Wisconsin Judge Rules Against Enbridge on Line 5, but Stops Short of Shutdown

In this June 29, 2018, file photo, pipeline used to carry crude oil is shown at the Superior terminal of Enbridge Energy in Superior, Wisc. The Canadian Press /AP/Jim Mone

A Wisconsin judge has ruled in favour of an indigenous band in its dispute with Enbridge over Line 5, but stopped short of shutting down the controversial cross-border pipeline.

District Court Judge William Conley says the Bad River Band of the Lake Superior Chippewa has proven it was entitled to revoke permission for the pipeline to cross its territory back in 2013.

Conley also says the band, which wants the line removed from the Bad River reservation, is entitled to financial compensation—although the decision does not go into detail on that front.

The judge rejected the band’s motion to have the pipeline shut down, however, citing the potential for serious foreign policy and trade consequences for both Canada and the United States.

He acknowledges Foreign Affairs Minister Mélanie Joly’s decision late last month to formally invoke a 1977 treaty between the two countries that specifically covers cross-border pipelines.

Conley’s order, issued late Wednesday, also requires Enbridge to reroute the pipeline around Bad River territory within five years, an effort the company says is already underway.

“The court will grant the band’s motion with respect to its trespass and unjust enrichment claims, Enbridge’s counterclaims and the band’s entitlement to a monetary remedy,” he writes.

“Nevertheless, the court must deny the band’s request for an automatic injunction, as an immediate shutdown of the pipeline would have significant public and foreign policy implications.”

Environmental concerns are top of mind in Wisconsin, where the pipeline runs directly through the Bad River Reservation, more than 500 square kilometres of pristine wetlands, streams and wilderness.

The band has been in court with Enbridge for more than three years, arguing that the Calgary-based company is trespassing, having violated the terms of the easements that allowed the pipeline to traverse the reservation beginning in 1953.

Enbridge, which is in the process of trying to reroute the pipeline around the reservation, argued that a 1992 agreement with the Bad River Band allows the pipeline to keep operating until 2043.

Conley, however, concluded that the band was within its rights to decide not to renew the easements in 2013, and that the 1992 agreement was not by itself a guarantee that the pipeline would be allowed to continue to operate.

“The agreed-upon purpose was not, as Enbridge now asserts, to permit it to operate across the entire reservation for 50 years,” the judge writes.

“Moreover, Enbridge knew of the risk that its 20-year easements ... might not be renewed, and yet failed to protect itself from that risk.”

Line 5 has been under legal siege in both Wisconsin and neighbouring Michigan for the better part of the last three years, and with opponents in both cases arguing for a shutdown, the ruling Wednesday is likely to be seen as a win.

Business groups and chambers of commerce on both sides of the border, provincial governments and Ottawa have rallied behind Enbridge in its effort to portray Line 5’s survival as a mission-critical matter of continental energy security.

Allies have argued, both in court filings as well as public forums, that Line 5 is a vital source of energy for several Midwestern states, and an essential link for Canadian refineries that fuel some of Canada’s busiest airports.

Late last month, the company won a key battle in the suit in Michigan, where a federal judge rejected Attorney General Dana Nessel’s efforts to get the case removed back to circuit court, where the state stands a better chance of success.

Nessel has since indicated she plans to appeal that decision.

By James McCarten