A letter to the editor from Enbridge concerning part 1 of Jessica Intermill’s article on structural bias/racism in the law and the Line 3 pipeline approval. 

As an attorney working on the Line 3 Replacement Project, I was surprised to see Bench & Bar run an “editorial” regarding the project while it is still before the Minnesota courts. Nonetheless, I read with interest Jessica Intermill’s assessment of the Minnesota Public Utilities Commission and its approval of the project (“When the public interest isn’t: Minnesota’s approval of a new Line 3,” May/June 2021 Bench & Bar). Unfortunately, Ms. Intermill, who has not worked on this project, ignores the public record to suit her point of view. By doing so, she does a disservice to our profession and to the readers of Bench & Bar. Facts matter. Even in the editorial section. 

The truth about the existing Line 3 is that it was built in the 1960s and is part of the Enbridge crude oil pipeline system which crosses the Mississippi in Minnesota and has done so safely for decades—coexisting with some of the nation’s most productive wild rice waters. Line 3 travels 1,097-miles from Edmonton, Alberta to Superior, Wisconsin and currently operates below its designed capacity to increase operational safety. Its replacement is called for by the terms of a federal consent decree during the Obama Administration.

As for the project, keep three items in mind. First, the project violates no treaty. Second, formal and informal public participation and access to the regulatory and environmental permitting processes went far beyond the legal requirements. Third, the Project is a safety and maintenance driven project focused on protecting the public good - our communities & the environment – by safely and reliably transporting energy through modern infrastructure for Minnesotans and beyond. 

The author is quick to point to tribes who oppose the project. It’s more convenient to make no mention of two tribes whose land is currently crossed by existing Line 3, the Fond du Lac Band of Lake Superior Chippewa and Leech Lake Band of Ojibwe. These tribes have participated as parties in the permitting process and, respectively, have granted the necessary approvals for the project to be located on their reservation and supported the grant of a route permit by the Commission. 

Regarding usufructuary rights in the ceded territories, the author says: “The route largely stretches across land ceded by treaties that the U.S. Supreme Court has recognized protect tribal members’ right to “hunt[], fish[], and gather[] the wild rice, upon the lands, the rivers and the lakes included in the territory ceded.” Intermill cites the Treaty with the Chippewa of 1837. 

The Line 3 Replacement Project does not cross the 1837 treaty area. It crosses the 1863/1864, 1855, and 1854 Treaty Ceded Territories.

The Administrative Law Judge analyzed the treaty rights according to the law and her findings of fact included: “the only treaties in which Indian tribes retained usufructuary rights to property are the 1837 and 1854 Treaties. Accordingly, only the land ceded under those two treaties are subject to usufructuary rights claims by the tribes who were signatories to those two treaties. Indian tribes did not retain usufructuary rights in or to any of the other treaty-ceded territories.” Finally, the report states " …The only tribes that can arguably claim usufructuary rights under the 1854 Treaty are the Fond du Lac, Grand Portage, and Bois Forte Bands.

Those tribes—Fond du Lac Band of Lake Superior Chippewa, Grand Portage, and Bois Forte—make no claim that the Line 3 Replacement Project violates treaty rights. In fact, FDL issued the following public statement regarding the project, “The Band's decision to enter into an agreement with Enbridge was made after extensive consideration. A tribal, sovereign decision has been made. After numerous meetings, as well as thoughtful and careful deliberation by our elders reflecting on our community's values and of those yet to come, we stand by that decision."

Other assertions similarly ignore the record and the facts. For example, the author cites a widely quoted but misleading data point about the oil being transported by Line 3 as equivalent to “50 coal plants.” While this sounds dramatic, it incorrectly attributes the ultimate consumption of oil transported on Line 3 to the project. This argument regarding greenhouse gas emissions was considered and rejected by the Minnesota Public Utilities Commission in their decision granting Line 3 its Certificate of Need. The Commission concluded that emissions from the ultimate consumption of oil transported on Line 3 do not result from the replaced pipeline, but instead from the continued demand for crude oil to produce refined products used by consumers. “The record evidence does not support a conclusion that denial of the certificate of need will significantly reduce demand for crude oil. Instead, the evidence establishes that the most likely result of denial will instead be increased transport of crude oil via more dangerous means such as rail and continued use of the deteriorating Existing Line 3.” 

