The Dakota Access Pipeline (DAPL), Enbridge Line 3 in Minnesota, Enbridge Line 5 in Wisconsin and Michigan, and other crude oil pipelines have had, or continue to have, controversial paths towards approval.
With the exception of Keystone XL, corporate interests have won out over strong public resistance and weak regulatory oversight.
Pipeline firms have got the go-ahead on massive infrastructure projects in spite of their their treaty violations, their troubling track records, and their long-term environmental costs, including their significant climate damage.
The Regulatory/Industrial Complex has a Pipeline Playbook that needs to be named and called out.
What follows is a work in progress, an effort to synthesize previous posts.
Warning, this is a long post (6,800 words). It’s for the diehards amongst you who have spent countless hours opposing Line 3 and have ached watching our government regulatory infrastructure fail us over and over and over again.
I’m sure I’ve missed things. Please send your feedback for changes/additions.
Here are the Pipeline Playbook’s top lines identified so far. (Hyperlinks go to GoogleDoc for easier navigation.)
- Pretend states don’t have treaty obligations
- Ignore, downplay externalized costs
- Bake corporate bias into the system
- Keep information from the public and Tribes
- Get cozy with law enforcement, create perception that civil disobedience threatens public welfare and justifies an extreme response
- Don’t worry, past violations aren’t a big deal
- Don’t worry, ongoing permit and process violations aren’t a big deal, either
- Make the public record long and technical; ignore the big picture
- Start with small requests then work your way up
- Duck liability whenever possible
- Charitable giving builds local support
Pretend states don’t have treaty obligations
We’ve written about this at length, but it bears repeating: Article VI in the U.S. Constitution states treaties the supreme law of the land. They trump state and federal laws. Period.
States don’t have the final say on treaty rights; that’s up to Congress and the federal courts. But states (and county sheriffs) have a legal and moral obligation to understand treaty rights and do their best to apply them correctly.
The Regulatory/Industrial Complex acts as if treaties are a federal issue, one in which states are not involved. This is a self-serving and flawed argument.
State regulators and county sheriffs would have us believe they are not taking sides, that somehow stepping aside and waiting for the federal government to act is a neutral stance.
It is not a neutral stance. They are taking sides.
They are tacitly accepting a legal interpretation that treaty rights don’t exist — until and unless Tribes sue in court to enforce them and win. This approach clearly benefits companies like Energy Transfer/DAPL and Enbridge who don’t want to follow treaty law.
This continues the United State’s long arc of treaty abuses.
DAPL: The federal government has a long history of violating treaties in the Dakotas, according to a new Special Report titled: Faulty Infrastructure and the Impacts of the Dakota Access Pipeline (DAPL).
In the late 1940s and 1950s, the U.S. Army Corps built the Oahe dam on the Missouri River for flood control and hydropower. The project flooded some of the most productive remaining lands of the Standing Rock and Cheyenne River reservations. Those lands supplied 90 percent of “the timber, wild berries, and plants essential to the Tribe’s diet and ceremonies, habitat for animals hunted for subsistence, and fertile lands for growing food,” the Special Report said.
Permitting DAPL construction in its current route continues the pattern of ignoring tribal rights and sovereignty. It “trespasses through unceded treaty lands granted” to the Great Sioux Nation under the Fort Laramie Treaties of 1851 and 1868, the DAPL report says.
An article in The Smithsonian Magazine concurs: “In the five generations since the treaty was signed and broken, the Sioux Nations have steadily lost reservation lands to white development.”
DAPL dug a 7,800-foot pipeline tunnel under Lake Oahe, a mere half mile from Standing Rock’s reservation. Any spill or other environmental damage from DAPL would harm Standing Rock first and foremost.
DAPL is a test of the federal government’s integrity, not only to honor Indian treaties recognized under the U.S. Constitution, but also to honor our rights to free, prior, and informed consent (FPIC) as was declared in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).DAPL Special Report
Morton County Sheriff Kyle Kirchmeier was deeply involved in the violent law enforcement response to DAPL water protectors, the vast majority of whom were peaceful.
In an interview with The Intercept, Kirchmeier said it was the federal government’s job to enforce treaties. “‘This was a federal problem from the beginning of it,’ he said, adding, ‘We as the county officials can’t do anything about it.’”
As part of his oath for office, Kirchmeier had to “solemnly swear (or affirm) that I will support the Constitution of the United States…”
Kirchmeier is violating his oath of office. Effectively, he’s saying he doesn’t have to enforce the Constitution.
Kirchmeier needs to do his homework. He is responsible to do the best he can to understand what treaty law requires and enforce it. Others are then free to challenge that interpretation in court. Kirchmeier doesn’t get to say: “Not my job.”
