Bad River Band and Enbridge offer oral arguments in Line 5 shutdown appeal

Mackinac Bridge from the U.P., Feb. 6, 2023 | Laina G. Stebbins

By Kyle Davidson, Michigan Advance

Representatives of the Bad River Band of Lake Superior Chippewa and Canadian pipeline company Enbridge Inc. gave their oral arguments before the U.S. Court of Appeals for the Seventh Circuit in Chicago on the case appealing the shutdown of Enbridge’s controversial Line 5 pipeline. 

The suit began in 2019, when the Bad River Band took action to remove the pipeline from their territory in Wisconsin after refusing to renew an easement on the pipeline that travels through the Bad River reservation, citing environmental concerns. While the easement expired in 2013, Enbridge refused to remove the pipeline from the parcels of land owned entirely, or partly by the tribe. 

The Bad River Band later filed for injunctive relief in May 2023, after spring flooding events created concerns that the pipeline would be exposed and ruptured

Line 5 stretches from Northwest Wisconsin, through Michigan into Sarnia, Ontario. It transports up to 540,000 barrels per day of crude oil and natural gas liquids. 

The U.S. Western District Court of Wisconsin ruled on June 16, 2023, that the pipeline company must shut down the section of Line 5 running through the tribe’s sovereign territory by June 2026, and pay the tribe $5.1 million, according to For Love of Water (FLOW), an advocacy group pushing to protect the health and access to water in the Great Lakes Basin.

However, the court denied the Bad River Band’s request for an immediate injunction against Enbridge, with District Judge William M. Conley writing in his opinion that “an immediate shutdown of the pipeline would have significant public and foreign policy implications.”

Enbridge appealed the decision. On Thursday, Enbridge attorney Alice Loughan argued the Bad River Band was not acting in accordance with the 1992 easement agreement, and that Conley’s order violated the 1977 transit treaty, which limits the authority of the U.S. and Canada to impede the flow of oil and natural gas between nations, according to FLOW. 

Enbridge Spokesperson Ryan Duffy said in a statement that Enbridge was not trespassing, as the 1992 treaty allows the company to remain on the reservation through 2043.

Paul Clement, representing the Bad River Band of Lake Superior Chippewa, encouraged the court to affirm the lower court’s decision and to require an immediate shutdown of the pipeline rather than the current 2026 deadline, citing continued concerns with spring flooding and erosion. 

In his statement, Duffy said shutting down the pipeline before Enbridge can finish relocating the pipeline outside the reservation would “negatively impact businesses, communities and millions of individuals” who rely on the pipeline for energy. He also said the Canadian government had argued a shutdown before the pipeline can be relocated would violate the transit treaty. 

While a November report found the pipeline could be shut down without any shortages or price increases, Duffy responded to the report saying some of the report’s proposed solutions — such as transporting using rail and watercraft — would put the environment at risk.

In an audio recording of the oral arguments, Judge Frank Easterbrook, one of the three judges on the panel reviewing the appeal, said the case would not be decided within the month, with the court seeking a position from the U.S. government.

According to FLOW, the U.S. Appeals Court for the Sixth Circuit will hear oral arguments on March 21 in Nessel v. Enbridge, in which Michigan Attorney General Dana Nessel is seeking to shut down the pipeline in the Straits of Mackinac, due to concerns that the pipeline could rupture, leading to a catastrophic oil spill. Nessel will argue that the case rightfully belongs in state court, rather than federal court. 

Four tribal nations in Michigan — The Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, and Nottawaseppi Huron Band of the Potawatomi — have also appealed a permitting decision from the Michigan Public Service Commission that would allow Enbridge to move forward with its Line 5 tunnel project, proposed as a solution to concerns of an oil spill in the straits of Mackinac. 

The project has received two of the three permit approvals needed to move forward, however the project’s approval from the Department of Environment, Great Lakes and Energy (EGLE) has also been challenged by the Bay Mills Indian Community.

On Thursday, Republican lawmakers in Michigan sent a letter to the U.S. Army Corps of Engineers (USACE) asking to expedite the environmental review needed to move forward with its permitting decision. 

Both Enbridge and the tunnel’s opponents have spoken out against the USACE’s decision to delay publishing its Environmental Impact Statement on the project which is projected to publish in Spring 2025. Enbridge has argued this will delay the start of construction until 2026, while pipeline opponents are concerned this delay in decision making creates a greater window for disaster within the Straits.