As en­vi­ron­men­tal con­cerns halted pipe­lines else­where, Wis­con­sin gov­ern­ment lead­ers qui­etly made it eas­ier to con­demn pri­vate prop­erty for a po­ten­tial Cana­dian oil line ex­pan­sion

Milwaukee Journal Sentinel - - FRONT PAGE - Dan Egan Mil­wau­kee Journal Sen­tinel | USA TODAY NET­WORK – WIS­CON­SIN

SU­PE­RIOR – Jeremy En­gelk­ing was on his way back from a deer hunt in 2009 when he tried to stop a con­struc­tion crew from com­plet­ing a 1,000-mile oil pipe­line run­ning from western Canada to an oil dis­tri­bu­tion cen­ter in his home­town on the shore of Lake Su­pe­rior.

Wear­ing a blaze or­ange parka on that blus­tery De­cem­ber morn­ing, the 27-year-old pulled his green Honda ATV in front of the work­ers’ heavy equip­ment and told them to stop.

Cell­phones were drawn, 911 was called and a sheriff ’s deputy ar­rived within min­utes to quash the one-man protest of a pipe be­ing laid by Cana­dian pipe­line gi­ant En­bridge, Inc.

“I pulled out my taser and or­dered En­gelk­ing to turn around away from me and go down on his knees,” a Dou­glas County Sheriff ’s law en­force­ment of­fi­cer iden­ti­fied only as Sgt. Smith wrote in his of­fi­cial re­port. “En­gelk­ing com­plied at which point he was placed in hand­cuffs and es­corted off the work sight (sic) back to my squad. En­gelk­ing was in­formed he was un­der ar­rest.”

En­gelk­ing’s hunt­ing ri­fle, which re­mained in its case dur­ing the in­ci­dent, was con­fis­cated, as was his ATV. En­gelk­ing was hauled off to jail on charges of tres­pass­ing. On his own prop­erty.

It took more than five years for the courts to sort it all out, but it turned out that the law en­force­ment of­fi­cers got ev­ery­thing back­ward that morn­ing.

It turned out that En­gelk­ing, whom a pipe­line con­struc­tion worker ac­knowl­edged was “po­lite and calm” dur­ing the en­tire in­ci­dent, was not the one tres­pass­ing.

The pipe­line was.

That pipe­line is one of six that now cross the En­gelk­ing prop­erty. Col­lec­tively, they can carry more than 2.5 mil­lion bar­rels of crude oil per day, an around-the clock flow fast enough to fill an Olympic-sized pool ev­ery 10 min­utes.

The En­gelk­ing fam­ily — Jeremy and his par­ents — were awarded $150,000 in 2014 for what the court de­ter­mined was En­bridge’s un­law­ful con­struc­tion of the pipe across the fam­ily land.

The court found that En­bridge made a mis­take in in­ter­pret­ing the rights to lay pipe across the land — rights its pre­de­ces­sor had pur­chased for $60 un­der a 1949 ease­ment agree­ment with a pre­vi­ous prop­erty owner. Even so, the court al­lowed the new pipe to re­main on the En­gelk­ing prop­erty and the oil to keep flow­ing.

Much of the En­bridge oil flow­ing into Su­pe­rior comes from the tar sands de­posits of western Canada. This “un­con­ven­tional” oil is re­viled by en­vi­ron­men­tal­ists be­cause of the en­ergy it takes to tap the tar-like sub­stance, push it through pipes to re­finer­ies and then con­vert it to gaso­line.

Shut­ting the oil flow to re­finer­ies was not the En­gelk­ings’ rea­son for ob­ject­ing to the new pipe­line. Their prob­lem was they feared the word­ing in a new ease­ment agree­ment En­bridge wanted them to sign would let the com­pany claim even more use of their land in com­ing years.

When the fam­ily did not sign off on the new ease­ment, En­bridge laid the pipe any­way, later ar­gu­ing in court — un­suc­cess­fully — that the lan­guage in the 1949 ease­ment gave it au­thor­ity to do so.

“It’s not that we’re against the pipe­lines,” Jeremy En­gelk­ing said. “We just didn’t want to agree to give En­bridge ad­di­tional rights to our land.”

But En­bridge doesn’t nec­es­sar­ily need a prop­erty owner’s per­mis­sion to legally claim use of his or her land. The com­pany has a history in Wis­con­sin of rolling over re­luc­tant landown­ers’ wishes by turn­ing to the gov­ern­ment to al­low it to claim pri­vate land through em­i­nent do­main, one of the most awe­some pow­ers gov­ern­ment wields.

