by Isiah Holmes, Wisconsin Examiner
June 20, 2023
Leaders of the Bad River Band of Lake Superior Chippewa on Monday welcomed a federal judge’s order to Enbridge Energy Co. to shut down its line 5 in Northern Wisconsin, but criticized the order’s three-year timeline.
“The Band appreciates the Court putting an end to Enbridge’s flagrant trespass and disregard for our rights,” said Mike Wiggins, chairman of the Bad River Band, in a statement that the tribe released Monday. “Tribal sovereignty prevailed over corporate profits.”
Ruling in Madison on Friday, U.S. District Judge William Conley reaffirmed his September 2022 ruling upholding the tribe’s claim that Enbridge has been trespassing on its land for the last 10 years.
Conley ordered the company to shut down the Line 5 pipeline within three years and pay more than $5 million in profits to the Bad River Band. The tribe sued Enbridge in 2019 for continuing to operate the pipeline after an agreement expired in June 2013 that gave the energy company an easement where 12 miles of pipeline passes through tribal land.
While expressing appreciation for the ruling, Wiggins called it “just one step in protecting our people and water” and predicted the legal dispute would continue.
“We are under no illusion that Enbridge will do the right thing,” he stated. “We expect them to fight this order with all of their corporate might.”
In his Friday ruling, Conley stated that while the risk of pipeline rupture is not immediate, evidence from flooding events this spring and subsequent erosion made the prospect of a rupture “a real and unreasonable risk” in the next five years.
The 60-foot-wide Line 5 runs from far Northwest Wisconsin 645 miles into Michigan’s Upper Peninsula, under the Straits of Mackinac and out into Canada near Detroit. It transports about 23 million gallons of crude oil and natural gas liquids daily.
The pipeline is currently underground where it passes near a bend in the Bad River on the tribe’s reservation.
While Line 5 remains buried and well supported more than 6 feet underground at the bend, or meander, flooding this spring and subsequent erosion pointed to the risk that the line could be exposed and rupture, contaminating the local watershed, the judge noted in his order.
The band’s attorney, Erik Arnold, said in a statement that while the ruling was encouraging, the band disagreed with elements of the court order.
Instead of ordering the line to be shut down promptly, “the three-year timeline leaves the Bad River vulnerable to catastrophe, and there is no warrant for allowing Enbridge’s trespass to continue for that long,” Arnold said.
Arnold said that the Band was also dissatisfied with the amount of the award.
Conley’s latest order noted that he had previously ruled that “the Band was not entitled to an award of all of Enbridge’s profits earned during the period of trespass by operation of the pipeline as a whole.”
Arnold said that “the Band’s motivations have never been about money,” but called the judge’s $5 million award to the tribe “such a small award for a decade-long trespass during which Enbridge earned over a billion dollars in net profits from Line 5,” and said that it “will not sufficiently deter trespassers like Enbridge, but will instead create an incentive for corporations to violate the sovereignty of the Band.”
Meanwhile Monday, after the judge’s decision, construction unions called on the Wisconsin Department of Natural Resources to move forward on authorizing a project to move Line 5.
“Judge Conley’s decision affirms the Line 5 relocation project and efforts to move permitting forward are more important than ever,” said Emily Pritzkow, executive director of the Wisconsin Building Trades Council, consisting of 15 construction-related labor unions.
“We hope this ruling serves as a catalyst for the Wisconsin Department of Natural Resources to advance the permitting process for this project, which has been pending for over three years.”
Environmental advocates, however, have not embraced simply moving the line off of the Bad River Band’s land as a solution. Neither the Band nor its allies want the pipeline anywhere in the Bad River watershed, arguing that if it crosses the Bad River anywhere, it could still damage the ecosystem even if it’s routed around the reservation.
While they have been focused on removing the pipeline from tribal land, opponents have viewed the pipeline itself as a danger, both for risking contamination and for continuing fossil fuel dependency.
Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: [email protected]. Follow Wisconsin Examiner on Facebook and Twitter.
