Enbridge Line 5 pipeline fight: What happens next? | Government

Each fall members of the Bad River Band of Lake Superior Chippewa take part in the time-honored tradition of harvesting wild rice from wetlands nestled in low-lying areas of their northern Wisconsin reservation. 

Harvesters move slowly through wetlands in canoes. One person pushes the boat with a long pole while another taps rice stalks over the bed of the canoe, gathering the grain in the gentlest way possible to ensure the plants stay healthy for future seasons. Most harvesters toss a handful of rice into the water to re-seed for next season. 

“What we’re worried about is what our community is out harvesting right now as we speak. They’re out in canoes with their rice sticks, harvesting the good berry, the manoomin,” said Joe Bates, a member of the Bad River tribe. 

Tribal members have long contended a major pipeline that carries crude oil and liquid natural gas through the reservation risks contaminating those wetlands and the waters where the rice grows, and that its continued use has been illegal since the line’s permit expired 12 years ago. Enbridge, a Canadian energy firm that owns the Line 5 pipeline, is proposing a reroute around the southern boundaries of the reservation — but environmental groups and members of the tribe say that would still put the land and water at risk. 

“(If) that pipeline breaks, we’re looking at losing that manoomin, losing that wild rice, losing the fish that our community harvests to help get us through winter,” said Bates. “There’s just so much that we do here on the reservation that relies on the good, clean water that comes down from the Bad River and all its tributaries around it.” 

Years of legal battle over the controversial pipeline are culminating in a series of hearings this month in Ashland and Madison. Two environmental law groups and the tribe are challenging permits the Wisconsin Department of Natural Resources granted to Enbridge for the proposed rerouting over waterways and wetlands upstream of the reservation. 

Enbridge’s total pipeline network originates from northern Alberta in Canada, with lines stretching down through northern Minnesota, Wisconsin and Michigan, and then back up to Eastern Canada.  

The section called Line 5 has been in operation since 1953. The pipeline is 645 miles long, beginning in Superior, Wisconsin, and ending in Sarnia, Ontario, in Canada. The line transports 545,000 barrels a day of light crude oil, light synthetic crude, and natural gas liquids which are refined into propane.  

Other networks of Enbridge oil pipelines reach down through the Midwest and Great Plains states and liquified natural gas lines stretch from the Gulf of Mexico up through the South and New England. 

The proposed reroute would take the most direct path from outside the western boundary of the Bad River Reservation to the existing pipe in northern Michigan without crossing the reservation. The line that currently crosses the Upper Peninsula of Michigan supplies about 65% of propane demand in the region, according to Enbridge.  

The Bad River tribe’s efforts to negotiate with Enbridge over the existing Line 5 route came to a head when the easements the oil company had secured to cross reservation land expired in 2013. Four years later, the Tribal Council voted not to renew the easements. In 2019, the tribe sued Enbridge, arguing the current pipeline illegally trespasses across the reservation.  

Bates said tribal discussions over Line 5 began decades ago and he started attending Tribal Council meetings in the 1990s when the pipeline was discussed. But for Bates, who is 68 and has lived on the reservation most of his life, the battle over tribal autonomy started well before then. The risk of damaging a watershed that serves the reservation is just another example of threats to Indigenous sovereignty from Western colonization, he said. 

To Bates and other members of the Bad River Band, the pipeline is more than an environmental threat. It’s also a cultural one. 

“We’ve been here for centuries. It was this land that was prophesized to us. We traveled along the St. Lawrence Seaway, the St. Mary’s River, and told to go to where food grows on water. That is right here on the Bad River Reservation,” Bates said.  

In November last year, the Wisconsin DNR issued wetland and waterway permits to the Canadian oil company to begin the reroute process. The permits came with about 200 conditions for Enbridge to follow in order for the DNR to consider the construction to be as minimally damaging to the environment as possible.  

The permit approval was celebrated in industry and construction sectors, where supporters say the pipeline will bring jobs and money to Wisconsin. But the DNR’s decision brought scorn from tribal members and environmental groups, who each filed separate legal objections to the permits. Those objections sparked the hearing process currently underway. 

