has faced increased scrutiny in recent years in light of a lengthy history of spills and growing protests against pipelines across the Upper Midwest, including the Keystone XL pipeline, Dakota Access Pipeline and Enbridge’s own Line 3. Line 5 is estimated to have spilled over 1.1 million gallons of oil between 1968 and 2017, spread across 29 incidents. 

In Michigan, the pipeline has been the subject of litigation and public face-offs between Enbridge and the administration of Democratic Governor Gretchen Whitmer. Whitmer said in a 2021 lawsuit that the company had deliberately ignored safety standards as far back as the 1950s and was endangering the Straits of Mackinac, the waterways between the state’s upper and lower peninsulas. 

The Band did not immediately respond to requests for comment late Wednesday.

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