Commerce Offers Rushed and Incomplete Responses to Draft EIS Criticisms

Fifth in a series of critiques of the Minnesota Department of Commerce’s final environmental impact statement (EIS) on Enbridge Line 3, a proposal to expand and reroute a tar sands crude oil pipeline through northern Minnesota. Commerce is taking public comments on the adequacy of the EIS until 4:30 p.m. Oct. 2. To learn how to submit comments, click here.

The Minnesota Department of Commerce got swamped with comments to its draft Environmental Impact Statement (EIS). Appendix T of the Final EIS chronicles the hundreds of pages of comments received and the hundreds of pages of the Department’s responses.

The final EIS is inadequate because some of the department’s responses do not adequately address the questions and criticisms raised by the public and government officials. Let’s look at a few examples.

Start with comments submitted by Minnesota State Rep. Jamie Becker-Finn (page 17 of comments from State and Local officials)

Rep. Becker-Finn writes:

When the Ojibwe in Minnesota signed treaties with the federal government, they explicitly retained the ability to harvest wild rice, hunt and fish on the waters and lands of the ceded territory. The DEIS, and public comments by Enbridge staff, highlight a misunderstanding regarding the difference between reservation land and ceded treaty land. While skirting reservation boundaries is a nod to the affected tribal communities, the route does not avoid the plants and wildlife Ojibwe people have a legal right to access.

She then asks: “Were federal treaty experts consulted regarding the proposed route?” (Members of the public repeatedly asked versions of this question at public hearings, with the belief that this pipeline violates treaty rights.)

The Department of Commerce’s response to Becker-Finn is found on page 9 of a separate Appendix, T-2:

Federal treaty experts were not consulted with regard to the EIS. Potential impacts to affected natural resources are discussed in Chapters 5 and 6, and how American Indian tribes experience and interact with these resources is summarized in Chapters 9 and 11. This constitutes the analysis of treaty rights within this EIS.
My Comment: Commerce ducks the question. If Enbridge’s proposal violated local, state, or federal laws, one would expect that the EIS would flag that as a problem. Treaties are the supreme law of the land. Why didn’t Commerce get a legal opinion before issuing the final EIS? This glaring omission makes the EIS inadequate.

Also, this answer is typical of how Commerce responds to public questions. Instead of giving a direct answer, its says go reread chapters 5, 6, 9 and 11, without even offering page number references.

Next, Andy Pearson of MN350 writes (page 23-24):

We disagree that if this CN [Certificate of Need] is denied, the only option to be realistically considered in this Executive Summary is that the Applicant (or entities other than the Applicant) could be expected to meet shipper demand for the oil through other means, such as other pipeline systems, rail or truck.
Pearson’s comment addresses the fear that if the pipeline is denied, all of that oil will be shipped by rail or truck. (This raises fear because of potential accidents in urban areas.) Here is Commerce’s response:
The EIS explores a range of CN alternatives, including alternatives that assume the Applicant (or entities other than the Applicant) could be expected to meet shipper demand for the oil through other means. Chapter 4 provides a discussion of each of these alternatives.
My Comment: Note that is says the EIS “assumes” the applicant or others could be expected to use these rail or truck alternatives. That suggests it had no factual basis. We now know that another section of the Department of Commerce was analyzing the need for the pipeline, and found there was no need. (See Minnesota Public Radio: State better off without Enbridge oil pipeline, Dayton agency says.) The EIS is inadequate because it fails to consider the economics of the situation, raising the fear of increased tars sands transport by rail, when in reality it is unlikely to play out that way. The EIS needs to go back and integrate the findings of Commerce’s crude oil demand study.

For the last example, the Great Lakes Indian and Wildlife Commission submitted comments, including the following from page 4:

Furthermore, financial assurance is needed to cover the costs of maintaining structural integrity of the abandoned Line 3 as well as the costs of ultimately removing pipelines from the right of way whenever that becomes feasible. Financial assurance information has been included in past EIS documents prepared by Minnesota state agencies.
Here is Commerce’s response:
Further information regarding financial assurance has not been provided by the Applicant. The pertinent regulations for responsibility and liability have been identified throughout the EIS. Financial assurance will be addressed if permits are issued.
My Comment: It seems common sense to get the financial assurances in place before you approve the permit. It is unclear why the Applicant didn’t provide more information regarding financial assurances. Did Commerce ask for more information and get turned down? What do the pertinent regulations say the cleans up responsibility after Enbridge folds? If financial assurances have been included in prior EIS’s, why not this one? This answer is lacking information.

It’s a long read, but scroll through some of the comments and responses and you will get the gist. The responses to concerns raised about the draft EIS seem rushed. Often, the response is to send the reader back to reread a chapter instead of providing a direct answer. Some of the responses are not responsive to the questions posed.

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