Em­i­nent do­main al­lows the gov­ern­ment to com­pel an in­di­vid­ual to sell his or her pri­vate prop­erty, or the use of it, for a project that the gov­ern­ment deems a pub­lic need, such as high­ways and power lines.

Of course, peo­ple need oil as much as they need roads or schools or elec­tric­ity. But just how much oil do we need?

The fi­nal des­ti­na­tion of all the oil flow­ing across the En­gelk­ing prop­erty is hard to peg. Most of it flows down an ex­ist­ing pipe­line cor­ri­dor that runs the length of Wis­con­sin, from Su­pe­rior to the Illi­nois bor­der.

From there much of it flows to re­finer­ies in the cen­tral U.S. and Canada — and beyond. Most of the oil is re­fined in the U.S., but that doesn’t mean it nec­es­sar­ily stays and is burned in U.S. au­tos.

U.S. gaso­line ex­ports to ri­val economies — in­clud­ing China, In­dia, Sin­ga­pore and Brazil — have in­creased nearly five-fold in the past decade and now hover around 5 mil­lion bar­rels per day.

Crude oil ex­ports from the U.S., which had been largely pro­hib­ited for decades af­ter the en­ergy cri­sis of the early 1970s, have soared since that ban was lifted in late 2015 to about 1 mil­lion bar­rels per day.

As these ex­ports in­crease, the fed­eral En­ergy In­for­ma­tion Ad­min­is­tra­tion predicts U.S. gaso­line con­sump­tion will drop by about 1 mil­lion bar­rels in the next decade as sales of fuel ef­fi­cient and elec­tric ve­hi­cles con­tinue to rise, ac­count­ing for more than 25% of the mar­ket by 2027.

Mean­while, in­creas­ing vol­umes of tar sands oil keep com­ing out of the ground in western Canada, and En­bridge is now con­struct­ing a new pipe from Al­berta to Su­pe­rior to re­place a de­te­ri­o­rat­ing line that is nearly 50 years old.

If En­bridge suc­ceeds in get­ting per­mits for the $7 bil­lion project from the state of Min­nesota, it is likely go­ing to need to con­struct an­other pipe­line flow­ing out of Su­pe­rior to the Illi­nois bor­der.

At the same time, po­lit­i­cal pres­sure is grow­ing to close two 64-year-old pipe­lines in Michi­gan that lie at the bot­tom of the Straits of Mack­inac. A study fi­nanced by En­bridge hints a likely al­ter­na­tive path for that oil to get to mar­ket would be the Wis­con­sin pipe­line sys­tem that crosses more than 1,000 parcels of pri­vate land. Many of those prop­er­ties are owned by in­di­vid­u­als who, like the En­gelk­ings, have no in­ter­est in al­low­ing an­other pipe­line across their prop­erty.

And, like the En­gelk­ings, their re­sis­tance might not make a dif­fer­ence.

In 2015, En­bridge per­suaded Wis­con­sin Repub­li­cans, who have long ex­pressed vig­or­ous sup­port for pri­vate prop­erty rights, to change the state’s em­i­nent do­main law. The change makes it eas­ier for the com­pany to turn to the gov­ern­ment to force prop­erty own­ers to al­low con­struc­tion crews to bury new pipes across their land.

The move stunned many cit­i­zens in the path of the po­ten­tial pipe­line, but it came as no sur­prise to those who have re­sisted the com­pany’s ex­pan­sion ef­forts in re­cent years.

“En­bridge seems to have this kind of en­ti­tle­ment men­tal­ity that we are a big cor­po­ra­tion and we have a right to do this, and you can’t stop us,” said the En­gelk­ings’ at­tor­ney, Kevin Sand­strom.

And, so far, no­body in Wis­con­sin has.

‘Good news’ goes bad

The caller who in­ter­rupted James Bots­ford’s din­ner in early spring 2013 told the Wausau res­i­dent he had just hit the jack­pot.

“We have good news,” said an En­bridge rep­re­sen­ta­tive. “Your land has been se­lected as a pos­si­ble lo­ca­tion along a pro­posed cor­ri­dor for a new pipe­line.”

The land En­bridge was eye­ing is a 160-acre patch of east­ern North Dakota farm­land that has been in the Bots­ford fam­ily for decades. The par­cel is just down the road from Bots­ford’s grand­fa­ther’s old farm, where the young Bots­ford spent sum­mers help­ing him raise wheat, oats, sun­flow­ers and soy­beans.

