In her recommendations on the Enbridge Line 3 crude oil pipeline, Administrative Law Judge Ann O’Reilly took sides on the critical issue of treaty rights when she should have stayed neutral. Instead, she staked out a legal position outside the scope of her work and one detrimental to the Ojibwe Bands.
O’Reilly is not a treaty law expert. More importantly, O’Reilly’s recommendations are meant for the Minnesota Public Utilities Commission (PUC) and the PUC isn’t going to take a position on treaty rights. It’s beyond the PUC’s scope. O’Reilly should have stayed neutral and articulated the PUC’s predicament: The PUC can’t decide treaty law disputes yet treaty rights are a critical issue underpinning its Line 3 decision. Continue reading →
Part III of a series looking at Ojibwe Band responses to Administrative Law Judge Ann O’Reilly’s report and recommendations on the Enbridge Line 3 tar sands pipeline. [Note: Ojibwe is the colonial name for the Anishinaabe. Ojibwe is used in this story because of its use as an official band name.]
While other bands tended to focus on treaty rights, the Mille Lacs Band led with a strong argument on the economic reasons to deny Line 3. The Mille Lacs Band said: “THE EVIDENCE IN THE RECORD DOES NOT SUPPORT A NEED FOR THE PROJECT.”
O’Reilly’s report, and Mille Lacs response, were sent to the Minnesota Public Utilities Commission (PUC), the body expected to vote on Line 3 in late June. The PUC will vote on Line 3’s Certificate of Need and Route Permit. The Mille Lacs letter addresses both issues.
Part II of a series looking at Ojibwe Band responses to Administrative Law Judge Ann O’Reilly’s report and recommendations on the Enbridge Line 3 tar sands pipeline. [Note: Ojibwe and Chippewa are both colonial names for the Anishinaabe. They are used in this story because of their use as official band names.]
Federal Indian law and the interpretation of treaties is complicated business; it requires specialized legal training. Ojibwe bands in northern Minnesota are pushing back on how Administrative Law Judge Ann O’Reilly interpreted treaty law in her report on the Enbridge Line 3 crude oil pipeline, submitted to the Minnesota Public Utilties Commission (PUC).
Some of her interpretations don’t conform with court decisions, Ojibwe bands say.
At issue are Ojibwe treaty rights to hunt, fish and gather in northern Minnesota. In the legal world, these are called “usufructuary rights.” The dispute is over whether Ojibwe bands retained these hunting and fishing rights on lands they ceded by treaty to the U.S. government.
O’Reilly’s effort to interpret treaty law is flawed, and it reflects a major flaw in the Line 3 review process. First, according to her official state profile, O’Reilly doesn’t appear to have Indian law expertise. This is not a knock on O’Reilly; it’s a knock on a system that wasn’t set up to look out for treaty rights. Second, the system pushes resolution of treaty rights disputes to the end of the legal process instead of making them the priority and putting them at the beginning.
The process could just as easily have defended Ojibwe treaty rights and forced Enbridge to overcome that presumption in court before its application process even started.
It’s reasonable to ask why treaty rights issues didn’t receive more attention at the start of the process. The federal Indian Trust responsibility is a U.S. obligation “to protect tribal treaty rights,” according to the U.S. Department of Indian Affairs.
The [Leech Lake] Band is different than the White Earth, Red Lake, Mille Lacs, and Fond du Lac Bands. The [Judge’s] Report fundamentally fails to understand this. The Band is again trying to make that clear so that the [Public Utilities] Commission will not miss the point, as well.
Two Kinds of Treaty Rights
The Enbridge Line 3 crude oil pipeline proposal affects two kinds of treaty rights:
First, each of the Ojibwe bands has treaty rights to operate as a sovereign government and control land. (The colonial term is “reservation.”) Second, they have treaty rights with the cumbersome title: “usufructuary rights.” This refers to rights to hunt, fish and gather on “ceded territory,” that is, lands outside of reservation boundaries. (These hunting and gathering rights are complicated. More on this in a later blog.)
