Enbridge Line 3 construction might be nearly done, but efforts to stop it from operating are far from over. Lawsuits are still pending.
Yet as we continue the important work of Line 3 resistance, we also need to have a keen focus on the broken regulatory system that approved Line 3, and is backing harmful projects such as the PolyMet Mine.
Line 3 provides an important window into that broken regulatory system. The term now in vogue is “regulatory capture.”
Regulatory capture is an economic theory that says regulatory agencies may come to be dominated by the industries or interests they are charged with regulating. The result is that an agency, charged with acting in the public interest, instead acts in ways that benefit … the industry it is supposed to be regulating.
Investopedia
State officials have dodged tough questions and accountability for their flawed decisions and complicity in the harm Line 3 will bring. Local media has let us down with its thin coverage.
What follows is a set of 14 questions that our state leaders and regulators still need to answer. In broad terms, they are: How do you understand the “public interest?” How does citizen participation affect decisions or is it just for show? How are you holding polluters accountable?
We need to keep pressing for answers.
- Gov. Tim Walz signed an executive order early in his term promising “meaningful consultation” with Native Nations on issues of mutual concern. There’s nothing in the executive order that makes it enforceable. Neither the Governor, the Minnesota Pollution Control Agency (MPCA) or the Department of Natural Resources (DNR) has fulfilled this commitment to meaningful consultation around Line 3’s water crossing permit. After all the past broken promises and treaties, is it any surprise Indigenous water protectors are angry and doing civil disobedience? The Governor hasn’t addressed the state’s failure to follow his executive order. What is his explanation? Has he had any conversations with the MPCA or DNR about following through on the state’s commitment?
2. The MPCA’s mission is “to protect and improve the environment and human health.” It approved Enbridge Line 3, a project that required extensive clear cutting. The pipeline is crossing 200+ waterbodies and trenching through 78 miles of wetlands. It threatens future crude oil spills in our clean water. It seems the MPCA’s practical definition of “protect” is to approve significant environmental damage but to minimize it compared to what Enbrdige would have done left to its own devices. How would does the MPCA define “protect and improve” and can we get that in writing?
3. The Minnesota Public Utilities Commission (PUC) has an important job. It approves utility rate increases and large energy projects like the Enbridge Line 3. The PUC has a really confusing mission statement. It says it should make decisions that appropriately balance the public and private interests “in a manner that is ‘consistent with the public interest.’” What does that even mean? How do you compromise the public interest in a way that’s still consistent with the public interest? How does the PUC understand its commitment to the “public interest?”
4. Native nations have consistently argued that Line 3 violates their treaty protected rights to hunt, fish, and gather on lands affected by the pipeline. The PUC’s order approving Line 3 expressed “serious concern” that the pipeline infringed on Indigenous rights to hunt, fish and gather. (It didn’t call them treaty rights, but that’s what they are.) In the next sentence, the PUC said the project was consistent with “all applicable laws.” Both can’t be true. Line 3 can’t infringe on treaty rights and be consistent with all applicable laws. Treaties are the supreme law of the land. How does the PUC explain this obvious contradiction in its order?
5. Indigenous communities had expressed serious concerns about the increased drug and human trafficking that come with large fossil fuel infrastructure projects such as Line 3. Neither Enbridge nor the PUC took them seriously. The PUC rubber stamped Enbridge’s incredibly weak Human Trafficking Prevention Plan. It required no reporting of Line 3-related arrests for drug or human trafficking. It didn’t impose sanctions on Enbridge if the number of arrests past a certain threshold. We know anecdotally that Line 3 workers have been arrested in human trafficking stings. Shelters serving abused women have seen an increase in demand related to Line 3. Were the PUC’s actions in the public interest? Why didn’t the PUC require more accountability around human trafficking?
6. The PUC is a quasi-judicial body. (In some ways, it acts like a court.) As such, staff says that neither it or the commissioners can answer questions about its decisions, such as its failure to adequately address human trafficking or treaty rights? How do you get accountability with that kind of structure?
