Tribal Nations urge Biden Administration not to support pipeline company in trespassing case
Tribal Nations are concerned that a Canadian energy company's legal argument could undermine their sovereignty
Leaders from 30 Tribal Nations have sent a letter to President Joe Biden urging his administration not to support the legal argument of a Canadian energy company as it seeks an appeal of a ruling that it must close a portion of its oil pipeline that is located on a reservation.
Enbridge owns and operates the Line 5 oil pipeline that stretches 645 miles from Superior, Wisconsin, to Sarnia, Ontario. The pipeline transports up to 23 million gallons of crude oil and natural gas liquids per day.
In June 2023, a U.S. District Judge William Conley ruled that Enbridge has until 2026 to shut down a roughly 12-mile portion of Line 5 that crosses the land of the Bad River Band of Lake Superior Chippewa in Wisconsin. The judge also ordered Enbridge to pay more than $5.15 million for trespassing “and to keep paying the tribe a portion of its profits for as long as the pipeline continues operating on tribal land,” as reported by The Associated Press.
Enbridge has appealed the case to the Seventh Circuit Court of Appeals, arguing that Judge Conley’s ruling violates the 1977 Transit Pipeline Treaty between the U.S. and Canada which states no public authority in either country can institute measures that are intended to impede the flow of oil and natural gas between the two countries. Enbridge has proposed a 41-mile reroute of the pipeline off of the tribe’s land, which would require permit approvals before work could begin.
Cananda has filed an amicus curiae brief in the Seventh Circuit in support of Enbridge’s interpretation of the 1977 treaty in order to prevent a shut down of the pipeline. The Seventh Circuit has requested the United States file an amicus brief with its views on the treaty and any other issues in this case.
The Biden Administration has not yet responded to the request for federal input.
In their letter to President Biden, the Tribal Nations argued that invoking the 1977 treaty in this case would undermine Tribal Nations’ sovereignty.
“If the court adopts Enbridge’s and Canada’s interpretation of the Transit Treaty while the United States remains silent, the decision will fundamentally undermine bedrock principles of Tribal sovereignty for all Tribal Nations throughout the United States,” the letter states. “The Bad River Band should not be left to wage an existential fight against Enbridge and Canada while its trustee and treaty partner, the United States, remains on the sidelines.”
The letter goes on to state that Enbridge and Canada’s interpretation of the treaty “not only aims to eviscerate Tribal Nations’ inherent sovereign authority,” but would do the same for the federal government, as well as every state and private individual along the Canadian border with a cross-border oil pipeline crossing its lands.
“Canada and Enbridge’s legal arguments would strip sovereign governments – tribal, state, and federal – of the ability to regulate the most dangerous of pipelines,” said Riyaz Kanji, Lead Counsel for the Bad River Band, in a news release from the Native American Rights Fund.
“Governments would be left powerless to prevent egregious trespasses and the continued operation of pipelines even in the face of grave threats. We remain hopeful that the Biden Administration will heed that call and stand up for tribal, state, and federal sovereignty and the rule of law,” Kanji said.
Spokespersons for Enbridge not only argue that shutting down Line 5 before the pipeline is relocated violates the 1977 treaty, they’ve also claimed that shutting down the pipeline would negatively impact businesses, communities and individuals in both countries.
However an October 2023 report from PLG Consulting stated that “with sufficient notice of a shutdown, Line 5 area products and markets will adapt without supply shortages or extreme price spikes.”
Enbridge’s Line 5 pipeline has attracted controversy for years not only over questions of tribal sovereignty or the company’s less than stellar track record with oil spills, but particularly over a stretch of the pipeline that crosses the Straits of Mackinac.
Line 5, which was originally built in 1953, splits into two pipelines as it crosses the straits, which connects Lake Michigan and Lake Huron. In 2014, a researcher at the University of Michigan described the Straits of Mackinac as the “worst possible place for an oil spill in the Great Lakes,” as the channel’s strong currents would quickly contaminate the shorelines of both lakes in the event of a spill.