Enbridge first proposed the reroute plan after the Bad River Band filed its 2019 lawsuit in federal court. The lawsuit both challenged the legality of Line 5 on reservation land and called for a full decommissioning of the 72-year-old pipeline in its entirety. In September 2022, a federal judge ruled the energy company had to remove its pipeline from reservation land by June 2026 but didn’t grant the second request to shut down the whole pipeline. 

The reroute would bring the pipeline around the bottom of the Bad River reservation — installing a new 41-mile-long section of Enbridge’s existing Line 5 through portions of Ashland and Iron counties. The pipeline would cross the Bad River itself below the southern tip of Copper Falls State Park and north of the town of Mellen, as well as about 101 acres of wetlands and nearly 200 waterways. 

An environmental impact statement released by the Wisconsin DNR in September last year estimates the majority of direct environmental disruptions would take place during construction. Those include clearing trees, digging trenches, blasting through bedrock and horizontal drilling under creeks and other waterways. 

The document goes on to outline secondary effects from the new pipeline and its construction, which could include permanent changes in land use patterns, potential introduction of invasive plants, changes in hydrology and wetlands conditions, and damage to remaining trees without the protection of forest density.  

Those risks, among other concerns, have renewed calls from the tribe and environmental groups to propose a shutdown of the pipeline altogether. 

“We want the pipeline gone. We want it out of our watershed. This sovereign nation is saying we want it gone. It needs to go,” Bates said. 

The pipeline presents too many environmental risks to make the project worth what supporters say will be added jobs and economic impact, he said. 

“Now they want to go around us (the reservation), but in doing so, they’re crossing another 139 streams that empty right into the Bad River,” Bates said. “And a lot of those streams are Class 1, top-of-the-line trout streams … and a number of them, they intend to just trench and backfill right across these stream beds.” 

Enbridge representatives maintain the company has planned out environmental mitigation methods to avoid serious disturbance of the wilderness.  

“As a brand new build, this will be using the latest techniques, the state-of-the-art coatings and pipe and construction techniques, so we’re very confident that we’ll have a safe pipeline for many decades to come,” said Tom Schwartz, senior vice president of strategic projects and partnerships for Enbridge.  

Evan Feinauer is an attorney with Clean Wisconsin, one of the environmental groups objecting to the DNR permits. Feinauer said the DNR’s review of the proposed reroute didn’t sufficiently assess the potential for catastrophic damage to land and water and Enbridge hasn’t done enough research on the area it could be harming.  

For example, the Madison attorney said, the oil company isn’t accounting for groundwater elements in wetlands where the pipeline would be built.  

“You don’t know how to be careful to not cause these impacts, and you don’t know whether you successfully restored it on the back end, because you didn’t know what you had in the first place,” Feinauer said of Enbridge. “It’s a little bit like, ‘Oh, we’ll break Humpty Dumpty and put Humpty Dumpty back together again, but we don’t have a picture of what Humpty Dumpty looked like in the first place.’” 

The Madison-based nonprofit law center Midwest Environmental Advocates has also filed objections to the reroute permits on behalf of the League of Women Voters of Wisconsin, 350 Wisconsin and the Sierra Club.  

“This is just too precious of a place to be putting at risk, whether from the construction itself or future risk from operation of the pipeline (and) a spill like we saw in Jefferson County, literally, as DNR was approving this (Line 5) pipeline construction project,” said Rob Lee, a staff attorney with Midwest Environmental Advocates.  

Lee referred to a spill last year of more than 1,600 barrels — more than 67,000 gallons — of crude oil from an Enbridge pipeline near Jefferson County’s border with Dane County that went unreported to the public for more than a month.  

“The only thing I can chalk it up to is just hubris,” Lee said. “Humans thinking they can engineer their way out of Mother Nature’s ire, it only lasts for so long.” 

