As construction on Enbridge’s Line 3 oil pipeline resumed this month and protests against the project intensified, court cases challenging the 340-mile pipeline across northern Minnesota continue.
The Minnesota Court of Appeals on Thursday heard oral arguments over a case opponents filed in December arguing the Minnesota Pollution Control Agency erred in awarding the project a 401 certification, a permit awarded by a state's regulators if the project's impact on water falls within the state's standard. Such a state permit clears the way for the U.S. Army Corps of Engineers to issue a 404 permit if construction-related impacts to U.S. water comply with federal laws and regulations, which the Army Corps said Line 3 met in November. The permit allows Enbridge to discharge dredged and fill material into rivers and streams.
Scott Strand, attorney for Friends of the Headwaters, told the three-judge panel that the MPCA failed to consider route alternatives, wetland restoration, the pipeline's operational impact and effects on climate and tribes before granting its certification.
The environmental group was joined by the Sierra Club, Red Lake Band of Chippewa Indians and White Earth Band of Ojibwe in its appeal, which seeks to reverse the certification’s approval.
But several judges wondered if reversing the certification would actually do anything because after the MPCA signs off on such a certificate, it’s up to the Army Corps to grant the 404 permit allowing construction-related discharges.
Pete Farrell, an attorney for the MPCA, said the petition should be denied because the court’s decision would not give the parties “effective relief” given the Army Corps' role.
“It’s really undisputed that even if this court were to give the (Line 3 opponents) everything they want and vacate the 401 certification, that decision will only have effect if the Army Corps chooses to give it effect,” Farrell said.
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Judge Tracy M. Smith interjected, and said the effect of the court’s decision was, in fact, “disputed.”
Scott Strand, attorney for Friends of the Headwaters, said the state’s 401 certification was a “precondition” to the federal 404 permit.
He also said it could increase the odds of a separate, but related, lawsuit in the federal court system that targets the Army Corps’ 404 approval.
“Even if it simply gives us another reason for a federal court to reject those permits, that's not nothing,” Strand said. ”If it leads to their automatic rejection of those by operation of law, that's certainly significant.”
As part of that case, a federal judge in February denied opponents' request to halt Line 3 construction over issues like climate change and potential oil spills the groups said the Army Corps failed to consider.
Enbridge is seeking to replace its existing, aging Line 3 and ferry 760,000 barrels of oil (31.92 million gallons) per day from Alberta, Canada, to Enbridge's terminal in Superior, following a partially new 334-mile route through much of northern Minnesota. The pipeline will replace Line 3, but follow a partially new route through much of the state.
Separate court decision expected soon
Within the next two weeks, the Court of Appeals is expected to issue its decision on a separate case challenging Line 3. And unlike the case argued Thursday, it has clearer possible ramifications.
Pipeline opponents and the Minnesota Department of Commerce, under the direction of Gov. Tim Walz, have appealed the Public Utilities Commission decision to grant Line 3 a certificate of need because, they argue, Enbridge did not demonstrate a long-range demand for oil. Therefore, they haven’t actually proven the pipeline is needed.
If the court sides with them, activists and lawyers say the decision could halt construction on the project, which is more than 60% complete, at least until Enbridge and the PUC could reissue the project's certificate of need using the correct demand forecast or the decision is reversed by the Minnesota Supreme Court.
During oral arguments in March, two judges on the three-member panel expressed doubt that Enbridge had used the correct forecast.
At the time both Judge Lucinda E. Jesson and Judge Peter M. Reyes Jr. said it seemed the forecast relied on supply rather than on demand from refineries through 2035.
"You're talking past history," Reyes said to PUC attorney Jason Marisam. "So if I hear what you're saying by omission is that there is no forecast demand data with respect to refineries."
"I just did not see any forecast of that demand from willing and able purchasers, the same way I saw 'Oh, here's the supply we have' or 'Here's the pipeline capacity we have,'" Jesson said, adding that the "big issue" in this case is whether supply can be a proxy for demand over the next 15 years.
Marisam and Enbridge attorney Christina Brusven defended the forecast.
Brusven said shippers on Line 3 are often the refineries themselves, as well as producers and marketers. She added that the report also held refinery capacity "steady" into the future.