The same is true for county sheriffs in Minnesota.
Enbridge Line 3: In Minnesota, treaty rights were raised repeatedly during Line 3 proceedings, specifically those contained in the Treaty of 1854 and Treaty of 1855. These treaties guaranteed the Anishinaabe bands the right to continue to hunt, fish, and gather on lands they ceded to the U.S. government. The White Earth and Red Lake Nations and others argued Line 3 threatened those off-reservation rights.
The Minnesota Public Utilities Commission casually dismissed such arguments in a footnote in its initial Line 3 Certificate of Need. It said a discussion of treaty rights “is not necessary to the Commission’s decision…”
The PUC provided no legal argument for ignoring treaty rights. Its decision reflects the commission’s white supremacy culture – it believes it doesn’t even have to explain its decision to ignore treaty rights.
The PUC commissioners violated their oath of office.
“I do solemnly swear that I will support the Constitution of the United States, the constitution of this state; that I will faithfully discharge my duties as commissioner of the Public Utilities Commission according to the best of my ability …PUC Oath of Office, Statute 216A.03(4)
Gov. Tim Walz issued an executive order in 2019 and promised “meaningful consultation” with Tribes. On Line 3, his agencies failed on multiple occasions. Walz never too a position. His agencies allowed Line 3 construction to start before a COVID-19 vaccine was available, without meaningful consultation. The Minnesota Department of Natural Resources (DNR) permitted a massive Line 3 dewaterting increase without meaningful consultation. The Minnesota Pollution Control Agency (MPCA) approved Line 3 water crossings without meaningful consultation. The list goes on.
Enbridge Line 5/Wisconsin: In Wisconsin, Enbridge’s current and aging Line 5 runs through 12 miles of the Bad River Reservation in northern Wisconsin.
The Anishinaabe of the area ceded lands in northern Wisconsin as part of the 1842 Treaty of LaPointe. They retained “the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States.”
The Bad River Reservation was established by the 1854 Treaty of LaPointe.
Enbridge’s easement to cross Bad River expired in 2013. The Band voted five years ago to reject an easement that would allow Enbridge to rebuild Line 5 in the existing corridor. Bad River says Enbridge’s Line 5 has been trespassing on its lands. Enbridge has tied up the issue in federal court.
Enbridge has proposed a 41-mile reroute around the reservation. That new route would cross approximately 185 waterways that flow into reservation lands. A spill would be disastrous to the Bad River Band, its fishing and gathering rights, and also to Lake Superior.
Enbridge Line 5/Michigan: Line 5 also runs through Michigan’s Upper Peninsula. It then turns south. Of particular concern, the aging pipeline runs along the floor of the Straits of Mackinac. Line 5 eventually ends in Sarnia, Ontario.
The 1836 Treaty of Washington involved multiple Indian Nations ceding lands that would become the eastern part of the Upper Peninsula and parts of Michigan – lands now crossed by Line 5.
The Bay Mills Indian Community intervened in the Line 5 review. They believe life began in the Straits of Mackinac, according to the Native American Rights Fund (NARF) which is teaming up with Bay Mills on a lawsuit. “They consider the waters where Lake Huron and Lake Erie meet a sacred space. The area remains integral to daily practice of cultural lifeways and is full of historic and archaeological sites.”
“In the 1950s, without tribal consultation nor seeking public input, the State of Michigan granted Enbridge a lease and permission to build the original Line 5 dual pipeline in spite of the risk of oil spills in the Great Lakes,” it said.
For its new Line 5, Enbridge proposes tunneling under the Straits of Mackinac.
The Bay Mills community says the tunnel would threaten “the Tribe’s food and water supply, medicinal plant species, economic livelihood, and treaty rights.”
On Jan. 13, an administrative law judge in Michigan excluded important information the Michigan Public Service Commission would consider as it deliberates on Line 5’s tunnel permits.
In his ruling, the judge granted Enbridge Energy’s request to strike from the record portions of testimony about serious risks that the tunnel poses to public safety, climate change, and Tribal sovereignty. Portions of the excluded testimony explained the cultural and spiritual significance of the Straits to the Anishinaabe people and stressed the catastrophic impact an oil spill in these waters would have on every aspect of their existence.”Native American Rights Fund
Over and over again, the powers that be find ways to ignore treaty rights.
Ignore, downplay externalized costs
All states in the country, save one, have balanced budget requirements. That is, legislatures can’t pass budgets that create debts for future generations.
However, legislatures have no qualms about approving projects that leave an environmental deficit for future generations to clean up. They will take credit for short-term job creation from a pipeline project and pass on the future clean-up costs to their children and grandchildren. (They won’t be around to take the political heat.)
