The ongoing legal battle over the construction of a new section of Enbridge’s Line 5 oil and gas pipeline has taken a critical turn. A Bayfield County judge is tasked with deciding whether construction should be paused, as the Bad River tribe and environmental groups argue the project poses irreversible harm to their lands and waterways.
The Bad River tribe and environmental groups have challenged the state’s decision to grant permits for the pipeline’s construction, following a ruling by an administrative law judge that upheld these approvals in February. On Thursday, Bayfield County Circuit Court Judge John Anderson listened to arguments for halting construction amidst ongoing legal proceedings.
Enbridge’s Line 5, transporting up to 23 million gallons of oil daily from Superior, Wisconsin, to Ontario, Canada, is set to be rerouted for 41 miles around the Bad River tribe’s reservation. This reroute, prompted by a 2019 lawsuit from the tribe, threatens to cross nearly 200 waterways and impact approximately 100 acres of wetlands in Ashland and Iron counties.
Judge Anderson’s decision on whether to pause the pipeline’s construction is expected after further legal briefs are submitted by April 27.
Questions Over Wetlands and Blasting Data
The tribe and environmental advocates claim the Department of Natural Resources (DNR) lacks comprehensive data on the wetlands affected and the areas where blasting will occur for pipeline installation. Clean Wisconsin’s attorney, Evan Feinauer, emphasized the critical role of wetlands in flood reduction, water quality improvement, and rare species habitat. He argued that the DNR did not assess impacts on all wetlands before issuing the necessary permits.
Earthjustice Attorney John Petoskey argued that the DNR’s assumption of temporary impacts on forested wetlands was incorrect, stating, “If a stay is not issued, the pipeline will be built. The harm will be wrought, and the tribe will suffer as a result.”
Enbridge’s attorney, Eric Maassen, countered these claims, asserting that the company provided sufficient evidence regarding wetland impacts, noting, “trees grow back.”
Midwest Environmental Advocates (MEA) attorney Rob Lee expressed concerns over the blasting’s irreversible impacts, stating, “You cannot put that rock back together again.” Maassen rebutted, indicating that such concerns could effectively ban blasting for major projects across the state.
Compliance with State Waterway Protection
The tribe and environmental groups have also raised questions regarding the DNR’s adherence to state constitutional standards for protecting public waterways, which are deemed “common highways and forever free.” The project is set to cross around 70 of these waterways.
MEA Executive Director Tony Wilkin Gibart stated, “We feel quite strongly that Enbridge and the DNR have not complied with the state constitution as it relates to the protection of public waters.” A 2019 law, which criminalizes trespassing on energy provider property, is cited as a potential threat to public water access during construction.
Bad River Tribal Chairwoman Elizabeth Arbuckle highlighted concerns about the tribe’s treaty rights to hunt, fish, and gather. Arbuckle expressed to reporters, “There’s concerns that if they put their pipeline in, that’s going to limit our ability to exercise our treaty rights, which is extremely important for tribal sovereignty.”
Maassen assured that access restrictions would be limited to construction periods and stated that Enbridge has arranged for tribal members to be escorted along the project’s right-of-way.
Permit Eligibility for Waterway Crossings
Another point of contention is the legality of the waterway permit issued to Enbridge, which, according to the MEA, violates the law since Enbridge does not own land adjacent to the waterway crossings. Attorney Rob Lee argued that under the law, Enbridge should own riparian land to place structures on waterbeds.
In a February ruling, an administrative law judge required Enbridge to apply for a separate permit with landowners next to waterways where permanent structures would be placed. Assistant Attorney General Gabe Johnson-Karp explained that this approach aligns with past practices for similar projects, though the DNR has not yet granted this additional permit.
Maassen emphasized that the presence of waterways doesn’t prevent infrastructure development like roads, power lines, or pipelines. He warned of the broader implications of halting the project, citing potential economic losses and impacts on 700 union workers and Midwest refineries.
