A Wisconsin judge has ruled in favor of an Indigenous community in Wisconsin in their dispute with Enbridge over Line 5, but he did not order the closure of the controversial Canadian cross-border pipeline.
District Court Judge William Conley says the Chippewa community of Bad River on Lake Superior has demonstrated that they have the right to revoke the permission granted to Enbridge in 2013 to run the pipeline through their territory.
Judge Conley also ruled that the First Nation, who wants the pipeline removed from the Bad River reservation, is entitled to financial compensation – although he did not go into specifics about this.
The judge, however, denied the Bad River community’s motion to shut down the pipeline altogether, citing serious potential 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 Canada-US treaty, which specifically covers cross-border pipelines.
In his decision, released Wednesday evening, Judge Conley also demands that Enbridge reroute the pipeline within five years to bypass the territory of Bad River – an initiative which, according to the Calgary company, has already begun.
An “intrusion”
Environmental concerns are at the heart of this case in Wisconsin, where the pipeline runs directly through the Bad River reservation, more than 500 square kilometers of pristine wetlands, streams and wilderness.
The Chippewa First Nation has been arguing in court for more than three years that Enbridge is trespassing on its territory by breaching the terms of the easements that allowed the pipeline to cross the reservation from 1953.
Enbridge, for its part, argued that a 1992 agreement with the community of Bad River allowed the pipeline to continue operating until 2043.
Judge Conley, however, concluded that the community of Bad River was within its rights to decide not to renew the easements granted in 2013, and that the 1992 agreement was not in itself a guarantee that the pipeline could continue to operate. until 2043.
“The agreed purpose was not, as Enbridge now asserts, to allow it to operate (the pipeline) across the entire reservation for 50 years,” the judge wrote. In addition, Enbridge was aware of the risk that its 20-year easements […] not be renewed, and yet it has failed to protect itself from this risk. »
Line 5 has been challenged in court in Wisconsin and neighboring Michigan for most of the past three years. Wednesday’s decision will likely be seen as a victory for its opponents, who are arguing for its outright closure.
Business groups and chambers of commerce on both sides of the border, provincial governments and Ottawa have joined Enbridge in its efforts to present the survival of Line 5 as essential to energy security in Canada and the United States.
The allies have argued, both in court and in public forums, that Line 5 is a vital source of energy for several Midwestern states and a critical link for Canadian refineries, which power some of the busiest airports in the country.
Late last month, Enbridge won a key victory in a Michigan lawsuit: A federal court judge denied Attorney General Dana Nessel’s motion to send the case to a “circuit court,” where the state has a better chance of success. Ms Nessel has since indicated that she plans to appeal the decision.