Pipeline projects and their political supporters downplay climate change and long-term water pollution in their environmental analysis.
Enbridge Line 3: The biggest example is Line 3’s estimated climate impact. The state’s environmental impact statement said the oil in Line 3 would create $287 billion in global climate damage over three decades. The Administrative Law Judge reviewing the case agreed. The Minnesota Pollution Control agency agreed. Somehow, Enbridge convinced the Minnesota Public Utilities Commission to ignore its state experts and approve the project.
The PUC said pipelines don’t cause climate change, people driving cars do. That decision sufficed to take Line 3’s climate impacts off the table for all other state agencies, including the MPCA, overriding all those promises.
Gov. Tim Walz created a Climate Change Subcabinet and made climate change a top priority. It’s clear how Walz reconciles Line 3 approval with his commitments to racial justice and reducing climate change.
Bake corporate bias into the system
There are many ways in which laws and regulations are set up to favor pipeline proposals.
DAPL: During litigation, the D.C. District Court ordered Dakota Access to select an independent auditor “in consultation with the Tribes,” the DAPL Special Report said. The auditor was to complete an audit reviewing permit conditions and “other integrity threats.”
Over the Tribe’s objection, Dakota Access “unilaterally dictated the scope of the audit, and conducted it behind closed doors to thwart the Tribe’s request for an ‘independent third party’ audit.”
As for the U.S. Army Corps of Engineers, it used a “highly-conflicted so-called ‘independent third-party” contractor. That contractor had “blatant financial ties to and advocacy for the oil and gas industry through membership in the industry lobby group, the American Petroleum Institute.”
Some federal rule changes under the Trump administration affected the DAPL analysis, the DAPL Special Report said.:
- Changes to the National Environmental Policy Act (NEPA) undermined citizen involvement. For instance, it removed the provision stating that, “NEPA procedures must [e]nsure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.”
- The Council on Environmental Quality relaxed oversight on non-agency contractors involved in preparing environmental impact statements (EIS) or environmental assessments. “
The Biden administration has rolled back some Trump-era environmental deregulation, including instating a requirement for “agencies to assess the climate impact of roads, pipelines and other infrastructure.”
Bottom line: We have lost any national consensus on what environmental protection means. We will see big swings in these regulations depending on which party is in control.
Enbridge Line 3: In Minnesota, regulators approved a plan that let Enbridge select and train the “Independent Environmental Monitors” that were supposed to be Line 3 construction watchdogs – working on behalf of state agencies, such as the DNR and MPCA. (Enbridge paid the Monitor’s salaries, too.) A review of Independent Environmental Monitor resumes showed that 50 percent had prior work with Enbridge.
It seems reasonable to conclude that these weren’t “independent” monitors. If they enforced rules too strictly, they could risk losing future Enbridge employment.
DNR Conservation Officers provided law enforcement response to Line 3 resistance. The DNR would eventually receive $2.2 million in reimbursements from a company it was supposed to regulate, a conflict of interest.
As one example, DNR Conservation Officers responded to Water Protectors who were standing in Willow Creek at the Line 3 crossing. Those water protectors just happened to come upon a “frac out” in the river. Frac outs can occur when workers bore pipeline tunnels under rivers and wetlands. They use “drilling mud” to keep tunnels open and to lubricate the drill. Frac outs occur when this drilling mud — pumped under pressure — escapes the tunnel through cracks in the soil. It enters the groundwater. Sometimes it makes it to the surface.
Frac outs are a permit violation. DNR Conservation officers were focused on intimidating the Willow Creek water protectors than attending to the immediate permit violation, according to water protectors who were there.
In Clearwater County, Enbridge violated its work plan and dug much deeper than indicated. It ruptured an artesian aquifer. The DNR required it to do restoration work, which is a bare minimum. The DNR also imposed a $20,000 administrative penalty – which it described as the maximum allowed by law. That’s the definition of a biased system, set penalties so low that they aren’t a deterrent to permit violations.
Keep information from the public and Tribes
Knowledge is power and control.
DAPL: The Army Corps continually refused to provide Tribes and their experts “with substantive data and information on route selection analysis and spill modeling, including details on the assumptions and methodology used to calculate an underestimated worst-case discharge,” the DAPL Special Report said.
The Army Corps asserted that DAPL’s Lake Oahe underground crossing was low risk. The Standing Rock Tribe’s technical team had difficulty understanding its reasoning — and challenging it — since some of the underlying reports were redacted or withheld.
Some information was withheld from Tribes under the guise of national security.
