By Emma Whitford

Law360 (November 30, 2020, 6:48 PM EST) -- Two tribes are urging the Minnesota Public Utilities Commission to stay a handful of orders approving aspects of a proposed Enbridge Energy Partners LP pipeline, saying construction should not proceed until a state court has weighed in on various appeals.

The Red Lake Band of Chippewa and White Earth Band of Ojibwe, both of northern Minnesota, filed with the commission on the eve of Thanksgiving, pointing to cases currently before the Minnesota Court of Appeals seeking to undo state regulators' approval of the pipeline over unaddressed environmental risks.

The tribes sought speedy consideration of their motion Wednesday, citing the COVID-19 pandemic as well as a letter from Enbridge stating construction could begin this week.

"Since Enbridge has informed landowners that it is 'estimating construction on or near your property will start on approximately November 30, 2020,' and that it intends to complete construction within six to nine months of the start of construction, the tribes respectfully request that the commission expedite consideration of this motion," they wrote.

An Enbridge spokesperson told Law360 on Monday that the exact timeline for construction hasn't been settled.

The tribes also argued that proceeding with construction could cause irreparable harm by exacerbating the COVID-19 pandemic in Minnesota, as Enbridge "seeks to employ at least 4,200 workers."

Bringing workers into the state during "the worst phase of the pandemic to date will accelerate the infection rate, thereby putting more tribal members, healthcare workers, and other citizens at risk," the tribes claimed.

A delay would not harm Enbridge, the tribes added, because of the "global reduction in crude oil demand in response to the COVID-19 pandemic."

Enbridge filed two applications related to the controversial Line 3 project before the Minnesota Public Utilities Commission in April 2015, according to the tribes. The project includes an approximately 338-mile crude oil pipeline through Minnesota from its North Dakota border to its Wisconsin border, intended to replace an existing pipeline.

The tribes are challenging MPUC orders from 2018 up to this year approving an environmental impact statement for the pipeline, as well as a certificate of need laying out market demand for oil, according to Wednesday's motion.

These orders should be stayed until the state appeals court has weighed in on consolidated appeals from both tribes, as well as environmental groups including Honor the Earth and the Sierra Club, the tribes said.

The tribes' Nov. 25 motion cites state laws including the Minnesota Administrative Procedure Act and Minnesota Environmental Policy Act to support a stay. 

The motion also references the 2017 Minnesota Supreme Court decision in Webster v. Hennepin County , arguing that failure to stay construction on the pipeline could result in the appeals court losing jurisdiction over the case.

A "failure to favor stays in cases where actions cannot be undone would as a practical matter severely reduce or eliminate the court of appeals' role within our government," the tribes claimed.

Practically, they added, "if a stay is not granted and the court upheld tribes' claims, there would be no point to remanding the case to the commission, because ... the pipeline would have long been in operation, making such hearing pointless."

Enbridge spokesperson Michael Barns told Law360 on Monday that "construction can now begin" on the pipeline and that the project is bringing "millions of dollars in local spending and additional tax revenues at a time when Northern Minnesota needs it most."

"Safety is our top priority," Barns added. "To protect our team, workers and surrounding communities, Enbridge has instituted strict and industry-leading coronavirus testing and screening protocols for workers."

The Minnesota Public Utilities Commission is scheduled to take up the tribes' stay motion Friday morning, a spokesperson confirmed.

Attorney Frank Bibeau, counsel for the tribes and member of the White Earth Band of Ojibwe, told Law360 his team is prepared to seek a federal court injunction to block the pipeline if this motion fails.

The pipeline could compromise the Upper Mississippi Watershed, which provides "our primary treaty foods: wild rice, fish and maple syrup," Bibeau said. 

"All Enbridge wants is to get into the global market," added Bibeau's co-counsel, Joseph Plumer. "We're left with all the risk and Enbridge gets all the profit."

The tribes are represented by Red Lake Nation counsel Joseph Plumer and Frank Bibeau of Honor the Earth and the White Earth Band of Ojibwe.

The case is In the Matter of the Application of Enbridge Energy LP for a Certificate of Need for the Line 3 Replacement Project in Minnesota From the North Dakota Border to the Wisconsin Border, case number PL-9/CN-14-916, before the State of Minnesota Public Utilities Commission.

--Additional reporting by Morgan Conley. Editing by Marygrace Murphy.

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