7. The PUC didn’t require Enbridge to remove its old and corroded Line 3 pipeline before building its new one. (Enbridge just made a new corridor or widened the old one, which added to the project’s environmental damage.) Enbridge said it was too expensive ($1.3 billion) to remove the old pipeline. The PUC capitulated. It didn’t enforce the Kindergarten rule: Clean up your old mess before making a new one. Why didn’t the PUC drive a harder bargain? When companies say they “can’t afford it” how do we know that’s true and not just a profit-padding measure? Say Enbridge really couldn’t afford to pay to remove the old pipeline. Does that mean the PUC still must approve it, or should that be sufficient justification to reject the proposal?
8. Enbridge is stiffing landowners on its “Landowner Choice Program.” Enbridge said it would cost $855 per linear foot to remove its old Line 3 pipeline. It’s giving landowners a choice between having the pipeline removed from their property or getting a one-time payment to leave it buried. Enbridge is offering landowners $10 per linear foot to leave it in place, or 1 percent of its cost savings. This PUC-approved scheme will save Enbridge hundreds of millions of dollars and push costs to future Minnesotans. How is this decision in the public interest? Why didn’t the PUC require higher landowner reimbursements?
9. The PUC approved a plan that let Enbridge select and train the “Independent Environmental Monitors” that are working on behalf of state agencies to monitor Line 3 construction. The MPCA and DNR don’t have their permanent staff on site. A review of the Independent Monitor’s resumes showed that half have worked for Enbridge in the past. How “independent” are they? Do the DNR or MPCA have any concerns that these agency stand-ins are providing sufficient scrutiny? Why isn’t the state’s permanent, full-time regulatory staff on site when there are significant problems, such as recent frac-outs?
10. The PUC cited job creation as a major reason for approving Line 3 but didn’t impose any accountability. Enbridge promised a two-year project that would create 4,200 union construction jobs, with half going to Minnesota residents. However, the project will wrap up in less than a year. The PUC didn’t require Enbridge to report the number of Minnesotans hired or the number of union jobs created. It didn’t impose any sanctions if Enbridge fell short of its jobs promises. This was a major justification to approve the project, why no accountability?
11. The Minnesota Department of Commerce intervenes before the PUC representing the public interest. It concluded that Enbridge failed to prove future oil demand justified building a new pipeline, a threshold question for approval. The PUC appeared to make up a new rule on the spot, shifting the burden of proof to Commerce to prove the new Line 3 wasn’t needed. Commerce couldn’t, because it rightfully didn’t expect to have to make that case. How could the PUC so easily change the rules and override the agency charged with representing the public when its mission is make decisions “consistent with the public interest”?
12. The PUC rejected major findings by state experts on Line 3’s climate damage. Line 3’s Environmental Impact Statement said the project would result in $287 billion in climate damage over three decades, a number confirmed by an Administrative Law Judge and praised by the MPCA. The PUC rejected all that evidence, siding with Enbridge. It concluded that pipelines don’t cause climate damage, people driving cars cause climate damage. That’s the same ludicrous logic as saying cigarettes don’t cause cancer, people smoking cigarettes cause cancer. The PUC dismissed of climate damage as a legitimate issue , leaving many in the public deeply confused. The preponderance of evidence pointed to climate damage as a significant concern. How could the PUC so blithely ignore it? What’s the message sent to members of the public who spent years arguing about Line 3’s climate damage that the PUC wasn’t going to consider the issuer?
13. The PUC approved an Enbridge-funded Public Safety Escrow Account to reimburse local law enforcement for Line 3 related expenses. As of late July, it had disbursed more than $1.3 million. Law enforcement is charging for “proactive patrols,” meaning it’s not responding to calls but essentially working as Enbridge’s private security. Did this financial scheme bias law enforcement towards Enbridge and against water protectors? Should we have a private corporation funding basic law enforcement services?
14. There was massive public participation against Line 3 yet it didn’t make a difference in any major Line 3 decision. There was no clear explanation of how public participation is supposed to affect outcomes. So many decisions went against those opposed to Line 3 it’s hard to believe the fix wasn’t in from the start. Democracy depends on public participation but people will stop showing up if it’s clear the process is a farce. What are the PUC and MPCA and other state agencies going to do to clarify that public participation matters and how it impacts the process? What would it take for the PUC or MPCA to actually say “no” to an extractive industry? Is it ever possible, or is their goal to keep negotiating with industry until they get to “yes”?
Great piece, Scott. Thanks for what you do.
My Best,
Ron
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