The Army Corp has blatantly ignored “the Tribes’ specific and legally-justified requests for detailed methodology and data that would allow the Tribes’ experts to properly evaluate and challenge the DAPL’s spill risk modeling,” the Special Report said.
DAPL’s preliminary draft EIS relied exclusively on data and information provided by Energy Transfer/Dakota Access to the Army Corps and third-party NEPA contractors “while keeping it secretive to the Tribes and their experts.”
Again, Trump-era regulatory changes weakened environmental oversight.
“Contractors no longer need to be approved or selected by a lead or cooperating agency before preparing the EIS or EA,” the DAPL Special Report said. “Contractors and Dakota Access also do not need to include privileged or confidential trade secrets or other confidential business information in their disclosure statements accompanying an EA or EIS, nor do they need to specify that they have no financial or other interest in the outcome of the project.”
“Trade Secret” is a slippery term, allowing pipeline companies to withhold problematic information which may or may not be trade secret.
Enbridge Line 3: The game of information hide-and-seek began early with Line 3. During the regulatory review, numerous people raised concerns that a large influx of out-of-state, cash-rich workers could increase sex trafficking in the area. It’s an issue of particular concern to Indigenous peoples, who face an epidemic of missing and murdered Indigenous relatives.
Enbridge promised it would have a draft Sex Trafficking Prevention Plan before the Public Utilities Commission’s final vote and share it. They didn’t. The PUC showed indifference to the issue. It approved the project and allowed Enbridge to submit its plan later. The plan Enbridge eventually submitted — and the PUC rubber stamped — was weak. By waiting until after it had its permit approved to submit its flawed plan, Enbridge avoided public and Tribal scrutiny.
Enbridge promised Line 3 wouldn’t have an impact on sex trafficking in northern Minnesota. The Minnesota Public Utilities Commission didn’t require Enbridge to report arrests or related problems with work crews. Enbridge has not volunteered the information to back up its assurances. We now know that four of 13 people arrested in northern Minnesota human trafficking stings worked on Line 3. There is anecdotal information from violence prevention centers in northern Minnesota that there were many more problems. Regulators made no effort to keep the community informed about this issue of great concern.
At the 11th hour prior to the PUC’s final 2018 vote, Enbridge offered some “concessions,” things such as
- A Parental Guaranty for environmental damage,
- A Land Owner Choice Program that would allow landowners who owned property crossed by the old Line 3 to either have it removed or take a one-time payment,
- Creating a Decommissioning Trust Fund for the new Line 3
- General and Environmental and Impairment insurance coverage
By waiting until the last minute to put these offers on the table, Enbridge avoided public scrutiny. As it was, these proposals were rushed through.
Enbridge said 50 percent of the 4,200 construction jobs would be filled locally. That was big selling point. Yet regulators didn’t require Enbridge to report local job creation, let alone impose penalties for not meeting its promise. Enbridge hasn’t volunteered the information, except for one apparently accidental release. It showed Enbridge falling well short of its jobs promise.
The Line 3 environmental impact statement spends a lot of time discussing water and environmental risks, but only in vague and technical terms and tables. From all that information, the public gets no tangible sense of the damage that could be done from a major crude oil spill.
The Minnesota DNR didn’t inform the public for months that it had approved Enbridge’s massive dewatering permit request, forestalling public pushback.
Enbridge Line 3 workers didn’t follow construction plans, digging too deep and puncturing an artesian aquifer in Clearwater County. Enbridge failed to notify the state about it for more than four months, another permit violation, one that allowed Enbridge to avoid public criticism until the project was nearly complete.
It took legislator intervention to get the MPCA to release frac-out information which should have been made public earlier. We still don’t know how much drilling mud Enbridge left in the ground.
The Minnesota Bureau of Criminal Apprehension (BCA) denied reporter requests for documents detailing its role in Line 3 policing, according to the Unicorn Riot story — Line 3 Fusion Center Data Declared Secret. The BCA is part of the Minnesota’s Department of Public Safety (DPS), led by John Harrington. The BCA runs the Fusion Center.
Fusion centers are intelligence hubs created after Sept. 11 and the passage of the Patriot Act. It was one of several controversial domestic surveillance programs. It serves as information sharing points for local, state, and federal police as well as private security firms and corporations.
Harrington’s security determination claims that releasing any Line 3 data from the BCA would create security threats by “making such information available to those who would create public safety hazards, or participate in criminal or terrorist activity.” (Emphasis in the original.)
According to The Intercept article — Minnesota Law Enforcement Agency Blocks Release of Public Records About Surveilling Pipeline Opponents, the “secrecy tag” wasn’t a public safety issue, but a PR decision after the media ran critical stories about policing anti-pipeline activists. The Minnesota Fusion Center “had in the past released records related to its policing of pipeline opponents,” the article said.
