Enbridge Given 3 Years To Move Pipeline Off Wis. Reservation

Enbridge Energy Co. must remove an oil and natural gas pipeline from Wisconsin tribal land, a federal judge has ruled, giving the company three years to reroute its controversial Line 5 and ordering it to pay $5.2 million for trespassing.

The decision, which Judge William M. Conley of the Western District of Wisconsin issued Friday, marks a possible end to litigation in which the Bad River Band of Lake Superior Chippewa accused Enbridge of illegally keeping Line 5 on the tribe's reservation after multiple easements had expired.

After siding with the tribe last September on its trespassing claim, Judge Conley took nine months to calculate damages and weigh the Bad River Band's request for a pipeline shutdown.

In his order Friday, the judge identified a "real and unreasonable risk" that Line 5 could rupture in the not-too-distant future — a possibility that tribal authorities say warrants closing the pipeline. But he declined to immediately shutter the Enbridge structure, instead directing the energy company to strengthen its risk-assessment efforts and to move Line 5 off the Bad River Band's reservation within three years.

"In this way," Judge Conley wrote, "at least Enbridge might continue operations of the pipeline during the more stable months of the year, allowing a sufficient period of time for markets to adjust without shortages or extreme price swings … and Line 5 to be successfully decommissioned on the Reservation with fewer significant market disruptions."

Mike Wiggins, chairman of the Bad River Band, hailed Friday's ruling as a victory for tribal sovereignty. Still, he said in a statement, the ruling "is not a cause for unqualified celebration."

"We are under no illusion that Enbridge will do the right thing," Wiggins said. "We expect them to fight this order with all of their corporate might. This is just one step in protecting our people and water."

Enbridge plans to appeal Judge Conley's order and might seek a stay in the meantime, according to company spokesperson Juli Kellner.

The energy supplier maintains it received permission from the Bad River Band in the early 1990s to keep company infrastructure on the tribe's northern Wisconsin reservation until at least 2043. Still, the Canadian company has developed a plan to reroute Line 5 around the reservation — a project that Kellner said Tuesday will be completed in less than a year once permitting is approved.

Judge Conley cast an impatient tone Friday in discussing those plans.

The reroute project will probably take at least five more years, he said, adding that the timeline could be even longer "absent extraordinary efforts" from Enbridge and intervention by the federal government. The company has already had a decade to move Line 5, which traverses the Upper Midwest, after learning in 2013 that its easements on the Bad River Band reservation had expired, the judge noted.

"Considering all the evidence, the court cannot countenance an indefinite delay or even justify what would amount to a five-year forced easement with little realistic prospect of a reroute proceeding even then," he said in ordering the pipeline's removal within three years.

Until then, Judge Conley instructed Enbridge to keep a close eye on environmental conditions around Line 5 in order to keep it from rupturing.

The company must monitor daily precipitation forecasts from the National Oceanic and Atmospheric Administration and the National Weather Service, he said. The judge also tightened a pipeline-shutdown procedure Enbridge instituted in December. Under the heightened standard, Enbridge must temporarily shut Line 5 if water flows in the Bad River exceed 10,500 cubic feet per second.

The rules were a concession to tribal authorities, who warned in May that soil erosion at the river had accelerated sharply and risked exposing, and possibly rupturing, the pipeline.

Those conditions are serious enough to justify court intervention, Judge Conley said Friday. Still, he declined to order an immediate shutdown, noting that the Bad River Band has refused to engage with Enbridge on various mitigation proposals.

A stronger monitoring and shutdown plan "would significantly reduce the threat of an imminent oil or NGL spill in the near term," the judge said, referring to natural gas liquids.

Judge Conley also ordered Enbridge to pay the Bad River Band nearly $5.2 million to remedy its trespassing violations. Most of that sum represents profits from Line 5, with the remainder coming from costs that Enbridge saved by delaying its pipeline-reroute project. Under the terms of Friday's ruling, the company must continue to compensate the tribe until it abandons the northern Wisconsin reservation.

Erick Arnold, a lawyer for the Bad River Band, said the tribe is "heartened" that Enbridge will be forced to reroute Line 5. But a three-year timeline "leaves the Bad River vulnerable to catastrophe," Arnold added.

"And while the Band's motivations have never been about money," he said in a statement, "such a small award for a decade-long trespass during which Enbridge earned over a billion dollars in net profits from Line 5 will not sufficiently deter trespassers … but will instead create an incentive for corporations to violate the sovereignty of the Band."

Bad River Band leaders sued Enbridge in 2019 over allegations that the company has trespassed on their reservation — located on the shores of Lake Huron — by not moving Line 5 after the expiration of its easements six years earlier.

Judge Conley largely sided with the tribe last September, finding a trespass on 12 parcels within the reservation, but declined to shut the pipeline due to the "significant public and foreign policy implications" of such a move. Two months later, after a bench trial, he ordered Enbridge and the Bad River Band to develop plans to keep Line 5 from rupturing.

The 645-mile pipeline, which was built in 1953, carries crude oil and natural gas from Wisconsin to Ontario and provides Michigan with more than half of its propane needs, according to the company.

Throughout the litigation, Enbridge and its allies in the energy industry — including the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers — have warned against shuttering Line 5 based on economic concerns. Such a move, they have said, would devastate local communities in Canada and the United States.

Judge Conley acknowledged those concerns on Friday as a reason to delay rerouting the pipeline.

Immediately closing Line 5 would create supply problems and cause energy prices in the region to spike, he said, adding that markets for oil and natural gas would take at least a year to stabilize. Indeed, the Bad River Band's trespassing suit "has always been about a tail wagging a much larger dog," the judge said Friday.

Despite their legitimacy, he said, the allegations are "ill-suited to resolve what are much larger public policy issues as to the appropriate life of oil and gas pipelines that involve not only the sovereign rights of the Band, but the rights of multiple states and international relations between the United States and Canada."

The Bad River Band is represented in-house by Erick Arnold and by Riyaz A. Kanji, David A. Giampetroni, Lucy W. Braun, Christopher Miller, Joshua C. Handelsman, Joohwan Kim, Jane G. Steadman, Philip H. Tinker and Claire R. Newman of Kanji & Katzen PLLC, Bruce Wallace of Hooper Hathaway Price Beuche & Wallace, Oday Salim of the National Wildlife Federation and Douglas M. Poland and David P. Hollander of Stafford Rosenbaum LLP.

Enbridge is represented by Michael C. Davis, David L. Feinberg and Justin B. Nemeroff of Venable LLP, Eric M. McLeod and Joseph S. Diedrich of Husch Blackwell and David H. Coburn, Alice E. Loughran and Joshua Runyan of Steptoe & Johnson LLP.

The case is Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Energy Company, Inc. et al., case number 3:19-cv-00602, in the U.S. District Court for the Western District of Wisconsin.