Enbridge ‘must cease’ Line 5 operations on Bad River land by June 2026: judge

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This article was published 26/06/2023 (1183 days ago), so information in it may no longer be current.

WASHINGTON – The controversial Line 5 pipeline can keep moving fossil fuels through an Indigenous band’s territory in Wisconsin for now, but operations on that property “must cease” on June 16, 2026, a U.S. judge says.

Calgary-based Enbridge Energy Inc., the pipeline’s owner, had asked Wisconsin district court Judge William Conley to clarify his order earlier this month giving the company just three years to relocate that section of the pipeline.

Enbridge plans to build a 66-kilometre detour around the sovereign territory of the Bad River Band of the Lake Superior Chippewa to replace the contested 19-kilometre stretch that runs directly through it.

And court documents filed on Friday suggest the energy transmission giant had been hoping for assurances that Line 5 would not be shut down entirely in the event that the detour isn’t completed in time.

The answer they got Monday was unequivocal.

“Enbridge seeks confirmation that it can continue to operate Line 5 in the normal course of business for three years from the date of judgment on the parcels for which it lacks a valid right of way,” Conley wrote.

“Enbridge’s understanding is generally accurate,” he continued, provided the parcels in question were part of the lawsuit and that the company abides by the order to share the profits with the band.

“However, as just noted, operation of Line 5 on those parcels must cease on June 16, 2026.”

Enbridge says the reroute’s timing depends on approval decisions from the Wisconsin Department of Natural Resources and the U.S. Army Corps of Engineers, expected in 2025. Relocating the pipe is expected to take about a year.

But the three-year window — which opened 10 days ago, Conley confirmed — may still be too narrow for the company’s comfort, judging from the arguments its lawyers made in its court filing Friday.

“Enbridge respectfully maintains it has presented legal authority to delay any injunction until the reroute is operational, thereby avoiding any loss of service and resulting substantial harm to the public,” that document says.

“The court has the authority not to issue, or to stay, any injunction order to coincide with the reroute becoming operational to ensure that the public interest remains protected from substantial adverse consequences.”

The Bad River band has been fighting Enbridge in court since 2019, saying the company lost permission to operate on the reservation in 2013. Conley agreed; Enbridge insists a 1992 agreement with the band allowed it to keep operating.

But the judge has long been wary of an immediate shutdown, citing the risk of dire economic consequences, lingering fuel shortages in the Midwest, Ontario and Quebec and a lasting scar on Canada-U.S. relations.

So while he found that a rupture on Bad River territory would “unquestionably” meet the definition of a public nuisance under federal law, Conley gave Enbridge a three-year deadline and ordered it to share Line 5’s profits with the band, starting with a US$5.1-million back payment.

The order left both sides unsatisfied.

Three years is too long to wait, given the risk of a spill in a key Lake Superior watershed, and the financial penalty too modest to prevent Indigenous sovereignty from being further violated in the future, the band’s lawyers say.

Enbridge, meanwhile, will argue at appeal that the 1992 contract with the Bad River band constituted consent for Line 5 to operate on its territory through 2043, spokesman Michael Barnes said in a statement.

“Enbridge plans to appeal the court’s decision, and is weighing all options, including requesting a stay of the judge’s decision while an appeal is heard,” Barnes said.

And while Conley’s timeline is “arbitrary,” it is also “achievable, provided federal and state government permitting agencies follow reasonable and timely processes,” he added.

“We urge prompt government action so this project can be completed within the next three years.”

Talks between Canada and the U.S. have been going on for months under the terms of the Pipeline Transit Treaty, a 1977 agreement that effectively prohibits either side from unilaterally closing off the flow of hydrocarbons.

The dispute grew more urgent back in April, when heavy spring flooding washed away significant portions of the riverbank where Line 5 intersects the Bad River, a meandering, 120-kilometre course that feeds Lake Superior and a complex network of ecologically delicate wetlands.

Environmental groups call the 70-year-old pipeline a “ticking time bomb” with a dubious safety record, despite Enbridge’s claims to the contrary.

The neighbouring state of Michigan, led by Attorney General Dana Nessel, has also been waging war on Line 5, fearing a leak in the Straits of Mackinac, the waterway where the pipeline crosses the Great Lakes.

Line 5 carries 540,000 barrels of oil and natural gas liquids daily across Wisconsin and Michigan to refineries in Sarnia, Ont.

Its defenders, which include the federal government, say a shutdown would cause major economic disruption across the Prairies and the U.S. Midwest, where it provides feedstock to refineries in Michigan, Ohio and Pennsylvania.

It also supplies key refining facilities in Ontario and Quebec, and is vital to the production of jet fuel for major airports on both sides of the Canada-U.S. border, including Detroit Metropolitan and Pearson International in Toronto.

This report by The Canadian Press was first published June 26, 2023.