The En­bridge rep­re­sen­ta­tive ex­plained that the com­pany’s pro­posed “Sand­piper Pipe­line,” de­signed to carry North Dakota shale oil to the En­bridge ter­mi­nal in Su­pe­rior, would likely be cross­ing the Bots­ford fam­ily prop­erty and that he would have a check com­ing as com­pen­sa­tion.

Bots­ford told him not to waste the pa­per.

The re­tired at­tor­ney, who moved to Wis­con­sin in 1991, main­tains he is no en­vi­ron­men­tal war­rior, but said he and his wife have zero in­ter­est in help­ing En­bridge get North Dakota’s shale oil to mar­ket.

The cou­ple views shale oil as a par­tic­u­larly trou­ble­some fuel due to en­vi­ron­men­tal dam­age caused by hy­draulic frac­tur­ing, or frack­ing, that is re­quired to bring it to the sur­face.

“We drive cars and trac­tors and lawn­mow­ers,” Bots­ford said, ac­knowl­edg­ing his own oil de­pen­dence.

“But when ‘Big Oil’ knocks on your door and dan­gles a bag of silver and says, we’d like you to ma­te­ri­ally par­tic­i­pate in putting a lot more car­bon into the at­mos­phere, es­pe­cially from this ex­tra car­bon-laden oil that we can only get out by frack­ing, which brings an ad­di­tional layer of tox­ins … those things com­bined made me tell them: No. I don’t want to par­tic­i­pate.”

Bots­ford even­tu­ally found him­self as the lone hold­out of all the prop­erty own­ers along the North Dakota por­tion of the 616-mile route.

He said pres­sure to cede a 50-foot swath across a half mile of his land came from friendly En­bridge rep­re­sen­ta­tives — at first. The ini­tial of­fer, he said, was for about $12,000, and when he de­clined the com­pany dou­bled it. Then the of­fers kept climb­ing, to $35,000, to $38,000 and then to $51,000.

Each of­fer came with a fol­low-up call from En­bridge ask­ing if Bots­ford and his wife were go­ing to sign the agree­ment.

“I kept say­ing: ‘It’s a mat­ter of prin­ci­ple. My wife and I don’t want your money, and we’re not go­ing to par­tic­i­pate.’”

Bots­ford said he fi­nally got a call from “a cor­po­rate muck­ety-muck.” He doesn’t re­call his name, but Bots­ford re­mem­bers what he told him: “You know we are never go­ing to say, ‘Yes.’ So why don’t you go around us?” Bots­ford re­called. “He said: ‘Mr. Bots­ford, you don’t un­der­stand — We are En­bridge. We don’t go around any­thing. We go through it.’”

“That was it for me,” Bots­ford said, “and I re­sponded — and this is ver­ba­tim — ‘Well, in that case: (Ex­ple­tive) you.’”

The com­pany’s hard line, Bots­ford said, el­e­vated his prin­ci­pled stand against the pipe­line. Sud­denly it wasn’t just about try­ing to block the flow of un­con­ven­tional oil.

“This was a for­eign cor­po­ra­tion, a Cana­dian-based cor­po­ra­tion, want­ing to con­demn our land and their whole pur­pose of this pipe­line was to get this oil to the Great Lakes to sell it on the world mar­ket,” he said. “How could this be jus­ti­fied as a pub­lic use for a North Dakota land owner?”

En­bridge sued Bots­ford, and even­tu­ally won the right to claim the use of the Bots­fords’ prop­erty through em­i­nent do­main.

The Bots­fords didn’t give up. They pressed their case to the North Dakota Supreme Court, and that is where En­bridge backed down.

One likely rea­son is that in fall 2016 En­bridge an­nounced it was pulling back on its plans for the Sand­piper line and in­stead in­vest­ing in the Dakota Ac­cess Pipe­line, which runs from North Dakota to Illi­nois.

To set­tle with Bots­ford, En­bridge re­turned to him the ease­ment grant­ing the com­pany the right to bury the pipe­line on his prop­erty, and the com­pany made a writ­ten prom­ise in court to never again seek his prop­erty for a pipe­line route. It also paid his at­tor­neys fees.

Bots­ford’s home near Wausau is not along En­bridge’s Wis­con­sin pipe­line route, but he is closely fol­low­ing the con­tro­versy over the po­ten­tial for a new pipe­line run­ning out of Su­pe­rior be­cause it would likely re­quire ease­ment ac­qui­si­tions along the en­tire route which could lead to fights sim­i­lar to the one he fought in North Dakota.

