President Biden, please stop Line 3 By Frank Bibeau -March 9, 2021
Another egregious betrayal of Indigenous people’s rights and a cynical betrayal of the U.S. legal process are currently taking place in northern Minnesota over Enbridge Energy’s Line 3 oil pipeline out of Alberta, Canada. The line will carry what’s known as tar sands oil — the dirtiest, most polluting and most expensive-to-extract oil anywhere on the planet. It also is nearly impossible to clean up because it sinks to the bottom of waterways.
Already, nearly 150 people (aka “Water Protectors”) have been arrested since construction began Dec. 1, 2020.
Line 3 is the pollution equivalent of 50 new coal-fired power plants, and shows us how oil and water don’t mix in our territorial lands of 10,000 interconnected lakes, rivers and aquifers. Oh, and there is also a global pandemic in the plot, where Enbridge is the ongoing, super-spreader threat.
Line 3 is yet the latest chapter in the scorched earth history of the many treaty betrayals and genocidal atrocities committed by state and federal governments in Indian Country, and it must be stopped. It is sometimes referred to as the “pandemic pipeline” because of the perfect storm created by COVID-19: A depressed economy, a fearful public, a set of Line 3 hearings that were conducted remotely and did not constitute a public process. Like the Minnesota Pollution Control Agency hearings, which were billed as “telephone town halls” that no one could get on. And if you did, you had only two minutes to tell them why the permits should not be issued.
Consequently, for metro agencies, the pandemic also suppressed resistance and meaningful public participation in any form during the final phase of the regulatory process.
Then under cover of the pandemic, with all this economic despair and hospitals full with COVID-19 patients, the pipeline becomes an economic lifesaver. For whom? Not those of us who live up north! And it was all shoved through at the end of the Trump administration.
The now-$3.7 billion, 337-mile pipeline through Minnesota will cross more than 200 water ecosystems, including the Mississippi River twice, source of drinking water for millions of people. The biting irony about Line 3 is that Enbridge is using Minnesota largely as a pass-through state to flush Line 3 oil to foreign users — not Minnesota consumers, despite what many Line 3 supporters still believe. Probably because in 2018 alone, Enbridge spent $11 million in lobbying (and contributions) to the state, cities, counties, our often gullible Legislature and the Public Utilities Commission (PUC). A big part of Enbridge spending was creating an expensive but phony grass-roots — or “astro-turf” — front called “Minnesotans for Line 3,” a marketing campaign that was eventually exposed for the Enbridge-funded sham that it is.
The public trust and the “Deep North”
The PUC also made a devilish deal with Enbridge as part of its Line 3 permitting agreements to fund all the necessary extra armed personnel to support local law enforcement in what some folks occasionally call “the Deep North.” No one wants the kind of scenario that occurred at Standing Rock, where private security was hired to protect the Dakota Access Pipeline (DAPL) and to terrorize anyone opposed to it. That doesn’t need to happen here, if civil society and its legal systems are allowed to work properly. There’s a better way to adjudicate differences and a time and a place to do so — if the legal system is allowed to work for everyone.
In the case of the Dakota Access Pipeline, it currently isn’t working: Last July 6, U.S. District Judge James A. Boasberg ordered the operator of the Dakota Access Pipeline and Dakota Access, LLC to shut down DAPL, in which Enbridge has a sizable stake. DAPL has been in operation since 2017 and has the capacity to transport 570,000 barrels of fracked Bakken crude each day. The federal judge also ordered the company to remove all oil from the pipeline until the U.S. Army Corps of Engineers completes an environmental impact statement under the National Environmental Policy Act. The court gave Dakota Access until Aug. 5, 2020, to drain the approximately 1,200-mile pipeline of oil, despite the Army Corps estimate that the required environmental impact statement could take between 12–15 months to complete. But so far, oil is still running through that pipeline. Here, our systems of governance and the rule of law appear to be failing us.
The Red Lake and White Earth Ojibwe joined with the Minnesota Department of Commerce and sued to overturn the permits for Line 3 in August 2020, based on challenges like the lack of a federal environmental impact statement; failure to analyze the impact on climate change; and the failure to twice consider potential spill impacts into Lake Superior. We even sued because there’s no need for the pipeline — after all, tar sand oil is becoming more of a liability than an asset on balance sheets. According to a Fortune magazine story from September 2020, $45 per barrel is “the price of crude at which most oil-sands production breaks even, according to industry consultants. For some projects, the break-even price can be as high as $85.”
