Ojibwe Tribes File Lawsuits Against Public Utilities Commission

This past Tuesday, Ojibwe tribal governments and environmental groups filed three separate lawsuits against the MN Public Utilities Commission (PUC), challenging the Environmental Impact Statement (EIS) prepared for the proposed new Line 3 pipeline. All three lawsuits ask the Minnesota Court of Appeals to overturn the PUC’s May 2018 decision that found the EIS “adequate.” A reversal of that decision would undermine the PUC’s approval of the project in late June.

Two of the appeals were filed by non-profit organizations: Honor the Earth, based on the White Earth Reservation, and Friends of the Headwaters, the local citizen’s group in Park Rapids, Minnesota, that successfully appealed the PUC’s approval of the Sandpiper pipeline in 2015. The third was a joint filing by four tribal governments – the Fond du Lac, Mille Lacs, Red Lake, and White Earth Bands of Ojibwe.

The lawsuits outline a long list of deficiencies in the EIS and argue that these shortcomings, both procedural and substantive, constitute violations of the Minnesota Environmental Policy Act (MEPA). These lawsuits are the first opportunity for legal intervention into the unprecedented decision by the Public Utilities Commission. The lawsuits also foreshadow what may be a very challenging set of permit approvals for Enbridge in its plans to expand Line 3 in Minnesota.

“The EIS is long, but it is shallow, and was written to support approval of Line 3,” says Winona LaDuke, Executive Director of Honor the Earth. “The EIS simply failed to take a realistic look at the costs of Line 3 to all Minnesotans, the Anishinaabeg and the world we live in, and will make for future generations”.

Major Issues the group found with EIS include:

Procedural

• was not completed in time to serve its statutory purpose of informing the permitting proceedings

Scope

• only looks at the proposed initial capacity of 760,000 barrels per day, ignoring the likely expansion to a capacity of 915,000 barrels per day

• limits its consideration to a single pipeline, and does not consider the cumulative effects of opening a new pipeline corridor and the likelihood of additional pipelines

• does not consider the pipeline expansions in Wisconsin and Illinois that the project will induce

• compares the project to an unreasonable set of alternatives

• makes an inadequate analysis of the “no-action” alternative

• does not analyze the site-specific impacts of potential oil spills along any of the routes (such as in Lake Superior), and does not use generally accepted oil spill risk assessment methodologies

• does not analyze the potential for contamination caused by leaks from the existing Line 3

Tribal Issues

• does not include tribal consultation data within the EIS

• does not adequately analyze impacts to treaty-protected tribal resources, including the potential impact of oil spills on such resources

• does not include the results of a tribal cultural properties survey that is not yet completed for Enbridge’s preferred route,

• lacks any assessments for the new route options ordered

The Court of Appeals will now review the 3 initial filings and the PUC’s records for the case, and decide whether or not to hear oral argument from the attorneys. The process could take months. In the meantime, additional regulatory reviews are underway. Enbridge plans to begin construction later this year, with a completion by the winter of 2019.

If necessary, the groups that filed appeals could ask the Court for an injunction that would prohibit construction while the case is being heard. It is unclear if such a request would be granted.

In addition to these lawsuits contesting the adequacy of the EIS, separate lawsuits could be filed against the PUC challenging their approval of the permits. No such plans have been announced yet.

You can read Honor The Earth’s full lawsuit here and read the joint tribal lawsuit here.