A federal judge said Thursday he is unlikely to force an energy company to shut down an oil pipeline in northern Wisconsin, despite arguments from a Native American tribe that the line is at immediate risk of being exposed by erosion and rupturing on reservation land.
U.S. District Judge William Conley said the Bad River Band of Lake Superior Chippewa didn’t prove that an emergency exists along a stretch of the Enbridge Line 5 pipeline where large sections of nearby riverbank have been washed away in recent weeks. Justice Conley also expressed frustration with the tribe for not allowing Enbridge ENB-T to reinforce the land around the pipeline.
“The band has not helped itself by refusing to take any steps to prevent a catastrophic failure at the meander,” Justice Conley said. “You haven’t even allowed simple steps that would have prevented some of this erosion.”
The tribe says less than 4.6 metres of land now stands between the Bad River and Line 5 along a meander on the reservation. In some places, more than 6 metres of riverbank has eroded in the past month alone. Experts and environmental advocates have warned in court that an exposed section of pipeline would be weakened and could rupture at any time, causing massive oil spills.
Enbridge has repeatedly asked the tribe for permission to place sandbags along the riverbank to prevent erosion. It also requested a permit Monday to install barricades made of trees to protect the pipeline.
Tribal officials have not approved any of the company’s requests.
Justice Conley said the tribe’s inaction undermined its repeated claims that the pipeline must be shut down.
“It looks like a strategy, even if it’s just idiocy,” he said. “I’m begging the band to just act. Do something to show you’re acting in good faith.”
Justice Conley planned to issue a ruling in the next two weeks explaining what conditions would have to be met for him to order a shutdown.
“There’s going to come a time when there will be an imminent risk that will require me to step in,” he said.
The Bad River tribe sued Enbridge in 2019 to force the company to remove the roughly 19-kilometre section of Line 5 that crosses tribal lands, saying the 70-year-old pipeline is dangerous and that land agreements allowing Enbridge to operate on the reservation expired in 2013.
Justice Conley sided with the tribe in September, saying Enbridge was trespassing on the reservation and must compensate the tribe for illegally using its land. But he would not order Enbridge to remove the pipeline due to concerns about what a shutdown might do to the Great Lakes region’s economy.
Instead, Justice Conley told Enbridge and tribal leaders in November to create an emergency shut-off plan. His ruling said there was a significant risk the pipeline could burst and cause “catastrophic” damage to the reservation and its water supply.
Line 5 transports up to 87 million litres of oil and liquid natural gas each day and stretches 1,038 kilometres from the city of Superior through northern Wisconsin and Michigan to Sarnia, Ont. If the pipeline were shut down, gas prices would likely increase, refineries would close, workers would be laid off and the upper Midwest could see years of propane shortages, according to reports Enbridge submitted in court.
Enbridge has proposed a 66-kilometre reroute of the pipeline to end its dispute with the tribe and said in court filings that the project would take less than six years to complete. But the tribe has not granted the permits Enbridge needs to begin construction. A draft analysis of the project’s environmental impact submitted in December 2021 received thousands of public comments, with many criticizing the report as insufficient. The company is still responding to the tribe’s requests for more information.
Line 5 has also faced resistance in Michigan, where Enbridge wants to drill a new tunnel under a strait connecting two of the Great Lakes. Michigan Governor Gretchen Whitmer and Attorney General Dana Nessel have sought to shut down the pipeline. Ms. Nessel filed a brief Wednesday in support of the tribe’s request, saying a rupture in Wisconsin would also cause environmental damage in Michigan.