The Rule of Law is fundamental to democracy, a basic guarantee of fairness. It means that people, companies, and institutions are accountable to laws that are understandable and publicly known. It means that these laws are equally enforced and independently adjudicated in court.
The state of Minnesota’s handling of the Enbridge Line 3 pipeline has severely eroded public trust in the Rule of Law.
I was up north this past week, first at the Treaty People Gathering near Waubun, then at the Indigenous-led prayer gathering at Camp Fire Light, located where Enbridge plans to drill under the Mississippi headwaters.
I was among 50 or so people cited by the Clearwater County Sheriff for trespassing on Enbridge’s Line 3 easement. We are among the hundreds of people who have been cited or arrested for various alleged offenses against the Line 3 project. I was willing to do so because I believe approving Line 3 was illegal, not my so-called trespassing.
As construction continues, expect to see more and more acts of civil disobedience. It reflects a deep mistrust in the Rule of Law as it applies to Line 3.
Many, many people have engaged over five years in Line 3’s regulatory review. All that time, all that effort, and from my perspective we’ve made no significant difference in the outcome.
One problem is the Line 3’s complexity. It’s generated thousands and thousands of pages of testimony, plans, reports, lawsuits, and more. There’s so much information that citizens who care about this issues have to invest an incredible amount of time to stay up to date. A lot of people don’t have that luxury. Further, the record is so large, decision makers can cherry pick the facts they want to make the decisions they want.
Even now, the state has failed to give a clear statement of Line 3’s public purpose and explain how it weighed the project’s costs and benefits.
I understand that with any big decision, one side will be disappointed with the final outcome. In the Line 3 review, state regulators failed to follow the law and core government commitments, and failed to give adequate justification for doing so.
Here are a few examples:
Red Lake and White Earth have repeatedly charged that Line 3 violates their right to hunt, fish, and gather on lands they ceded to the U.S. government through treaties. Line 3 construction damages waters and woodlands. Clear cutting brings in invasive species. An oil spill would be devastating to wild rice and Native medicines.
The state of Minnesota and its courts have been willfully ignorant of treaty rights. Treaties are the highest law in the land. If a federal or federal law conflicts with a treaty, the treaty language prevails. In the case of Camp Fire Light, treaty law prevails over state trespass laws.
The state of Minnesota has a legal and moral obligation to get expert advice on treaty law before approving a project that impacts treaty rights. The Minnesota Utilities Commission (PUC), various state agencies, and the Governor himself made no effort to understand their treaty obligations, giving preference to foreign corporation instead of doing their own homework.
The Minnesota Court of Appeals recently ruled on a case seeking to repeal Line 3 permits based on multiple issues, including treaty rights. The court sided with Enbridge in a 2-1 decision.
Judge Peter Reyes wrote a stinging dissent:
In sum, on this record, the PUC approved a new pipeline that benefits Canadian oil producers but traverses 340 miles of Minnesota land, which among other negative consequences will affect hunting, fishing, and other rights of … Red Lake Band of Chippewa Indians and White Earth Band of Ojibwe, with no benefit to Minnesota. Such a decision cannot stand. Enbridge needs Minnesota for its new pipeline. But Enbridge has not shown that Minnesota needs the pipeline. I would therefore reverse.
The decision needs to be appealed to the Minnesota Supreme Court.
The term “Executive Order” carries some weight. It says “Listen up: This is something important that demands immediate attention.”
Executive Orders have the effect of law.
On April 5, 2019, Gov. Tim Walz and Lt. Gov. Peggy Flanagan issued an executive order that recognizes and supports “the unique status of the Minnesota Tribal Nations and their right to existence, self-govern, and possess self-determination.”
According to a media release, “the order applies to all state agencies and was made in consultation with both agencies and tribal governments as it was written.”
“This order ensures the State of Minnesota and the eleven tribes engage in true government-to-government relationships built on respect, understanding, and sovereignty,” said Governor Walz. “We are committed to meaningful consultation with the tribal communities in our state.” (Emphasis in original.)Gov. Walz media release
Such meaningful consultation never happened on Line 3. That’s a failure to follow the law.
