The Minnesota Court of Appeals heard arguments today in another legal battle over Enbridge’s controversial Line 3 oil pipeline.
Construction on the 337-mile pipeline started in December, following six years of state review, permitting and litigation. The $2.6 billion project is set to be completed by the end of the year, but opponents hope courts will block the project before then.
Enbridge and pipeline supporters say the new line is necessary to replace the existing Line 3 — which was built in the 1960s and requires more upkeep each year — and to meet demand for oil. The project has also created jobs for roughly 5,000 welders, equipment operators and laborers.
Opponents say the pipeline will eventually leak and contaminate Minnesota’s forests and waters with crude oil. The cultural significance of these lands and the wild rice beds near the pipeline makes the risk intolerable for Native people, who say the project also violates their treaty rights.
Here’s a look at how Line 3 got to the Court of Appeals and some of the key issues under review.
Six years of review and litigation
The Line 3 permitting process started in 2015, when Enbridge submitted applications to the Public Utilities Commission for a certificate of need — required by law to show an energy project is necessary — and a permit for the new route. Over the next three years, the Department of Commerce submitted and revised a 3,000-page environmental review.
In 2018, the PUC accepted the revised environmental review, approved Enbridge’s certificate of need and issued a route permit.
Opponents of the project appealed, and the Court of Appeals determined the environmental impact statement was inadequate because it didn’t sufficiently address the potential impact of a spill near Lake Superior.
The Department of Commerce revised the environmental review again. They used a model to assess how far oil could spread from a spill in Little Otter Creek, which the pipeline will cross near Cloquet. The creek connects with the St. Louis River, which feeds into Lake Superior. Even if oil spilled into the river for 24 hours, it would be unlikely to reach Lake Superior, the statement concluded.
The PUC approved the project again in 2020. The Red Lake Nation, White Earth Nation, Indigenous environmental group Honor the Earth and environmental nonprofits asked the PUC to reconsider. The PUC declined, and the tribes and nonprofits appealed.
The issues at play
The court will review whether the PUC erred in approving Enbridge’s certificate of need.
Anyone who wants to build an energy facility in Minnesota has to prove the project is necessary to meet energy demand. State law requires the PUC to consider the accuracy of long-range energy demand forecasts and alternative ways to meet demand.
The Department of Commerce and tribes argue Enbridge hasn’t proven the project is necessary. Oil demand will decrease as electric vehicles become more popular, traditional cars get better fuel mileage and renewable energy sources take off. Enbridge didn’t take this into account in its PUC application, the Department of Commerce says.
In its application, Enbridge relied on a pipeline use forecast, which projected crude oil demand would continue at 2016 levels. This shows crude oil supply — not demand — and state law requires the PUC to consider a long-range demand forecast, the Department of Commerce wrote in court filings.
The PUC says Enbridge’s application showed demand from companies that purchase crude oil, which met the criteria for the certificate of need.
Enbridge says the project is necessary to meet oil demand for years to come, even if Americans become less reliant on oil. The existing Line 3 is operating at 50% capacity, and the replacement would operate at full capacity.
Enbridge customers have said the existing Line 3’s limited capacity means space is rationed for companies that ship oil on Enbridge pipelines. Shippers aren’t able to transport enough oil as a result, a group of Enbridge customers wrote in a court filing.
Environmental impact statement
The court will review whether the environmental impact statement adequately considers the potential effects of an oil spill near Lake Superior.
Tribes and environmental nonprofits argue that the revised environmental impact statement’s model isn’t sufficient because it only represents one waterway. The new Line 3 crosses other rivers closer to Lake Superior, which could affect the lake more than a Little Otter Creek spill, White Earth and Red Lake wrote in court filings. The pipeline could also spill directly into the lake, they argued.
Enbridge says the “sophisticated” modeling represented a worst-case scenario in a “representative site” near Lake Superior and found the lake likely wouldn’t be harmed. The legal challenges based on the environmental impact statement have no standing, Enbridge wrote in court filings.
The Court of Appeals has to issue a decision in 90 days. The court could cancel a key permit, stopping construction in a victory for pipeline opponents.