Why would Minnesota agencies and tribes want another abandoned tar sands pipeline at the end of the fossil fuels party? Northern Minnesota and places across the U.S. — like Flint, Michigan — need new pipelines. But not oil pipelines. The U.S. grade for infrastructure recently moved from a D+ to a C-, according to the American Society of Structural Engineers. Our drinking water and sewer infrastructure, not to mention bridges and roads, are all at a deficit. We want pipelines for people that protect communities in a time of climate change and coronavirus.
Then there’s the public trust. On Nov. 13, 2020 — less than 24 hours after Gov. Tim Walz and his state agencies approved final Line 3 permits, Michigan’s Gov. Gretchen Whitmer announced that she would shut down Enbridge’s Line 5, which runs under the Straits of Mackinac, for obvious reasons: “Enbridge has routinely refused to take action to protect our Great Lakes and the millions of Americans who depend on them for clean drinking water and good jobs,” she told the Associated Press. She exercised the public trust doctrine protections. This needs to happen in the land of 10,000 lakes.
Enbridge has positioned Line 3 as a replacement project for an old line that was built in the 60s. Its political boosters in Minnesota have adopted the company’s talking points that the old line is not safe. The PUC bought it, despite the 68,000 who opposed it on the public record. But it’s not simply a replacement — it’s a bigger pipeline in a new pipeline corridor. Minnesota’s Anishinabe and others believe that we’ll be stuck with this pipeline, like the other six pipelines already in what Enbridge calls its “mainline” system corridor. They’ll be stranded assets — hundreds of miles of multiple pipelines abandoned in place after an Enbridge bankruptcy.
According to a report last year filed by Enbridge with the U.S. Pipeline and Hazardous Materials Safety Administration, Line 3 in the U.S. has spilled only 66 gallons — less than two barrels of oil only at pumping stations — in the past 12 years. When Enbridge and its myopic Minnesota political surrogates say that new Line 3 would be safer than the old pipeline, the question that should be asked is: How much safer? It’s hard to improve on spilling less than 66 gallons per decade. Given Enbridge’s inspection technology, the evidence shows that it is able to operate old Line 3 just as safely as it could a new pipeline, and in some ways perhaps even more safely given its knowledge of the old pipeline. The existing Line 3 suffered multiple major spills in the 1970 to early 2000s — including 1.7 million gallons into the Prairie River in Grand Rapids, Minnesota, the largest inland oil spill ever in the U.S., 30 years ago this month. But its last major spill in the U.S. was 11 years ago, reflecting improved inspection regimens and maintenance technology. That said, all pipelines — new and old — create significant risks of spills.
Minnesota Played by Enbridge?
That Pipeline and Hazardous federal report was a year ago. Since then, we have filed a legal complaint with the PUC and in October 2020 asked for an investigation into Enbridge’s upgrades to its mainline system since 2016. Federal data show that Enbridge has already expanded the “effective” capacity of those six pipelines on the mainline system through northern Minnesota by approximately 400,000 barrels per day simply by using its existing pipelines more efficiently. Now, Enbridge has imminent plans to increase the capacity of Lines 4 and 67 by a total of 178,400 barrels per day. Together, these efficiency-based expansions create far more capacity than would be provided by the proposed Line 3’s net capacity increase of 370,000 barrels per day. As a result, Enbridge has already met the need that formed the basis for the PUC’s approval of the Line 3 replacement project.
In other words, does it sound like Minnesota agencies have been played? As of this date, the PUC still has not set any hearing for our complaint, or to discuss the filed request for investigation. Evidence shows Enbridge began these efforts to increase the capacity of the mainline — and actually achieved a significant increase in “effective” capacity — even before the Line 3 route permit evidentiary hearings. Some people would use the word “disingenuous” to describe Enbridge’s acts and omissions to accomplish its demand for a new line. There is stronger language for it, especially when Enbridge’s witnesses swore to tell the truth at the evidentiary hearing.
The Line 3 jobs myth
Enbridge has said it will create an abundance of new jobs with Line 3. It never emphasizes that these are short-term jobs. This temporary workforce deploys into some of the most sensitive watersheds and ecosystems in the state. Despite promising a hiring bonanza of at least 50% of its workforce to be Minnesota workers — including Natives — Enbridge’s fourth quarter 2020 jobs report said only 33% of the 4,632 workers on the project were from Minnesota. And they worked only 28% of the total hours.