What is important from Leech Lake’s perspective is that Line 3 crosses its sovereign lands. (In fact, Line 3 runs in Enbridge’s Mainline Corridor which has a total of six pipelines. These pipelines also cross the Fond du Lac Reservation. Leech Lake and Fond du Lac are two of the seven sovereign Ojibwe Bands in Minnesota.)
Enbridge, a Canadian energy transportation company, has proposed a 1,000+ mile crude oil pipeline from Alberta to Superior Wisc., crossing northern Minnesota. It wants to reroute Line 3 through part of Minnesota, opening a brand new pipeline corridor to avoid Leech Lake and Fond du Lac lands. That route would still cross lands where various Ojibwe Bands have reserved “usufructuary” rights to hunt, fish and gather.
In-Trench Replacement Proposed
O’Reilly’s recommendations say if a pipeline is to be built, the best option is to remove the current Line 3 and rebuild in the same trench. She argues that plan has the environmental benefits of removing the old, decaying pipeline, and avoiding the environmental damage of opening a new pipeline corridor. The plan also has the economic benefit of creating jobs to remove the old pipeline, a project estimated to cost $1.2 billion.
Writing for the Leech Lake Band of Ojibwe, attorney Grace Elliott called O’Reilly’s plan “a terrible choice.”
Any suggestion of negotiation on in-trench replacement of Line 3 is offensive to the Band, whose sovereign government has legislatively passed an ordinance/resolution stating its official position against in-trench replacement. …
The Band does not accept the Report’s assumption that the Project’s impacts on off-reservation natural resources would have a greater negative socioeconomic impact on the tribal community than in-trench replacement of the pipelines across reservation lands.
Enbridge’s Mainline Corridor easements expire in 2029. Leech Lake’s letter said the Band won’t renew the agreement in 2029 “because it wants the pipelines removed as soon as possible.”
The Leech Lake Band said the impact of a new Line 3 “would be more favorable if the Commission approved a route outside the Reservation.”
The Band’s interests in this Project cannot be understated … With respect, the Band’s Reservation is different than ceded territories, and crossing the Reservation is different than crossing private property within a ceded territory …
‘Best and Most Plentiful Wild Rice Waters’
The Minnesota Public Utilities Commission is expected to vote on Line 3 in late June. It will rely on O’Reilly’s report for its deliberations.
The Leech Lake Band says that O’Reilly’s analysis is skewed, ignoring Line 3’s impacts on Leech Lake simply because the pipeline corridor already exists. The letter continues:
The Leech Lake Reservation has the best and most plentiful wild rice in the State. As [Leech Lake Band of Ojibwe Environmental Director Levi] Brown stated, ten percent of Minnesota’s fresh water lies within the Leech Lake Reservation boundaries, and Leech Lake has the most abundant wild rice resources. The existing Line 3 pipeline runs through the very heart of wild rice country where it crosses through the Leech Lake Reservation. …
The Leech Lake Band argues that rebuilding in the same trench “has the greatest impacts on wild rice of any alternative.”
Impacts on the Chippewa National Forest
O’Reilly’s report also fails to acknowledge the impact on the Chippewa National Forest of removing the old pipeline and installing a new one, the Band says. Leech Lake co-manages the Chippewa National Forest with the U.S. Forest Service. The current Line 3 affects 157 acres of that forest.
The Band has a memorandum of understanding with the U.S. Forest Service that was signed “to recognize treaty rights of tribes to hunt, fish, and gather wild plants on national forest lands.” Thus, to the extent [O’Reilly] was concerned about impacts on treaty rights, the record is clear that [the in-trench replacement plan] would have real and concrete impacts. The [PUC] should not ignore these facts.
The Minnesota Department of Commerce recommended denying the Certificate of Need for the Enbrdige Line 3 tar sands crude oil pipeline in a May 9 filing to the Minnesota Public Utilities Commission (PUC).
Commerce’s filing responds to Administrative Law Judge Ann O’Reilly’s report and recommendations on Line 3, issued in April. One issue to emerge from the back-and-forth is a disagreement between O’Reilly and Commerce on the state’s proper role in evaluating Enbridge Line 3’s “need.” O’Reilly’s report criticized Commerce for not providing an in-depth economic analysis of the project. Commerce responded that it was not required to do its own study, only evaluate Enbridge’s analysis to see if it was sound.