Hide the information. Rinse and repeat.
Line 5/Michigan: In Michigan, a 2017 news report by MLive said that Enbridge knew about pipeline problems on the floor of the Great Lakes since 2014, but didn’t report it to regulators for three years. At issue was damage to the “protective coating on its Line 5 pipeline under the Straits of Mackinac.”
“This issue is too important to the people of Michigan to not tell the truth in a timely manner, and right now any trust we had in Enbridge has been seriously eroded,” said Valerie Brader, director of Michigan Agency for Energy and co-chair of the state pipeline board.
Enbridge had a 15-month delay reporting a crude oil spill near Fort Atkinson, Wisc., the Wisconsin State Journal reported in 2021. Any spills greater than 5 gallons need to be reported. “Enbridge initially reported that 1.35 gallons of material had spilled, but later revised that estimate to 1,386 gallons,” the story said.
Get cozy with law enforcement, create perception that civil disobedience threatens public welfare and justifies an extreme response
Pipeline companies work hard to get close to local law enforcement to get its help in silencing dissent, creating fear of water protectors, and shifting the narrative away from environmental protection.
DAPL: Law enforcement systems aligned against water protectors.
The National Sheriffs’ Association contracted for opposition research and had a misinformation campaign against the water protectors.
The FBI investigated political activists campaigning against DAPL, the Guardian reported. The FBI diverted “agents charged with preventing terrorist attacks to instead focus their attention on indigenous activists and environmentalists.”
Oil executives framed water protectors as dangerous. A top DAPL executive compared pipeline opponents to terrorists, according to a 2017 MPR story.
And water protectors were treated as terrorists.
For its part, Energy Transfer hired Tiger Swan, a private security, counter-insurgency group, that collaborated with law enforcement to go after water protectors. Tiger Swan was “made up largely of special operations military veterans, was formed during the war in Iraq and incorporated its counterinsurgency tactics into its effort to suppress an indigenous-led movement centered around protection of water,” The Intercept said.
As of December 2017, DAPL had paid Tiger Swan $17 million. (Tiger Swan didn’t have a private security license to operated in North Dakota.)
Led by a former commander of the elite Army unit Delta Force, Tiger Swan approached the water protectors as “an ideologically driven insurgency with a strong religious component,” according to internal documents leaked to The Intercept. Company tactics — including aerial surveillance, communications monitoring, infiltration of activist circles, and coordination with law enforcement agencies — were revealed by The Intercept in an investigative series.
Enbridge Line 3: Enbridge didn’t need so much private security for Line 3.
Before the project was approved, the state of Minnesota created the Northern Lights Task Force to coordinate response between multiple law enforcement agencies and Enbridge to respond to protest and civil disobedience. They requested training from the same law enforcement agencies that responded so violently to DAPL resistance.
The Minnesota Public Utilities Commission also approved a scheme where law enforcement agencies could file for reimbursements from Enbridge for Line 3-related public safety costs. They would be reimbursed from an Enbridge-funded Line 3 Public Safety Escrow Account, managed by a third party.
- Some county sheriffs included routine safety patrols of Line 3 work sites, and got reimbursed, effectively acting as Enbridge private security.
- Enbridge’s Chief of Security brought to Line 3 a history of counter insurgency tactics, including managing Exxon Mobil’s response to community protests in Nigeria and helping oversee Amazon’s Global Security Operations Center, a division that has monitored environmental groups and union organizers.
- From the outset, law enforcement coordinated closely with Enbridge, including intelligence sharing.
- Enbridge got a lot of good will from law enforcement by paying for its Line 3-related public safety expenses.
- Minnesota state law enforcement classified its Line 3-related tactics and communications as “secret,” blocking public transparency
Don’t worry, past violations aren’t a big deal
The Pipeline Playbook includes ignoring/downplaying any past safety problems and repeating pipelines buzzwords: Our pipelines are “state of the art.” And “Safety is our top priority.”
On the regulatory side, state and federal reviews provide no clarity on how they weigh applicant’s past violations and safety problems when reviewing permits, if at all.
DAPL: Energy Transfer’s DAPL in North Dakota operates under its subsidiaries Dakota Access and Sunoco Logistics (Sunoco). DAPL and its partners have egregious safety records, “yet prior performance has never been considered in a valid risk assessment,” the DAPL Special Report said.
From 2006 to 2017, Energy Transfer and Sunoco had 291 hazardous liquid pipeline incidents, according to a federal database, the report said. Those “incidents” resulted in $56 million in property damage.
