DOJ files motion about Line 5
Brief calls for increased restitution, but does not call for or prohibit shutdown
The U.S. federal government has broken its silence on the legal battle surrounding Enbridge’s Line 5 oil pipeline, issuing a mixed report that comes down in support of both the Bad River Band of Lake Superior Chippewa and the Canadian oil giant on different points.
The U.S. Department of Justice also punted some issues back to the district court.
This latest step traces back to June 2023, when a federal judge ruled on a legal challenge brought by the Bad River Band regarding Line 5, which the Band argues is trespassing and poses a threat to its land and lifeways. The judge ordered Enbridge to remove the pipeline from the tribe’s land within three years or face a shutdown. Both sides appealed the decision — the tribe thought that was too generous, the oil company thought it was too drastic.
In February, the 7th U.S. Circuit Court of Appeals heard oral arguments on whether Enbridge Energy can continue to transport oil via Line 5 pipeline on the tribe’s reservation, located on the shores of Lake Superior near Ashland. Line 5 has operated on tribal land with expired easements for more than a decade.
The appellate court faced a dead end during the oral arguments, saying it couldn’t make a decision until it heard from the U.S. government. The day before the arguments, the government had asked for an extension to file a brief.
On Monday evening, the DOJ finally made its filing. The brief was over the word limit, so the U.S. filed a motion for the judges to allow it. The appellate judges accepted the brief Wednesday morning.
First, the DOJ sided with the district court that Enbridge is liable for trespassing on the Band’s land. It also said the district court should adjust the restitution, and the Band should receive a larger sum, given that Enbridge has made roughly $1 billion on Line 5 since it has been trespassing.
In support of Enbridge, the brief stated that the Band’s public nuisance claim should be dismissed.
The Department of Justice did not take a position on whether a shutdown would violate the transit pipeline treaty that prevents the disruption of the flow of oil between the U.S. and Canada. Instead, the brief stated that the district court should reconsider the economic impacts and arbitration between the U.S. and Canada over the treaty.
“Today, the United States agreed that
Enbridge’s ongoing occupation of our land is illegal. We are grateful the U.S. urged the court not to let Enbridge profit from its unlawful trespass,” said Bad River Band Chairman Robert Blanchard. “But we are disappointed that the U.S. has not unequivocally called for an immediate end to Enbridge’s ongoing trespass, as justice and the law demand. Enbridge should be required to promptly leave our Reservation, just like other companies that have trespassed on tribal land.”
Blanchard said the pipeline remained an urgent threat not just to fishing and gathering traditions, but to the overall welfare of the tribe and its neighbors. He said he hopes the appeals court would ultimately decide to shut it down.
Juli Kellner, a spokesperson for Enbridge, said that “shutting down Line 5 before relocating the pipeline outside of the Reservation would violate the 1977 Transit Pipeline Treaty between the U.S. and Canada. The Government of Canada has made its position clear. Such a shutdown is not in the public interest as it would negatively impact businesses, communities and millions of individuals who depend on Line 5 for energy in both the U.S. and Canada.”
‘Our way of life is not for sale’
Last month, while waiting for the DOJ filing, Enbridge published an open letter to the Band on its website offering $80 million to settle past disputes. The company said it is committed to working with the Band to find solutions to their differences.
In a letter to the Band explaining the legal battle, Blanchard said that “the $80 million is just a drop in the bucket of profit Enbridge has earned from its trespass so far. Our homeland, our treaty rights, and our way of life are not for sale.”
Tribes across the Great Lakes are more concerned than ever about climate change and what is happening to the land and water around them. Tribal nations contend that Line 5 threatens their sovereignty and have continually urged the Biden administration to speak out against the pipeline.
The Canadian government has supported the Calgary-based company, filing amicus briefs on behalf of Enbridge, citing the transit pipeline treaty and economic importance to the region.
A United Nations advisory body recommended last year that the two countries shut down the pipeline, and asked Canada to reconsider its support.
Now, Enbridge and the Bad River Band must wait again for a decision on the fate of the pipeline.
Tribal sovereignty versus fossil fuel infrastructure
The Bad River Band first filed a lawsuit against Enbridge in 2019, asking the company to remove the pipeline, which crosses 12 miles of its land. The tribe refused to renew the easement in 2013 and has worried about a potential oil spill on its reservation. Concerns grew last spring as major flooding pushed part of the Bad River, known as the meander, as close as 11 feet from the buried pipeline.
One of the arguments made by Enbridge in February’s oral arguments was over a 1992 agreement in which, according to the fossil fuel company, the Band consented to having Line 5 on its land for 50 years. Enbridge said this means the Line 5 pipeline is not in trespass.
The DOJ said in Monday’s brief that the 1992 agreement does not give Enbridge
the legal right to occupy the Band’s lands.
The Canadian oil company also argues that the pipeline should remain in operation until it can construct its proposed 41-mile reroute around the reservation farther inland. The company is still awaiting permits from the Wisconsin Department of Natural Resources and the U.S. Army Corps of Engineers. It submitted applications in 2020.
The proposed reroute will still sit within the Bad River watershed, which still worries the Band. Line 5 has leaked 35 times in its roughly 70-year tenure, releasing a total of more than 1.13 million gallons of oil into the environment, according to the Pipeline and Hazardous Materials Safety Administration database.
Caitlin Looby is a Report for America corps member who writes about the environment and the Great Lakes. Reach her at clooby@gannett.com or follow her on X @caitlooby .
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“The $80 million (offered as settlement) is just a drop in the bucket of profit Enbridge has earned from its trespass so far.”
Robert Blanchard Bad River Band Chairman