He said if the com­pany does push ahead with a statewide ease­ment ex­pan­sion, he ex­pects a much more fe­ro­cious fight from Wis­con­sin landown­ers than what took place in North Dakota.

“Wis­con­sin is more worldly, more an­a­lyt­i­cal. More crit­i­cal,” he said. “I don’t think En­bridge will be able to steam­roll over the peo­ple of Wis­con­sin to the de­gree they did in North Dakota.”

‘This is about prop­erty rights’

Most of the Cana­dian oil cours­ing out of the city of Su­pe­rior — roughly 20% of the na­tion’s im­ports — flows through an un­der­ground clus­ter of pipes along an 80-foot wide swath of mostly pri­vate land stretch­ing the length of Wis­con­sin.

En­bridge’s pre­de­ces­sor ac­quired the right to use most all the Wis­con­sin prop­er­ties by ne­go­ti­at­ing deals with in­di­vid­ual own­ers a half cen­tury ago. En­bridge’s fight with the En­gelk­ing fam­ily not­with­stand­ing, the com­pany main­tains its re­la­tion­ship with those prop­erty own­ers over the years has been based on “trust and eth­i­cal deal­ings,” and in­deed there are many landown­ers across the state who have no prob­lem with En­bridge’s pipes run­ning un­der their prop­er­ties.

Yet the com­pany in re­cent months has come un­der blis­ter­ing crit­i­cism from a grow­ing num­ber of landown­ers who are ac­cus­ing En­bridge of brutish tac­tics when it comes to pump­ing ev­er­in­creas­ing vol­umes of oil across their prop­erty.

The new­est En­bridge pipe in Wis­con­sin opened in 2009, but the com­pany has since added pumps to bump up pres­sure that al­lows its ca­pac­ity to dou­ble from an ini­tial 400,000 bar­rels per day to 900,000 bar­rels per day. It could soon be car­ry­ing 1.2 mil­lion bar­rels per day.

Re­tired physi­cian Paul Harkins was among more than 50 prop­erty own­ers who drove to Madi­son in May to tell law­mak­ers about their sour deal­ings with En­bridge. He was still sting­ing from trou­ble he had with the com­pany dur­ing con­struc­tion of the 2009 pipe­line.

In ad­di­tion to En­bridge’s 80-footwide ease­ment, the com­pany com­monly also has the right to tem­po­rar­ily use ad­di­tional land beyond the ease­ment bor­ders for main­te­nance and con­struc­tion projects re­lated to the pipes.

In Harkins’ case, he said En­bridge wanted to cut a swath of trees al­most right up to his house to make it eas­ier for con­struc­tion crews to squeeze the new pipe into the 80-foot ease­ment.

Harkins ended up in court and pre­vailed in stop­ping the com­pany from cut­ting down the trees and en­dan­ger­ing his sep­tic sys­tem by rolling heavy equip­ment over it. The pipe­line was built any­way and the bat­tle cost him thou­sands of dol­lars in le­gal fees, but he nev­er­the­less claimed vic­tory be­cause he stopped En­bridge from rav­aging his

prop­erty out­side Marsh­field.

The vic­tory came with a lot of stress — he said he was es­sen­tially threat­ened with fi­nan­cial ruin for try­ing to stop the crews from lev­el­ing his trees.

“It’s very in­tim­i­dat­ing to have a $35 bil­lion com­pany in your face say­ing they are go­ing to sue you with the full force of the com­pany,” Harkins said.

His vic­tory was short-lived; crews re­turned to his prop­erty a few years ago to con­duct a new sur­vey.

The com­pany says it may some day need to ex­pand its ease­ments on pri­vate prop­er­ties across Wis­con­sin to build a new pipe­line be­cause, ac­cord­ing to En­bridge en­gi­neers, the com­pany’s ex­ist­ing ease­ment can hold no more pipes.

The com­pany in­sists that no de­ci­sion has been made on whether to pur­sue a new line cross­ing the state, let alone a new round of ease­ment ac­qui­si­tions on pri­vate prop­er­ties along the cor­ri­dor.

Even so, the com­pany this sum­mer be­gan con­struc­tion of the 14 mile-long Wis­con­sin por­tion of a new $7 bil­lion line that runs from Al­berta to the En­bridge’s ter­mi­nal at Su­pe­rior.

A pitched bat­tle is un­der way over the Min­nesota pipe­line per­mit to com­plete the line, and if En­bridge pre­vails, com­pany crit­ics say that al­most surely will ne­ces­si­tate a new pipe­line run­ning out of Su­pe­rior — you can’t add to the flow into Su­pe­rior with­out ex­pand­ing the flow out of Su­pe­rior.

