10/18/2021 - Environmental Justice - Regulatory Tracker

Enbridge Line 3 Replacement and Expansion

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Quick Take

Enbridge completed construction of Line 3 in September 2021 and it is now operational. The Biden administration has supported the project in ongoing federal litigation. The White Earth Band of Ojibwe tribal court dismissed the Tribe’s “rights of nature” claim challenging the project, citing lack of jurisdiction.

Why It Matters

Enbridge is a Canadian pipeline company focused on the transportation of crude oil and natural gas throughout Canada and the Northern U.S. It has the largest system of pipelines in North America and transports 20% of the natural gas consumed in the United States.

Enbridge’s Line 3 project is a new pipeline that replaced 382 miles of existing pipeline and doubled the old Line 3’s capacity, transporting up to 760,000 barrels of tar sands oil per day from Alberta, Canada to Superior, Wisconsin. According to Minnesota’s environmental review, the Line 3 expansion will result in 193 million additional tons of carbon dioxide emissions per year, more than the state’s total current emissions. The old Line 3 was built in the 1950s and caused the largest inland oil spill in US history, spilling 1.7 million gallons in Grand Rapids, Minnesota in 1991.

The Line 3 expansion runs through the Fond du Lac reservation and treaty lands of several bands of Ojibwe. The project also crosses several critical waterways and the headwaters of the Mississippi River in northern Minnesota. Tribes, environmental and citizen groups, and Minnesota’s Department of Commerce have all opposed the Line 3 replacement and expansion in court.

Enbridge claims that the new pipeline is safer than the old pipeline, but that is in dispute. Earlier this summer, the Minnesota Pollution Control Agency announced it was investigating Line 3 after the agency found more releases of drilling fluid than Enbridge had reported. Although drilling fluid is non-toxic and mostly comprised of clay, it can still harm aquatic life and discharge of this fluid is prohibited under the project’s permit. In September, Minnesota’s Department of Natural Resources fined Enbridge over $3 million for breaching an aquifer and illegally appropriating millions of gallons of groundwater.

Current Status

The Biden administration has drawn significant criticism for supporting the Line 3 expansion in light of the President’s ambitious climate and environmental justice commitments. In June, 2021, the Department of Justice filed briefs in support of Line 3, and the project was completed in late September, 2021. With the line now operational, Indigenous groups are continuing to fight the project. A challenge to the permit granted by the U.S. Army Corps of Engineers is still pending in federal court, and a novel “rights of nature” challenge was heard in the White Earth Band of Ojibwe tribal court. However, the Tribal Court of Appeals ruled it lacked jurisdiction to hear the case on March 14, 2022.

Timeline of Events

Background
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1968 Enbridge places the original Line 3 pipeline into service.

Mar. 3, 1991 Line 3 ruptures, spilling nearly 2 million gallons of crude oil in Minnesota. This is the largest inland oil spill in US history.

Obama Administration
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Apr. 24, 2015 Enbridge files a Route Permit Application with the Minnesota Public Utilities Commission to replace 337 miles of pipeline in Minnesota.

Trump Administration
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Oct. 26, 2018 The Minnesota Public Utilities Commission (MPUC) unanimously approves the project’s environmental impact study (EIS) and grants a pipeline routing permit for the Line 3 project.

June 3, 2019 The Minnesota Court of Appeals holds that the MPUC inadequately considered the impact of an oil spill on the Lake Superior watershed in their routing permit approval, temporarily delaying the project. Enbridge Energy, Nos. PL-9/CN-14-916; PL-9/PPL-15-137 (Minn. Ct. App.).

Nov. 12, 2020 Minnesota’s Department of Natural Resources approves key permits for Line 3, including a 401 Water Quality Certification and threatened and endangered species taking permit.

Nov. 23, 2020 The Army Corps of Engineers grants Enbridge federal permits for the Line 3 replacement and expansion project.

