A Wisconsin Indigenous band is seeking a permit to immediately evict the Line 5 pipeline from its land, creating a second shutdown risk for a piece of fossil infrastructure that has already faced closure threats from the Michigan government, as well as other Indigenous and environmental groups.
Earlier this year, the Bad River Band of the Lake Superior Tribe of Chippewa filed an application asking a United States federal court for a permanent injunction that would order Calgary-based Enbridge Inc. to “cease operation of the pipeline and to safely decommission and remove it,” reports the Globe and Mail.
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Running 1,038 kilometres from Superior, Wisconsin, to Sarnia, Ontario, significant portions of Line 5 pass through the Great Lakes watershed, including a 5.6-kilometre submarine section through the waterways that connect Lake Huron and Lake Michigan. Fearing a rupture and oil spill in the Great Lakes, Michigan Governor Gretchen Whitmer issued a shutdown order for the 69-year-old pipeline in November 2020—but it continues to operate, and the Canadian government has invoked a 1977 energy treaty to launch negotiations with the U.S. government on keeping the line open.
Enbridge spokesperson Jesse Semko told the Globe the Bad River Band had signed an agreement in 1992 that allows the company to operate on the reservation until 2043.”
But several easements that gave Enridge access to that territory expired in 2013, and the band is arguing they were never properly renewed, reports the Canadian Press.
“Enbridge has continued to operate the pipeline as if it has an indefinite entitlement to do so,’’ say court documents filed by the band. “This constitutes an unlawful possession of the subject lands, and an intentional, ongoing trespass upon them.”
The Bad River Band is also concerned by the environmental threat posed by the pipeline, a threat that became clear in August 2019, when tribal officials discovered 15 metres of the buried pipeline exposed less than eight kilometres from Lake Superior, reports Energy News Network.
A report from the Bad River Natural Resources Department expressed particular concern about severe storms damaging the pipeline. “We know that the next massive storm system could potentially shear Enbridge’s pipe right in the Bad River, pumping oil into Lake Superior,” Tribal Chair Mike Wiggins told ENN. “We’re concerned every day.”
The band has suggested the contents of Line 5 be rerouted through Enbridge’s Line 61, which dips sharply south into Illinois, sending the pipeline far away from the Great Lakes and eventually reaching Sarnia through a network of smaller lines.
Enbridge has rejected this option, saying Line 61 could not handle more volume and that, in any case, it carries only crude oil, whereas Line 5 carries both crude and natural gas.
Environmentalists have also expressed concern about pushing more oil through Line 61. The route includes Line 6B, which ruptured in 2010, spilling more than a million gallons of oil into the Kalamazoo River. News reports six years later had Enbridge getting away with a “wrist slap” for those impacts.
The Bad River Band’s recent request for a summary judgement without trial comes nearly three years after it filed a lawsuit in July 2019 seeking Line 5’s removal from its lands. Enbridge replied with a proposal that would see a 19-kilometre section of the pipeline taking a 66-kilometre detour out of the band’s territory. In a March 6, 2020 letter outlining its proposal, Enbridge indicated it had submitted all relevant permits for rerouting and expected construction to begin the following spring, with Line 5 ceasing to operate on the reservation by the end of 2021.
Now, Canada is being pressed to intervene in the Wisconsin case, the Globe says, with Opposition MPs urging the Trudeau government to file a brief opposing the Bad River Band’s application. Ottawa has so far declined, while continuing to assert its commitment to keeping Line 5 open. Ian Cameron, director of communications for Natural Resources Minister Jonathan Wilkinson, said in a statement that Canada was abiding by legal opinion that advised against filing an amicus brief against the Bad River Band lawsuit.
“He would not elaborate on this advice,” the Globe adds.
Ottawa has spoken out in favour of the reroute option, however. Describing Line 5 as a “an important element of Canada’s energy security,” Wilkinson press secretary Keean Nembhard stated that “the government of Canada has publicly supported Enbridge’s proposal and the regulatory process to reroute Line 5 off the Bad River band’s territory.”