The author also tries to imply that there was inadequate public input of the permitting process. The project has gone through more than six years of thorough science-based review and passed every test – this included more than 70 public hearings, a 13,500 page Environmental Impact Statement (EIS), four separate reviews by independent administrative law judges, and dozens of route modifications in response to stakeholder input and reviews and approvals from the Minnesota Public Utilities Commission, Minnesota Pollution Control Agency, Minnesota Department of Natural Resources, the U.S. Army Corps of Engineers, the Bureau of Indian Affairs, and the Fond du Lac Band of Lake Superior Chippewa (The only Tribe with “Treatment as a State” water quality authority along the pipeline route). 

Intermill claims the route “tear[s] a largely new 337-mile path”; however, the route stays within the existing mainline corridor over half of the way through Minnesota, then follows other existing infrastructure, including a powerline, an independently-owned pipeline and rail before rejoining the mainline corridor outside of the Fond du Lac Reservation. This approved route reflects requests made by the Leech Lake Band of Ojibwe and dozens of other stakeholders. 

Personally and professionally, I’m proud that the Project included a first-of-its kind Tribal Cultural Resource Survey led by the Fond du Lac Band of Lake Superior Chippewa. Fond du Lac managed review of the more than 300-mile route through the 1855, 1837, and 1863/1864 treaty areas. The Band employed tribal cultural experts who walked the full route identifying and recording significant cultural resources to be avoided. 

The Army Corps wrote of the survey, “The Level of Effort for the identification of historic properties has been impressive and thorough, far surpassing the “reasonable and good faith” identification standard per Part 800. In essence, the Project corridor was surveyed twice, a complimentary dual effort conducted by both “traditional” archaeologists and tribal cultural specialists. The two survey efforts were complimentary and supportive of the other investigation, and to borrow from the TCRS report, the dual survey effort provided opportunity to view through a different lens.”

 The replacement of Line 3 has tremendous support in Minnesota. By the numbers:

  • More than 90 resolutions and letters supporting the replacement of Line 3 were submitted to the MN Public Utilities Commission from federal, state and local elected officials and governments;
  • Over 40,000 Minnesotans signed petitions and letters in support of the Project; 
  • We have supporters in all 87 counties in Minnesota with an additional 60,000 residents showing their support with yard signs, advocacy for the project, penning letters to the editor, and attending meetings in support of the Project; and 
  • 100% of landowners along the route granted easements for the Project. 

The Line 3 Replacement Project is safety and maintenance driven, and it replaces an aging pipeline with a safer one made of thicker steel with more advanced coatings. This will reduce maintenance and disruptions to the environment and provide a source of energy that our economy continues to rely on. As the Minnesota Public Utilities Commission has already determined, the Line 3 Replacement Project is very much in the public interest.

James D. Watts
L3RP In-House Counsel
Enbridge Inc.

Jessica Intermill responds:

Enbridge’s letter is long on talking points, but my original article needs no correction. The Line 3 expansion does not cross the 1837 treaty cession, but that does not block tribal usufructuary rights in other treaty territories. Enbridge emphasizes that the ALJ only acknowledged the 1837 and 1854 Treaties’ usufructuary rights impacted by the Line 3 expansion, but the U.S. Supreme Court held in Minnesota v. Mille Lacs Band of Chippewa Indians (526 U.S. 172 (1999)) that the 1855 Treaty (through which the Line 3 expansion does travel) also preserved all usufructuary rights. The original article included this citation; Enbridge’s response does not. 

More to the point, the original article was about a broken process, not about Enbridge. It specifically acknowledged divergent opinions about the utility of the Line 3 expansion. But even Enbridge does not dispute that 68,000 of the 72,000 written comments submitted to the ALJ opposed the Line 3 expansion. Here is where Enbridge doth protest too much. When 94 percent of the commenting public opposes a project purported to be for its own good and a state agency approves it anyway, it is no accomplishment that “public participation and access to the regulatory and environmental permitting processes went far beyond the legal requirements.” It is an indictment of those legal requirements.