by Isiah Holmes, Wisconsin Examiner
May 19, 2023
A federal judge ruled against conducting an emergency shutdown of the Enbridge Line 5 pipeline Thursday, sections of which operate on Bad River tribal lands. The Bad River Band argued in U.S. District Court in Madison that Line 5 has become an imminent danger due to recent post-storm erosion, which has carved away large sections of the riverbank. After hearing from attorneys representing both the tribe and Enbridge, Judge William Conley ruled that while the pipeline will eventually present an imminent danger, that moment has not yet arrived.
“I have to make difficult decisions,” Judge Conley said during the hearing. “I have been making difficult decisions.” The hearing room was filled to capacity Thursday morning April storms that caused dramatic erosion along the riverbank where Line 5 runs under the ground has increased the sense of urgency for the Bad River Band. Both Enbridge and the tribe monitor flood trends along the bank using drones as well as markers on the ground that measure flooding and erosion.
At least four sections of the bank were eroded significantly after just a single storm. One section lost more than 21 feet of shoreline along the river. Other sections lost between 14 and 19 feet of shoreline. In some areas, less than 15 feet of shoreline remains between the river and the pipeline. Exposing the pipeline directly to the river’s current makes the risk of a rupture more likely. The Bad River has a tendency to flood suddenly and without much warning — a quality witnesses on Thursday described as “flashy.”
During the hearing, the Bad River played aerial drone footage of the aftermath of flooding in April. As it flew overhead, the drone captured a large tree and about 4 feet of shoreline detaching from the bank, and sinking into the Bad River. The footage was captured on April 19. Witnesses for the Bad River Band testified that it took 70-90 hours for the water to recede. The Band also expressed concerns about whether the oil company could respond quickly in the event that a flood did expose the pipeline. During the hearing, witnesses for Enbridge stated that it would take three to five days to organize a purge of the pipeline to prevent a rupture. Prior to this timeline beginning, Enbridge would need to prepare for the purge by bringing in nitrogen and organizing teams on-site. During the flooding this spring, Enbridge did not have nitrogen on hand.
Several alternative plans were debated during the hearing. One proposal involved stacking sandbags along the bank as a form of temporary erosion protection. This strategy poses logistical challenges, since the sandbags would have to be dropped in by a helicopter. If the bags were accidentally dropped in the wrong place, as has happened in the past, the bank could be compressed, further destabilizing the shoreline.
Naomi Tillison, natural resources director for the Bad River Band, also shared concerns during the hearing that the bags might not withstand the river’s conditions. “It’s a scary situation,” Tillison said of the risk of a pipeline rupture during sudden flooding. “This is a scary and risky situation and we do want to see something.”
The Bad River Band is considering some proposals for alternative mitigation efforts but has rejected other Enbridge proposals. Judge Conley stated that he would prefer to see more cooperation between the company and the tribe. Conley said that, “there will come a time when there will be an imminent risk.” Yet, Conley said, he was “disinclined” to find that the risk is imminent at this time, even though “I think it’s going to be increasingly likely.” Later Conley said that at some point a shutdown would occur. “It’s just a question of when,” hesaid. “I’m clearly frustrated,” Conley added. “All they [the Band] have done is shoot down everything that’s proposed,” he said, describing the tribe as attempting to “slow walk” the process.
Conley also decided against using the fact that Enbridge was found to be in trespass on the Band’s land to shut down the pipeline. Although Conley ruled last September that Enbridge was trespassing, the judge said on Thursday that damages for the trespass should be monetary. At several points in the hearing, Conley raised doubts about his own authority as a district court judge to shut down Line 5, which spans hundreds of miles, and carries 23 million gallons of oil and natural gas a day.
After the hearing, the Band and its allies expressed disappointment at the decision. Mike Wiggins Jr., chairman for the Bad River Band, said during a press conference that the tribe didn’t request an emergency shutdown lightly. “We have watched the river live its life, and do what it does as a beautiful, pristine life force within our sovereign boundaries,” said Wiggins. “It’s done what we knew it would and it’s continued to erode and pound away at the meander, particularly the place where the pipeline crosses.”
Wiggins said that, from the tribe’s perspective, there is an imminent threat of rupture. “It was a very difficult day,” Wiggins said of the court hearing. “It’s a very difficult thing to listen to folks that have never lived around our river, folks who do not have a relationship with our river, who do not know the peculiarities and the power of our river, give quote- unquote ‘expert testimony’ on those types of things.”
Many other area residents appeared in court to speak about how a pipeline rupture could affect their communities. Glenn Carlson, town chair of the Town of La Pointe on Madeline Island, described the unique challenges a pipeline rupture would create ferry boats are the main mode of transportation to and from the island. If an oil spill were to occur, the ferries would shut down and people would either need to be airlifted out or remain on the island. “It wouldn’t take long for the oil spill to completely encircle the island,” said Carlson. “And as I was mentioning to someone just a few minutes ago, we rely on a ferry to get us on and off the island. The coast guard does not let the ferry run when there’s oil on the water…so it’s a big deal for us. I know it’s a big deal for the Band. It’s a big deal for frankly, everyone who uses water.”
Madeline Island, like many communities around Lake Superior, depends on tourism which, in turn, depends on natural resources. Residents worry that the tourism industry would not be able to recover from the fallout of a Line 5 rupture.
Attorney Riyaz Kanji told Wisconsin Examiner that there’s a difference of opinion over the use of the word “imminent” in court. “Clearly, from the Band’s perspective, we are beyond imminent. The threat feels so great and so real,” Kanji told Wisconsin Examiner. “And Enbridge’s position seems to be you have to be right up at the precipice of a disaster for it to be imminent. I don’t think that’s where the judge is, I think he’s somewhere shy of that. But not quite where we are. Or where we want him to be.”
Wiggins said he feels the judge treated the argument that a rupture is imminent as “us essentially being the boy that cried wolf.” Over time, though, the tribe has watched increasing flood trends and heavy rains change the ecosystem of the river. Wiggins recalled flooding in 2016 that blew out roads and even resulted in the loss of life.
“What happened in 2016 was just a reality-bender for how powerful the flood could be in a certain kind of flood scenario,” he said. Two years later, in 2018, flooding damaged a highway that took months to repair. While those were regarded as rare storm events at the time, that is no longer the case due to climate change. “We are talking about your average Sunday afternoon thunderstorm arrival possibly blowing this area out,” Wiggins said. “It’s the factors around the word ‘imminent’ that have changed.”
Wiggins said he fears that Enbridge has underestimated the power of the river. “There’s no roads to walk in there,” he said. “Their first containment effort is six, seven miles downstream and there’s a whole universe in that river bottom, you know?”
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