Minn. Commission Declines Tribes' Bid To Stay Pipeline Work

By Emma Whitford
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Law360 (December 4, 2020, 8:19 PM EST) -- The Minnesota Public Utilities Commission on Friday voted not to pause work on a pipeline two tribes fear will harm their wild rice, fish and maple resources, saying the tribes failed to show a risk of irreparable harm while they appeal the pipeline's permits in state court.

The five commissioners voted 4-1 following an expedited hearing on the Red Lake Band of Chippewa and White Earth Band of Ojibwe's Nov. 25 motion for a stay. In it, the northern Minnesota tribes pointed to cases currently pending before the Minnesota Court of Appeals that seek to block the Enbridge Energy Partners LP pipeline over unaddressed environmental risks.

The tribes also said an influx of workers to the state this winter could increase COVID-19 cases. If the tribes succeed in reversing the pipeline's permits, they added, it would be impossible to undo construction already underway.

But four of the commission's five members were not persuaded, saying irreparable harm considerations actually favor the workers who have already begun, or are scheduled to begin, constructing the so-called Line 3 project.

"Construction workers are currently working on this project and in my view this is beneficial for Minnesota's economy, particularly during a pandemic," said Commissioner Valerie Means, casting her no vote.

"If I may be plain-spoken for a moment," she added, "I think it would be an unconscionable disregard for the irreparable harm of these workers if the commission grants this stay. I will not support granting a motion ... driving these workers into unemployment."

More than 1,450 workers were on the job as of Dec. 2, according to Enbridge. the Red Lake Band and White Earth Band sought an expedited hearing last month in the hopes of stopping the first days of work.

Multiple commissioners said Friday that the project, for which they issued permits in May, will replace an old pipeline elsewhere in the state that poses its own set of environmental risks if kept operational.

The existing pipeline runs through lands home to two other Minnesota tribes, the Fond du Lac Band and Leech Lake Band, both of which support the replacement effort.

"The existing Line 3 has a very real risk of leaking, which requires massive investments in integrity digs," said Commissioner Joseph Sullivan. "This risk and harm to the environment and the public will be increased by granting the stay."

Enbridge could simply shut off the compromised line, rather than keep running oil along it, Red Lake Band counsel Joseph Plumer countered during the hearing.

"My first reaction is to say to Enbridge, 'Shut off Line 3,'" he told the commission. "They have plenty of other capacity on the main line."

Explaining his no vote, Commissioner John Tuma emphasized Minnesota Gov. Tim Walz's authority when it comes to pandemic guidance, and said it would be disrespectful to halt work on a project with state-approved precautions in place.

"For me to second-guess that, I think, would be bordering on treason, frankly," Tuma said.

The sole dissenting vote Friday, Commissioner Matthew Schuerger, said he found the tribes' irreparable harm arguments persuasive.

"I agree that a stay is necessary to protect the jurisdiction of the court of appeals," he added. "Constructing the entire Line 3 replacement before the court can issue an opinion would clearly limit the court's ability to impact the project."

Enbridge filed applications related to the controversial Line 3 project before the commission in April 2015. The project includes an approximately 338-mile crude oil pipeline through Minnesota from its North Dakota border to its Wisconsin border.

In the ongoing consolidated appeals, the Red Lake Band and White Earth Band 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.

Environmental groups including Honor the Earth and the Sierra Club are also challenging the permits.

"The PUC's predictable actions today again demonstrate that the regulatory process in Minnesota is brazenly pro-oil industry," said Honor the Earth Director Winona LaDuke in a statement Friday.

White Earth Band counsel Frank Bibeau of Honor the Earth told Law360 after the vote that his team never sought to change the commission's mind on the viability of the project.

"This was not an attempt to change the decision of the PUC, but to ask for ... basic fairness while using their Minnesota laws and legal systems," he said.

Enbridge celebrated in a statement to Law360.

"This decision is a reconfirmation of the Minnesota Public Utilities Commission's previous approvals," said spokesperson Michael Barnes, adding that "we hope all parties will now accept the outcome of this thorough, science-based review of Line 3."

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.

Enbridge is represented by Christina K. Brusven, Patrick D.J. Mahlberg and Haley Waller Pitts of Fredrikson & Byron PA.

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 Diamond Naga Siu. Editing by Stephen Berg.

For a reprint of this article, please contact reprints@law360.com.

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