Unexplored Options for Challengers of Enbridge Line #3

By Keith Ketola*

Opponents of a highly controversial Enbridge pipeline project in Minnesota have been stymied at every turn. They are not, however, out of options: despite some foreboding precedent, a legal challenge under the Minnesota Environmental Policy Act combined with a sympathetic national moment could turn the tide.

In the last decade, American oil companies have turned increasingly to Canadian tar sands as a new option in light of the decrease in availability of easily extractable petroleum.[1]Concerns, both environmental and economic, are significant. Emission of greenhouse gases (GHG) in the process of extracting oil from heavy sands is estimated to be twice that of what is associated with conventional oil production.[2]Tar sands projects also require greater capital per unit of production than do conventional oil projects, a requirement that frightens off investors.[3]In short, highly controversial tar sands oil projects are nobody’s first choice.

On May 14, 2018, the Minnesota House of Representatives approved a bill allowing Enbridge to construct a 337-mile pipeline across the Northern part of the state that would serve as a replacement for an existing 282-mile line–a replacement however, which follows a primarily new route. The Senate followed the House’s lead less than one week later, and, on June 29, the Minnesota Public Utilities Commission officially gave a green light to the project. The 2.6-billion-dollar project, estimated to create over 4,000 jobs,[4]is known as “Pipeline 3” in Enbridge’s Mainline System that transports both heavy and light crude oil from the Canadian tar sands to refineries throughout the United States.[5]

Opponents of the project offered multiple lines of criticism. Many have argued that the project would have a small but significant impact on the emission of GHGs that is associated with tar sands processing, while several Minnesota Ojibwe bands have pointed out that the new line crosses areas where they claim treaty rights to hunt.[6]In response, proponents argue that the new project is necessary to ensure an adequate supply of oil to Minnesota refineries, given that the current line (which the proposition seeks to replace) is degrading and operating at a reduced capacity.[7]The most recent challenge reached its culmination in February of 2018, when the Public Utilities Commission turned down an Ojibwe request for a “cultural survey” to be made before the beginning of construction on the replacement line.[8]

Are any legal options on the table for opponents of the project? The most relevant precedent is Sierra Club v. Clinton, a 2010 case in which plaintiffs headed by the Sierra Club made a major legal challenge to a similar Enbridge project: the construction of the “Alberta Clipper” line which was proposed to run from Neches, ND, across Minnesota, to Superior, WI.[9]Like the proposed Line 3, the AC Line transported heavy crude from the Canadian tar sands.[10]Plaintiffs sought a preliminary injunction on the pipeline’s construction, bringing their challenge against the State Department on the claim that its approval of the project violated the National Environmental Policy Act.[11]Specifically, the plaintiffs asserted that Final Environmental Impact Statement (FEIS) as prepared by the State Department was deficient on several grounds, such as in its failure to address the “reasonably foreseeable indirect and cumulative impacts of the AC pipeline project.”[12]Emphasizing deference to agency decisions, the court noted that, in order for it to grant the injunction, the plaintiffs had to demonstrate to the court evidence that the State Department’s approval of the AC line was somehow “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[13]The Court concluded that the construction of the AC line particular has not been shown to have a “reasonably close causal relationship” to the “alleged” environmental impacts of the tar sands oil industry at large.[14]For this, among other reasons, the Court denied the plaintiff’s motion to grant a preliminary injunction.

The outcome of Sierra Club v. Clintonbodes ill for opponents of Line 3 in Minnesota. As the Line 3 proposal is entirely within the boundaries of Minnesota, no challenge can be brought under NEPA; however, plaintiffs could make a claim for violation of the Minnesota Environmental Policy Act, which required the Minnesota Public Utilities Commission to submit an Environmental Impact Statement similar to that in question in Sierra Club v. Clinton.[15]Plaintiffs might claim either that the project’s EIS did not adequately take into consideration the broad impacts on the environment and on tribal communities or that the Public Utilities Commission made an arbitrary and/or capricious decision to approve the project in spite of such concerns. To be granted injunctive relief, these potential plaintiffs would have to meet the same burden of proof as that expected by the Court in Sierra Club.[16]Like the Federal courts under NEPA, Minnesota courts grant a significant deal of deference to the fact-finding processes of state agencies and do not lightly find agency determinations arbitrary or capricious.[17]Based on the outcome of Sierra Club alone, opponents of Line 3 are in a difficult spot in their quest for injunctive relief.

There is, however, a critical difference between the AC line at issue in Sierra Club and the proposed Line 3. Unlike the AC project, Line 3 is a proposal for the repair of an existing line. Significantly, the proposal does notsuggest that the new line follow the same route as the current line, a process known as “in-trench” replacement.[18]Rather, the proposal suggests that 55 miles of entirely new pipe be built, and the rest of the new route fails to overlap with the existing route throughout much of its course.[19]Indeed, the variation is so significant that a Minnesota administrative law judge recommended, before the project was finalized, that the Public Utilities Commission approve Enbridge’s application only ifthe route for the replacement followed the existing line in its entirety, without any new additions.[20]In his official recommendation on the project, the judge wrote, “[t]he abandonment of the old Line 3 and the creation of a new corridor leaves open the possibility of thousands of miles of Enbridge pipelines someday being abandoned in-place when they are no longer economically useful to Applicant.”[21]The potential implications of the Line 3 proposal–that energy companies may simply abandon old lines, significantly increasing the possibility of leaks–could be seen as sufficient evidence that would allow or even force a state court to find that the Public Utilities Commission acted arbitrarily and/or capriciously in its approval of the project. Aspiring plaintiffs challenging this approval would have a weapon not available to plaintiffs in Sierra Club.

