A regulatory system gone belly-up: Deconstructing Line 3’s ‘Independent Monitors’

Part of an occasional series which explores how government regulatory agencies are biased towards corporate interests, creating an institutional culture favoring polluters over the public interest.

Line 3 current route (orange) and proposed route (green).

Consider the following thought experiment.

Imagine that a company wanted to build a crude oil pipeline 355 miles through northern Minnesota, crossing some of the state’s cleanest waters. That pipeline would carry tar sands crude oil, a particularly dirty form of fossil fuel and difficult to clean up when it spills.

Imagine that government regulators approved the project, but required the company to pay to hire 10 Independent Environmental Monitors to oversee construction on behalf of the state. These monitors would be the on-the-ground representatives for the Minnesota Pollution Control Agency (MPCA), the Minnesota Department of Natural Resources (DNR) and other departments.

Imagine — as the pipeline crosses 79 miles of wetlands and more than 200 water bodies — these Independent Monitors would have the authority to stop construction if they saw serious violations that threaten our clean waters.

Now imagine, in an unprecedented move, that government regulators put Tribal Nations and environmental groups in charge of selecting the Independent Monitors and training them. This, the regulators said, would bring more credibility to the process, as it would assure construction would meet the highest possible environmental standards.

What do you think would happen next?

As I imagine it, the pipeline company would blow a corporate gasket, argue the process was deeply biased, and do whatever it could to change the rules.

Now let’s return to reality. Here’s what actually happened.

The Minnesota Public Utilities Commission (PUC) reissued a Route Permit Friday for the Enbridge Line 3 pipeline through northern Minnesota. Among its many provisions, the PUC required Enbridge to pay for these very same third-party Independent Monitors to oversee the pipeline’s construction.

In reality, however, the PUC put Enbridge — not Native Nations and environmental groups — in charge of both selecting and training the Independent Monitors, as if Enbridge wouldn’t have any bias in these decisions. (This is explained in detail in Enbridge’s Environmental Monitor Control Plan.)

Hopefully, Line 3 will never get built as it will face court challenges. But in the worst-case scenario that construction starts, allowing Enbridge to select the so-called Independent Monitors is problematic.

According to the PUC-approved plan, the monitors report directly to state agencies and are under their control. Yet as a practical matter, it seems clear the Independent Monitors are beholden to Enbridge, as Enbridge chose them for these jobs. This relationship could affect a monitor’s judgement in the field. If they are sticklers for the rules, could they get dropped from consideration for future jobs?

Enbridge would seem to have its own incentives to avoid recommending monitors who aggressively enforce the rules, as its goal is to keep the project moving on schedule.

Under the PUC-approved plan, Independent Monitors have a weak charge. They will “work in a review function to verify that environmental compliance is being achieved and to assess the success of Enbridge’s compliance program.”

In practical terms, that means Independent Monitors won’t have the power to stop construction if they see a major permit violation. Instead, they would report the problem both to the appropriate state agency and to Enbridge inspectors. This, according to the plan, would “allow Enbridge the opportunity to timely address the issue.”

Put another way, this means is that state regulators have agreed to a system where they won’t have anyone in the field who has the authority to shut down construction, delaying response to serious problems.

Having Enbridge train the Independent Monitors also seems bizarre. One would think that state agencies such as the MPCA and DNR would be in the best position to train Independent Monitors on their rules and permit conditions.

It’s surprising that state agencies didn’t push for control over hiring and training the Independent Monitors who are supposed to be their eyes and ears on the ground. Instead, regulators are deferring to Enbridge’s judgement, showing an abundance of trust in a company they’re supposed to be regulating.

It’s not surprising that Enbridge would want this monitoring system. What’s surprising is that state regulators agreed to it. They seem blind to their pro-industry bias in these decisions, a bias that has permeated the Line 3 review process.

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