Revisiting the PUC’s tortured logic to approve Line 3 regardless of treaty rights violations

The Minnesota Public Utilities Commission’s (PUC’s) order approving the Enbridge Line 3 tar sands pipeline contradicts itself, and even admits that Line 3 violates treaty law.

I regret not seeing this earlier. I noticed it while rereading Line 3’s Certificate of Need. So from the Better-Late-Than-Never Department, let’s revisit the PUC’s flawed justification for a bad project.

People gather June 7 to stand for treaty rights near where Enbridge plans to bore under the Mississippi headwaters. Photo: Indigenous Environmental Network.

On May 1, 2020, the PUC issued its final Certificate of Need for Enbridge Line 3. It writes:

The Commission expressed serious concern with the Project’s impacts to indigenous populations, acknowledging that the Project would traverse ceded territories where Minnesota’s Ojibwe and Chippewa tribes hold usufructuary hunting, fishing, and gathering rights. …

Lastly, the Commission found that granting the certificate of need was consistent with all applicable laws and policies, including Minnesota’s energy policy.

Line 3 Certificate of Need, page 13

It’s but one example where the PUC tied itself into logical knots trying to approve this pipeline.

Problem 1: The PUC acknowledges that Minnesota’s Anishinaabe people (a.k.a. Ojibwe and Chippewa) hold rights to hunt, fish, and gather on lands they ceded to the United States government, including lands Line 3 crosses.

The PUC also says it has “serious concerns” about “the Project’s impacts” to those rights. This is fuzzy language, and I suspect intentionally fuzzy. The PUC conveniently leaves out the fact that these hunting, fishing and gathering rights are treaty rights, the supreme law of the land according to the U.S. Constitution, Article VI.

In the next paragraph, the PUC says Line 3’s Certificate of Need is “consistent with all applicable laws.”

The PUC can’t have it both ways. It can’t say on one hand that Line 3 harms Anishinaabe treaty rights and one paragraph later say the Certificate of Need is “consistent with all applicable the laws.” It isn’t.

Anishinaabe bands, their members, and allies have raised treaty rights issues for years. PUC Commissioners have tried to remain willfully ignorant of the state’s treaty obligations, as if the PUC isn’t bound by federal law. But they know Line 3 is breaking the law. They admit as much in their order.

PUC staff and commissioners are smart people. Such an obvious contradiction couldn’t have eluded them. It shows how desperate they were to fudge language to approve the project.

Problem 2: The PUC used a straw man argument to approve Line 3, arguing that denying Line 3’s new route would harm the Leech Lake Band of Ojibwe.

Enbridge Mainline Corridor (orange) and proposed new Line route to avoid Leech Lake (green).

This is the classic divide-and-conquer strategy.

As the PUC wrote in its order:

… the Commission concluded that denying the certificate of need would have disproportionate and serious effects on the Leech Lake reservation—as the Leech Lake Tribal Government clearly asserted to the Commission on multiple occasions through the process—because it would require continued disruptive maintenance of Existing Line 3 and increase the risk of an accidental oil spill on those lands.

Leech Lake strongly opposed rebuilding Line 3 in its current trench, which passes through its reservation. It opposed the continued operation of the old and failing Line 3 in its existing corridor.

Red Lake and White Earth opposed Enbridge’s proposed new route, and any variation that would violate their hunting, fishing, and gathering rights.

The PUC tried to position itself as a victim; it was stuck with only two options, either of which would harm Indigenous rights. It effectively said: “Sorry about your treaty rights White Earth and Red Lake, but we really need to help Leech Lake here.”

The PUC would have us believe that it had no other choice but to approve Line 3 as Enbridge proposed.

It did have a third choice, which it ignored.

The Minnesota Department of Commerce had concluded that Enbridge failed to prove a new and larger Line 3 pipeline was needed.

The PUC could have denied permits for the new Line 3 and worked with the federal government to shut down the existing and dangerous Line 3. This would be the logical path; only the federal government has the power to shut Line 3 down.

Line 3 opponents raised this issue many times. The PUC never considered it.

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