US asks court to revisit decision to shut down portion of Enbridge’s Line 5

The Biden administration asked a US appeals court to tell a lower court to reconsider its order to remove parts of the Line 5 crude oil pipeline from Native American lands in northern Wisconsin.

Shutting down a portion of the line would disrupt oil flows in violation of a 1977 Transit Pipeline Treaty between the US and Canada that prevents the countries from blocking each other’s hydrocarbon flows, the US Justice Dept. told the 7th US Circuit Court of Appeals in an amicus brief.

The US agreed with the US District Court for the Western District of Wisconsin that Enbridge trespassed for a decade on lands owned by Bad River Band of the Lake Superior Chippewa, for which a federal judge in 2023 ordered Enbridge to pay the band $5.2 million (OGJ Online, July 3, 2023).

But the US said the lower court should revisit the order giving Enbridge 3 years to halt flows through the 12-mile segment traversing the reservation of the Bad River Band and reroute the pipeline.

Enbridge said it is legally operating on the land and is evaluating possible alternative routes for the pipeline.

The Canadian company has proposed a new 41-mile segment to skirt the reservation. But Bad River Band opposes that plan because it does not want the pipeline in the Bad River watershed.

The Justice Dept. said the lower court’s ruling could harm US-Canada relations.

Canada in 2021 asked the court to allow Enbridge to flow oil through the area without disruption, citing the Transit Pipeline treaty (OGJ Online, Oct. 5, 2021). Ottawa also claimed that a shutdown would have devastating economic consequences, particularly in parts of Central Canada.

The US reiterated Canada’s claims in its Apr. 10 amicus filing. The operation of Line 5 “has implications for the trade and diplomatic relationship between the two countries, as well as economic and energy-supply implications,” the Justice Dept. wrote.

Line 5, a 30-in. OD line operating for about 70 years, carries about 540,000 b/d of crude oil and propane. Running from Superior, Wish., to Sarnia, Ont., it serves 10 refineries to varying degrees, in Michigan, Ohio, Pennsylvania, Ontario, and Quebec.

The Justice Department said the district court’s ruling “failed to adequately assess” public interests and consequences of its order. “On remand, the district court should consider…the implications for the United States’ relationship with each of the sovereigns [Canada and the Bad River Band] with which it has entered into a treaty,” the US said. The US signed a treaty with the Chippewas of Lake Superior (including the Band) in 1854.

The Justice Department also asked the court to revisit the amount of the monetary penalty.

“The district court’s extreme discounting of Enbridge’s avoided costs—assessing only 0.25 percent of the amount—was not justified and should be revisited,” the US said in the brief. “And the total restitution award of roughly $5 million for a nearly 10-year trespass—while in the same period, Enbridge earned well over $1 billion in net profit from Line 5—should be reconsidered along with other issues on remand.”