The Minnesota Department of Commerce will again ask the Minnesota Court of Appeals to review Enbridge's proposed Line 3 pipeline project.
In its news release Tuesday evening, the Department of Commerce said it will file an appeal Wednesday mirroring its previous appeals that argue the Minnesota Public Utilities Commission erred in granting the proposed pipeline's certificate of need in February because Enbridge did not introduce a long-range demand forecast and that the PUC had shifted "the burden of proof from Enbridge to the Department (of Commerce) and others to show that demand for product transmitted by Line 3 would decrease during the forecast period."
The agency has argued in the past that Enbridge instead submitted a pipeline utilization forecast that assumed demand would continue at 2016 refinery capacity.
The appeal has Gov. Tim Walz's support.
“When it comes to any project that impacts our environment and our economy, we must follow the process, the law, and the science,” Walz, a Democrat, said in a statement. “The Department of Commerce’s appeal is a part of that process, and it is important to ensure clarity in the steps that Minnesota takes to evaluate and approve projects like this one."
Enbridge is seeking to replace its existing, aging Line 3 with a new pipeline that will ferry 760,000 barrels of oil (31.92 million gallons) per day from Alberta, Canada, to the Enbridge terminal in Superior and follow a new route through much of Minnesota.
The appeal is a continuation of a petition for review filed in May, which was then denied by the Minnesota Public Utilities Commission. The denial gave parties opposed to the pipeline the opportunity to ask the Court of Appeals to review the case.
Line 3 opponents were outside the governor's residence and Minnesota Judicial Center in St. Paul on Tuesday morning urging Walz and his administration to file the appeal and announcing a joint appeal between Minnesota tribes and environmental groups.
In a statement, Sierra Club North Star Chapter Director Margaret Levin said the appeals were necessary.
"(The Public Utilities Commission's) bad decision — ignoring state's agencies' recommendations, and based on a faulty process — would be devastating for Minnesota's clean water and communities," Levin said. "The Court must reject the PUC's decision once and for all."
Meanwhile pipeline proponents have urged Walz not to refile the appeal, calling it an additional delay to a yearslong regulatory process and arguing construction of the pipeline could help bolster the struggling economy. But appeals from environmental groups and Minnesota tribes are likely to make arguments similar to the Department of Commerce's. Additionally, the project still needs several permits from state and federal regulators.
"It is disappointing that the Walz Administration has chosen to pursue an argument that has been in front of the MN Public Utilities Commission (PUC) numerous times and failed every time," Enbridge said in an emailed statement. "The appeal filed by the Minnesota Department of Commerce is not supported by evidence or Minnesota law."
This isn't the first time the Department of Commerce has filed the appeal.
After the PUC denied the department's petition for review in November 2018, the department then asked the Minnesota Court of Appeals to review the Line 3 case in the final days of Gov. Mark Dayton's administration in December 2018. But the Court of Appeals said that filing was premature and asked parties to refile in February 2019, forcing Gov. Walz, then one month in office, to decide if he would continue the appeal. He ultimately chose to continue the appeal and said Dayton's appeal "is now part of this process."
The Court of Appeals in June 2019 said the environmental review was inadequate, which forced the PUC to reconsider Line 3's certificate of need and route permit with new environmental review information in hand and ultimately restarted the petition and appeal process.
On top of that, the Minnesota Pollution Control Agency said it would hold a contested case hearing after concerns the pipeline could harm wetlands and streams were raised. The hearing will be held Aug. 24-28 and a report is expected Oct. 26.
The hearing will put the pipeline's 401 certification, a permit awarded by a state's regulators if the project's impact on water falls within the state's standards, in front of an administrative law judge to examine additional evidence and testimony on the project. Federal agencies cannot issue a federal permit or license without a state approving the 401 certification.
The MPCA has said the U.S. Army Corps of Engineers extended its deadline for the 401 certification until Nov. 14, pushing it beyond 2020's prime construction season.
"The Minnesota Court of Appeals will decide on the next steps with respect to the appeals, in the meantime, we will continue to pursue remaining permits with a goal of beginning construction as soon as they are in hand," Enbridge said.
This story was updated at 7:08 p.m. Aug. 18 with quotes from Enbridge and the Sierra Club. It was originally posted at 6:16 p.m. Aug. 18.