A photograph captured by an Enbridge drone shows flooding on the Bad River that's caused worsening erosion near the company's Line 5 oil and gas pipeline. Screenshot of images from court filings, via WPR.

by Jon King, Wisconsin Examiner
July 7, 2023

Canadian energy giant Enbridge has appealed a federal court ruling in Wisconsin.

In a June 16 ruling, a federal judge in Wisconsin ordered Enbridge to shut down its Line 5 pipeline that runs through Michigan within three years and pay more than $5 million in profits to the Chippewa Indians Bad River Band.

Judge William Conley reaffirmed his September 2022 decision upholding the tribe’s claim that Enbridge has been trespassing on its land since June 2013, when an agreement expired that gave the energy company an easement for 12 miles of pipeline that passes through tribal land.

However, on June 30, Enbridge filed to overturn that ruling with the United States Court of Appeals for the Seventh Circuit.

“On Friday, June 30, Enbridge filed a notice to appeal the Court’s decision, and is weighing all options, including requesting a stay of the judge’s decision while an appeal is heard,” ?Enbridge spokesman Ryan Duffy told the Michigan Advance. “Enbridge’s position has long been that in a 1992 contract between Enbridge and the Band, the Band consented to operations of Line 5 on the Reservation through 2043.”

That action was met with strong criticism from environmentalists and tribal leaders.

“Enbridge’s appeal — like their proposal to re-route the pipeline — is just a misguided attempt to keep the oil and their profits flowing at the expense of the Band and everyone else who relies on the Great Lakes,” said Stefanie Tsosie, an Earthjustice attorney representing the Band. “Hundreds of wetlands and waterways in this unique ecosystem would be impacted by the reroute project, which only moves the threat of an oil spill further upstream from its current path. The only serious solution is to shut down and decommission Line 5.”

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.

Rene Ann Goodrich is a Bad River Tribal Elder and member of the Native Lives Matter Coalition.

“Line 5 crosses over tribal treaty territory and one of those ceded territories is my own reservation of Bad River,” she said. “The danger that Line 5 brings to the environment is our biggest concern here.  We have that need, we have that responsibility, we have that duty to protect our life givers. Our life givers are the earth, the aquifers underneath the earth, the women that are sacred water carriers, and water itself that brings life. As sacred water carriers we stand with the water, and urge the Biden Administration to take action and shut down Line 5 immediately.”

In May, leaders from the Indigenous Women’s Treaty Alliance submitted a letter to the President Joe Biden administration with an emergency request to decommission the Line 5 pipeline due to imminent threats of oil spills impacting the Bad River Watershed and the Great Lakes.

So far, though, that request has gone unfulfilled, especially as arguments over the proper venue remain undecided.

Michigan Attorney General Dana Nessel first filed suit against the company in state court in June 2019 to decommission the pipeline, although Enbridge won a major decision in August 2022, when a judge ruled that the case would be decided in federal court. Nessel then filed with the U.S. Court of Appeals for the Sixth Circuit to decide the venue. That decision is still forthcoming.

Meanwhile, Enbridge remains steadfast in its position that it has a legal right to operate on the Bad River Reservation.

Duffy noted that the company filed federal and state permit applications in 2020 for the relocation of Line 5 around the Bad River Reservation, which it believes is the long-term solution to the dispute.

“While the three-year timeline is arbitrary, it is achievable, provided government permitting agencies follow reasonable and timely processes,” he said. “We urge prompt government action so this project can be completed within the next three years. The 41-mile relocation project will take less than one year to construct once those permits are issued.”

Duffy called Line 5 “critical infrastructure” used to transport energy used by millions of U.S. and Canadian families and businesses in the upper Midwest and Great Lakes region.

“Shutting down Line 5 prior to completion of the proposed relocation project would threaten North American energy security, disrupt local and regional economies, and violate the Transit Pipeline Treaty,” he said. “In the meantime, Enbridge remains committed to working with the Bad River Band leadership to achieve an amicable resolution.”

However, Michelle Woodhouse, program manager with the Canadian-based advocacy group Environmental Defence, disagrees.

“We can thrive without Line 5, but cannot live without a healthy Great Lakes. All regions served by Line 5 will be able to meet their energy needs in the event of a shut down. Several analyses commissioned to several industry experts over the last two years have illuminated this,” she said.

“Now is the time for both Canada and the United States to get serious about implementing a permanent and complete Line 5 shut down. As national stewards of the Great Lakes in the midst of a global climate crisis, our top priority must be to protect the Great Lakes — not to pursue dangerous and false “solutions” like Enbridge’s reroute plan.”

Michigan Advance is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Michigan Advance maintains editorial independence. Contact Editor Susan Demas for questions: [email protected]. Follow Michigan Advance on Facebook and Twitter.

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.