The current Enbridge Line 3 tar sands pipeline is more that 50 year’s old. It’s badly corroded and only runs at only 50 percent capacity to reduce spill risks.
Monitoring tools inside the pipeline identify potential problems. When found, workers dig down to the pipeline, inspect it, and make repairs. This is called an “integrity dig.” Enbridge estimated the current Line 3 would need 4,000 integrity digs over 15 years for its safe operation. That’s a lot of digging.
There’s a lot more integrity problems than just one old pipeline. Our entire regulatory system has integrity problems, including its failure to stop the dangerous and unnecessary Line 3 pipeline.
Collectively, we need to dig into this corroded system, understand how it got so compromised, and fix it.
I was reminded of the systemic failures around Line 3 at the Women for the Rivers Event at the Shell River in Hubbard County. It was held near the spot where Enbridge plans to drill under the river. Winona LaDuke, co-founder of Honor the Earth, was one of the speakers.
“Our ancestors, each time they made a decision, they would think about the implications seven generations from now,” she said. “That is not an election year decision. That’s not like a quarterly profit decision. And that’s the kind of public trust decision making that we need to affirm.”
Minnesota became a state in 1858. When settlers arrived, the waters were pristine.
The state’s 163 years old now, that’s seven generations. Our leaders, systems, and short-term thinking have really messed things up.
According to a late 2019 report by the Star Tribune: More than half of Minnesota’s lakes, rivers and streams “fail to meet water-quality standards for protecting aquatic life and human health and are classified as ‘impaired,’” .
Here’s the Minnesota Pollution Control Agency’s (MPCA’s) current impaired waters map.
In the next seven generations, what will Minnesotan’s face? Will all waters be impaired?
Line 3 is a bad omen.
LaDuke said she and other water protectors tried to make the system work. Over seven years, they didn’t miss a single meeting or legal proceeding. Nothing changed.
Enbridge seems too big to regulate.
“I think it’s called ‘regulatory capture,'” LaDuke said. “That’s the technical term for when a corporation writes your public policy, controls your judicial, regulatory and legislative systems.”
“There’s no regulation for ecocide, but that is what we are talking about — the destruction of relatives, the destruction of rivers,” she said.
This blog has done some deep dives into how the state’s leaders and regulators have failed the public. Here, I’ll discuss many issues in brief to make a point about the extent of the systemic problems.
Now for the integrity digs.
Disregard for Indigenous people and their rights
Treaty rights ignored: Indigenous nations and leaders argued Line 3 crossed ceded lands where Anishinaabe peoples maintained off-reservation treaty rights to hunt, fish, gather, and occupy lands. The U.S. Constitution makes treaty rights the supreme law of the land. They take precedence over state and federal laws. The repeatedly told the Minnesota Public Utilities Commission (PUC) couldn’t make a final determination on treaty rights, but it had a legal and moral obligation to make an informed decision about treaty rights and act accordingly. It made no such effort. The PUC lacks integrity when it blithely ignores treaty obligations.
Human trafficking concerns ignored: Indigenous leaders and allies consistently brought concerns to the PUC that a large influx of out-of-state workers would lead to increases in sex and drug trafficking along the pipeline’s route. The PUC rubber-stamped Enbridge’s weak Human Trafficking Prevention Plan. The PUC didn’t require Enbridge to report numbers of workers arrested for human trafficking or impose sanctions on Enbridge if Line 3 workers were caught engaging in trafficking. Some Line 3 workers have been arrested in human trafficking stings. Anecdotal information from women’s shelters in northern Minnesota say Line 3 increased demand for services. The PUC lacks integrity when it pretends to address human trafficking concerns but provides no real protection and imposes no accountability.
Governor’s executive order ignored: Soon after taking office, Gov. Tim Walz and Lt. Gov. Peggy Flanagan issued an executive order promising “meaningful consultation” with Native nations and state agencies on issues of mutual concern. Red Lake and White Earth have said they haven’t had meaningful consultation with any major Line 3 decision. The executive order provides no enforcement mechanism if state agencies don’t comply. Red Lake, White Earth and Mille Lacs Band of Ojibwe are suing in court to overturn Line 3 permits. That indicates a lack of meaningful consultation. The system lacks integrity when it fails to keep its basic promises. Two other examples follow.
