A Wisconsin judge ruled in favor of an indigenous band in its dispute with Enbridge over Line 5, but failed to shut down the controversial transboundary pipeline. District Court Judge William Conley says the Bad River Band of the Lake Superior Chippewa has proven it had the right to revoke a permit for the pipeline to cross its territory in 2013. Conley also says the band, which wants the line removed from the Bad River reservation, is entitled to financial compensation — though the ruling did not go into detail on that front. The judge rejected the group’s bid to shut down the pipeline, however, citing the potential for serious foreign policy and trade implications for both Canada and the United States. It acknowledges Secretary of State Melanie Jolie’s decision late last month to formally invoke a 1977 treaty between the two countries that specifically covers transboundary pipelines. Conley’s order, issued late Wednesday, also requires Enbridge to reroute the pipeline around the Bad River area within five years, an effort the company says is already underway. “The court will accept the group’s action with respect to the infringement and unjust enrichment claims, Enbridge’s counterclaims, and the group’s right to monetary relief,” it writes. “However, the court must deny the complex’s request for an automatic injunction, as an immediate shutdown of the pipeline would have significant public and foreign policy implications.” Environmental concerns are front and center in Wisconsin, where the pipeline crosses the Bad River Reservation, more than 500 square kilometers of pristine wetlands, streams and wilderness. The group has been in court with Enbridge for more than three years, claiming the Calgary-based company is violating the terms of easements that have allowed the pipeline to cross the reservation since 1953. Enbridge, which is trying to reroute the pipeline around the reservation, has argued that a 1992 agreement with the Bad River Band allows the pipeline to continue operating until 2043. Conley, however, concluded that the group was within its rights to decide not to renew the easements in 2013 and that the 1992 agreement was not in itself a guarantee that the pipeline would be allowed to continue operating. “The agreed upon purpose was not, as Enbridge now contends, to be allowed to operate the entire reservation for 50 years,” the judge writes. “Furthermore, Enbridge was aware of the risk that its 20-year easements would not be renewed, and yet failed to protect itself against that risk.” In a statement, the company welcomed the decision to keep Line 5 running and said it remains committed to resolving the dispute “amicably” with the Bad River Band. The company’s plans to bypass 66 kilometers of Line 5 around the reservation are already two years in the making, with 100 percent of private landowners along the new route having already signed agreements. “The relocation project will be built by a Wisconsin contractor and will create approximately 700 family-friendly union jobs and millions in construction-related spending in northern Wisconsin,” the company said. “Approximately $46 million will be spent on tribal-owned businesses and to hire and train Native American workers who will make up at least 10 percent of the project’s workforce.” Line 5 has been under legal siege in both Wisconsin and neighboring Michigan for the past three years, and with opponents in both cases advocating for closure, Wednesday’s decision is likely to be seen as a victory. 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 the survival of Line 5 as a critical issue of continental energy security. The Allies have argued in court filings as well as in public forums that Line 5 is a vital source of energy for several Midwestern states and an essential link for Canadian refineries that feed some of Canada’s busiest airports. Late last month, the company won a key battle in the lawsuit in Michigan, where a federal judge rejected Attorney General Dana Nessel’s efforts to bring the case back to district court, where the state has a better chance of success. Nessel has since said it plans to appeal that decision. This report by The Canadian Press was first published on September 8, 2022
