Court issues win for Enbridge in Line 3 pipeline appeal

The Minnesota Court of Appeals delivered a blow to opponents of Enbridge’s Line 3 oil pipeline Monday with a decision affirming a key permit for the $3 billion project.

Opponents hoped the court would halt construction in response to a legal challenge by the White Earth Nation, Red Lake Nation, the state Department of Commerce and several environmental nonprofits. The 337-mile pipeline is on track to be completed by the end of 2021, following six years of review, permitting and litigation, and a year of construction.

The decision is sure to intensify opposition to the pipeline, which has been building since construction started in December.

“The decision today coming out of the Minnesota Court of Appeals is disappointing, but our fight for our water and what is right continues,” said Tara Houska, founder of Indigenous advocacy group Giniw Collective, during a news conference Monday. “Our resistance is clearly growing. We cannot stop, and we will not stop.”

The legal challenge centered on two parts of the permitting process: Whether Enbridge proved the project was necessary, and whether the environmental impact statement was adequate.

Anyone who wants to build an energy facility in Minnesota has to prove the project is necessary to meet energy demand. If they do, the state Public Utilities Commission issues a certificate of need. 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 argued Enbridge didn’t prove the project is necessary, and the PUC erred in issuing the certificate. The opponents said 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 argued.

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 argued that 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 tribes and environmental nonprofits argued the final environmental impact statement — which was revised a number of times — didn’t adequately consider the potential effects of an oil spill near Lake Superior. The model only represents one waterway, they said, and the new Line 3 crosses other rivers closer to the lake. 

In the majority opinion, two judges wrote that the court should defer to the PUC as the agency tasked with making difficult decisions about permitting. 

“With an existing, deteriorating pipeline carrying crude oil through Minnesota, there was no option without environmental consequences. The challenge: to balance those harms,” the decision says. “There was no option without impacts on the rights of indigenous peoples. The challenge: to alleviate those harms to the extent possible. And there was no crystal ball to forecast demand for crude oil in this ever-changing environment.”

Judge Peter Reyes wrote in a dissenting opinion that an agency shouldn’t receive deference when its interpretation of state law is wrong. The PUC “committed legal errors and acted arbitrarily or capriciously” in granting the certificate of need, Reyes wrote.

“Enbridge needs Minnesota for its new pipeline. But Enbridge has not shown that Minnesota needs the pipeline. I would therefore reverse,” he wrote.

Two other legal challenges are still ongoing: An appeal in state court over a key water permit issued by the Minnesota Pollution Control Agency, and one in federal court over a permit from the U.S. Army Corps of Engineers.

“Water protectors,” as people opposed to the pipeline call themselves, have gathered along the route across northern Minnesota since construction started, some living at camps dedicated to organizing against the project full-time.

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.

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.

In early June, leaders of the movement organized a three-day gathering that attracted more than 2,000 people for civil disobedience and demonstrations against the project in the Park Rapids area.

Indigenous advocates led a march of about 2,000 people to a bridge near one of the pipeline’s Mississippi River crossings on June 7, and 200 of them set up camp on a wooden platform laid near the crossing by Enbridge to truck out equipment. The encampment was still in place a week later, and organizers said they had no plans to vacate anytime soon.

On the same day as the march, more than 200 people were arrested at an Enbridge pump station — a large area with equipment that keeps oil flowing through the pipe — near Two Inlets after occupying the station and, in some cases, chaining themselves to equipment and makeshift barricades.

This is a developing story and will be updated.