Don't shut Line 5: Biden administration issues longawaited position on Canada-U.S. pipeline
The Biden administration has weighed in for the first time on a major cross-bor‐ der legal dispute that could shut down portions of En‐ bridge's Line 5 Canada-U.S. oil pipeline.
The opinion came in an amicus brief that, although nuanced, argued against shutting down the pipeline, partly in order to preserve diplomatic relations with Canada.
The more than 1,000-kilo‐ metre long Line 5 carries 540,000 barrels of oil and natural gas liquids daily across Wisconsin and Michi‐ gan to refineries in Sarnia, Ont.
The legal dispute in ques‐ tion is one to which the U.S. government is not actually a party. It involves Calgarybased Enbridge Inc. and the Wisconsin-based Bad River Band of Lake Superior Chippewa, through whose territory the pipeline runs.
In 2023, the U.S. District Court for the Western District of Wisconsin ruled in favour of the Bad River Band and or‐ dered Enbridge to shut down parts of the pipeline within three years and pay the band $5.2 million for trespassing on its land after easement rights expired.
Both Enbridge and the band, which had wanted an immediate shutdown, ap‐ pealed the ruling.
The Canadian govern‐ ment, in its own brief last fall, argued that a shutdown of the line would violate a 1977 Canada-U.S. pipeline agreement in which the countries agreed not to block the flow of each other's hy‐ drocarbons.
Wednesday's submission from the U.S. Department of Justice cited Ottawa's argu‐ ment and urged the U.S. Court of Appeals for the 7th Circuit to send the ruling back to the lower court.
Government brief urges more compensation for band
On the one hand, Wednes‐ day's brief supported the fi‐ nancial penalty the lower court issued against En‐ bridge; in fact, it said the pay‐ ment to the community should be increased.
On the other hand, it urged the appeals court to reverse the part of the ruling that would require a shut‐ down of several kilometres of the pipeline.
The reason? According to the U.S. Department of Jus‐ tice, the lower court failed to take into account significant consequences, including the possibility of a costly dispute with Canada.
"The United States has a manifest interest in comply‐ ing with its treaty obligations with all sovereigns," said the 70-page amicus brief, publi‐ cly released Wednesday.
"The district court … did not consider what it had de‐ scribed as the 'significant public policy implications' that a shutdown order would have on the United States's trade and diplomatic rela‐ tionship with and treaty obligations to Canada."
Another dispute on‐ going in Michigan
Canada has for years pressed the Biden administration to weigh in on the pipeline dis‐ pute especially in light of the fact that it was that same ad‐ ministration that has already cancelled one Canada-U.S. pipeline project, Keystone XL, on its first day in office in 2021.
In its filing, the U.S. feder‐ al government cited Canada's claim that a shutdown of the pipeline would have devas‐ tating economic conse‐ quences, particularly on parts of Central Canada. Sup‐ porters of Line 5 say it's a vi‐ tal supply line for refineries in Ontario and Quebec and essential to the production of jet fuel for major airports on both sides of the Canada-U.S. border.
It said that Canada has al‐ ready invoked the 1977 Canada-U.S. treaty and said a shutdown could lead to a dis‐ pute process, arbitration and significant penalties if the U.S. were found to be violat‐ ing its treaty obligations.
The appeal currently being considered is separate from another ongoing legal dispute between the state of Michigan and Enbridge over the same pipeline's path through the Great Lakes.
The state points to a past spill as evidence of the envi‐ ronmental threat from Line 5 and has fought to block the aging pipeline from crossing the vital waterways.
The company, meanwhile, wants to build a new tunnel through the Straits of Mack‐ inac, which link lakes Michi‐ gan and Huron.
Band River chairman 'disappointed'
Reactions to the U.S. govern‐ ment filing in Wisconsin were, unsurprisingly, mixed.
A Canadian official briefed on the submission said the main assessment from gov‐ ernment lawyers was that the submission is neutral to Canadian interests.
Bad River Chairman Robert Blanchard said in a statement that the tribe was grateful the U.S. agrees En‐ bridge is operating on tribal land unlawfully but was "dis‐ appointed that the U.S. has not unequivocally called for an immediate end to En‐ bridge's ongoing trespass."
Whitney Gravelle, presi‐ dent of the Bay Mills Indian Community, another Chippewa Great Lakes com‐ munity along the pipeline route, said in a statement that the filing left the com‐ munity with "more questions than answers."
"It also leaves Bad River, other Tribal Nations throughout the region, and the 40 million people that rely on the Great Lakes at risk of a catastrophic spill," Gravelle said. "We fear it will take Line 5 failing again and the disaster of an oil spill for our position to be taken seri‐ ously."