WASHINGTON-
A Wisconsin judge ruled in favor of an indigenous band in its dispute with Enbridge over Line 5, but refrained from shutting down the controversial cross-border pipeline.
District Court Judge William Conley said the Bad River Band of Lake Superior Chippewa proved it had the right to revoke permission for the pipeline to cross its territory in 2013.
Conley also said the band, which wants the line removed from the Bad River reservation, is entitled to financial compensation – although the decision does not go into specifics on this.
The judge, however, denied the band’s motion to shut down the pipeline, citing the potential for serious foreign policy and trade consequences for both Canada and the United States.
He 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 night, 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 regarding its claims for trespass and unjust enrichment, Enbridge’s counterclaims and the Band’s right to monetary relief,” he wrote.
“Nevertheless, the court must deny the band’s request for an automatic injunction because an immediate closure of the pipeline would have significant public and foreign policy implications.”
Environmental concerns are front and center in Wisconsin, where the pipeline runs directly through the Bad River Reservation, 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 that the Calgary-based company is trespassing, having violated the terms of easements that allowed the pipeline to cross the reservation from 1953.
Enbridge, which is 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 in itself a guarantee that the pipeline would be allowed to continue operating.
“The agreed purpose was not, as Enbridge now asserts, to allow it to operate on the entire reserve for 50 years,” Judge wrote.
“Furthermore, Enbridge was aware of the risk that its 20-year easements would not be renewed, yet it failed to protect itself from that risk.”
In a statement, the company applauded the decision to keep Line 5 operational and said it remained committed to resolving the dispute “amicably” with the Bad River Band.
The company’s plans for a 66 kilometer detour of Line 5 around the reserve are already two years old, with 100% of private landowners along the new route having already signed agreements.
“The relocation project will be built by a Wisconsin contractor and will create approximately 700 union jobs to support the family and millions in construction-related expenses in northern Wisconsin,” the company said.
“About $46 million (US) will be spent on tribal-owned businesses and on hiring and training Native American workers who will make up at least 10% of the project’s workforce.”
Line 5 has been under legal siege in Wisconsin and neighboring Michigan for most of the past three years, and with naysayers in both cases arguing for a stoppage, Wednesday’s decision will likely be seen as a victory.
Business groups and chambers of commerce on both sides of the border, provincial governments and Ottawa have joined Enbridge in its efforts to present the survival of Line 5 as an issue critical to continental energy security.
The allies have argued in court filings as well as in public forums that Line 5 is a vital source of energy for several Midwestern states and a critical link for Canadian refineries that power some of Canada’s busiest airports.
Late last month, the company won a key battle in the Michigan lawsuit, where a federal judge rejected Attorney General Dana Nessel’s efforts to send the case to circuit court, where the state has best chance of success.
Nessel has since indicated that she plans to appeal the decision.
This report by The Canadian Press was first published on September 8, 2022
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