As for Line 3, an administrative law judge (ALJ) took public testimony and heard criticisms of Enbridge’s past practices. Her report summarized:
“In recent years, other pipelines in Enbridge’s Mainline System have been the subject of major failures or notable defects. The most significant of these failures occurred in 2010 near Marshall, Michigan, when Enbridge’s Line 6B ruptured and, over the course of two days, released over 20,000 barrels of heavy crude oil into the environment, including into the Kalamazoo River. … The Marshall Spill is regarded as one of the largest in-land oil spills in U.S. history.
Just two months after the Marshall Spill, another of Enbridge’s Mainline System pipelines (Line 6A) developed a large leak near Romeoville, Illinois, which discharged approximately 6,427 barrels [270,000 gallons] of crude into navigable waters of the United States.ALJ report
Problems have continued.
In 2018, the federal government fined Enbridge $1.8 million for failing to meet pipeline inspection deadlines, the Duluth News Tribune reported. “The inspections the government said ‘do not meet the requirements’ included several Minnesota stretches of Enbridge’s Line 2, Line 3 and Line 4, according to court filings.”
In 2020, the U.S. Environmental Protection Agency (EPA) fined Enbridge $6.7 million for failing to fix pipeline safety problems, the Detroit Free Press reported. “Among other things, the EPA said Enbridge neglected to properly evaluate thousands of “shallow dents” on its Lakehead Pipeline System, which runs through both of Michigan’s peninsulas and includes an underwater stretch of twin pipelines through the Straits of Mackinac.”
There is at least one case worth noting where violations were bad enough to shut down a pipeline.
This is how bad it has to get before regulators act.
The Pennsylvania Department of Environmental Protection shut down the Mariner 2 East pipeline on Jan. 3, 2018, “for leaks and spills that were described as ‘egregious and willful violations,’”
“A Pennsylvania grand jury released its report on October 5, 2021, concluding that [Energy Transfer] ‘flouted the state’s environmental laws and fouled waterways and residential water supplies across hundreds of miles’ along the Mariner 2 East pipeline. [Energy Transfer,] Sunoco’s owner, now faces 48 criminal charges, most of them for illegally releasing industrial waste at 22 sites in 11 counties across the state. A felony count accuses Sunoco of willfully failing to report spills to state environmental regulators. Pennsylvania Attorney General Josh Shapiro also said [Energy Transfer] ruined the drinking water of at least 150 families statewide.
Don’t worry, ongoing permit and process violations aren’t a big deal, either
According to the Pipeline Playbook, problems that arise during construction will not stop construction or or impose meaningful consequences. Without meaningful consequences (both for the company and regulators) problems will keep happening.
DAPL: While DAPL was under construction, Sioux Tribes went to court seeking a Temporary Restraining Order to stop the project. They identified an area along the proposed route they said crossed sacred sites and burial grounds, the DAPL Special Report said. DAPL workers bulldozed that area the following day, and faced no serious consequences for doing so.
Intentionally trying to defile sacred sites? No big deal.
After DAPL’s completion, Tribes went to court to shut down the pipeline, claiming the environmental analysis was faulty. Both the federal D.C. District Circuit Court of Appeals and the D.C. District Court affirmed the Tribes’ argument, the DAPL Special Report said. The Army Corps – the agency responsible for conducting the environmental review – “failed to disclose and sufficiently analyze the significant potential environmental and human impacts to the Tribes of the Great Sioux Nation.”
In spite of those decisions, neither the courts or the Army Corps required DAPL to stop operating while they redid the flawed and inadequate environmental analysis.
The process was deeply flawed? No big deal. Keep pumping.
Line 3: Enbridge admitted to Minnesota regulators from the outset that it couldn’t build the new Line 3 and meet all the state’s water quality standards, “given northern Minnesota’s topography and environment.”
Can’t meet the state’s basic standards? No big deal.
Minnesota Rule 6135.1100 says a pipeline route should avoid wetlands, streams, and areas with high water tables, especially if construction requires excavation. More than 20 percent of Line 3’s route through Minnesota (or 78 miles) crosses wetlands. The new Line 3 crosses more than 200 waterbodies.
If the rule doesn’t apply to Line 3, when will it apply?
Regarding Enbridge’s Clearwater County aquifer breach, the Minnesota DNR Commissioner wrote: “Enbridge’s actions are clear violations of state law and also of public trust. This never should have happened.”
In all, Enbridge workers broke through at least three artesian aquifers, releasing 255 million gallons of groundwater. It took Enbridge a year to fix the Clearwater County breach.
Whether these truly were accidents, or just expedient decisions to finish the pipeline on time we probably won’t know. Still, Enbridge pays workers top dollar and the fact that there were this many breaches is deeply suspicious.