En­bridge, in fact, has pre­vi­ously told its in­vestors it is con­sid­er­ing a twin to the Su­pe­rior-to-Illi­nois line that opened in 2009 and will soon be ca­pa­ble of car­ry­ing 1.2 mil­lion bar­rels per day.

Fur­ther­more, in 2014 crews sur­veyed lands strad­dling the ex­ist­ing Wis­con­sin ease­ment. That in­cluded tak­ing an in­ven­tory of houses, barns, sheds and other struc­tures and nat­u­ral fea­tures up to 300 feet beyond the cur­rent ease­ment bor­der. Com­pany of­fi­cials say they are not eye­ing an ease­ment ex­pan­sion that wide. If they do even­tu­ally move ahead with an ex­pan­sion, they have said they are con­sid­er­ing ad­ding some­thing closer to 50 feet.

Harkins isn’t wait­ing for En­bridge to make up its mind on whether or how to pro­ceed. He’s al­ready say­ing no — and not be­cause he’s wor­ried about how a new pipe­line could add to the Earth’s ris­ing tem­per­a­tures.

“I’m not an en­vi­ron­men­tal ex­trem­ist,” said the Rhinelander na­tive with un­der­grad­u­ate and med­i­cal de­grees from the Univer­sity of Wis­con­sin. “This is about prop­erty rights. This is about safety. And it’s about prop­erty val­ues.”

It may be an up­hill fight. While En­bridge says talk of an ex­pan­sion is pre­ma­ture, it re­cently be­came eas­ier for the com­pany to claim use of pri­vate prop­er­ties along the ex­ist­ing pipe­line cor­ri­dor.

The com­pany has the Wis­con­sin Leg­is­la­ture to thank for that.

Repub­li­cans make ex­cep­tion for En­bridge

Just hours be­fore the Fourth of July hol­i­day week­end started in 2015, the Leg­is­la­ture slipped into the state bud­get bill a 24-page wish list of last-minute mea­sures — most of which had noth­ing to do with the state bud­get.

One of those — a move to gut the state open records law and make it eas­ier for politi­cians to cut se­cret deals — was re­vealed and re­versed af­ter pub­lic out­cry from cit­i­zens across the state.

Com­pared to the other 65 items on the list, num­ber 51 stands out for the pro­found im­pact it could have on landown­ers across the state. It is called “PSC Con­dem­na­tion Au­thor­ity for Oil Pipe­line Com­pa­nies.”

The PSC is the state Pub­lic Ser­vice Com­mis­sion, a three-per­son board that reg­u­lates util­i­ties and many liq­uids de­liv­ered by pipe­line, in­clud­ing oil.

The PSC has the au­thor­ity to con­demn pri­vate prop­erty, a ma­neu­ver that has com­monly and his­tor­i­cally been used to ac­quire prop­erty for gov­ern­ment projects that serve all cit­i­zens, things like con­struc­tion of roads, schools and land­fills.

But the abil­ity of pri­vate com­pa­nies to gain gov­ern­ment sup­port in seiz­ing pri­vate lands for profit grew sub­stan­tially in 2005, when the U.S. Supreme Court ruled that gov­ern­ments can force trans­fer of pri­vate land from one owner to an­other in the name of eco­nomic de­vel­op­ment.

In their land­mark de­ci­sion — Kelo vs. New Lon­don, Conn. — the jus­tices ruled that a group of prop­erty own­ers had to sell their homes so they could be re­placed with of­fice build­ings, con­do­mini­ums and re­tail de­vel­op­ment that would gen­er­ate more prop­erty tax rev­enue for the city.

The 5-4 de­ci­sion by the court’s lib­eral jus­tices, joined by swing vote An­thony Kennedy, drew a sting­ing re­buke from their con­ser­va­tive col­leagues as an out­ra­geous case of gov­ern­ment over­reach.

“Some­thing has gone se­ri­ously awry with this Coun­try’s in­ter­pre­ta­tion of the Constitution,” Jus­tice Clarence Thomas wrote in his dis­sent­ing opin­ion. “Though cit­i­zens are safe from the gov­ern­ment in their homes, the homes them­selves are not.”

The Con­necti­cut res­i­dents lost their prop­er­ties, but the hoped-for de­vel­op­ment was never built.

Even so, many con­ser­va­tives con­tend the dam­age done by the rul­ing ex­tends far beyond the bor­ders of those va­cant New Lon­don lots.

