The Minnesota Pollution Control Agency (MPCA) today announced it has agreed to hold a contested case hearing on the water crossing certificate for the Enbridge Line 3 tar sands crude oil pipeline.
Line 3 would cross more than 200 water bodies in northern Minnesota and 79 miles of wetlands. The MPCA’s announcement is a partial win for pipeline opponents, including Native Nations, environmental groups and regular citizens. Yet the MPCA still is failing to live up to its environmental protection mission.
The MPCA had recommended approving Line 3’s water crossing permit. Pipeline opponents will now have the opportunity to appear before an Administrative Law Judge to challenge the MPCA’s case, based on the project’s water and wetland impacts.
Sadly, the MPCA limited the contested case hearing’s scope, leaving key issues off the table. Pipeline opponents will not be allowed to argue against Line 3 based on its climate impacts or future crude oil spills, both powerful reasons to reject the project.
[Update: Statement released by Honor the Earth
Honor the Earth applauds the [MPCA’s] decision to hold a contested case hearing for the Line 3 Replacement Project, but is dismayed that the MPCA has formally decided to not analyze oil spill impacts and Enbridge’s plans to respond to an oil spill, despite the fact that it is the only Minnesota agency that has a duty under law to protect Minnesota from oil spill impacts. Honor the Earth requested that the MPCA consider the toxic impacts of an oil spill on wild rice, because wild rice is particularly sensitive to the toxic sulfate and sulfite compounds in heavy Canadian crude oil. Honor the Earth also requested that MPCA consider the impact of an oil spill on Lake Superior. … MPCA has now left review of Enbridge’s oil spill response plans in the hands of the Trump Administration. We are evaluating our rights to judicial appeal of the MPCA’s abdication of its legal duty to protect Minnesota from oil spills.]
The MPCA faced an Aug. 15 deadline to make a decision on Line 3’s water crossing certificate. It received federal approval to extend the deadline to Nov. 14 to accommodate the contested case hearing. The hearing is expected to start later this summer.
The MPCA’s order took a narrow view of the agency’s authority to protect the environment. It also put an undue burden on Line 3 opponents to provide facts to bolster their arguments when the MPCA itself should be doing this research as part of its due diligence.
The MPCA received 10,000 comments on Line 3’s water crossing permit, the MPCA’s announcement said.
The contested case hearing “will focus on Enbridge’s water crossing methods to ensure all impacted streams and wetlands are protected.” The statement continued:
Friends of the Headwaters, Sierra Club, and Honor the Earth, with the White Earth Band of Ojibwe and the Red Lake Band of Chippewa Indians submitted a joint petition that raised the following issues of fact that the MPCA granted in its hearing:
- Does Enbridge’s proposed use of trench methods for stream crossings have temporary or permanent impacts on water quality parameters of concern?
- Have Enbridge and the MPCA identified the least degrading crossing method that is prudent and feasible for each stream crossing?
- Have Enbridge and the MPCA undercounted the full acreage of the Project’s wetland impacts due to flaws in wetland delineation and survey methodologies related to the seasonality of delineation activities?
- Have Enbridge and the MPCA undercounted the full acreage of wetlands that are physically altered by trenching?
- Have Enbridge and the MPCA incorrectly determined that the impacts to wetlands that are physically altered by trenching are temporary?
MPCA rejects climate change, oil spills, as legitimate factors for review
The MPCA acknowledged that climate change and its impact on Minnesota’s water quality raise “issues of fact” in reviewing Enbridge’s application. However, its order says the agency “is unaware of any model in existence” that could measure such damage.
The MPCA — an agency that has made addressing climate damage a top priority — is putting the burden on Line 3 opponents to come up with a model and the experts to provide the details. Here’s the irony: The MPCA is the state’s lead environmental protection agency. It’s the MPCA’s job to care about and find the answers these questions, not the Native nations, nonprofit advocates or private citizens who are raising the issue.
In the face of uncertainty, the MPCA is defaulting to an industry-friendly ruling that Line 3’s climate impacts won’t harm Minnesota’s waters.
The Friends of the Headwaters and others pushed the MPCA to consider Line 3 oil spill impacts on Minnesota water quality.
The MPCA’s response fails to meet the “common sense” test.
The MPCA argues that it doesn’t have the legal authority to consider oil spills as part of its Line 3 review. It says the federal government, not the state, has oversight of pipeline operations.
The rest of its explanation is confusing. It says the agency makes a distinction between intentional and permitted discharges and unintentional discharges (spills). “Here, Enbridge does not seek approval for nor intend to discharge [spill] any grade of crude oil,” it says, “… and the 401 Certification includes a condition that prohibits any such discharge from Line 3 to waters of the state.”
The MPCA’s logic seems to boil down to this:
- Enbridge didn’t apply to accidentally spill crude oil into Minnesota waters.
- The agency’s proposed Line 3 water quality certificate prohibits crude oil spills into Minnesota waters.
- Therefore, the MPCA doesn’t have the legal authority to consider crude oil spills in its permit review.
That’s nuts. Common sense says:
- All pipelines eventually leak.
- Oil spills are bad for water quality.
- The MPCA’s mission is to protect the state’s environment.
- Therefore, the MPCA should consider crude oil spills in assessing Line 3’s water crossing certificate.
Why the MPCA chose such a weak interpretation of the law is a mystery.