Feds: Line 5 closure failed to consider international implications
A federal judge did not properly weigh the international implications of a Line 5 shutdown when he ordered Enbridge Inc. to remove its oil pipeline from Native American lands in Wisconsin, the federal government wrote in a court brief made public Wednesday.
The federal government acknowledged in a 70-page amicus brief filed Monday in the 7th Circuit Court of Appeals that Enbridge’s Line 5 had been trespassing on tribal lands for more than a decade and opined the fine levied on Enbridge for doing so was too low.
But President Joe Biden’s administration also argued the implications of the judge’s shutdown order on treaty obligations between the United States and Canada were not fully considered in a June 2023 order requiring the closure or removal of the oil pipeline within three years.
The filing from the Department of Justice marks the first time the U.S. government has inserted itself into legal disputes in Wisconsin and Michigan seeking the shutdown of Enbridge’s 70-year-old pipeline, which runs through the Upper and Lower peninsulas, crossing underwater at the Straits of Mackinac.
“The operation of that pipeline has implications for the trade and diplomatic relationship between the two countries, as well as economic and energy-supply implications,” the Biden administration said in its amicus brief.
“In the view of the United States, the district court failed to adequately assess all of the public interests in crafting its injunctive relief or to adequately weigh them in light of all the circumstances and equities.”
The Bad River Band of
Lake Superior Chippewas said it was thankful the federal government agreed that Enbridge had trespassed on its tribal lands, but was “disappointed” with other positions voiced in the filing.
“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,” said Robert Blanchard, chairman for the Bad River Band. “Enbridge should be required to promptly leave our reservation, just like other companies that have trespassed on tribal land.”
Enbridge in a statement said it appreciated that both the U.S. and Canadian government recognized Line 5 as “critical energy infrastructure” for both countries. About 540,000 barrels of light crude oil and natural gas liquids flow through Line 5 each day, supplying petroleum to refineries in Ontario, Michigan, Ohio and elsewhere.
“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,” said Ryan Duffy, a spokesman for the company.
The National Wildlife Federation blasted the Department of Justice on Wednesday, arguing its position in the filing undermined the tribal rights of the Bad River Band and “promoted the corporate well-being of a fossil fuel company over the people and wildlife of the Great Lakes.”
“The Department of Justice did not fully advocate for tribal sovereignty nor environmental protection, and we are deeply concerned by the potential ramifications of the administration’s brief,” NWF executive vice president Mustafa Santiago Ali said in a statement.
Attorney General Dana Nessel’s office, which is suing to shut down a portion of Line 5 in Michigan, noted it had voiced a similar position to the federal government on several points in an amicus brief filed in the Wisconsin case.
But the DOJ’s “eleventh hour” request to reconsider the closure of Line 5 based on U.S.-Canada treaty implications seemed “too little, too late,” Nessel spokesman Danny Wimmer said.
Wimmer emphasized the DOJ’s filing had no binding legal effect on the court.
“…the federal government had every opportunity to weigh in and ask the trial court to consider its interests, and it decided not to do so at any point in the last 4.5 years,” Wimmer said in a statement.
Both the litigation in Michigan and Wisconsin has been complicated by Canada’s invocation of a 1977 Transit Pipeline Treaty, which prevents either the United States or Canada from interfering with the operation of a transnational pipeline.
In amicus briefs, the government of Canada said the judge’s three-year shutdown order was “inconsistent with the requirements of the Transit Pipeline Treaty” and would have a “devastating impact” on Canada’s economy.
Such a finding by Canada could force treaty negotations to go into arbitration, where a panel could decide the court’s order conflicts with the U.S.’s international obligations, the filing said.
“If Line 5 were shut down before a replacement pipeline is put into operation — and that shutdown were to lead to the sort of economic harm Canada describes — it is possible that the United States could be subject to arbitration in which it could have exposure for significant damages if the arbitration panel found the United States liable for breaching its treaty obligations,” the U.S. government said.