Citizen monitors believe there are other aquifer breaches that weren’t reported.
The last known Enbridge aquifer breach occurred Sept. 10. On March 21 – more than seven months later, the DNR says it has completed its investigations of three aquifer breaches. However, it’s still working on a “comprehensive enforcement plan” and won’t release more information until it is complete.
Line 3 has been up and running since October. Line 3’s operating revenue for the past six-plus months will dwarf whatever fines and penalties the DNR imposes. The punishment will not fit the crime.
Line 5: Enbridge’s Line 5 runs across the floor of the Great Lakes at the Straits of Mackinac. The pipeline is 69 years old, or 19 years past its expected useful life. Michigan Gov. Gretchen Whitmer ordered Line 5 shut down for easement violations. A statement from Michigan said Enbridge has committed “persistent and incurable” easement violations, Bridge Michigan reported.
Enbridge has refused to stop operations. Instead it sued, tying up the issue in federal court.
Enbridge Line 5 is currently operating without legal easements both in the Great Lakes and across the Bad River Reservation.
Apparently, no big deal.
Make the public record long and technical; ignore the big picture
The legal and regulatory records in pipeline cases are massive and complicated. That causes problems:
- Citizen participation is compromised. Only those paid to be involved have the time to fully digest all the information. Even then no one person can do it, it takes a team.
- Not only is it difficult for citizens to get their arms around all the relevant facts, even when they do it’s not clear if or how their comments make a spec of difference in final decisions.
- The record is so long and complicated that it’s easy for decision makers to cherry pick facts to reach whatever conclusion they want.
Enbridge Line 3: With thousands and thousands of pages of documents, it’s easy to lose track of the big picture, such as agency mission statements.
The Minnesota Pollution Control Agency’s mission statement is: “To protect and improve the environment and human health.”
There never was a discussion about whether Line 3 was consistent with the MPCA’s mission statement. Clearly, it wasn’t. It didn’t matter.
The MPCA’s website further states:
The MPCA addresses statewide inequities in pollution exposure through its work to ensure that Black, Indigenous, communities of color, and low-income residents enjoy a healthy environment and fair treatment with respect to the development, adoption, and enforcement of environmental laws, regulations, and policies. This includes meaningful engagement with communities most impacted by pollution and programs intended to protect against it.MPCA website
The state’s own environmental impact statement said “Disproportionate and adverse impacts would occur to both low-income and minority populations … in particular, American Indian populations,” if Enbridge built its proposed route.
There is no accountability for the agency to meet its promises.
More than half of the MPCA’s Environmental Justice Advisory Group resigned because the agency approved Line 3 permits.
The PUC’s mission statement says one of its key functions “is to balance the private and public interests affected” in each case, “and to make decisions that appropriately balance these interests in a manner ‘consistent with the public interest.’”
For starters, this statement is convoluted. It’s essentially saying the PUC should compromise the public interest in a way that’s consistent with the public interest.
During the Line 3 hearing, the Minnesota Department of Commerce’s Division of Energy Regulation and Planning was an official Intervenor, acting on behalf of the public interest. That’s state law.
The Division of Energy Regulation and Planning recommended against approving Line 3’s Certificate of Need, saying Enbridge had failed to prove the pipeline was needed.
Enbridge has the burden of proof to show the new pipeline is needed. The PUC flipped the script and told Commerce’s Division of Energy Regulation and Planning it had to prove the pipeline wasn’t needed. Ultimately, the PUC went against Commerce’s recommendation.
Commerce took the issue to court and lost. The Court deferred to the PUC’s expertise, and ignored the Department of Commerce’s expertise.
Bottom line: The views of the party representing the public interest didn’t carry weight with the PUC.
There is no accountability for this abuse of the process.
It’s the Pipeline Playbook’s magic pixie dust, just a little sprinkle makes the laws and political promises disappear.
Start with small requests then work your way up
We’ve seen a couple of bait-and-switch pipeline proposals.
DAPL: Energy Transfer first proposed DAPL with a maximum carrying capacity of approximately 500,000 barrels a day. Permits in hand, it later applied to add pumps and increase its carrying capacity to 1.1 billion, or roughly double, the DAPL Special Report said.
Tribal leadership pointed out that the Army Corps’ preliminary environmental impact statement failed to adequately analyze spill risks and their impacts from the pipeline’s increased capacity.
Had Energy Transfer began requesting a pipeline carrying 1.1 million barrels of oil — and oil pumped under higher pressure — how would that have affected the environmental risk assessment?
Enbridge Line 3: The new Line 3 pipeline runs through northern Minnesota’s many wetlands. Enbridge first asked the DNR for a permit to dewater 500 million gallons of groundwater.
