The Minnesota Court of Appeals Tuesday rejected an appeal by the Red Lake and White Earth nations to stop construction of Enbridge Line 3 until all the legal challenges could be heard.
While a big disappointment, Line 3 opponents still have a separate request for an injunction on construction pending in federal court.
Red Lake, White Earth and environmental and Indigenous groups have filed legal challenges to overturn Line 3’s environmental impact statement, Certificate of Need and Route Permit, all approved by the Minnesota Public Utilities Commission (PUC). Many issues are on the table, from climate change and future oil spills to treaty rights. The Minnesota Department of Commerce has an appeal to reject Line 3’s Certificate of Need because Enbridge failed to prove the pipeline is needed.
The Minnesota Court of Appeals has set oral arguments for March 23. A final decision isn’t expected until June, around the time Line 3 construction would be wrapping up.
The motion for a stay in construction was an effort to prevent the damage that could happen between now and June.
The Court wrote:
The parties before the [PUC] raised significant, competing harms—most notably, on one hand, the harm of continued construction on the environment and the rights of tribes and indigenous peoples, and, on the other hand, the risk of an oil spill due to the rapidly deteriorating condition of existing Line 3.
The Court also dinged Red Lake and White Earth not filing their motions sooner. Yet it’s stunning that the court seemed to dismiss so easily “the rights of tribes and Indigenous people” in its analysis. Treaties are the supreme law of the land.
Here’s an analysis of the key arguments.
Red Lake and White Earth had appealed for a construction delay in part because current construction was doing potentially irreparable environmental harm. Waiting for a decision until June could make their appeals meaningless, they said. The PUC reasoned that the most significant harms from Line 3 would be potential oil spills from the pipeline’s operation. Even if Enbridge finishes construction, the Court could intervene before operations start. Therefore, the Court’s decision wouldn’t be meaningless.
Why the PUC’s logic is faulty: Just because worse damage could happen in the future shouldn’t be used to minimize the ongoing damage. The pipeline would cross more than 200 water bodies, trench through 78 miles of wetlands, and already has resulted in a lot of clear cutting. That’s a lot of damage.
The PUC argued that granting a stay would harm the public interest because it would extend operation of the old and failing Line 3. That would increase the risks of an oil spill — chances greatly reduced by building the new pipeline, the PUC wrote. The PUC also said a stay would harm the public interest due to its impact on Line 3 workers and area communities.
Why the PUC’s logic is faulty: The PUC’s argument calls into question how it understands the public interest. Here, it’s defining pubic interest as the loss of construction worker and spin off jobs. The overwhelming majority of public comments the PUC received during Line 3 hearings opposed the project. Faith leaders have spoken out against Line 3. Young people have organized in large numbers to oppose Line 3. Indigenous people — who are members of the public — opposed Line 3. The PUC didn’t give this public any significant weight in the process.
The PUC also defined public interest here as preventing spills in the old Line 3. The PUC doesn’t have responsibility for the old Line 3, the federal government does. There’s no indication the PUC has tried to get federal help in shutting down the old Line 3. It just keeps it as an attack dog to approve the new one.
The PUC also considered the harm to Enbridge, which estimated a six-month stay would cost it $314 million, the court wrote.
Why the PUC’s logic is faulty: Enbridge knew litigation was in play and started construction anyway. It knew the risks. The decision to reject the stay rewards its risk taking. Accepting that $314 million price tag as valid pretty much preempts any request for a stay. The PUC and Court of Appeals erred in giving it any weight at all.
Red Lake and White Earth have raised concerns about increased COVID-19 spread from Line 3’s influx of out-of-state workers. The PUC acknowledged the risks, but said Enbridge has plans to prevent the spread, the court wrote.
Further, the PUC said, workers would have to follow “federal, state, local, and tribal health and safety guidelines.”
Lastly, the governor’s executive orders to COVID-19 designate pipeline construction as a “Critical Sector” that should continue during the pandemic.
Why the PUC’s logic is faulty: The Walz administration is holding contradictory opinions. On one hand, the Minnesota Department of Commerce is in court arguing there’s no proof the pipeline is needed, yet the administration maintains Line 3 workers are essential. These are essential workers working on an non-essential pipeline.
Lastly, reports from the field indicate that pipeline workers are not uniformly wearing masks at work or in town, in spite of Enbridge’s promises.
The PUC said it had “mitigated the harms of construction by placing important conditions on the certificate of need and routing permit,” the court wrote.
Why the logic is faulty: Line 3 opponents have argued the PUC didn’t adequately assess the harms. They are asking for a more rigorous environmental impact study. How can people assess the proposed mitigation when they don’t agree on the environmental impacts? One of the reasons Line 3 opponents are suing in court is because they don’t believe the PUC’s construction conditions are adequate, or ever could be.
Here’s hoping for a better outcome in June.