Legal Challenges Take Shape Against Line 3 and the PUC’s Anti-Indian, Anti-Environment Vote

The Minnesota Public Utilities Commission’s (PUC’s) deeply flawed decision approving the Enbridge Line 3 crude oil pipeline through northern Minnesota likely will get challenged in court. Some of the legal arguments against the PUC are now coming into focus.

Seven organizations and tribal governments filed motions asking the PUC to reconsider its vote approving Line 3’s Certificate of Need. The Minnesota Department of Commerce’s motion says the PUC’s decision: “contains legal errors and ambiguities.” The Youth Climate Intervenors’ motion said that: “The Commission’s explicit denial of climate science and wholesale dismissal of treaty rights as ‘unnecessary’ are appalling.” A joint motion by Honor the Earth, the White Earth Band of Ojibwe, and the Red Lake Band of Chippewa, said the PUC’s order: “fails to interpret state law to favor the public interest and protect the environment as against private interests.”

It’s doubtful the PUC will budge and reverse its vote, but this is a necessary procedural step to allow Line 3 opponents to sue in court. The legal arguments contained in these motions could form the basis for future lawsuits. If this issue does go to court, the PUC will have a lot of explaining to do about why it consistently favored Enbridge and ignored public testimony and the administrative law judge’s independent recommendations.

The following eight arguments are pulled from the motions to reconsider filed by the Minnesota Department of Commerce, the Sierra Club, Youth Climate Intervenors, Friends of the Headwaters, the Mille Lacs Band of Ojibwe and a joint motion by Red Lake, White Earth, and Honor the Earth.

1. The PUC approved the pipeline even though Enbridge’s application failed to meet a basic state law requirement.

Minnesota sales of refined petroleum products has been on the decline.

State law required Enbridge to show that the long-range demand for oil justified building a new and larger Line 3. Enbridge never provided such oil demand data, a minimum requirement to move the project through the regulatory process. On that basis alone, the PUC could have and should have rejected Enbridge’s proposal. According to the Minnesota Department of Commerce’s motion to reconsider:

The Commission’s Order grants a [Certificate of Need] for a crude oil pipeline without any evaluation, or consideration, of a long-range demand forecast of crude oil as required by {Minnesota statute and rule]. The Commission’s Order is therefore affected by a legal error and is unsupported by the evidence.

Enbridge used arcane arguments about oil supply and “apportionment data” to justify a new and larger Line 3. Inexplicably, the PUC sided with Enbridge instead of following the law. The PUC said the Department of Commerce had failed to produce its own independent oil demand forecasts to prove that the pipeline wasn’t needed. That’s messed up.

If this goes to court, the PUC will have to justify why it didn’t follow state law and why it put the burden of proof on Line 3 opponents.

2. The PUC ignored many recommendations from Administrative Law Judge’s report with little if any justification.

Map shows current Line 3 and Enbridge’s proposed route.

Administrative Law Judge (ALJ) Ann O’Reilly handled the lengthy process of reviewing Enbridge’s Line 3 proposal, taking testimony, and developing findings of fact and recommendations. In the end, the PUC cherry-picked information from her report that it liked and arbitrarily rejected other parts.

Here are two examples, with more to follow. First, not only did Enbridge fail to prove the pipeline was needed, but the information it did provide about oil supply wasn’t trustworthy. The ALJ wrote that Enbridge’s analysis was “incomplete, biased, noncredible, and misleading … demonstrating a narrow and dubious ‘need’ for the proposed Project,” according to the Sierra Club’s motion. Second, the PUC approved Enbridge’s preferred route — a route that the ALJ’s report clearly rejected. The ALJ’s report said, weighing the social costs and benefits, it didn’t make sense to approve it.

If this goes to court, the PUC will have to explain why it rejected so much of the ALJ findings and recommendations, decisions that ultimately benefited Enbridge.

3. The PUC dismissed treaties — the supreme law of the land — saying they were irrelevant to its decision.

Treaty rights are the supreme law of the land.

The ALJ’s report wrote extensively about treaty rights. The PUC concluded that the ALJ’s discussion of treaty rights were “not necessary to the Commission’s decision,” and therefore the Commission “does not adopt these findings.” In fact, the PUC dismissed the critical treaty rights issue in a brief footnote.

Treaties are not a footnote, but the supreme law of the land; they override state and federal law. Yet the PUC ignored any obligation it had to consider treaty rights. That’s not a “neutral” position, but one clearly favoring Enbridge. The Youth Climate Intervenors, which includes both indigenous and non-indigenous youth, strongly rebuked the PUC for both it’s decision and its process:

The Commission has systematically erased and devalued the input of tribal bands and indigenous peoples throughout this process, from patronizing them when they attended meetings, to ultimately making a decision that contradicts the fierce advocacy of the majority of intervening bands. The Commission’s Order continues this pattern of racism toward Anishinaabe communities by explicitly dismissing any discussion of treaties and the rights preserved therein as ‘unnecessary’ for the Commission’s analysis.

If this goes to court, the PUC will have to explain why it sided with Enbridge and completely ignored the treaty rights as a legitimate issue.

4. The Commission’s order denies climate science, ignoring both the environmental impact statement and the ALJ’s Report.

Hurricane Frances, 2004. (Photo by NASA.)

The Line 3 environmental impact statement (EIS) said the greenhouse gas emissions associated with Line 3 would total $287 billion in social costs over 30 years. The ALJ adopted that figure in her final report.

