PUC Commissioner makes strong case against Line 3 plan and strengthens legal cases poised to stop it

Commissioner Matt Schuerger.

After years of research, testimony, organizing, letter writing, pleas, protests, and other public pressure by Indigenous Nations, environmental groups and regular citizens, one Minnesota Public Utilities Commission (PUC) Commissioner came around to vote “no” on Enbridge’s proposed Line 3 tar sands pipeline expansion.

Commissioner Matthew Schuerger’s lone “no” vote Monday didn’t change the outcome; the PUC approved Line 3’s Certificate of Need and Route Permit on 3-1 votes. Significantly, however, Schuerger’s arguments will lend credibility to the pending lawsuits seeking to overturn the PUC’s ill-considered decisions.

Challenging Line 3’s Certificate of Need

Schuerger was part of the PUC’s unanimous 5-0 vote to approve Line 3’s Certificate of need in June, 2018. Court challenges forced the issue back before the Commission. With the passage of time and more information, Schuerger changed his vote Monday. Explaining his decision, Schuerger said the world, nation and Minnesota are facing a “sea change” about energy and the impact of carbon pollution: “It no longer makes sense to invest and build new infrastructure such as this [Line 3] project.”

Line 3’s environmental impact statement estimated the climate damage associated with the crude oil passing through Line 3 at $287 billion over three decades. The PUC dismissed the climate change argument in 2018 and approved Line 3’s Certificate of Need.

PUC Chair Katie Seiben

Last year, the Youth Climate Intervenors filed suit to overturn the PUC’s approval of Line 3 based on climate damage. Having Schuerger weigh in other their side is sure to help their case when it goes to court.

PUC Chair Katie Seiben tap danced around climate change. She told Schuerger:

I don’t fundamentally disagree with any of your conclusions, especially around climate change and the need for this state and this Commission to keep its eye focused on what it can do to lessen our impact on fossil fuels. I agree with you. I am an ally with you on that.

But this record that was before us … is not simply about climate. This is about the reality of the situation that is in northern Minnesota right now. That there is a deteriorating decrepit old pipe …

If Seiben agreed with Schuerger’s conclusions and was an “ally,” she would have voted “no” on Line 3’s Certificate of Need.

Seiben and other Commissioners have argued the current Line 3 is old, failing, and dangerous. They argue they need to approve the new Line 3 so Enbridge will take the old Line 3 out of service. It’s a red herring. The PUC has no authority over the old Line 3; it’s not an issue before them. The federal government — not the PUC — is responsible for oversight of the old Line 3. If the PUC thinks the old Line 3 is a safety threat, it should be pressuring the federal government to take action.

(Click her for a 10-minute video summary of the PUC meeting by SeekJoy.)

Challenging the need for a new Line 3

Line 3 opponents have argued that Enbridge has failed to show that future oil demand in the Upper Midwest justifies building a new and larger pipeline. Again, Schuerger’s comments Monday opposing the pipeline’s Certificate of Need will strengthen pending legal challenges. Enbridge had failed to provide a “clear, transparent, independent forecast of demand for Canadian crude oil,” he said, calling it “a fatal flaw” in Enbridge’s proposal.

There’s ample evidence in the record to support Schuerger’s conclusion. Administrative Law Judge Ann O’Reilly spent months taking public and expert testimony on Line 3 and issued a report to the PUC in April 2018. It states:

[Enbridge] has not, however, established, by a preponderance of the evidence, that Minnesota refiners or the people of Minnesota would be adversely impacted by denial of the Project. The evidence shows that Minnesota refiners are currently receiving sufficient amounts of crude oil to meet their production needs.

The Minnesota Department of Commerce testified to the PUC that Enbridge had failed to prove the new Line 3 was needed based on regional oil demand. When the PUC approved the project anyway in 2018, the Department of Commerce filed suit to overturn its decision.

Challenging Line 3’s Route Permit

New Line 3 route.

Yet other litigation heading to court will challenge the PUC’s approval of Line 3’s Route Permit.

The PUC considered multiple Line 3 route options: rebuilding in the existing trench, Enbridge’s preferred route, and other alternatives.

The current Line 3 runs through Leech Lake and Fond du Lac reservations. Leech Lake was adamant in opposing a new Line 3 on its land. However, O’Reilly’s report found that the only route option where the benefits outweighed the costs was keeping Line 3 in the existing trench. The PUC dismissed the in-trench option, saying it wasn’t feasible because of Leech Lake’s opposition.

On Monday, Schuerger argued the PUC could approve the in-trench replacement while also requiring Enbridge to get written Tribal consent. Under the law, he said, it’s not the PUC’s problem if Enbridge can’t get that consent.

Thank you, Commissioner Schuerger.

Divide and Conquer

PUC Commissioner John Tuma

In supporting the Line 3 Route Permit, Commissioner John Tuma thanked Enbridge and the unions for their support of communities up north and their “commitment to working with the Indigenous people.” That “went a long way” in helping him make his decision, he said.

Tuma is pushing a fictional narrative. At the start of the Line 3 proceedings, the White Earth Band of Ojibwe, the Red Lake Band of Chippewa Indians, the Mille Lacs Band of Ojibwe, the Fond du Lac Band of Lake Superior Chippewa, and the Leech Lake Band of Ojibwe all opposed the Line 3 project.

Neither Enbridge nor the PUC engaged Tribal Nations in meaningful consultation. For instance, Fond du Lac was put in the position of having to choose between the lesser of two evils, either keep Line 3 in the existing trench through its reservation or have a new route that just skirted the reservation. The new route would still pose threats to their waters. “No pipeline” was never an option.

In the end, Enbridge cut deals with Leech Lake and Fond du Lac so that they agreed not to oppose the project.

Tribal opposition to Line 3 is still strong, which doesn’t indicate a “commitment” to working with Indigenous peoples. White Earth and Red Lake have sued at the Minnesota Court of Appeal to stop Line 3. The Mille Lacs Band of Ojibwe joined a suit to find the Line 3 environmental impact statement inadequate.

Yet Tuma leaned heavily on Leech Lake’s position as some kind of universal Indigenous Line 3 endorsement. It was not. At the end of six-and-a-half hours of deliberations Monday, tensions broke through.

Tuma said: “I put a lot of weight in what Leech Lake had to say and where they want to go in regards to the pipeline. … I don’t view this as pitting people against each other.”

Indigenous people seated in the audience fired back, saying he had pitted people against each other. An angry Tuma responded loudly. “I just reject that!

Tuma needs to understand that the divide-and-conquer strategy with Native peoples is older than the United States and one for which Indigenous peoples have good radar. The PUC’s approach has divided Native communities. Tuma saying otherwise doesn’t make it so.