To be clear, both Commerce and O’Reilly found flaws in Enbridge’s economic arguments. O’Reilly appears to have wanted more help from the state than she got.
In this case, Commerce got it right. It reviewed Enbridge’s work to see if it was credible, and it wasn’t. End of story. Reject the pipeline.
The PUC is expected to vote on Line 3 in late June.
The Minnesota Public Utilities Commission (PUC) should reject Enbridge’s Line 3 proposal based on the biased and self-serving arguments Enbridge used during the regulatory review process. Minnesota needs credible partners in such major infrastructure projects.
Administrative Law Judge Ann O’Reilly’s Line 3 report to the PUC identifies several key areas where Enbridge’s flawed arguments undercut its credibility as an honest broker of information.
On the surface, O’Reilly’s report was something of a head scratcher, proposing an unpopular and unworkable option. She recommends taking the old pipeline out of its current trench and installing the new pipeline in the same trench.
Enbridge wants to open a new pipeline corridor. It knows it won’t get permission from Leech Lake or Fond du Lac to run a new line through their reservations. Enbrige also wants to avoid the extra costs of removing the old pipeline, a bill it places at $1.2 billion. On the other side, the tribes don’t like O’Reilly’s recommendation. They not only want the pipelines off reservation land, but off the treaty territory where they have reserved rights to hunt, fish and gather.
O’Reillly’s recommendation seems to leave the PUC in the lurch.
Yet dig into O’Reilly’s report and you find damaging criticism of Enbridge’s testimony. First, Enbridge failed to adequately assess the environmental damage that its proposed new Line 3 corridor would create and ignores the culture impacts the project would have on the Anishinaabe people. Second, she disputes key parts of Enbridge’s expert testimony on the demand for crude oil — the essential facts the company needs to justify building a new pipeline. Lastly, she questions Enbridge’s credibility on the arguments it used to avoid having to pay to remove the old pipeline.
The PUC needs to take these credibility issues to heart. It is expected to vote on Line 3 in June.
One of the main arguments Canadian corporate giant Enbridge uses for building a new Line 3 crude oil pipeline through northern Minnesota is safety. The old Line 3 is pretty much a disaster waiting to happen.
Line 3 is weak Enbridge is only able to operate it at half capacity. Yet just because the old pipeline is unsafe doesn’t mean we need a new pipeline. (We don’t. See the Minnesota Department of Commerce’s media release saying Enbidge failed to make the case a new pipeline is needed.)
And just because Enbridge is making a safety argument doesn’t mean that Enbridge has made safety a top priority. (Based on past performance, it hasn’t.) Enbridge was forced into a federal Consent Decree because of its poor safety record. (More on the Consent Decree in a later post.)
Safety seems to be a useful rhetorical argument for Enbridge more than a corporate commitment.
If Enbridge was truly concerned about Line 3’s safety, it would shut it down regardless of what happens with the new Line 3 permits. It has not. It’s effectively playing a game of chicken with the Minnesota Public Utilities Commission (PUC): “Allow us to build a new and larger pipeline where we want … or else we’ll keep running this dangerous one.”
This is an attempt to shift the burden of Line 3 safety onto the PUC instead of putting the responsibility where it belongs: On Enbridge itself.
The Anishinaabe of northern Minnesota are at particular risk. They have treaty protected rights to hunt, fish and gather on lands along the pipeline’s route. A major rupture would affect their sacred wild rice as well as pollute waters that all Minnesotans care about.
An under reported aspect of the Enbridge Line 3 crude oil pipeline debate is how the state’s Line 3 decision will affect the four other crude oil pipelines in Enbridge’s mainline corridor — a corridor passing through both reservation lands and treaty territory.
This debate isn’t just about Line 3, but Lines 1, 2B, 3, 4 and 67, all crude oil pipelines. (A sixth pipeline, Line 13, carries diluent north to Alberta, a product used to make the tar sands flow more easily through the pipes.)