The PUC rejected that number in the way that cigarette companies used to deny smoking was bad for your health. The PUC’s final order on Line 3 tried to cloud the issue, saying that greenhouse gas emissions “can differ substantially from one study to the next.” The Youth Climate Intervenors wrote:

This seems to align the Commission with the ever-shrinking minority who do not believe in climate science or climate models, dismissing it simply because variability exists between studies. This position is inconsistent both with the intellectual standards our Commission should be held to, and its own rhetoric in this case and previous cases. This position is also unsupported by any party on the record, since not even Enbridge disagreed with the fundamental ability to estimate greenhouse gas emissions.

If this goes to court, the PUC will have to explain why it sided with Enbridge and rejected climate science, the environmental impact statement and the ALJ’s report.

5. The PUC approved Line 3 based on the fear the old Line 3 would burst, an issue outside of its jurisdiction. It shouldn’t have been a factor in the PUC’s Line 3 vote.

Enbridge has a history of spills, like this 2010 spill in Michigan. (Photo: U.S. Environmental Protection Agency)

Two Commissioners, Chair Nancy Lange and Dan Lipschultz, said a pivotal factor in their votes approving a new Line 3 a fear that Enbridge would keep running the current Line 3 until it failed, and a spill would cause significant environmental damage in Minnesota. Lipschultz famously said it felt like Commissioners had “a gun to their head” if they didn’t approve a new Line.

The Department of Commerce was one of several intervenors who criticized this logic. The federal government, not the PUC, is responsible for the current Line 3’s safe operation, it said, (specifically, the federal Pipeline and Hazardous Materials Safety Administration (PHMSA).) Commerce wrote:

Despite the concerns about continued operation of the current Line 3, the authority to take corrective action, such as replacing or otherwise restricting the use of an interstate crude oil pipeline deemed hazardous, rests solely with PHMSA. Therefore, the decision to grant a [Certificate of Need] for the proposed Project must be based on the new pipeline’s own merits … without consideration as to whether the existing Line 3 should be replaced.

If this goes to court, the PUC will have to explain a big contradiction: If it distrusted Enbridge so much that it feared it would continue operating an unsafe pipeline until it burst, why would it allow Enbridge to build a new pipeline in a new corridor? More importantly, the PUC will have to explain why it took responsibility for the current Line 3 when it had no jurisdiction.

6. The PUC approved Line 3 prior to completing a cultural properties survey.

The PUC-approved Line 3 route would cross Anishinaabe ancestral lands, where they have fished, hunted and harvested wild rice for centuries. According to the Mille Lacs Band of Ojibwe’s motion to reconsider: “The construction and operation of a new petroleum pipeline would impact these ecologically and culturally sensitive lands and a spill would be devastating.”

The Minnesota Environmental Policy Act (MEPA) requires projects such as Line 3 to include a “thorough analysis of the potential impacts on cultural resources,” the Mille Lacs Band writes. “The Commission acted prematurely when it decided to grant the Certificate of Need without the thorough analysis of the potential impacts on cultural resources.”

If this goes to court, the PUC will have to explain why it failed to complete a the cultural properties survey in a timely manner, a decision that clearly benefited Enbridge over Anishinaabe bands’ legitimate interests.

7. The PUC didn’t live up to its mandate to protect the environment, not corporate interests

The state rule governing a pipeline’s Certificate of Need seems like it was written by corporate lobbyists. It says that to approve the Certificate of Need, one needs to show that the “the probable result of denial would adversely affect the future adequacy, reliability, or efficiency of energy supply to the applicant, to the applicant’s customers, or to the people of Minnesota and neighboring states…”

This elevates the interests of Enbridge and Enbridge’s customers to the same level as the interests of regular Minnesotans — and that’s wrong. The joint motion by Honor the Earth, White Earth and Red Lake say state laws requiring environmental protection should override such rules. They write that the PUC’s Certificate of Need decision needs to consider the PUC’s two strong policy mandates: “(1) a preference for the public interest over private interests; and (2) an overarching state policy in favor of environmental protection. …” It continues:

State law does not allow the Commission unfettered discretion in how it balances public and private interests, yet the [Certificate of Need] Order entirely fails to recognize that the Commission’s primary mandate is to protect the public interest and the environment rather than private interests.

If this goes to court, the PUC will have to explain how its decision meets the requirements of the state’s environmental protection laws.

8. The PUC allowed Enbridge to change its proposal at the last minute after the evidentiary record was closed.

The public packed overflow rooms to follow the PUC hearings in June. The PUC’s decision to allow Enbridge to make last-minute changes denied the public the opportunity to review and critique them.

On June 18 — the first day of the PUC”s final oral arguments on Line 3’s Certificate of Need — the Commission gave Enbridge the opportunity to change its proposal. The PUC wanted additional language around such things as Enbridge’s insurance coverage and tree replacement policies.

The Sierra Club objected, saying that Enbridge’s opportunity to change its proposal had passed. The evidentiary hearing was over and the PUC already had closed the record. The PUC should have had an up-or-down vote on the project as proposed.

This might seem like a procedural technicality, but it’s significant. It begs the question: Why — again — is the PUC going to such lengths to accommodate Enbridge?

If this goes to court, the PUC will have to explain on what grounds it reopened the legal record and allowed Enbridge to changes it proposal, one in a long series of its Enbridge-friendly decisions.

One thought on “Legal Challenges Take Shape Against Line 3 and the PUC’s Anti-Indian, Anti-Environment Vote

  1. […] Voting on whether to reconsider approval of Line 3’s Certificate of Need: Seven organizations and tribal governments filed formal motions asking the PUC to reconsider its vote approving Line 3’s Certificate of Need. The chances the PUC will reverse course are slim to none, but this is a key procedural step. If the PUC rejects the intervenors’ requests, it allows them to take the next step and sue in court to overturn the flawed decision. (For more, see: Legal Challenges Take Shape Against Line 3 and the PUC’s Anti-Indian, Anti-Environment Vote.) […]

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