The MPCA ignored its obligation under the Governor’s executive order. White Earth Nation leaders wrote Gov. Walz and asked him for meaningful consultation on Line 3, specifically asking that the MPCA deny Enbridge’s Line 3 water crossing permits. The MPCA approved the permits. I emailed the MPCA to ask how the Governor’s Executive Order — and the agency’s Environmental Justice Policy — shaped the agency’s decision. Here’s MPCA’s entire response:
The MPCA is committed to meaningful consultation with Minnesota Tribal Nations, as prescribed in Executive Order 19-24. The MPCA recognizes the importance of its decision-making on the proposed Line 3 project for all of Minnesota’s Tribal Nations, communities, tribal members, and environmental justice communities. For this reason, the agency prioritized intergovernmental coordination early in project reviews and have worked to ensure that tribal and community input has been valued and considered throughout the process.MPCA
There is no integrity in that content-free answer, or the MPCA’s failure to follow the executive order.
The DNR ignored its obligation under the Governor’s executive order. The Minnesota Department of Natural Resources (DNR) recently granted Enbridge’s request for a ten-fold dewatering increase (to 5 billion gallons) in the middle of a drought. (Line 3 workers need to dewater trenches in wet areas in order lay pipeline. During a drought, Enbridge should need less dewatering, not more. White Earth leaders, including Chairman Michael Fairbanks, came to the Capitol July 15 with a clear message to Walz and Flanagan: Honor treaties, engage in meaningful consultation, revoke Enbridge’s dewatering permit, and respect the rights of wild rice. The administration lacks integrity by failing to live up to the executive order.
State ignored COVID-19 concerns: Line 3 brought thousands of out-of-state workers to Minnesota when the pandemic was not under control. He and the PUC allowed Line 3 construction to start in December 2020, before the vaccine was available. Indigenous people have suffered disproportionately from COVID-19. Healthcare workers and Indigenous leaders wrote Gov. Walz asking for an emergency construction delay, which was denied. The state lacks integrity when it puts a foreign corporation’s interests ahead of public health.
PUC showed ignorance of Indigenous culture : Indigenous peoples are disproportionately harmed by Line 3’s construction and operation, according to the state’s Line 3 environmental impact statement (EIS). The five commissioners who approved Line 3 in June, 2018 were all white. The day before the final Line 3 vote, Commissioner John Tuma made a particularly bizarre comment about how he and Indigenous peoples had different understandings about the land. “You have an almost a romantic relationship with it. It’s like a marriage. I can’t come up with the right words. That’s the best I can do.” If that was the best Tuma could do after Line 3 had been before the PUC for years, he really wasn’t trying. Indigenous people see land not as a resource to be exploited but as a relative to be protected and respected. The process lacks integrity when Indigenous people, a key party in the dispute, aren’t seen or understood.
Disregard for climate damage
Walz ignores climate damage threat: Walz made addressing climate change a top priority. He issued an executive order creating a Climate Change Subcabinet. The state’s Line 3 EIS said the pipeline would translate into $287 billion in climate damage over 30 years. (That’s like building 50 new coal-fired power plants.) An administrative law judge confirmed the $287 billion estimate, and the MPCA “commended” it. Walz has been silent on Line 3’s climate damage. Again, there’s an integrity problem when actions don’t follow commitments.
PUC tries to side step climate damage: The PUC argued that people driving cars create climate damage, not pipelines themselves. That’s like arguing “cigarettes don’t cause cancer, people smoking causes cancer.” It’s an industry ruse to ignore harms of products and technology. The PUC effectively replaced the $287 billion climate damage estimate with a $0. The system lacks integrity when it ignores the preponderance of evidence and state policies that prioritize reducing climate damage.
The arc of the PUC’s decisions bends sharply toward Enbridge
A new Line 3 wasn’t needed: To get its permits, Enbridge had to prove to the PUC that future oil demand justified building a new and larger pipeline. A unit of the Minnesota Department of Commerce participates in PUC hearings, serving the critical role of representing the public interest. That unit said Enbridge failed to make its case and recommended the PUC deny Line 3’s Certificate of Need. The PUC approved the permit anyway, violating its own mission: “to balance the private and public interests” and to make decisions in a manner “consistent with the public interest.” By rejecting Commerce’s recommendation, the PUC rejected the public interest on an issue of great consequence. Making matters worse, the PUC only got to “yes” on the Line 3 by shifting the burden of proof. It required Commerce to prove the pipeline wasn’t needed. Under the law, that’s not Commerce’s responsibility. A commission which arbitrarily changes the rules lacks integrity.
The PUC rejected the Administrative Law Judge’s (ALJ’s) major Line 3 recommendation: ALJ Ann O’Reilly handled much of Line 3’s contested case hearing. She held multiple public hearings around the state and took public and expert testimony. (This was the only part of the process where the general public got to participate.) O’Reilly wrote a lengthy report with recommendations to the PUC. She concluded that Enbridge’s proposed route had more costs thean benefits. The PUC approved Enbridge’s proposed route anyway. The system lacks integrity when members of the public can see no connection between their extensive participation and the final outcome, and where the PUC can dismiss the ALJ’s most significant conclusion.