Dec. 24, 2020 The Red Lake Band of Chippewa Indians, joined by the White Earth Band of Ojibwe, Honor the Earth, and the Sierra Club files a complaint in the District Court for the District of Columbia, alleging that the Army Corps of Engineers improperly granted a permit to Enbridge to build the expanded Line 3 replacement pipeline. Red Lake Band of Chippewa Indians v. United States Army Corps of Engineers, 1:20-cv-03817 (D.D.C.).

Biden Administration
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Jan. 21, 2021 Environmental groups file a complaint in the District Court for the District of Columbia against the Army Corps of Engineers, alleging that the Corps violated NEPA, the Clean Water Act, and the APA in issuing a FONSI (finding of no significant impact) and granting premits to Enbridge to build the expanded Line 3 replacement pipeline. Friends of the Headwaters v. US Army Corps of Engineers, No. 1:21-cv-00189 (D.D.C.).

Mar. 22, 2021 The District Court for the District of Columbia consolidates the Friends of the Headwaters and Red Lake Band of Chippewa Indians suits challenging the Corps’ NEPA analysis and issuance of permits for the Line 3 replacement and expansion. All filings will now be made in Docket No. 20-cv-03817. Red Lake Band of Chippewa Indians v. United States Army Corps of Engineers, 1:20-cv-03817 (D.D.C.); Friends of the Headwaters v. US Army Corps of Engineers, No. 1:21-cv-00189 (D.D.C.).

June 7, 2021 Hundreds of Native Water Protectors and other protestors gather to oppose the Line 3 replacement expansion in Northern Minnesota. Over 100 demonstrators are arrested.

June 14, 2021 The Minnesota Court of Appeals affirms state regulators’ approvals of the Line 3 project. Enbridge Energy, Nos. PL-9/CN-14-916; PL-9/PPL-15-137 (Minn. Ct. App.).

June 23, 2021 The Biden administration’s Justice Department files a brief asking the court to grant summary judgment to the Army Corps of Engineers and dismiss claims by the Red Lake Band of Chippewa Indians that the Army Corps improperly granted Enbridge’s permit. The DOJ argues that the Corps’ NEPA analysis adequately considered enviornmental impacts, environmental justice concerns, and impacts on Tribes’ hunting rights. Red Lake Band of Chippewa Indians v. United States Army Corps of Engineers, 1:20-CV-03817 (D.D.C.).

June 24, 2021 The Minnesota Department of Natural Resources amends Enbridge’s permit for the Line 3 pipeline, allowing them to pump 10 times as much groundwater as the original permit allowed to comlpete construction.

Aug. 4, 2021 The White Earth Band of Ojibwe files a complaint in tribal court on behalf of Manoomin, or wild rice, against the Minnesota Department of Natural Resources. The complaint asserts Manoomin’s “inherent rights to exist, flourish, regenerate, and evolve.” Manoomin, et al. v. Minnesota Dep’t of Nat. Resources, [No. pending] (White Earth Band of Ojibwe Tribal Court).

Aug. 9, 2021 The Minnesota Pollution Control Agency reports to Democratic lawmakers in the state that there were 28 releases of drilling fluid along the Line 3 replacement project from June 8th to August 5th. Such releases are prohibited by the project’s permits.

Aug. 18, 2021 The White Earth Band of Ojibwe Tribal Court rejects the State of Minnesota’s Motions to Dismiss the Manoomin case in Tribal Court, holding that the project has a “direct effect on the political integrity, political security or the health or welfare of the Tribe.” Manoomin, et al. v. Minnesota Dep’t of Nat. Resources, [No. pending] (White Earth Band of Ojibwe Tribal Court).