Enbridge has proposed boring a tunnel underneath the bedrock to house Line 5 as it crosses the Straits of Mackinac, in what the company calls the Great Lakes Tunnel Project. In December 2023, the Michigan Public Service Commission approved a permit for tunnel project. The energy company now has to wait for the U.S. Army Corps of Engineers to complete a review of the potential environmental impacts of the project before construction can begin. That environmental review may not be made available until 2026. In February, 35 Republicans in the Michigan House sent a letter to the U.S. Army Corps of Engineers urging that it expedite its environmental review of the proposed tunnel project.
Two days after this letter was sent, an opinion piece was published in the Detroit Free Press highlighting the potential for Enbridge’s tunnel project to create an environmental disaster.
“One geological engineer and tunnel expert, Brian O’Mara, the founder and Principal of Agate Harbor Advisors LLC, identified three potential explosion scenarios for the proposed tunnel,” writes Ashley Rudzinski, with the Groundwork Center for Resilient Communities.
“The first could happen during the tunneling process, when highly explosive dissolved methane could enter the tunnel. After construction, due to the immense pressure under the Straits, groundwater containing methane could enter the tunnel. (Enbridge has already found dissolved methane in 20% of groundwater samples taken during geologic surveys.) Finally, an explosion could be caused if the crude oil itself leaked from Line 5 itself,” Rudzinki wrote.
Rudzinski quoted O’Mara as saying that “the spark generated between a person’s finger and doorknob after walking across carpeting on a dry day produces significantly more energy than required to ignite a methane/air explosion.”
Enbridge is responsible for the largest in-land oil spill in U.S. history when its Line 3 pipeline ruptured near Grand Rapids, Minnesota, in March 1991 and spilled 1.7 million gallons of oil onto the frozen Prairie River. Nineteen years later, Enbridge’s Line 6B pipeline ruptured near Marshall, Michigan, and spilled over 843,000 gallons of oil into the Kalamazoo River. A federal report concluded that the 2010 oil spill “was not discovered or addressed for over 17 hours,” and that during this time period “Enbridge twice pumped additional oil (81 percent of the total release) into Line 6B during two startups.”
Line 5 has spilled at least 33 times, releasing 1.3 million gallons of oil and natural gas liquids across the 645-mile long pipeline, according to the National Wildlife Federation.
In April 2023, the United Nations Permanent Forum on Indigenous Issues called on the United States and Canada to decommission Line 5, saying that it “jeopardizes the Great Lakes.”
“The pipeline presents a real and credible threat to the treaty-protected fishing rights
of Indigenous Peoples in the United States and Canada. The Permanent Forum
recommends that Canada and the United States decommission Line 5,” reads a report from the Twenty-Second Session the United Nations Permanent Forum on Indigenous Issues, Economic and Social Council.
About four months after the UNPFII called for Line 5 to be decommissioned, Enbridge began running a television ad featuring a pregnant woman from Sault Ste. Marie Tribe of Chippewa Indians (a tribe included in the letter mentioned above) walking along the shoreline and praising Enbridge’s supposed commitment to protecting the environment of the Great Lakes region. Because why listen to the overwhelming majority of Indigenous people on this particular issue when you can just pay one of them to be in your TV ad?
The Great Lakes contain about 21% of world’s total supply of surface freshwater. At a time when people are worried enough about the consequences non-renewable energy sources have had on the earth, the last thing anyone needs is for perhaps the largest reserve of surface freshwater anywhere to be contaminated with oil and natural gas. Making the demand of Line 5’s decommission a nationwide issue is imperative if we are to adhere to the principal of putting people over profits.
People across the United States should pressure President Biden to revoke the presidential permit that has allowed Line 5 to operate for over 70 years and shut it down for good. The message should be clear: there’s no debate when it comes to the Great Lakes.