But the real jobs — the permanent jobs — lie in removing the old Line 3 for good and in the burgeoning green energy economy. As the Associated Press reported last year, “European oil giants in particular, like Royal Dutch Shell and BP, are investing in solar and wind energy, minimizing their financial risks if oil rigs go the way of coal-fired power plants in Western countries.”
Today, after six years of contentious Line 3 regulatory hearings, and now roughly three months into early construction, here’s where things stand: Enbridge is racing against the legal clock, an unusually mild Minnesota winter until February, and the encroachments of COVID-19 in poor, rural communities, where health care systems and medical staff are fragile at best, incapable of handling any uptick in COVID-19 cases should things get out of hand.
Out-of-state pipeliners and construction workers that comprise the growing workforce are moving as fast as they can after years of justified legal delays, but also because there are still pending appeals at the Minnesota Court of Appeals. These appeals were filed by tribes, environmental groups and concerned citizens, plus Minnesota’s own state Department of Commerce, which has opposed this project since day one on solid economic and environmental grounds. Many cases will not be heard until early spring, with appellate court decisions likely in June. At which point, more than half of the line may be completed and the legal voices and rightful remedies will be mooted.
Perhaps Enbridge is even racing against the reported demise of its own business model and the widespread rise of renewable energy policy and projects. An April 2020 report in the financial trade press, S&P Global Market Analysis, written by its regulatory research group, stated: “Enbridge may be the only midstream enterprise that has publicly acknowledged that the energy transition may occur more quickly than expected by much of the industry. A swift transformation of the energy industry could devalue or strand, to varying degrees, many of the existing or future infrastructure assets. Enbridge has foreseen the greatest risk of stranded assets in regard to its liquid pipeline business.”
Investment in fossil fuels fades as investors embrace the green economy
Sadly, one Enbridge Line 3 worker from Utah — a father of nine — was killed on Dec. 18, in an Enbridge yard. A forklift backed over him in the dark, less than a month into the construction. Enbridge shut down for a few hours but then resumed its breakneck schedule. But in the dark, this foreign global corporation with its dwindling supply of banks and investors can clearly see the legal machinations playing out. They are threatened by Minnesota courts and running with great haste. They also can see their industry possibly going bankrupt as global divestment ($11 trillion-plus)) and the rapid electrification of transportation sectors worldwide escalate at a surprising speed.
You know the handwriting is on the wall when oil barons like the Rockefellers, New York state pension funds and the Sovereign Wealth Fund of Norway — to name just three — are getting out of oil and into renewables.
Law 360 Energy News reported last week that “global oil giants including Royal Dutch Shell PLC and BP PLC on Monday reaffirmed their decarbonization pledges and company executives said the industry must eventually shed its roots and embrace other forms of energy amid global pressure to tackle climate change.” Certainly, Enbridge can also hear the redundant calls for renewable energy policies by a new administration settling into Washington.
Line 3 is emblematic of all that is wrong with outdated, early 20th-century national energy policy still tied to fossil fuels — and their gigantic government subsidies — especially in the face of the two 2019 climate change studies from the United Nations and even the fossil fuel focused Trump Administration. These studies warn that we have 10 years to reduce the carbon-loading of the planet to a manageable level or face dire consequences.
As a colossal fossil fuel enabler, Enbridge knows it’s the big dinosaur in the rooms where our future will be decided. It’s well past the time to halt Line 3 in its tracks, because the PUC and Enbridge will not allow the state and federal courts to decide the environmental appeals first.
President Joe Biden: You opposed the Keystone pipeline; Line 3 is Keystone clone. You said in your debate with your dysfunctional predecessor that it’s time to move away from oil, and consequently, any further expansion of fossil fuel infrastructure. We are taking you at your word. The Indigenous people and others opposed to Line 3 are here to help with that just transition. President Biden: We need your help now. Please act promptly to stop this environmental, climate change super spreader.
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Frank BibeauFrank Bibeau is tribal attorney for Honor the Earth and the White Earth Band of Ojibwe. Bibeau is an enrolled tribal member working the past seven years against Enbridge Line 3. He has lived most of his life a half mile away from the six Enbridge pipelines.