Permits in hand and construction underway, Enbridge asked the DNR to amend its permit to allow it to dewater 5 billion gallons, or a ten-fold increase.
(Enbridge sought to pump water out of the ground so contractors had a temporary dry space to work in wetlands.)
The DNR approved the dewatering request, writing that Enbridge encountered more groundwater “than originally anticipated.”
Enbridge estimated its initial dewatering request based on what it pumped during a prior pipeline project (the Alberta Clipper). In approving the increased dewatering, the DNR said Line 3 was taking a new route, going through an area with more wetlands and peatlands.
The DNR acts as if this was some kind of new revelation ,that the new pipeline route would go through more wetlands.
Both Enbridge and the DNR knew (and should have known for years) about the wetland conditions along the new pipeline alignment. Enbridge is a multinational, multi-billion-dollar company. It’s inconceivable that its highly-paid scientists would be that far off estimating dewatering needs.
Further, Enbridge built Line 3 during a drought. Its dewatering needs should have been less, not more.
Where was the DNR in all of this? It appears to be taking Enbridge’s word on dewatering needs. It doesn’t seem that it did any independent analysis, let alone double checking Enbridge’s work.
Duck liability whenever possible
Enbridge Line 3: State regulators expressed concern that if Enbridge Line 3 had a major oil spill it could declare bankruptcy and leave Minnesota taxpayers with the clean-up bill.
Complex corporate structures and last-minute proposals make needed accountability difficult.
Enbridge made a last-minute proposal to the Minnesota Public Utilities Commission for something called a “Parental Guaranty” to cover clean-up costs of a major Line 3 spill.
The DNR identified flaws in Enbridge’s Parental Guaranty. Among them, the guaranty didn’t “include a provision for handling emergency situations when immediate action is necessary.”
The Department of Commerce wrote that Enbridge’s proposed guaranty “imposes unnecessary, substantive, and procedural hurdles to the state of Minnesota and beneficiaries to effectively call on the guaranty. …
Commerce said it learned an important lesson from Enbridge’s earlier Sandpiper Pipeline proposal (which didn’t get built). The “guaranty” Enbridge offered in the Sandpiper case wouldn’t be sufficient for Line 3, said Bill Grant, deputy commissioner of energy and telecommunications for Commerce.
“In retrospect, ‘there were a lot of things in the Sandpiper case where we were Babes in the Woods,’” Grant was quoted in the Star Tribune.
This is to say that Enbridge wasn’t a good-faith partner with Minnesota. It appears Enbridge was looking for ways to shelter its assets at Minnesota’s expense and got called out.
Charitable giving builds local support
Enbridge Line 3: Enbridge said it’s committed to supporting and strengthening communities near its pipelines. For instance, in 2021, it invested $1.2 million across Minnesota, supporting numerous not-for-profit agencies in three focus areas: health and safety, environment, and community.
That year, it also donated more than $1 million in the United States to help emergency responder organizations located near Enbridge’s projects buy safety equipment and professional training.
In smaller communities with lower tax bases and fewer services, a little philanthropy goes a long way to buy good will. This approach isn’t unique to Enbridge. Many large corporations mix philanthropy with public relations, it’s PR with a tax write off.
Particularly ironic, Enbridge cites “environment” as one of its key giving areas, while the Line 3 project has already resulted in significant environmental degradation through clear cutting, wetland damage, aquifer breaches, and frac outs.
As for water protectors, they don’t have money to go and buy community good will. Advantage: Pipeline companies.
5 thoughts on “Understanding the Regulatory/Industrial Complex’s ‘Pipeline Playbook’”
Incredible work you have done Scott — as usual! This wide understanding makes everything
so clear. Went to Earth Day Fest in River Falls WI yesterday. Umbrella group of churches,
Hope for Creation, put it on. Years ago the added participation of churches helped make the LGBT movement unstoppable. Maybe that is what it will take on our environment too.
Excellent Scott. Thanks for your work . I wonder if a national publication might be interested in this.
Re “philanthropy”, I’ve often wanted those of us pipeline protesters who donate to Twin Cities Public television (TPT) to band together and compile our donations, demanding that we get to put an “ad” on the station in return for our donations, like Enbridge does.
As it is I voice my objections to TPT for their passive enabling of Line 3’s construction by their acceptance of money from Enbridge. Some years I withhold my donation as well as voice protest.
I’m sure Enbridge did a lot of damage to sensitive natural areas and culturally important sites. At Standing Rock they plowed though and area where there were graves. I think Enbridge did not do a good job of surveying for culturally important areas on the line 3 route and didn’t try very hard to avoid going through sensitive natural areas.