Some states re­sponded by reining in the au­thor­ity of gov­ern­ments to claim pri­vate lands, specif­i­cally for pipe­lines.

Wis­con­sin’s Repub­li­can lead­er­ship took a dif­fer­ent tack.

The one-para­graph ad­di­tion in the 2015 state bud­get bill ap­peared in­nocu­ous enough: “Delete the ref­er­ence to ‘cor­po­ra­tion’ and sub­sti­tute ‘busi­ness en­tity’ in the cur­rent law pro­vi­sion which con­veys the au­thor­ity to con­demn real es­tate and per­sonal prop­erty to cor­po­ra­tions that trans­mit oil or re­lated prod­ucts in pipe­lines in Wis­con­sin and that main­tain a ter­mi­nal or prod­uct de­liv­ery facilities in Wis­con­sin…”

Records show the tweak in word­ing was in­serted af­ter lob­by­ing on be­half of a U.S. En­bridge sub­sidiary — En­bridge En­ergy, Lim­ited Part­ner­ship.

Lim­ited li­a­bil­ity part­ner­ships are formed for a va­ri­ety of rea­sons, in­clud­ing low­er­ing busi­ness taxes and lim­it­ing a com­pany’s ex­po­sure to law­suits in­volv­ing bank­rupt­cies, or ac­ci­dents.

The prob­lem for En­bridge was that a lim­ited part­ner­ship en­tity wasn’t specif­i­cally men­tioned in Wis­con­sin law as an el­i­gi­ble enterprise to ac­quire prop­erty through con­dem­na­tion.

En­bridge learned this in 2008 when it re­quested per­mis­sion from the Pub­lic Ser­vice Com­mis­sion to use con­dem­na­tion to claim ad­di­tional pri­vate prop­er­ties while con­struct­ing its lat­est pipe­line.

Most prop­erty own­ers af­fected by the ex­pan­sion ne­go­ti­ated agree­ments with the com­pany to al­low in­creased rights to use of their land. But in some places along the line the com­pany needed some gov­ern­ment mus­cle to ac­quire ad­di­tional rights from the un­will­ing.

The Pub­lic Ser­vice Com­mis­sion gave En­bridge the go-ahead to claim the prop­er­ties. But in a state­ment ac­com­pa­ny­ing the ap­proval, one com­mis­sion mem­ber noted that the word­ing in state law made it am­bigu­ous as to whether En­bridge’s lim­ited part­ner­ship sta­tus made it el­i­gi­ble to ac­quire pri­vate prop­erty through con­dem­na­tion, which she called “one of the state’s most dra­matic pow­ers” and one that “must be ap­plied solemnly.”

Seven years later, En­bridge lob­by­ists went to work on Repub­li­can leg­isla­tive staff to en­sure the com­pany would not be de­nied fu­ture con­dem­na­tion au­thor­ity based on its lim­ited li­a­bil­ity part­ner­ship sta­tus.

Email ex­changes in the sum­mer of 2015, ini­tially ob­tained by Wis­con­sin Pub­lic Ra­dio, show an En­bridge lob­by­ist pressed state leg­is­la­tion drafters to get a change in the de­scrip­tion of a busi­ness el­i­gi­ble to con­demn prop­erty from a “cor­po­ra­tion” to any “busi­ness en­tity.”

When one leg­isla­tive drafter noted that the change may not be needed be­cause En­bridge had been granted the right to con­demn prop­erty for the pipe­line project in 2008, En­bridge pressed harder.

“The change needs to be made,” an En­bridge at­tor­ney ex­plained in an email to an En­bridge lob­by­ist at the time. “The PSC is not like a court. A find­ing in one con­tested case has no bind­ing prece­den­tial value for an­other con­tested case.”

Less than two weeks later, with no pub­lic no­tice or hear­ing, the com­pany got from the leg­is­la­ture the change it sought.

This is not a blank check for En­bridge to con­demn any prop­erty it de­sires. The com­pany would still need ap­proval from the Pub­lic Ser­vice Com­mis­sion, which would have to find the project is in the “pub­lic in­ter­est.” But it does re­move an ob­sta­cle for the com­mis­sion­ers to give En­bridge the abil­ity to con­demn pri­vate lands. All of the com­mis­sion­ers have been ap­pointed by busi­ness-friendly Gov. Scott Walker, who signed the bud­get chang­ing the law.

Nei­ther the of­fices of As­sem­bly Speaker Robin Vos nor Se­nate Ma­jor­ity Leader Scott Fitzger­ald re­sponded to re­peated re­quests to an­swer ques­tions about the law change.

