Line 3 Recommendations Puts Burden to Stop Line 3 Squarely on the Ojibwe

People packed public hearings on Enbridge Line 3, like this 2017 hearing in Bemidji.

Administrative Law Judge Ann O’Reilly’s long-awaited report on Enbridge’s Line 3’s crude oil pipeline through northern Minnesota came out late Monday with recommendations that are sure to disappoint the pipeline’s indigenous and environmental opponents as well as Enbridge itself.

The recommendations do not offer a thumbs-up or thumbs-down on the proposed 337 mile pipeline from Kitson County to Superior, Wisc. Instead, O’Reilly recommends giving Line 3 tentative approval, hinging on numerous conditions — but conditions that Enbridge surely will oppose.

[Note: I have not read the full report, which was released in the late afternoon. The following analysis relies on initial reads from MN 350, the Youth Climate Intervenors, and the Sierra Club, a group with which I volunteer.]

Significantly, O’Reilly’s 370-page report rejects Enbridge’s preferred route. The recommendations says the only way the project would meet a cost-benefit analysis — and justify a Certificate of Need — would be if the company removed the old Line 3 from its existing trench and used the same trench for the new Line 3.

O’Reilly’s recommendations would both add significant costs to Enbridge and create an unwinable legal conflict with Ojibwe bands.

Enbridge proposed abandoning the old pipeline in the ground and installing the new pipeline along a new route. (That route would cross the Mississippi River twice, including the headwaters.) O’Reilly’s requirement to remove the old pipeline and use the existing trench would — by Enbridge’s estimate — add $1.28 billion in costs. (See page 8-13 in the final environmental impact statement.)

Further, the old Line 3 cross reservation lands. Reusing that same trench is a non starter. Tara Houska, National Campaigns Director of Honor the Earth, said it in a statement: ‚ÄúTribal nations have been crystal clear that a new line is not acceptable; there is no economic need for Line 3 and the risk it poses to Minnesota.” So even if Enbridge was willing to fork out the extra $1 billion to remove the old pipeline, it’s highly unlikely it would ever get the needed permission from Native nations to build it.

Lastly, O’Reilly’s report is clear that Native nations have the right to say “no” to any new pipeline through their territory. On page 10 of her report, she writes:

Just like the Commission [PUC] cannot bind the federal government, the Commission does not have the authority to require the Indian Tribes to permit the replacement of Line 3 within the Reservations.

The recommendations now go to the Minnesota Public Utilities Commission (PUC), which is expected to cast final votes in June on Line 3’s Route Permit and its Certificate of Need. O’Reilly’s conditions seem to be deal killers, but unfortunately she doesn’t come out and say that. They leave the PUC some wiggle room. It’s still anyone’s guess how the PUC will vote.

Perhaps the only certainty is that there will be litigation regardless what happens.

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