The federal government this week sidestepped calls to back the shutdown of a controversial Wisconsin oil pipeline, in a case that’s testing the Biden administration’s vow to protect tribes and other vulnerable communities from pollution.
In a long-awaited filing first made public on Wednesday, the Department of Justice told the 7th U.S. Circuit Court of Appeals that it should uphold a ruling that faulted Line 5 developer Enbridge for trespassing on the land of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.
But DOJ stopped short of endorsing the part of the court order that said that the project should be shut down within three years.
The Biden administration urged the 7th Circuit to weigh the potential negative economic effects of closing down the pipeline, even as they said the court should direct a lower bench to increase the compensation it found that Enbridge owes to the Bad River Band.
“[T]he total restitution award of roughly $5 million for a nearly ten-year trespass — while in the same period Enbridge earned well over $1 billion in net profit from Line 5 — should be reconsidered along with other issues on remand,” DOJ attorneys wrote in a brief originally filed on Monday.
DOJ’s brief described a balancing act between contradictory interests as the Biden administration considered its position in the lawsuit. The administration had previously avoided taking a position in the case and only submitted a brief after the 7th Circuit reached out for input.
During oral arguments in February, one 7th Circuit judge said the court wanted to hear from the Biden administration, which was not a party to the case, before reaching a decision on Line 5’s fate.
Two months later, the government broke its silence.
“Devising the appropriate remedy for this trespass in this case is not a simple matter,” DOJ attorneys wrote to the court.
On the one hand, the federal government has treaty obligations to the Bad River Band, which has called for a permanent injunction to block the flow of oil through Line 5.
The band has sovereign, property and treaty rights that “include the power to exclude or place conditions on Enbridge’s presence on tribal lands within the Reservation,” DOJ attorneys said.
But the United States is also considering its obligations under a 1977 transit pipeline treaty with Canada that requires the operation of Line 5, which runs from Sarnia, Ontario, to Superior, Wisconsin. Canada has strongly opposed stopping operation of the pipeline, which the nation claims would have a significant negative economic impact.
“The United States has a manifest interest in complying with its treaty obligations with all sovereigns — including both foreign nations and Indian Tribes — and in avoiding potential monetary liability if it is found to have breached its obligations,” DOJ attorneys told the 7th Circuit.
The lower court’s shutdown order failed to adequately consider that the United States could be subject to arbitration with Canada if Line 5 were closed, the Biden administration’s brief said. DOJ added that the process could expose the United States to “significant damages” if the arbitration panel found that the country had breached its treaty obligations.
‘Ticking time bomb’
The Biden administration’s position on Line 5 comes as the federal government has resisted calls to shut down another highly controversial oil project.
The Dakota Access pipeline is currently operating despite a court order invalidating an environmental review underpinning the 1,172-mile project that runs from North Dakota to Illinois. The Army Corps of Engineers is working on a new environmental analysis of the risks of an oil spill from Dakota Access into a lake near a tribal reservation, but the administration so far has not called to shut down the pipeline.
James Coleman, a law professor at Southern Methodist University, said the administration appears to have drawn a distinction between finding a project unlawful and requiring it to be halted.
“It’s trespassing, [but] that doesn’t mean that you shut it down necessarily,” he said.
Unlike with Dakota Access, the federal government is not the target of the Line 5 lawsuit. Still, the Biden administration has similarly faced a steady campaign for months from opponents of the Wisconsin project seeking to convince the White House to back a shutdown of the aging pipeline due to the risk of oil spills into the Bad River and Lake Superior.
The Biden administration’s Line 5 brief drew a mixed response from the Bad River Band.
“Today, the United States agreed that Enbridge’s ongoing occupation of our land is illegal. We are grateful the U.S. urged the court not to let Enbridge profit from its unlawful trespass,” said Bad River Band Chair Robert Blanchard in an emailed statement.
“But,” he continued, “we are disappointed that the U.S. has not unequivocally called for an immediate end to Enbridge’s ongoing trespass, as justice and the law demand.”
Mustafa Santiago Ali, a former EPA official and executive vice president of the National Wildlife Federation, said the organization is “deeply concerned” about the potential ramifications of DOJ’s brief.
“The federal government’s position may be accurate on the issue of trespass, but it is not in line with the Administration’s commitments to Tribal sovereignty and environmental justice, and we are disappointed that this decision promotes the corporate well-being of a fossil fuel company over the people and wildlife of the Great Lakes,” he said in an emailed statement.
“We continue to support the Bad River Band as they fight to remove Enbridge’s ticking time bomb from their land,” Ali added.
A long legal saga
The Bad River Band sued Line 5 in 2019 for staying in service after the band declined to renew approval for the pipe to operate on the Bad River Reservation about a decade ago.
Last summer, Judge William Conley of the U.S. District Court for the Western District of Wisconsin ruled that Canada-based Enbridge was trespassing on tribal land. The Obama-appointed judge ordered the company to pay damages to the Bad River Band and complete a replacement pipeline within three years.
Enbridge is currently getting approval for a replacement line that would avoid reservation lands. The company appealed Conley’s ruling to the 7th Circuit for permission to run the 12-mile segment through the reservation until the new pipe is complete.
The Bad River Band, meanwhile, appealed for a much swifter shutdown of the existing line.
They warned the pipeline segment is at risk of rupture after last year’s spring flooding significantly eroded a riverbank that was shielding the buried conduit. The Bad River Band claimed the continued operation of the pipeline poses a significant risk of an oil spill into the Bad River and Lake Superior.
Opponents of Line 5 delivered a petition last month to the Army Corps, calling on the agency to prepare an environmental impact statement for Enbridge’s reroute around the Bad River reservation. The corps’ St. Paul District instead decided in November 2021 to prepare an environmental assessment, a less robust form of a National Environmental Policy Act review, for the reroute.
“The EA public involvement process being used is similar to the process for an EIS,” said corps spokesperson Douglas Garman in an email last month. “It will provide for robust analysis, intensive engagement, and opportunity for comment to ensure a well-informed decision.”
In an emailed statement, Enbridge emphasized that Canada has made it clear that that shutting down the pipeline before Line 5 could be relocated outside the reservation would violate the 1977 Transit Pipeline Treaty.
“Such a shutdown is not in the public interest as it would negatively impact businesses, communities and millions of individuals who depend on Line 5 for energy in both the U.S. and Canada,” Enbridge spokesperson Julie Kellner said.
She said the company was working to find an “equitable solution” with the Bad River Band that addresses their concerns, as it continues to deliver energy to the people in the Great Lakes region.
“Enbridge does not intend for operations to remain on the Bad River Reservation a moment longer than it takes to relocate the segment of Line 5 around the Reservation,” Kellner said.
The parties in the lawsuit will have until April 24 to respond to the Biden administration’s brief.
After DOJ’s filing, the Bay Mills Indian Community — which threw its weight behind the Bad River Band in the Line 5 litigation — expressed frustration with the government’s response to concerns about the risk of a catastrophic oil spill.
“We fear it will take Line 5 failing again, and the disaster of an oil spill for our position to be taken seriously,” said Bay Mills Indian Community President Whitney Gravelle. “This isn’t just about tribes, it is about clean water, it is about life. It is about every U.S. citizen and preserving our natural resources for generations to come.”
Reporters Carlos Anchondo and Hannah Northey contributed.
