Deeply Flawed Environmental Analysis of Tar Sands Pipeline Needs to Go Back to Square One

The state has released a deeply flawed final environmental impact statement (EIS) for a proposed tar sands crude oil pipeline across northern Minnesota, a project known as Enbridge Line 3.

The 5,000 page document ducks the issue of treaty rights. It spends a scant 28 pages on issues of environmental justice, and much of that is unintelligible bureaucratic language. It leaves important questions unanswered.

Enbridge wants to install a three-foot wide tar sands pipeline through 337 miles of northern Minnesota, crossing the Mississippi twice and threatening wild rice areas. It will connect Alberta’s tar sands fields with a terminal in Superior, Wisconsin.

The public responded loudly when the draft EIS was released in May. Many individuals and organizations flooded public hearings with comments and criticisms. Many believe the process is being rushed.

Media analysis is coming in. The Star Tribune headline read: Report: Enbridge Line 3 options all would have negative effect on American Indians. MPR went with the neutral headline: Line 3 oil pipeline environmental review released.

Missing from media analysis and from the EIS is an analysis of whether we need this pipeline.

The answer is no. This pipeline has nothing to do with U.S. energy independence; it has everything to do with corporate profits from gas exports to developing countries. Two important facts. First, Minnesota’s refined petroleum sales (gas, diesel, jet fuel, etc.) is down 19 percent from our 2004 peak. Second, the United States is now a net exporter of refined petroleum products and our exports are growing annually. We don’t need more tar sands crude.

The pipeline threatens our environment and treaty rights and gives the state and nation no long-term benefits.

I am just starting to go through the EIS, but here are some early takes.

Ducking the Issue of Treaty Rights

The 34-page executive summary makes no mention of “treaty” or “treaties.” The executive summary talks about habitat loss, habitat fragmentation, and water quality, but fails to mention treaty issues at the front of the document.

It does say the following:

Tribal members who submitted comments during this EIS process and provided input for the Draft EIS reported that all of the proposed routes, including either keeping the current Line 3 in place or abandoning it, would add to the negative mental, spiritual, and physical health impacts already disproportionately suffered by American Indian populations.
Two problems here. First — and this is repeated throughout the document — it makes it sound like this concern is unique to tribal members. Many white allies testified at public hearings with the same concern. This broad base of criticism is not reflected in the report.

Second, the Department of Commerce offers no professional opinion on what it believes the pipeline’s impacts would be on Native peoples or whether it violates treaty rights. It just quotes Native perspectives. Its silence speaks volumes. More on this below.

Chapter 9 on Tribal Resources has an extended discussion of treaty rights — again without taking a position.The EIS goes this far in Chapter 9, page 9:

For many decades, the State of Minnesota actively interfered with treaty rights held by the Ojibwe bands of Minnesota and Wisconsin. Many Anishinaabeg people were subject to fines, jail, harassment, and even imprisonment by the state and by non-Indian citizens simply for exercising the rights their ancestors had preserved in the treaties. As a result, the Ojibwe were forced to pursue litigation in federal courts to protect the free exercise of their treaty rights within the ceded territories. Treaty rights to the ceded territory were found to remain in force by the Federal District Court, the Eighth Circuit Court of Appeals, and finally the Supreme Court in Minnesota v. Mille Lacs in the 1990s, which upheld the Mille Lacs Band, the Fond du Lac Band, and several Wisconsin Ojibwe bands retain the right to hunt, fish, and gather on the Treaty of 1837 ceded lands, which extend from northeast Minnesota to Canada.

With that lead-in, one expects that the Department of Commerce is getting ready to give an opinion on whether Enbridge Line 3 violates treaty rights. None is there. It feels like we are going back to the pre-1990s era where the state of Minnesota will “actively interfere with treaty rights” by looking the other way.

Commerce should have hired a lawyer to get a legal opinion on the treaty issue and other impacts on Native peoples and made it part of the record. Commerce hired consultants with other expertise. Chapter 13 says Commerce hired “Cardno, Inc. in preparing the EIS. Cardno’s team included project management, a range of resource specialists, technical writers, and geographic information system analysts.”

Surely it could have hired a lawyer. The lack of clarity on treaty rights is a glaring hole in the EIS.

Of further concern, the Tribal Liaison hired by the Department of Congress quit her job in July, citing the lack of a good faith effort on the part of the state to work with Native nations around pipeline issues. (See our earlier blog.)

A Jargon-Filled, Inaccessible Document

The section on Environmental Justice , chapter 11, starts well, stating the definition:

Environmental justice (EJ) refers to the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income.

Soon after, the narrative veers into mind-numbing bureaucratic language that hides the pipeline’s human impacts. It is the language of census tracts, charts, tables, and acronyms that require research. It is language that assumes people have a college degree. It is language that makes people stop reading.

Here’s an example from page 1:

As outlined above, the metric used to identify EJ populations in this EIS is the comparison of census tracts to the whole of a county, which allows comparison of population groups within the same general vicinity. This provides a quantitative comparison of proportional impact.

Or this from page 6:

The Applicant’s preferred route bisects, and RA-03AM crosses the edge of Census Tract 002 in Clearwater County, where the minority population of 25.3 percent exceeds the county level by more than 10 percentage points (Figure 11-1; Appendix Q).
There are more examples. This chapter might check all the boxes for an Environmental Justice analysis, but it fails to make the pipeline’s Environmental Justice issues clear to the general public, and that’s wrong.

Gaming the System

The Environmental Justice section says that Enbridge’s preferred route doesn’t cross any reservation lands, “but would cross within approximately 3.1 miles of the White Earth Reservation and within approximately 5.0 miles of the Fond du Lac Reservation.” This is reminiscent of the Dakota Access Pipeline. The pipeline companies know they can’t cross reservation land, but they will go right to the edge.

This section has a few moments of lucid writing, such as this on page 19:

From an American Indian perspective, waterbodies at risk from the proposed pipeline include any water directly downstream from a pipeline crossing. Pollution of these waters from a petroleum spill would create a significant hardship to traditional lifeways and spiritual and religious needs of the people. The risk of harm to the people who depend on these waters for sustenance of physical and spiritual needs is greatly magnified by the presence of traditional food sources, such as wild rice (Manoomin) and walleyed pike (ogaa). Depending on the location, severity, and magnitude of a spill, American Indian economies could be impacted.

Again, this frames concerns as “an American Indian perspective” when it is much broader than that.

Man Camps Revisited

This blog previously criticized the draft EIS for how it addressed man camps and the risks of increased sex trafficking and sex abuse. The EIS acknowledges the problem:

Concerns have been raised regarding the link between an influx of temporary workers and the potential for an associated increase in sex trafficking, which is well documented, particularly among Native populations  … The addition of a temporary, cash-rich workforce increases the likelihood that sex trafficking or sexual abuse will occur.
My criticism focused on the ludicrous solution proposed in the first draft:

However, Enbridge can prepare and implement an education plan or awareness campaign around this issue with the companies and subcontractors that construct, restore, and operate the pipeline, as well as by working with local communities and tribal communities to raise awareness and provide resources to address the issue.

Several people raised concerns about this language at public hearings. It is not a realistic solution.
How did Commerce change the language? It added some new language on job creation, but left identical language regarding Enbridge’s “education plan or awareness campaign.”

It seems like Commerce ignored a number of public criticisms raised.

It’s time to go back to the drawing board.

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