Judge Orders State Dept. To Respond To Tribal Pipeline Suit

Law360, New York (March 17, 2015, 8:05 PM ET) -- A Minnesota federal judge on Monday ordered U.S. Secretary of State John Kerry to respond to a lawsuit that claims he and the U.S. Department of State illegally allowed an energy company to build an oil pipeline through an Indian reservation.

U.S. Magistrate Judge Leo I. Brisbois said in his order that it has been more than 14 days since Kerry, the State Department and intervening defendant Enbridge Energy LP were served with the amended complaint in Minnesota federal court, and that they have a maximum of eight business days to respond or ask for an extension of time.

A number of environmental and Native American groups, including the White Earth Nation, filed the amended complaint on Feb. 20 to challenge a State Department decision approving construction of a new cross-border crude-oil pipeline from Alberta, Canada, to Superior, Wisconsin, and a significant increase in the capacity of the existing Line 67 pipeline, or the “Alberta Clipper,” without first complying with environmental and procedural regulations.

According to the complaint, Enbridge wants to increase the amount of heavy tar sands it imports through its existing Alberta-to-Superior pipeline but refuses to wait for the completion of consultations, reviews and information gathering required by the National Environmental Policy Act, the National Historic Preservation Act and State Department regulations.

Instead, the complaint says, Enbridge wants to divert up to 800,000 barrels per day from its existing pipeline to a new segment north of the U.S.-Canada border, then reroute it back to the existing line south of the border to avoid ongoing reviews of the expansion project.

“The bypass project is intended to circumvent the throughput limit placed on the first three miles of the Line 67 pipeline in the United States,” the complaint says. “Once the bypass project is operational, shippers and refineries will rely on the additional volumes of oil and the State Department will face increased pressure to approve the Line 67 expansion.”

The plaintiffs say they use the White Earth Reservation and other land the pipelines is slated to cross through and near, and say that by denying their ability to participate in the required public review process, the State Department has risked their environmental, cultural and historic resources.

The complaint specifically noted that Enbridge has reported more than 30 leaks or spills in the past decade, including a catastrophic failure of a pipeline near Kalamazoo, Michigan, that dumped more than 800,000 gallons of tar sands into a tributary of the Kalamazoo River.

The plaintiffs want the court to rule that the State Department approved the new pipeline, the expansion and bypass projects illegally and order that each project stop until the State Department complies with all requirements.

Counsel for the plaintiffs declined to comment Tuesday. The defendants could not be reached for comment.

The plaintiffs are represented by Kenneth J. Rumelt of the Vermont Law School, Marc D. Fink of the Center for Biological Diversity, Douglas P. Hayes of the Sierra Club and Jim Murphy of the National Wildlife Federation.

The defendants are represented by U.S. Attorney Andrew M. Luger, Craig R. Baune, Luther L. Hajek and Pamela Marentette of the U.S. Department of Justice, Assistant Attorney General John C. Cruden, Todd Wind and Joseph J. Cassioppi of Fredrikson & Byron PA, and David H. Coburn, Cynthia Taub and Joshua Runyan of Steptoe & Johnson LLP.

The case is White Earth Band of Chippewa Indians et al v. Kerry et al, case number 0:14-cv-04726, in the U.S. District Court for the District of Minnesota.