CHICAGO (CN) — Attorneys for both the Bad River Band of Lake Superior Chippewa and oil pipeline operator Enbridge were in the Windy City on Thursday, trying to convince the Seventh Circuit to weigh in on a fight over Enbridge's 70-year-old Line 5 oil pipeline.
Line 5 begins in far northwest Wisconsin on the southwest shore of Lake Superior, running across the state and through Michigan's Upper Peninsula before turning south through the Mackinac Strait and continuing on through Michigan's Lower Peninsula. It ends just across the Canadian border in Sarnia, Ontario.
Twelve miles of that 645-mile route cross through the Bad River Band's reservation in northeast Wisconsin, and the Band wants it gone. In its brief and in court on Thursday, the Band argued that the oil pipeline poses a risk to the health and safety of people living on the reservation, threatens the local environment and violates the Band's prior agreements with Enbridge.
"The district court here correctly recognized that Enbridge is engaged in an ongoing and intentional trespass on sovereign land that creates a public nuisance at the meander of the Bad River," the Band's attorney Paul Clement told the three-justice appellate panel Thursday.
The Band has been fighting to have the pipeline removed for years, and took Enbridge to federal court over the issue in July 2019. Just under four years later, U.S. District Judge William Conley issued an order compelling Enbridge to begin moving Line 5 off the Band's land, saying it must "cease operation of Line 5 on any parcel within the Band’s tribal territory on which defendants lack a valid right of way on or before June 16, 2026."
Conley's June 2023 ruling also ordered Enbridge to pay the Band over $5.15 million for trespassing.
Enbridge appealed the decision just a few days later, denying any illegal trespass. The Bad River Band, unsatisfied with the terms of the ruling, did likewise a month later.
In its appellate brief the Band made clear that it wants Line 5 off its land immediately, not in three years, and that it wants a greater share of the estimated $1.1 billion in profits the company has made by running oil through Line 5 since 2013. It also rejected Enbridge's proposed reroute of the pipeline, which hugs the borders of the reservation and still runs through the Bad River watershed.
Besides the environmental concerns of keeping the pipeline in the Bad River watershed, particularly where it crosses under the river near a fragile river meander, Clement argued that practical and political obstacles stood in the way of the company enacting such a plan.
"The Band is far and away from the least or the only problem that Enbridge faces in the route," Clement said. "Which is why the district court acknowledged that three years isn't going to be enough for the reroute, five years is likely not to be enough for the reroute."
He also accused Enbridge of wanting to continue "business as usual," and predicted that if Conley's order were left in place the company would find an excuse to continue operations past the 2026 deadline.
Enbridge, meanwhile, claimed in court and in its appellate filings that the three-year timeframe for rerouting the pipeline is unreasonable, and argued that interrupting service along the line would violate a 1977 treaty between Canada and the U.S. meant to keep the oil flowing. The government of Canada itself filed an amicus brief in the case in partial support of Enbridge's position, opposing the 2026 shutdown order but backing the plan to reroute the pipeline away from the Bad River reservation.
Enbridge's attorney Alice Loughran further claimed the Band's interests should not outweigh those of the larger Midwest, echoing Conley's skepticism over what he saw as the Band's use of trespass claims to address larger public policy issues. She called the case one of "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 said.
Enbridge also denied it was trespassing, pointing to a 1992 agreement in which the Band consented to letting Enbridge operate the pipeline on its land until 2043.
The Band disputed this last point. It claimed that the 1992 agreement only applied to certain plots of land and that the pipeline also ran through other plots that were subject to a separate 20-year agreement that expired in 2013. Enbridge continued to operate Line 5 on those land easements despite the deal's expiration, leading to the trespass claim and subsequent demand for the removal of the pipeline.
But Loughran maintained that her client was still within the bounds of the 1992 agreement, arguing it was the Band that had violated the deal's "plain language."
"The Band can't breach the agreement by refusing consent. The plain language of the agreement says that they will give 'all consents' from the tribe," Loughran said.
The trio of justices hearing the case, consisting of Donald Trump appointees U.S. Circuit Judges Amy St. Eve and Michael Scudder, and Ronald Reagan appointee U.S. Circuit Judge Frank Easterbrook, had questions and challenges for both parties but were more hostile toward Clement and the Band's arguments.
The judges accused the Band of not taking any independent steps to address its environmental concerns over the Bad River meander, where the soil that covers the pipeline is eroding. Easterbrook also took issue with Clement's environmental arguments, claiming that to move the pipeline out of the Bad River watershed would only move it into "some other watershed."
Clement pushed back against this argument, as did the Bad River Band's Tribal Council Vice Chairman Patrick Bigboy after the hearing. Both claimed that the Band should not responsible for alleviating an environmental problem Enbridge's pipeline created, and further argued that to shore up barriers at the meander would only extend the company's trespass.
"The only for sure way to do it is to get rid of it," Bigboy said.
Loughran meanwhile accused the Band of refusing to work with Enbridge in order to find a solution to the issue.
The one point on which all the parties — including the appellate panel — agreed was that it was frustrating how little the U.S. government itself had gotten involved in the dispute. Easterbrook accused federal regulatory bodies of "emulating Rip Van Winkle" in their speed to assess the case, while Whitney Gravelle, the President of Bay Mills Indian Community who came out to support the Bad River Band, said after the hearing concluded that the "U.S.' silence in this case is deafening."
Easterbrook said that the panel would not rule on the case for at least a month, and that it wanted to hear from the federal government before making a decision.
"We really would like to hear from the United States," Easterbrook said.
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