Enbridge faces an easement crisis in the mainline corridor in a little more than a decade. Administrative Law Judge Ann O’Reilly says in her recently released report and recommendations to the Minnesota Public Utilities Commission (PUC):
In 2029, Enbridge’s easements with the federal government, allowing it to run six pipelines through the two Indian Reservations [Leech Lake and Fond du Lac], will expire. Thus, sometime before 2029, [Enbridge] will need to either renegotiate those easements with the Tribes and the federal government; or remove those lines from the Reservations. Approval of the Project, as proposed, would result in a partially new oil pipeline corridor being created in the State where Applicant could someday request to relocate its other pipelines. This is especially true if negotiations with the Tribes before 2029 are unsuccessful. (page 10)
We wrote in an earlier blog that Enbridge quietly started plans to relocate multiple pipelines in this new corridor: Enbridge’s Secret: It Has Easements Allowing for More Pipelines in the New Corridor. By rerouting Line 3, Enbridge seems to be trying to create a new route for all of its pipelines and avoid the 2029 lease negotiations. It’s highly unlikely that Leech Lake and/or Fond du Lac would approve new leases.
This is no argument to approve the new route. This is making transparent Enbridge’s plans to build lots more pipelines through our cleanest waters and then abandon them in the coming decades as the fossil fuel industry dies out. It’s also important to note that while the new Line 3 would not cross reservation lands, it would still cross treaty protected lands where Ojibwe have rights to hunt, fish and gather — rights that the pipeline would impact.
The PUC is expected to vote on Line 3 by late June.
Critics have been warning state policy makers about the bad precedent they would set by allowing Enbridge to abandon its old Line 3 tar sands pipeline in the ground and build a new and larger pipeline along a new route.
Boy were those critics right.
Enbridge seems to be planning ahead to abandon three other aging pipelines in the ground — each adding future clean-up costs to landowners and/or the state.
And Enbridge hasn’t been transparent about it.
The decision now is in the hands of the Minnesota Public Utilities Commission (PUC). It is expected to vote on Line 3 in June. If the PUC approves Enbridge’s proposal, it would be the first major crude oil pipeline abandonment in the state’s history.
Administrative Law Judge Ann O’Reilly’s 370-page report on Line 3, issued to the PUC on April 23, raises significant concerns about Enbridge’s future plans.
Here’s the link to the feedback page, which frames the debate as follows:
Enbridge Energy’s plan to replace its aging Line 3 pipeline is forcing state regulators to weigh the potential economic benefits to Minnesota against the environmental risks. But how to decide? Enbridge says the new Line 3 will be stronger and safer than what’s in the ground now. Environmentalists and Ojibwe tribes warn that Minnesota would invite disaster by backing another high-volume oil pipeline. It’s a complex decision that will test the state’s ability to balance the demands of industry and the environment. Minnesotans will live with it for generations. The decision will likely come in June. Now, MPR News wants to know what you’re thinking.
The Insight Network’s short blurb says a lot about how MPR sees the issue. It frames the Line 3 debate very poorly.
The Insight Network omits the question of need, thereby giving the impression that the new Line 3 is necessary. It is not: MPR’s framing makes no mention of whether or not Minnesota needs this pipeline. It doesn’t challenge the need for a so-called “stronger and safer” pipeline. Instead, it poses the debate as a balancing act between the demands of industry and the environment. Why does MPR make the “demands of industry” central to the discussion? This should not not be about what industry needs, the question should be whether the environmental risks are offset by other benefits to residents taking the risk. (More on this later.)
The Insight Network uses the vague term “environmental risks” instead of being explicit: The risks include crude oil spills in or near our cleanest lakes, rivers, and wild rice areas. These spills would never be fully cleaned up because of the nature of tar sands crude: It’s heaving and sinks. Further, the environmental risks include a $287 billion climate change impact. The Insight Network’s set-up fails to mention the term “climate change.”
The Insight Network’s framing fails to mention treaty rights issues: Treaty rights are central to this debate. The Ojibwe have protected treaty rights to hunt, fish and gather on lands the proposed pipeline would cross. Treaty rights are the supreme law of the land. Why did the Insight Network narrative not mention treaty rights?