Enbridge Line 3 pipeline plan clears two more court hurdles in Minnesota

The Minnesota Court of Appeals ruled Aug. 30 that a state regulator properly concluded that Enbridge Inc.’s replacement project for its Line 3 crude oil pipeline will comply with the state’s water quality standards.

A three-judge panel, reviewing challenges brought by environmental activists and native American groups, ruled the Minnesota Pollution Control Agency (MPCA) complied with all of its legal requirements when it approved a Clean Water Act Section 401 certification for the project.

The ruling followed by one week a decision of the Minnesota Supreme Court to refuse an appeal of a Minnesota Court of Appeals decision accepting the actions of the state Public Utilities Commission (PUC) in granting a certificate of need and a route permit for the project. That Aug. 24 decision was a simple rejection without explanatory detail.

The appeals court ruled in favor of the PUC in June (OGJ Online, June 15, 2021).

Court supports agency approach

For the latest decision, the Minnesota Court of Appeals reviewed challenges arguing that the MPCA failed to consider alternate routes, inadequately assessed water quality impacts, and improperly limited its oversight to construction.

The appeals court said the state PUC is the state agency with sole authority to determine a pipeline route, making it pointless for the MPCA to consider alternate routes.

Plaintiffs quarreled with the methods used by the pollution agency to analyze environmental impact, but the appeals court said the rules “do not specify the method that the MPCA must employ.” Consequently, the agency’s choices on methods are subject to judicial deference so long as they are adequately explained and reasonable on the basis of the record.

The court also found the agency’s methods reasonable for estimating wetlands impacts and consequently the scale of Enbridge’s mitigation obligations.

As for the complaint that the MPCA improperly limited its oversight to construction rather than also looking at plans for subsequent operation of the line, the plaintiffs simply were wrong, the court said, pointing to a section of the MPCA certification devoted to “post-construction requirements.”

Federal case not yet resolved

Another case lingers in a federal district court, where plaintiffs have challenged the decision of the US Army Corps of Engineers to issue a Clean Water Act Section 404 permit, often called a “dredge and fill” permit. In that case, the federal judge has refused a preliminary injunction, and work on the pipeline project has continued.

Also noteworthy in the federal case is the fact that the Biden administration filed a brief defending the Corps of Engineers decision on Line 3, a decision made during the Trump administration. Activists continue to urge the Biden administration to block the line as it blocked the Keystone XL project.

The $4 billion project, replacing the line from Hardisty, Alta., to Superior, Wisc., is completed outside of Minnesota. Within that state, 337 miles of pipe are to be installed, and more than half of that work has been done. Enbridge plans for the line to enter service in the fourth quarter.

Line 3 used to have a capacity of 760,000 b/d, but as it aged and the risks of corrosion and leaks increased, Enbridge reduced the pressure in it, cutting the operating capacity since 2008 to 390,000 b/d. The replacement will expand capacity by 370,000 b/d, restoring it to 760,000 b/d.