ST. PAUL, Minn. – The Minnesota Court of Appeals on Monday affirmed state regulators' key approvals of Enbridge Energy’s Line 3 oil pipeline replacement project, in a dispute that drew over 1,000 protesters to northern Minnesota last week.
A three-judge panel ruled 2-1 that the state’s independent Public Utilities Commission correctly granted Enbridge the certificate of need and route permit that the Canadian-based company needed to begin construction on the 337-mile (542-kilometer) Minnesota segment of a larger project to replace a 1960s-era crude oil pipeline that has deteriorated and can run at only half capacity.
Pipeline opponents said they are considering an appeal to the Minnesota Supreme Court, but that their main focus is trying to persuade President Joe Biden to intervene and the continuing protests. The Biden administration hasn't taken a clear position on Line 3, but a legal challenge is pending in federal court on the U.S. Army Corps of Engineers' approval of a wetlands permit that activists say should be withdrawn.
Tribal and climate change groups, plus the state Department of Commerce, had asked the appeals court to reject the approvals. They argued that Enbridge’s oil demand projections failed to meet the legal requirements. But the court said there was reasonable evidence to support the PUC's decision.
“With an existing, deteriorating pipeline carrying crude oil through Minnesota, there was no option without environmental consequences,” wrote Judge Lucinda Jesson, joined by Judge Michael Kirk. “The challenge: to balance those harms. There was no option without impacts on the rights of Indigenous peoples. The challenge: to alleviate those harms to the extent possible. And there was no crystal ball to forecast demand for crude oil in this ever-changing environment."
But Judge Peter Reyes dissented, agreeing with opponents that the oil demand forecast was flawed. He said the project benefits Canadian oil producers but would have negative consequences for the hunting, fishing, and other rights of the Red Lake and White Earth tribes, and would provide no benefit to Minnesota.
“Such a decision cannot stand. Enbridge needs Minnesota for its new pipeline," Reyes wrote. "But Enbridge has not shown that Minnesota needs the pipeline.”
Tribal and environmental groups welcomed Reyes' dissent and vowed to keep fighting. They said their primary strategy going forward won't hinge on appeals, given they could take nine months to a year. Enbridge hopes to put the line into service in the fourth quarter.
“There's a good chance we'll appeal because we should ... but I don't think a remedy's going to come out of it that's going to be meaningful for us,” said Frank Bibeau, an attorney for the White Earth Band of Ojibwe and other pipeline opponents.
Enbridge said in a statement that the court's decision is confirmation that the commission thoroughly reviewed the project and gave the appropriate approvals.
“Line 3 has passed every test through six years of regulatory and permitting review, including 70 public comment meetings, appellate review and reaffirmation of a 13,500-page (environmental impact statement), four separate reviews by administrative law judges, 320 route modifications in response to stakeholder input, and multiple reviews and approvals by the Minnesota Public Utilities Commission for the project’s certificate of need and route permit."
At least 1,000 activists from across the country gathered at construction sites near the headwaters of the Mississippi River last week. They urged Biden to cancel the project, as he did the Keystone XL pipeline on his first day in office. Nearly 250 people were arrested, in addition to more than 250 arrests since construction began in December. A smaller group marched Thursday to the Minneapolis office of Democratic Sen. Amy Klobuchar.
The Line 3 replacement would carry Canadian tar sands oil and regular crude from Alberta to Enbridge's terminal in Superior, Wisconsin. The project is nearly done except for the Minnesota leg, which is about 60% complete.
Opponents of the more than $7 billion project say the heavy oil would accelerate climate change and risk spills in areas where Native Americans harvest wild rice, hunt, fish, gather medicinal plants and claim treaty rights.
Enbridge says the replacement Line 3 will be made of stronger steel and will better protect the environment while restoring its capacity to carry oil and ensure reliable deliveries to U.S. refineries.
Activists are vowing to keep up a summer of resistance against the project amid the escalating battle over energy projects and rising awareness that racial minorities suffer disproportionate harm from environmental damage. And they're drawing parallels with the fight over the Dakota Access pipeline, which was the subject of major protests near the Standing Rock Reservation in the Dakotas in 2016 and 2017.
“Our resistance is clearly growing. We cannot stop and we will not stop,” said Tara Houska, founder of the Giniw Collective, one of the Indigenous groups behind last week's protests.