Friends of the Headwaters Taking the PUC to the Court of Appeals
Web posted April 23, 2019
Last time Friends of the Headwaters (FOH) was in the Court of Appeals, they won the first Environmental Impact Statement ever done on an oil pipeline in Minnesota. That was during 2014 and 2015. Now this small group of volunteers from northern Minnesota is in court again, challenging both the adequacy of the Line 3 EIS and the Public Utilities Commission’s conditional approval of Line 3.
Richard Smith, Friends of the Headwaters’ president, contends that the PUC should have heeded the recommendations of the Administrative Law Judge and Minnesota’s lead environmental agencies. “Even the Department of Commerce determined that Enbridge’s Line 3 was unnecessary, “ he said. “The Department of Commerce was the agency the PUC relied on to examine the Enbridge application in depth, and the DOC said a new Line 3 was not needed. But the PUC put the interests of the Canadian tar sands industry ahead of the interests of Minnesota citizens and the preservation of our environment. We can’t just let that stand. The PUC’s decision was contrary to the law, and we are confident that is what the court of appeals will conclude.”
Friends of the Headwaters' attorney Scott Strand pointed out, “This is why we have appellate courts. The PUC acknowledged that we do not need this oil, that the environmental and climate risks of a new pipeline over the next forty or fifty years are enormous, and that there are alternatives available, but nevertheless gave Enbridge exactly what it wanted. We hope and trust this decision can be corrected at the next level.”
Some History and Context: these are the significant legal/procedural turning points that made a difference for Minnesota's Line 3 process.
• In the fall of 2013, Enbridge applied for the Sandpiper pipeline. In January 2014, the all-volunteer group Friends of the Headwaters (FOH) organized to intervene in the pipeline approval process.
• June 27, 2014, FOH filed a motion for oral arguments on alternate routes for Sandpiper. The PUC granted our motion in July.
• August of 2014 FOH presented FOH maps to the PUC during these oral arguments - resulting in an additional comment period on the Sandpiper, supportive commentary from Minnesota’s lead environmental agencies, and the PUC’s bifurcation decision in September.
• December 2014, FOH went to the Court of Appeals for an Environmental Impact Statement on proposed oil pipelines.
• June of 2015, the Public Utilities Commission (PUC) provided Enbridge with a Certificate of Need for the Sandpiper.
• September of 2015 the MN Court of Appeals ruled unanimously in favor of Friends of the Headwaters and ordered an EIS, the first and only EIS ever done on an oil pipeline in Minnesota. (This decision was upheld by MN Supreme Court in December of 2015.) With this ruling, the Certificate of Need for the Sandpiper was rescinded.
• In 2016, during the scoping process required by a lawful EIS, Enbridge placed the Sandpiper on indefinite hiatus—citing impatience with “unprecedented” procedural delays.
• During 2017 opposition challenged various aspects of the draft EIS, insisting on a comprehensive, independent, and competent EIS.
• September of 2017, independent and credentialed experts hired by the Department of Commerce to assess Line 3 declared that a new Line 3 pipeline was not needed. Recommending that the old Line 3 be mothballed, they said that no new pipeline capacity was needed to ensure “future adequacy, reliability and efficiency of energy supply.”
• March of 2018 the PUC declared the final EIS “adequate" despite the strenuous objections from opposition.
• April of 2018, Administrative Law Judge Ann O’Reilly specified her concerns about the applicant’s preferred route. She recommended that the PUC deny Enbridge’s preferred route through the Mississippi Headwaters and MN lake country.
• On June 28, 2018, the PUC overruled recommendations from the MN Pollution Control Agency, the MN Department of Natural Resources, the Department of Commerce, the Administrative Law Judge, and independent experts and approved the permit.
• October 2018, Enbridge submitted all permit applications to the various federal and State agencies, including the U.S. Army Corps of Engineers, the Minnesota Department of Natural Resources, the Minnesota Pollution Control Agency and other local government agencies in Minnesota.
• February of 2019, Gov. Tim Walz announced his Commerce Department would continue with a challenge to the project and several additional legal challenges to the project are in progress.
• March 2019 Enbridge Energy company announced that the Line 3 oil pipeline replacement project will go into service a year later than anticipated, now 2020.
According to a March 1, 2019 press release, Al Monaco, President and Chief Executive Officer of Enbridge stated, "We now have a firm schedule from the State on the timing of the remaining permits for our Line 3 Replacement project. We support a robust and transparent permitting process that includes opportunity for public input. We'll continue to work closely with State officials during this process."
Portions of the this article were submitted by Friend of the Headwaters