Walker’s staff also did not re­spond to emails in­quir­ing about the change in the law.

Brian Jorde, an at­tor­ney who has been con­sult­ing Wis­con­sin prop­erty own­ers along the ex­ist­ing En­bridge pipe­line route, said it is im­pos­si­ble to rec­on­cile prin­ci­ples of con­ser­vatism with con­demn­ing pri­vate lands in or­der to build pipe­lines to ben­e­fit a for-profit com­pany that serves re­finer­ies out­side the re­gion.

“It’s the re­al­ity, I think, of eco­nomics and dol­lars su­per­sed­ing val­ues. Be­cause if your value sys­tem, as a con­ser­va­tive, is in­di­vid­ual rights, in­di­vid­ual free­dom, de­fend­ing the constitution, then you could no way ever, mo­rally or eth­i­cally, fun­da­men­tally sup­port a for­eign for-profit com­pany that is go­ing to take those very rights from your neigh­bors or your­self,” he said. “It ab­so­lutely can­not be squared.”

That ar­gu­ment held sway with cen­tral Wis­con­sin’s Wood County Com­mis­sion late this sum­mer. In a 10-8 vote, the board ap­proved a non-bind­ing res­o­lu­tion ask­ing the state leg­is­la­ture and Walker to change the state con­dem­na­tion law to pro­hibit the tak­ing of pri­vate land by for-profit oil pipe­line com­pa­nies.

A sim­i­lar res­o­lu­tion passed Oct. 10 in Wal­worth County and an­other one is in the works in Jef­fer­son County. All of the coun­ties are along the En­bridge route.

A pub­lic ne­ces­sity?

Paul Wehk­ing, who de­scribes him­self as con­ser­va­tive, is ner­vous about the fu­ture of his home, in which he and his wife have raised two teenage boys and near which the En­bridge pipe­lines run.

Wehk­ing is not ask­ing for any­one’s sym­pa­thy for hav­ing to live with the lines al­ready cross­ing his prop­erty; he knew there was a pipe­line ease­ment on the land when he bought his Dane County house 17 years ago.

He didn’t protest when a new line was added in 2002, nor when two more lines were added in 2009, in­clud­ing a smaller one that car­ries a highly volatile “dilu­ent.” That is a chem­i­cal con­coc­tion pumped from the Chicago area to western Canada that liq­ue­fies the clay-like tar sands oil so it can be piped south.

Wehk­ing said this dilu­ent line came with a safety packet for the fam­ily that in­cluded a glow stick, a whis­tle and a list of Do’s and Don’ts should a leak oc­cur. The “don’t” list in­cluded turn­ing on lights (hence the glow stick), start­ing a car, or us­ing a cell­phone, all of which could spark an ex­plo­sion.

He said the to-do list was sim­ple. “They ba­si­cally tell you to run,” he said. “Up­wind.”

Wehk­ing isn’t de­mand­ing the dilu­ent line or any other pipe be moved. He just doesn’t want En­bridge to be al­lowed to ex­pand the ease­ment fur­ther into his yard, and pos­si­bly into his liv­ing room.

“I don’t think they are evil,” Wehk­ing said of En­bridge. “It’s just that we’d rather not be in­fringed upon fur­ther — or be con­demned and have to move out of there.”

Wehk­ing can’t un­der­stand how the com­pany could be al­lowed to claim his land for the ben­e­fit of its stock­hold­ers. And he doesn’t buy the ar­gu­ment that the line is nec­es­sary for the cit­i­zens of the state. Beyond a short-term bump in con­struc­tion jobs, he said he doesn’t see how a new pipe­line will sig­nif­i­cantly boost Wis­con­sin’s econ­omy.

“I haven’t seen any­thing that says how Wis­con­sin ben­e­fits hav­ing this thing plow­ing its way through the state, cor­ner to cor­ner,” Wehk­ing said. “If you could see some­thing tan­gi­ble, in terms of gas prices or jobs here in Wis­con­sin, that would be one thing.”

The Min­nesota Depart­ment of Com­merce re­cently reached a sim­i­lar con­clu­sion. In Septem­ber, it weighed in against con­struc­tion of the new En­bridge line run­ning from Al­berta across the state and into Su­pe­rior.

The depart­ment com­mis­sioned a study from the global en­ergy eco­nomics con­sult­ing firm, Lon­don Eco­nomics In­ter­na­tional, to eval­u­ate the need for a new line that could more than dou­ble the cur­rent line’s ex­ist­ing flow from 390,000 bar­rels per day to 844,000 bar­rels.

