WASHINGTON –
A Wisconsin judge has ruled in favor of an indigenous band in its dispute with Enbridge over Line 5, but stopped short of shutting down the controversial cross-border pipeline.
District Court Judge William Conley says the Bad River Band of Lake Superior Chippewa has proven it had the right to revoke a permit for the pipeline to cross its territory in 2013.
Conley also says the band, which wants to remove the line from the Bad River reservation, is entitled to financial compensation, though the decision doesn’t go into detail on that.
However, the judge rejected the band’s motion to shut down the pipeline, citing the potential for serious trade and foreign policy consequences for both Canada and the United States.
It acknowledges Foreign Minister Melanie Joly’s decision late last month to formally invoke a 1977 treaty between the two countries that specifically covers cross-border pipelines.
Conley’s order, issued Wednesday afternoon, also requires Enbridge to reroute the pipeline around Bad River territory within five years, an effort the company says is already underway.
“The court will grant the band’s motion with respect to its claims of trespass and unjust enrichment, Enbridge’s counterclaims, and the band’s right to monetary relief,” he writes.
“However, the court must deny the band’s request for an automatic mandate, as an immediate shutdown of the pipeline would have significant public and foreign policy implications.”
Environmental concerns are top of mind in Wisconsin, where the pipeline runs directly through the Bad River Preserve, more than 500 square miles of pristine wetlands, streams and wilderness.
The band has been in court with Enbridge for more than three years, arguing the Calgary-based company is trespassing, having violated the terms of the easements that allowed the pipeline to cross the reserve starting in 1953.
Enbridge, which is in the process of trying to reroute the pipeline around the reservation, argued that a 1992 agreement with the Bad River Band allows the pipeline to continue operating until 2043.
Conley, however, concluded that the band was within its rights to decide not to renew the easements in 2013, and that the 1992 agreement was not by itself a guarantee that the pipeline would be allowed to continue operating.
“The agreed purpose was not, as Enbridge now claims, to allow it to operate on the entire reserve for 50 years,” the judge writes.
“Furthermore, Enbridge knew of the risk that its 20-year easements could not be renewed and yet failed to protect itself against that risk.”
In a statement, the company applauded the decision to keep Line 5 operating and said it remains committed to resolving the dispute “amicably” with the Bad River gang.
The company’s plans to make a 66-kilometer detour of Line 5 around the reserve are already two years old, with 100 percent of the private owners of the new route having already signed agreements.
“The relocation project will be built by a Wisconsin contractor and will create approximately 700 family-supporting union jobs and millions in construction-related spending in northern Wisconsin,” the company said.
“Approximately $46 million will be spent on tribal-owned companies and on hiring and training Native American workers who make up at least 10 percent of the project’s workforce.”
Line 5 has been under legal siege in both Wisconsin and neighboring Michigan for the better part of the past three years, and with opponents in both cases arguing for a shutdown, Wednesday’s ruling is likely to be considered a victory.
Business groups and chambers of commerce on both sides of the border, provincial governments and Ottawa have rallied behind Enbridge in its effort to portray the survival of Line 5 as a critical issue of continental energy security .
The allies have argued in court documents and public forums that Line 5 is a vital source of power for several Midwestern states and an essential link for Canadian refineries that feed some of Canada’s busiest airports.
Late last month, the company won a key lawsuit battle in Michigan, where a federal judge rejected Attorney General Dana Nessel’s efforts to return the case to circuit court, where the state has a better chance of success
Nessel has since indicated that he plans to appeal that decision.
This report by The Canadian Press was first published on September 8, 2022