Disappointment: Conservative Judge Rules Enbridge Line 3 EIS “Adequate”

There has been a lot of news in the past few days about Enbridge Line 3 tar sands crude oil pipeline, as debate moves forward on a two-track process. On one track is the question of whether the environmental impact statement (EIS) prepared by the Minnesota Department of Commerce is adequate or needs to be rewritten. On the other track is the question of whether the state should issue a “Certificate of Need” and “Route Permit” for Line 3.

This post will focus on the EIS.

Eric Lipman, the administrative law judge tasked with reviewing the Line 3 EIS, has determined it is adequate. That is a big disappointment, as many native and environmental groups and ordinary citizens had found it deeply flawed. Lipmans’ recommendation goes to the Minnesota Public Utilities Commission (PUC), which will make the final determination.

Here are stories in the StarTribune and MPR on Lipman’s decision. The StarTribune story  notes:

Among criticisms of the EIS, the environmental group Friends of the Headwaters maintained that the EIS did not assess a possible large oil spill into the headwaters of the Mississippi River or other “high consequence areas” in Itasca and Hubbard counties. Specifically, the group wanted an analysis of a potential leak on par with Enbridge’s massive 2010 pipeline spill in Michigan, which cost the company over $1 billion to clean up.

Lipman disagreed, writing that such specific spill modeling wasn’t necessary.

Lipman’s decision on the Line 3 EIS wasn’t a surprise. He had been assigned to the Sandpiper project earlier. (Sandpiper would have carried fracked oil from North Dakota east into Minnesota, joining up with the proposed new Line 3. Click here for map of the two projects.) In the Sandpiper case, Lipman ruled in favor of the company, recommending approval of Sandpiper’s Certificate of Need and Route Permit.

Ultimately, Enbrdige dropped the Sandpiper proposal. According to a Sept. 2, 2016 article in the Star Tribune, Enbridge made the decision after deciding to buy into the Dakota Access Pipeline.

The White Earth Nation attempted unsuccessfully to get Lipman recused as the judge for reviewing the Line 3 EIS, saying he was prejudiced. (Its motion was in support of a request by Friends of the Headwaters.)

White Earth attorney Joseph Plummer’s court filing noted that in the Sandpiper case, Lipman had concluded that “lifecycle issues related to crude oil,  greenhouse gas emissions, and climate change are outside the scope of what the PUC may consider.” Lipman would not come into the Line 3 debate with an open mind. As Plummer wrote, he was unlikely to reverse himself on previous decisions.

Another strong argument against Line 3 was that it violated the Treaty of 1855 which guaranteed the Anishinaabe (Ojibwe) the right to hunt, fish, and gather along the pipeline’s route. Lipman also had ruled on that issue in the Sandpiper case, saying did not think the treaty forbid the issuance of a pipeline permit.

So Lipman’s Sandpiper ruling suggested that serious criticism of the Line 3 project’s impact on climate change and treaty rights would be off the table before the debate even started.

Plummer also noted that Lipman was the most political of the administrative law judges the PUC could have chosen. (Plummer came to that conclusion after reading all the judge biographies  on the Office of Administrative Hearings website.) “In addition to being a state Republican legislator,  he [Lipman] also was General Acting Counsel to Governor Pawlenty, a Deputy Secretary of State under Republican Mary Kiffmeyer, and the Political Director for Rod Grams for U.S. Senate,” he said. None of the other administrative law judges had that kind of political resume.

You can read Plummer’s full affidavit, here.

Lipman’s recommendation on the EIS will carry weight with the Public Utilities Commission. Line 3 opponents could chose to challenge his decision in court. And there still is the separate opportunity to press the PUC to reject the Certificate of Need and Route Plan.

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