Tribe, environmental groups challenge Line 5 permits

The Bad River Band of Lake Superior Chippewa in northern Wisconsin and various environmental groups have filed separate legal challenges to wetland and waterway permits the state Department of Natural Resources (DNR) granted last month to Enbridge Energy to build a 41-mile segment of its Line 5 pipeline near the Bad River Reservation.

In addition to the tribe, Midwest Environmental Advocates (MEA) filed a petition for a contested case hearing challenging the DNR’s regulatory approval of the permits. MEA, a nonprofit environmental law firm representing Sierra Club, the League of Women Voters of Wisconsin, and 350 Wisconsin, filed the petition jointly with Clean Wisconsin.

The permits would allow Enbridge Energy to circumvent the Bad River Band of Lake Superior Chippewa’s land. The tribe has vigorously opposed the pipeline.

Specifically, the DNR said it would issue an individual wetland and waterway permit with conditions and convey coverage under the department’s Wisconsin Pollution Discharge Elimination System (WPDES) General Permit for Construction Site Storm Water for Enbridge’s proposal to replace a segment of its Line 5 liquid petroleum pipeline in Ashland and Iron counties.

This week the tribe and MEA said the planned segment would unacceptably require blasting, horizontal drilling, or trenching through at least 186 waterways and 101 acres of high-quality wetlands that drain into Lake Superior.

“This land does not belong to us, it is borrowed by us from our children’s children,” Bad River Band chairman Robert Blanchard said. “We harvest our wild rice from the waters, we hunt from the land, fish from the lake, streams, and rivers to feed our families and gather the medicines to heal our relatives. Many of our people will feel the effects if we lose these resources.”

In his view, Blanchard said, the DNR failed future generations by giving Enbridge the permits.

“They failed to consider the company’s multiple disasters in Minnesota and in Michigan, which are still being cleaned up,” he said. “They failed to consider our tribe, our water quality, and the natural resources of the entire Bad River watershed. As a tribal chairman and an elder, it’s my responsibility to protect the generations still to come. That is why we are fighting this reroute in court.”

In addition to petitioning for a contested case hearing on the permit, the tribe has also filed a lawsuit against the DNR for producing what it calls an inadequate final Environmental Impact Statement on the reroute that violates the Wisconsin Environmental Protection Act.

The tribe says the reroute threatens to destroy and degrade wetlands such as the Kakagon-Bad River Sloughs, a mosaic of sloughs, bogs, and coastal lagoons that harbor the largest wild rice bed on the Great Lakes. 

Groups: Company can’t meet standards

MEA says the 71-year-old pipeline cuts across the heart of the Bad River Reservation in what it calls a trespass on tribal land for more than a decade. The company must vacate that land, but, rather than shut down the pipeline, the group states, Enbridge wants to build around the perimeter of tribal land but still within the watershed.

MEA is challenging the determination that the new project will meet state water quality standards.

“The petition alleges that DNR could not lawfully approve the reroute project because Enbridge failed to show that its plans will minimize harm to the waterbodies and wetlands that will be impacted by pipeline construction,” MEA stated  in announcing the legal action. “For example, Enbridge has not identified exactly which waterway crossings would require blasting through bedrock, nor did they provide basic, site-specific information about the topography, hydrology and geology of potential blasting sites.”

MEA is also alleging that Enbridge’s construction and restoration plans consistently understate the environmental damage the project will cause and overstate the company’s ability to repair the damage. 

“For example, the harmful impacts associated with clearing forested wetlands are mischaracterized as ‘temporary’ when it would take multiple decades for vegetation to re-grow to pre-construction conditions,” the group stated. “Moreover, impacts to wetlands would not be confined to the construction right of way, as Enbridge claims, given the extent of the construction activities and the interconnected nature of the wetland complexes the reroute would cross.”

Rob Lee, staff attorney for MEA, said Enbridge did not provide enough information in its permit application to allow DNR to lawfully issue permits for what he called a dangerous and destructive construction project. 

“Enbridge proposes to dredge and blast its way along a route that stretches for more than 40 miles, crossing nearly 200 waterbodies and impacting more than 100 acres of wetlands,” Lee said. “Given the risks associated with a project of this scale and the potential for significant environmental harm, we believe Enbridge should not be allowed to move forward with the reroute.”

Senior attorney Stefanie Tsosie of Earthjustice, which is representing the tribe in its challenge, said damage could not be undone once construction is started.

“Enbridge has a terrible track record for pipeline construction and operation,” Tsosie said. “And this place — this watershed and this territory — is not another place they can just plow through.”

Climate change composes a significant part of the argument for the environmental groups.

“350 Wisconsin is dedicated to stopping destructive fossil fuel projects such as Enbridge Line 5 that endanger our natural resources, our health and our climate,” Emily Park, co-executive director of 350 Wisconsin, said. “Instead of building infrastructure that facilitates more carbon emissions, we should be investing in renewable energy, sustainable transportation, and technologies that will help transition to a clean energy future.”

Others are supporting the issuance of the permits and the new pipeline segment.

When the permits were granted, the Wisconsin Jobs and Energy Coalition (WJEC) said the completion of Line 5 is estimated to create more than 700 union construction jobs, pump $135 million into the local economy, and generate millions in additional state and local tax revenue.

“Wisconsin farmers simply can’t do their jobs without the propane, diesel, and gas made possible by pipelines like Line 5,” said Wisconsin Farm Bureau president Brad Olson. “The issuance of the DNR’s Line 5 permits is a huge step forward for our state’s farmers and the hundreds of thousands of people that depend on our agricultural industry to feed their families.”

Cheryl Lytle, executive director of the Wisconsin Propane Gas Association, was equally excited.

“Wisconsin’s propane suppliers have been patiently waiting over four years for the DNR to review this project and ensure this vital piece of the regional propane infrastructure continues to operate,” Lytle said. “We are thankful for the Wisconsin DNR’s diligence and hopeful our state can now avoid the supply and price shock closing down Line 5 would have on the 280,000 families, farms and businesses that depend on propane for heat and fuel.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.