While the DNR certified that Enbridge’s Line 5 plan met Wisconsin water quality standards, Lee said the permit review didn’t measure the proposed reroute against the Bad River tribe’s higher standards for clean water.  

Concerns about the permit review’s thoroughness aren’t founded, according to Enbridge.  

“Part of what the DNR has done with this permit is included an extensive list of very rigorous conditions to the construction methods to ensure that there’s no excessive discharge of pollutants or contaminants into any water body, let alone ones that may make it to the reservation,” Schwartz said. “One of the concerns that’s been raised has been with sedimentation, and the reality is that a good rainstorm creates more sediment to the water than this project will do by a lot.” 

The oil company estimates the reroute will create 700 jobs and bring millions of dollars to the area in economic gain during construction. Lobbying organizations like the Wisconsin Farm Bureau worry an end to the pipeline would mean propane shortages for farms and residents in northern Wisconsin.  

Environmental concerns over the reroute go beyond the Bad River reservation, though. Marvin DeFoe is a member of the Red Cliff Band of Lake Superior Chippewa, which has a reservation at the far tip of the Bayfield peninsula, the northernmost part of Wisconsin that juts into Lake Superior and overlooks the Apostle Islands. To him, the reroute poses a danger of contaminating waters that flow into Lake Superior. 

DeFoe worked on constructing a birch canoe on Madeline Island, off the eastern shore of the Bayfield peninsula, as he voiced his fears to the Cap Times. He used a mixture of pine sap, charcoal and animal fat as glue, following traditional methods passed down through generations. 

“Why take the risk? Why take the risk of destroying Lake Superior? Why take it destroying a rice bed that feeds hundreds and hundreds and hundreds of people,” DeFoe said.  

Fierce debate over the pipeline marks a conflict of values in DeFoe’s mind. He calls it a fight for survival. 

“Water is sacred to us,” he said. “That water has a lot to do with our habitat, has a lot to do with life. The wild rice is our life. It’s our lives.” 

In Madison this month, attorneys representing the tribe, environmental groups, Enbridge and the DNR will be involved in public hearings over whether the DNR failed to adequately assess potential harm from the proposed pipeline reroute.  

“The purpose of that period is to kind of make the record in the case, to put all the facts out there. Everybody gets to talk and question everybody,” said Feinauer, the Clean Wisconsin attorney. “And this is going to be the chance for everybody to have their say about what they think the evidence points towards and to fight about that stuff.” 

Hearings over the permits began in August in Ashland, near the Bad River Reservation, and are scheduled to continue in Madison and elsewhere through Oct. 3.  

The case is being overseen by state Administrative Law Judge Angela Chaput Foy. Last week at the Hill Farms State Office building in Madison, community members shared public comment and the judge allowed attorneys to call in experts to share their views and expertise. 

Steve Books, a Madison resident, raised concerns over risks to water quality as he testified before Foy and the attorneys.  

“It’s an additional accident waiting to happen,” Books said. “Will we see more water resource pollution and devastation as seen before? The track record of Enbridge is disturbing.” 

At future hearings, the attorneys plan to call geologists, water quality scientists and other expert witnesses in an effort to determine whether the DNR should have issued the permits to Enbridge. 

There is no hard deadline for the judge to issue a decision in the case.  

Schwartz, the Enbridge executive, said he is confident the ruling will come down in the company’s favor. Even if the judge’s decision is appealed, construction of the reroute could begin, he added.  

“There will likely be some type of appeal, or someone will attempt to appeal, whichever side it is,” Schwartz said. “In the past, it’s been our experience that construction can begin pending appeal, unless a court grants a stay, and in our experience, that hasn’t been the case in the past.” 

Both sides estimate Foy’s ruling could come around the end of the year, but the process is likely far from over.  

“It’s a controversial enough issue that I would be surprised if it just ended there,” Feinauer said. “Any decision would be subject to an appeal, and then that decision could be subject to (another) appeal and so on up through the Court of Appeals and potentially even the state Supreme Court, but that would be years down the road.”