Last year, Michael Fairbanks, chairman of the White Earth Band of Ojibwe, wrote Gov. Tim Walz reminding him of his promise of “meaningful consultation” with Native Nations. He urged him to intervene on a key Enbridge Line 3 crude oil pipeline permit, particularly given the pandemic that was taking a particular toll on Indigenous peoples.
Walz did not act.
The Minnesota Pollution Control Agency (MPCA), the state’s leading environmental protection agency, was required under the executive order to engage in meaningful consultation with tribal nations regarding Line 3’s water crossing permits. Healing Minnesota Stories emailed the MPCA last year to ask how it engaged in “meaningful consultation.” It thumbed its nose at the question, giving a brief and vacuous non answer which is not worth reprinting.
Red Lake, White Earth, and Mille Lacs are all suing to stop Line 3.
Certificate of Need
The first basic question posed to a company looking to build a new crude oil pipeline in Minnesota is whether it can show there is enough future oil demand to justify building it.
Judge O’Reilly concluded that the company’s oil forecast data was biased, “created by an industry group whose express purpose is to advocate for the expansion and development of the Canadian oil industry.” She concluded that Line 3 as proposed shouldn’t be be built because the costs outweighed the benefits. The PUC ignored her recommendation.
During 2018 Line 3 deliberations, PUC Commissioners Dan Lipschultz said Enbridge’s data lacked transparency and didn’t address the core question of need. The rules needed to be improved, he said. Yet he and others voted to approve the permits anyway.
Enbridge had the burden of proof to show there was enough future oil demand to justify building a new pipeline. The PUC didn’t follow the law. In a bizarre twist, it shifted the burden of proof from Enbridge to the Minnesota Department of Commerce. The PUC said Commerce needed to provide its own independent oil demand analysis to show the pipeline wasn’t needed, something Commerce was not legally required to do.
The Minnesota Department of Commerce has made clear that Minnesota refineries are in good shape for oil supply and the new larger Line 3 isn’t needed. Commerce took the extraordinary step to sue the PUC to reverse Line 3’s Certificate of Need.
In his dissent, Reyes wrote the PUC “committed legal errors and acted arbitrarily or capriciously by granting respondent Enbridge Energy, Limited Partnership, a certificate of need that is unsupported by substantial evidence.”
From the outset, Enbridge admitted to state regulators that Line 3 construction wouldn’t meet state environmental standards for protecting water, a stark warning sign.
Minnesota Rule 6135.1100 defines “Standards for Route Design” for utility land and water crossings. It says the pipeline rout should avoid lakes and streams, though if it’s not feasible it offers ways to reduce the harm.
Line 3 would cross more than 200 water bodies, including rivers and streams. So that’s more than 200 exceptions to the rule.
The rules also state that pipelines should avoid “wetlands, highly erodible soils and areas with high water tables, especially if construction requires excavation.” The rule has no exceptions.
Line 3 would run 337 miles through Minnesota. It would cross 78 miles of wetlands, or more than 20 percent of the entire route.
The PUC approved the project regardless of this massive rule violation.
It’s impossible to get the quasi-judicial PUC to justify its decisions. The staff won’t answer media questions abut PUC decisions. It says it cannot speak on behalf of Commissioners. The Commissioners don’t answer media questions about their decisions. Commissioners speak only through their orders, staff says.
It’s not a transparent or accountable system.
The Governor, the MPCA and other state agencies say addressing climate change a top priority.
The Line 3 Environmental Impact Statement estimated Line 3 would add $287 billion in climate damage worldwide over three decades. Judge O’Reilly affirmed that number in her report. The MPCA applauded the analysis. Still, it held no sway with the PUC.
I can’t cite a particular law that was broken here, but the decision in inconsistent with the administration’s stated priorities.
The Court of Appeal’s decision upholding Line 3 permits seems based on giving agencies such as the PUC discretion in their work. As it wrote, the decision is: “grounded in the separation of powers between branches of government, is largely deferential to the expertise of the executive branch,” that is, deferential to the PUC.
The Court could have overruled the PUC if it found its actions arbitrary or capricious. Judge Reyes did, the other two did not.
The court gave the PUC way too much deference.
There are more examples where Line 3’s approval flies in the face of logic and law. Feel free to add your thoughts in the comments section.