The re­port’s con­clu­sion: Re­finer­ies in Min­nesota and the Up­per Mid­west “have been op­er­at­ing at high lev­els of uti­liza­tion, which in­di­cates both they are not short of phys­i­cal sup­plies of crude oil and have lit­tle room to in­crease to­tal crude runs.”

Min­nesota’s com­merce depart­ment con­cluded the state would be bet­ter off if En­bridge’s ex­ist­ing de­crepit line were shut down and the new line not built be­cause the oil is not needed. En­bridge con­tends the depart­ment based its de­ci­sion on a “flawed anal­y­sis” and ar­gues that the oil flow­ing in the line is in­deed a ne­ces­sity.

Ne­ces­sity is the op­er­a­tive word for one prom­i­nent Wis­con­sin con­ser­va­tive voice when it comes to em­i­nent do­main.

“Em­i­nent do­main should only be used for pub­lic ne­ces­si­ties,” Mark Belling said dur­ing his Feb. 16 show on WISN-AM ra­dio. He was talk­ing about a push by the Vil­lage of Brown Deer to claim a piece of pri­vate prop­erty to build a new pub­lic works fa­cil­ity, a move Belling did not see as es­sen­tial.

If that landowner did not want to sell, he said, it is the vil­lage’s re­spon­si­bil­ity to find some­one who does. That’s how cap­i­tal­ism works.

“There is a dif­fer­ence be­tween a pub­lic ne­ces­sity and a pub­lic im­prove­ment or a pub­lic good,” said Belling.

When asked by the Journal Sen­tinel about his opin­ion re­gard­ing the pipe­line is­sue as it re­lates to his views on em­i­nent do­main, Belling de­clined to com­ment, say­ing he was not fa­mil­iar enough with the de­tails.

Dur­ing his Feb. 16 show he noted that some con­ser­va­tives tend to in­voke their prin­ci­ples re­gard­ing em­i­nent do­main on a case-by-case ba­sis.

“Many of the peo­ple who are on my side — the con­ser­va­tive side — they change their opin­ion on this if the project is some­thing that they like.”

Read the se­ries

Pre­vi­ous in­stall­ments in the Journal Sen­tinel’s “Oil and Wa­ter” se­ries, which ex­am­ines threats to the Great Lakes and other wa­ter­ways, as well as photo gal­leries, videos and re­lated cov­er­age, can be found at json­­land­wa­ter.


Con­struc­tion crews were busy in Wis­con­sin ear­lier this fall re­plac­ing a por­tion of En­bridge’s Line 3, which car­ries Cana­dian crude from Al­berta. The pipe­line re­place­ment is well un­der way in Wis­con­sin and Canada, though the state of Min­nesota has yet to ap­prove the project.

Su­pe­rior’s Jeremy En­gelk­ing is near the spot where he was ar­rested for tres­pass­ing on his own land back in 2009 when he con­fronted an oil pipe­line con­struc­tion crew work­ing for En­bridge for in­fring­ing on his fam­ily’s prop­erty. Charges were later dropped.


James Bots­ford speaks to a group of Wis­con­sin landown­ers wor­ried that En­bridge is go­ing to ex­pand its pipe­line net­work by ac­quir­ing rights to their prop­er­ties. Bots­ford re­cently won his own bat­tle with En­bridge in North Dakota.

Sam­ples of four dif­fer­ent types of crude oil trans­ported in Line 61 are shown in Au­gust at En­bridge’s Marsh­field South Pump­ing Sta­tion about five miles south of Marsh­field, Wis. The re­cently com­pleted sta­tion has the ca­pa­bil­ity of in­creas­ing the pres­sure of oil in the pipe­line to de­liver as much as 1.2 mil­lion bar­rels per day from its cur­rent 900,000 bar­rels per day if mar­ket con­di­tions in­di­cate the need.


Af­ter a rib­bon cut­ting, lo­cal busi­ness lead­ers and of­fi­cials pose for a photo at En­bridge’s Marsh­field South Pump­ing Sta­tion about five miles south of Marsh­field, Wis. The sta­tion has the ca­pa­bil­ity of in­creas­ing the pres­sure of oil in the pipe­line to de­liver as much as 1.2 mil­lion bar­rels per day if mar­ket con­di­tions dic­tate the need. It is one of 12 new or mod­i­fied pump­ing sta­tions along the 300-mile-long pipe­line ease­ment owned by the Cana­dian firm.

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