Aug. 19, 2021 The Minnesota Department of Natural Resources (DNR) sues the White Earth Band of Ojibwe in federal district court, arguing that the Tribal Court lacks jurisdiction over the dispute and seeking injunctive and declaratory relief. On Sep. 3, the District Court for the District of Minnesota dismisses DNR’s complaint without prejudice, finding that the federal court lacks subject matter jurisdiction given the Tribe’s sovereign immunity. Minn. Dept. of Natural Resources et al v. The White Earth Band of Ojibwe et al, No. 21-1869 (D. Minn.).

Aug. 24, 2021 The Minnesota Supreme Court declines without comment to hear an appeal of the Court of Appeals’ affirmation of the state regulators’ approvals for the Line 3 replacement project.

Sep. 10, 2021 The Minnesota Department of Natural Resources appeals the District Court decision to the Eighth Circuit. Oral argument is scheduled for Dec. 16. Minn. Dept. of Natural Resources et al v. The White Earth Band of Ojibwe et al, No. 21-3050 (8th Cir.).

Sep. 13, 2021 The Minnesota Department of Natural Resources (DNR) appeals the White Earth Band of Ojibwe Tribal Court decision denying DNR’s motion to dismiss on the grounds that DNR enjoys sovereign immunity in tribal court. Minnesota Dep’t of Nat. Resources, et al v. Manoomin, et al. No. AP21-0516 (White Earth Band of Ojibwe Tribal Court of Appeals). 

Sept. 16, 2021 The Minnesota Department of Natural Resources fines Enbridge $3.32 million for breaching an aquifer and illicitly appropriating millions of gallons of groundwater. The Minnesota Department of Natural Resources also ordered Enbridge to implement a restoration plan to halt the damage.

Sept. 29, 2021 Enbridge completes the Line 3 replacement and expansion project.

Oct. 1, 2021 The pipeline becomes operational.

Oct. 13, 2021 Representatives Peter DeFazio and Steve Cohen send a letter to President Biden asking him to reconsider the Trump administration’s Nationwide Permit program, under which the Line 3 replacement was approved.

Jan. 20, 2022 Enbridge announces to state legislators it has repaired the aquifer breach and stopped a groundwater leak, one year after workers first accidentally punctured the aquifer while working on the Line 3 project.

March 14, 2022 The White Earth Band of Ojibwe Tribal Court of Appeals rules that it does not have jurisdiction to decide whether the Minnesota permit violated a 2018 tribal ordinance, “The Rights of Manoomin,” protecting wild rice’s “inherent rights to exist, flourish, regenerate and evolve,” or whether the Minnesota DNR violated treaty rights granting the band access to harvest rice on 1855 Treaty ceded land. Minnesota Dep’t of Nat. Resources et al v. Manoomin et al, No. AP21-0516 (White Earth Band of Ojibwe Tribal Court of Appeals). The Minnesota Attorney General’s office sends a letter to the Eighth Circuit Court of Appeals, stating that the tribal court decision “likely moots” portions of the pending Eighth Circuit appeal. Minn. Dept. of Natural Resources et al v. The White Earth Band of Ojibwe et al, No. 21-3050 (8th Cir.).

March 21, 2022 The Minnesota Department of Natural Resources (DNR) releases information regarding two additional aquifer breaches associated with the Line 3 project, in addition to the previously disclosed breach. Two of the three breaches have been stopped, while the other continues to leak at a rate of 6 gallons per minute. To-date, a total of 262 million gallons of groundwater has been discharged from the aquifer. The investigation remains ongoing. 

March 25, 2022 The White Earth Band of Ojibwe and other respondents file for a three-judge panel to reconsider the Tribal Court of Appeals’ decision that the court lacked jurisdiction in the Rights of Manoomin case. The Tribe argues that the court ignored Tribal law conferring subject matter jurisdiction over rights violations that occur on the White Earth reservation, and points to new evidence showing negative impacts associated with the recent aquifer breaches. Minnesota Dep’t of Nat. Resources et al v. Manoomin et al, No. AP21-0516 (White Earth Band of Ojibwe Tribal Court of Appeals).