Approving Independent Environmental Monitors that aren’t independent: State experts (such as MPCA and the DNR staff) aren’t regularly monitoring Line 3 construction. Instead, the PUC approved Enbridge’s plan to use “Independent Environmental Monitors” or IEMs. The PUC required Enbridge to pay for the IEMs, but they report directly to state agencies. Of note, the PUC allowed Enbridge to select and train the IEM’s. A review of 25 IEM resumes showed that half of them had prior work for Enbridge. That raises questions about their independence. If they are too strict enforcing rules, might Enbridge pass them over for future jobs? The process lacks integrity when the corporation being regulated has that kind of power over those who are front-line regulators.
No accountability for Line 3 jobs promises: Enbridge pitched Line 3 as a two-year project creating 4,200 union construction jobs, with Minnesotans getting half of those jobs. The PUC approved the project, citing jobs as one of the main arguments. Yet the PUC didn’t require Enbridge to report the number of local union job created, nor did it impose sanctions if Enbridge failed to meet its promises. Enbridge will finish Line 3 in one year, not two. The little data publicly available shows Minnesotans only got 33 percent of the jobs in the 4th quarter of 2020, and no indication of how many were union jobs. The process lacks integrity when key promises used to justify approvals are so casually broken.
PUC’s Line 3 permit banned counterinsurgency tactics, but not really: The PUC’s Line 3 Route Permit placed restrictions on Enbridge’s private security. It grew out Commissioner’s concerns to avoid Standing Rock’s violent conflicts. According to the permit, Enbridge and its subcontractors “will not participate in counterinsurgency tactics or misinformation campaigns to interfere with the rights of the public to legally exercise their Constitutional rights.” However, the PUC’s language neither defines “counterinsurgency tactics,” nor provides any enforcement mechanism. The process lacks integrity when the permit lacks clarity and can’t be enforced.
Passing the buck on pipeline cleanup: Line 3 opponents asked the PUC to require Enbridge to remove its old and decrepit Line 3 pipeline. (It’s the Kindergarten Rule: Clean up your old mess before making a new one.) Enbridge balked, saying it would cost $1.2 billion. The PUC — which approved the new Line 3 because of job creation — ignored the job-creating opportunities of removing the old pipeline. Instead, it approved a program Enbridge requested; landowners get the choice between removing the old pipeline from their land or getting a one-time payment of $10 per linear foot to leave it in the ground. This PUC decision is saving Enbridge hundreds of millions of dollars. The system lacks integrity when regulators buy into a multinational corporation’s cry of poverty and chooses instead to shift the costs to future generations.
PUC caved to an implied threat: One of the PUC’s main arguments for approving Line 3 was its fear that Enbridge would continue operating the existing old Line 3 and it would have a major spill. One PUC Commissioner described it as having a gun to the head. (Approve the new pipeline or the environment gets it!) Line 3 opponents argued that the federal government, not the state, has responsibility for Line 3’s safe operation. The PUC didn’t need to shoulder that burden. Line 3 opponents asked the PUC to deny the new Line 3 permits and work with the federal government to shut down the existing Line 3. After all, Commerce said Enbridge failed to prove the new Line 3 was needed. The PUC didn’t consider this option. The system lacks integrity when it fails to explore all the options, and when it uses factors beyond its jurisdiction to justify its decision.
PUC staff treated water protectors poorly, reflecting bias in the system. A Minnesota Legislative Auditor’s report reviewed the PUC’s public engagement process and found it wanting. From what I observed, PUC staff played fast and loose with the rules in ways that harmed Line 3 opponents in particular. Staff used police to evict Line 3 opponents over very confusing rules. It made up rules to restrict participation by the Youth Climate Intervenors, young people would couldn’t even afford a lawyer. The system lacks integrity when staff shows bias against those representing one side of an issue.
The PUC is unaccountable: PUC Commissioners are appointed by the Governor. The PUC is a “quasi-judicial” body, which means it acts like a court. As a result, PUC staff says that neither staff nor the commissioners have to answer questions about their decisions or problem that might arise from them. They don’t have explain the failed jobs promise, their failed approach to human trafficking prevention, or the problematic “independent” monitors. The typical response is: the staff can’t speak for the commission and the commission speaks only through its orders. The system lacks integrity when the PUC doesn’t have to explain its decisions or have any accountability.