And things get even better. Another argument made by plaintiffs in Sierra Club was that the State Department granted Enbridge’s permit in spite of the “cumulative impacts” that the project would have simply by virtue of it being a part of the wider tar sands oil phenomenon.[22]After its review of the FEIS for the AC project, the court bluntly dismissed this argument: “plaintiffs are not likely to establish that the analysis of these cumulative impacts was arbitrary or capricious.”[23]But on November 8, 2018, the district court for Montana repudiated President Trump’s executive order in support of the Keystone XL pipeline, on the grounds that it “failed to analyze cumulative climate impacts,”[24]particularly with respect to greenhouse gas emissions.[25]The parallel isn’t perfect: cumulative environmental concerns over the Line 3 replacement relate more to spillage; it would be difficult to argue that the project will lead to a significant increase in emissions given that it is primarily a replacement project. The point however, stands—the courts are, in fact, sympathetic to broad-ranging environmental issues, and, for Line 3 opponents, the time is ripe. Add to that the district judge’s observation that “the [State] Department appears to have jumped the gun when it…acted on incomplete information regarding potential cultural resources along the 1,038 acres of unsurveyed route” and the flat denial of the Ojibwe request for a cultural survey could be further fuel for the fire.[26]

Keith Ketola is a Junior Editor on MJEAL. He can be reached at kketola@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1]A.E. Farrell & A.R. Brandt, Risks of the Oil Transition, 1 Envtl. Res. Letters 1, 2 (2006), available at http://iopscience.iop.org/1748-9326/1/1/014004, 286.

[2]Id., at 290.

[3]Id.

[4]Mike Hughlett, State Regulators Approve Certificate of Need for Controversial Enbridge Pipeline Project, STAR TRIBUNE(Oct. 26, 2018, 7:27pm),http://www.startribune.com/state-regulators-approve-certificate-of-need-for-controversial-enbridge-pipeline-project/486845211/

[5]https://mn.gov/puc/assets/2018_04_23_Line_3_ALJ_Report_tcm14-336840.pdf, 8-9.

[6]Mike Hughlett, State Regulators Approve Certificate of Need for Controversial Enbridge Pipeline Project, STAR TRIBUNE(Oct. 26, 2018, 7:27pm),http://www.startribune.com/state-regulators-approve-certificate-of-need-for-controversial-enbridge-pipeline-project/486845211/.

[7]Id.

[8]Mike Hughlett, State Regulators Turn Down Tribal Request That Could Delay Enbridge Project, STAR TRIBUNE (Oct. 26 7:30pm),http://www.startribune.com/state-regulators-turn-down-tribal-request-that-could-delay-enbridge-project/474902243/

[9]Sierra Club v. Clinton, 689 F. Supp. 2d 1123,1126 (D. Minn. 2010).

[10]Id.

[11]Id., at 1131.

[12]Id., at 1131.

[13]Id., at 1129.

[14]Id., at 1134.

[15]STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE PUBLIC UTILITIES COMMISSION, OAH 65-2500-32764, IN THE MATTER OF THE APPLICATION OF ENBRIDGE ENERGY, at 33, available at https://mn.gov/puc/assets/2018_04_23_Line_3_ALJ_Report_tcm14-336840.pdf.

[16]Stacy Lynn Bettison, The Silencing of the Minnesota Environmental Policy Act: The Minnesota Court of Appeals and the Need for Meaningful Judicial Review, 26 Wm. Mitchell L. Rev. 967, 978-9 (2000) (describing the reluctance of Minnesota courts to enforce the requirements of the Minnesota Environmental Protection Act)

[17]Id.

[18]STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE PUBLIC UTILITIES COMMISSION, OAH 65-2500-32764, IN THE MATTER OF THE APPLICATION OF ENBRIDGE ENERGY, at 10, available at https://mn.gov/puc/assets/2018_04_23_Line_3_ALJ_Report_tcm14-336840.pdf.

[19]Melissa Turtinen, House Votes to Authorize Construction of Controversial Pipeline, MINNESOTA HOUSE OF REPRESENTATIVES,https://www.house.leg.state.mn.us/SessionDaily/Story/13381

[20] STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE PUBLIC UTILITIES COMMISSION, OAH 65-2500-32764, IN THE MATTER OF THE APPLICATION OF ENBRIDGE ENERGY, at 10, available at https://mn.gov/puc/assets/2018_04_23_Line_3_ALJ_Report_tcm14-336840.pdf.

[21]Id.

[22]Sierra Club v. Clinton, 689 F. Supp. 2d 1123,1134 (D. Minn. 2010).

[23]Id., at 1138.

[24]N. Plains Res. Council v. United States Dep’t of State, case 4:17-cv-00031-BMM, 2018 available at https://int.nyt.com/data/documenthelper/477-keystone-pipeline-ruling/65a3e8e6f46749f49942/optimized/full.pdf#page=1, at 21.

[25]Id., at 19.

[26]Id., at 27.

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