Wednesday, February 1, 2023 | Back issues
Courthouse News Service Courthouse News Service

Minnesota appeals court clears water permit for Line 3 pipeline

Legal avenues for opponents to a controversial oil pipeline are quickly drying up.

ST. PAUL, Minn. (CN) — The Minnesota Court of Appeals gave its OK to a Clean Water Act permit for the controversial Line 3 crude oil pipeline late Monday morning, finding that the state’s Pollution Control Agency properly granted certification to the project and inching the nearly complete pipeline toward firmer legal ground. 

In a nonprecedential opinion penned by Judge Tracy Smith, the court affirmed the grant of certification to Enbridge's proposed 340-mile pipeline under section 401 of the Clean Water Act. The Minnesota Pollution Control Agency's decision that the pipeline met state water-quality standards, the court found, was not affected by legal error and was supported by the administrative record. 

Pipeline opponents, including two bands of Ojibwe/Chippewa/Anishinaabe whose lands the Line 3 project crosses, argued in June that the MPCA had cherrypicked the standards it enforced in evaluating the pipeline’s application for certification. They also argued that the certification process, which later enabled the Army Corps of Engineers to approve its own permit for the pipeline, failed to look for alternatives to the existing pipeline plan. Among those options, the relators argued, were other potential routes. 

The court discounted that argument, finding that the MPCA did not have a duty to evaluate alternative routes when another regulatory agency, the Minnesota Public Utilities Commission, had already approved a pipeline route. 

“The PUC has the sole authority to authorize a pipeline route,” Smith wrote. “Because the PUC did not authorize any other route, no other route would be ‘legal’ or have ‘supportive governance for construction…. Thus, any other proposed route would not be a feasible alternative for Enbridge’s construction of the pipeline and the MPCA therefore could not consider it.” 

The MPCA, Smith added, also did not erroneously limit its review by failing to consider environmental impacts stemming from the operation, rather than simply the construction, of Line 3. She pointed to a section in the MPCA’s certification devoted to “post-construction requirements,’ and noted that the certification prohibited Enbridge from discharging oil and related products from the line into state waters while the pipeline is operational. 

She gave little credence to the idea that the MPCA had improperly shifted the burden of proof in the project from Enbridge to its opponents, saying that “at its core, relators’ challenge seems to be less about legal error regarding the overall burden of proof and more about the substantive basis for the MPCA’s decision.” 

“The ALJ found, based on the record, that the MPCA engaged a cross-section of subject matter experts to analyze the proposed crossing methods and coordinated with other environmental regulators regarding stream crossings,” the judge continued. 

The pipeline has been enormously controversial in Minnesota, and has fed a growing split over environmental issues in the state’s dominant Democratic Farmer Labor Party. Over 70 protesters were arrested at rallies in the state’s capital of St. Paul last week, and clashes between protesters and police have dogged construction since it began in December 2020. 

Monday’s  ruling was also followed rapidly by a letter to President Joe Biden from 63 Minnesota elected officials, led by Democratic Congresswomen Ilhan Omar and Betty McCollum, calling for “urgent intervention” to bring a halt to the project. 

Responding to the ruling, Enbridge was celebratory.

“Today’s decision is an important affirmation of the Minnesota Pollution Control Agency’s approval for Line 3’s 401 Certification, confirming that wetlands and waterbodies are being appropriately protected during construction,” spokeswoman Juli Kellner wrote in an email. “The thorough, robust, science-based review of the project over the past six years has led to a series of evidence-based approvals.” 

She noted that the pipeline, now nearly complete, is on schedule to begin operation by the fourth quarter of this fiscal year.

Attorney Paul Blackburn, who represented Native American environmental group Honor the Earth in the appeal, had a dimmer take. 

"Once again the courts have failed the Anishinaabe and its treaties, the people of Minnesota and the protection of our mutually shared natural resources,” Blackburn said. “We will continue to press our case in tribal court whenever appropriate, and continue to resist the operation of Line 3 for the good of the state and the planet at a time of growing climate turmoil.” 

Representatives for the MPCA and for the Sierra Club – which joined Honor the Earth, the Red Lake Band of Chippewa Indians, the White Earth Band of Ojibwe and environmental group Friends of the Headwaters in its appeal – did not respond to requests for comment, nor did attorneys for the tribes.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.