Law enforcement too cozy with Enbridge
Northern Lights Task Force creates a bond between law enforcement, Enbridge: In contrast to the state’s anemic response to Line 3-related human trafficking, it created the secretive Northern Lights Task Force in 2018 to respond to Line 3 water protectors. The Task Force coordinates resources and communication between police and Enbridge. Its trained hundreds of officers on tactical responses, in some cases drawing on lessons from Standing Rock. Law enforcement has spent a lot more time and money training on surveilling and monitoring water protectors than it has learning about treaty rights – which, again, are the supreme law of the land. The system lacks integrity when law enforcement aligns with corporate interests and ignores Indigenous rights.
Public Safety Escrow Account creates bond between police, Enbridge: The PUC required Enbridge to reimburse law enforcement agencies for their Line 3-related work. It created a Public Safety Escrow Account managed by a third party to distribute payments. Even though it’s a theoretical arms-length transaction, everyone knows it’s Enbridge money. So far, Enbridge’s law enforcement reimbursements have topped $1 million. The system lacks integrity when law enforcement has a financial incentive to serve as Enbridge’s private security.
MPCA fails to meet its mission and its environmental justice commitment
The MPCA ignored its mission in approving Line 3: The MPCA’s mission is “to protect and enhance the environment and human health.” Yet the MPCA is acting as if its mission is only to reduce harms of corporate projects, such as Line 3. The MPCA announced its Line 3 approval, saying it used “stringent” water quality standards. It said nothing about “protecting” or “enhancing.” Line 3’s route is crossing more than 200 water bodies and trenching through 78 miles of wetlands. There’s no way this pipeline could be built without doing extensive environmental damage. The system lacks integrity when the MPCA approves a project in such direct contradiction to its mission.
Most members of the MPCA’s Environmental Justice Action Group (EJAG) resigned over the MPCA’s Line 3 approval. The MPCA has touted its Environmental Justice Framework. Seventeen community members participated in the EJAG, selected by the MPCA. Twelve of them resigned in 2020 over the agency’s Line 3 approval and its disproportionate impact on Native peoples. In their resignation letter, they wrote they “cannot continue to legitimize and provide cover for the MPCA’s war on black and brown people.” The MPCA apparently wanted the “environmental justice” brand without having to make the difficult choices it requires. That’s not integrity.
The MPCA took a narrow interpretation of its own powers: In approving Line 3’s water crossing permits, the MPCA decided that its only role was to review Line 3’s construction impacts. It didn’t to consider future crude oil spills or Line 3’s climate damage in its decision, as Line 3 opponents requested. The MPCA said under this permit, it couldn’t review pipeline operations. The point here is the agency didn’t even try to make the argument. The MPCA lacks integrity when it so readily decides in favor of industry and ties its own hands. This issue is now in court.
The MPCA lets Enbridge slide: Enbridge began building pipeline storage yards around northern Minnesota well before it had all its needed Line 3 permits. It applied online for MPCA storm water permits for the storage yards. It checked the boxes that said it had all the needed environmental permits, even though it didn’t have them. Line 3 opponents asked the MPCA to pull the permits. The MPCA took no action, saying Enbridge had complied with the appropriate requirements and nothing bad had happened. The pipeline storage yards sent a strong message to the public that Line 3 was a done deal. Where’s the integrity when rules don’t matter if you are a large corporation?
Line 3 and political intimidation
The Minnesota Legislature passed a law targeting water protectors: Enbridge has power in the Minnesota legislature, which passed a law increasing trespass penalties on “critical infrastructure” (read pipelines). The penalty went from a misdemeanor to a gross misdemeanor. The system lacks integrity when a crime is changed for such blatantly political reasons.
Minnesota Senate fired the Commerce Commissioner over Line 3: The Walz administration did one positive thing for water protectors: The Commerce Department sued to overturn Line 3’s Certificate of Need because of Enbridge’s flawed analysis of future oil demand. Commerce Commissioner Steve Kelley had been in office for more than a year and a half, but the Senate hadn’t yet confirmed him. After Kelly renewed Commerce’s lawsuit at the Minnesota Court of Appeals, the Minnesota Senate called for a confirmation vote and fired Kelley for doing his job. Commerce how has a new Commissioner. While Line 3 opponents are appealing the case to the Minnesota Supreme Court, Commerce dropped out. The system lacks integrity when that kind of raw political intimidation works.
I’m sure I’ve missed items. If you think of any, add them to the chat.
Bottom line: The system isn’t set up to serve the public interest, and certainly not the long-term public interest. Politicians promises and agency mission statements are ephemeral.
I challenge the PUC and the Walz administration to show one Line 3 decision they made that favored water protectors over Enbridge, besides Commerce’s now-shelved lawsuit.
Happy to print it if it exists.