Enbridge Update: More Oil, Aboriginal People’s Policy and missing Rice Beds

What started as 375,000 barrels of oil per day crossing by Rice Lake and the Mississippi Headwaters, is now almost l.5 million barrels per day in the Enbridge lines.  Also, Enbridge proposes to abandon a rusting Line 3 and leave it in the ground, with a lot of unknown consequences, and rebuild it in the Sandpiper corridor.  In late January, public hearings were held across MN for the Sandpiper “Certificate of Need”. Tribal Attorney Joe Plummer represented the White Earth band at the hearings.   To be clear:  if the Minnesota Public Utilities commission grants this certificate of need, Enbridge will be able to seize private property through eminent domain.

The Canadian company, Enbridge, now operating as North Dakota Pipeline Company (NDPC), had three days of expert witnesses to discuss the project, most of whom were very specialized in their knowledge. Sarah Ploetz, Enbridge’s Environmental Expert, for instance, discussed only limited studies, but had no mention of wild rice in the report.  Tribal attorney Joe Plummer asked a number of questions to the witness as to why there was no mention of wild rice in the report she had submitted, although the pipeline would go through many wild rice watersheds.

The White Earth band has asked the Public Utilities Commission for hearings, and thus far, none have been held on the reservation.  Judge Eric Lipman of the Public Utilities commission is expected to make a decision as to whether the Enbridge Company has demonstrated a need for this pipeline and a benefit  to Minnesota.  Lipman’s recommendations would be forwarded to the PUC, who will make a decision in the summer.  The PUC believes it can make these decisions, although state and federal law would suggest that the state must have an agreement with the tribe, particularly since the pipeline runs across the reservation.

The PUC process is confusing for everyday people and perhaps even for the PUC itself as it evaluates whether to allow up to 3.7 million barrels of crude oil to cross the state.  If Enbridge is successful, Minnesota, by default will become a super highway for oil.  So certain is Enbridge that the PUC will approve its projects that the company has already stockpiled hundreds of millions of dollars of pipe in near Lake George, Hackensack and near Crookston.

Tribal members should be concerned about these pipeline proposals for a number of reasons. 

First, Enbridge plans to build use eminent domain to take the property rights needed to build these new pipelines under the theory that it is a public utility providing a public benefit. “ Shockingly, the state legislature allows private for-profit oil pipeline companies to take private property under the same terms that governments use to take property for roads and other public uses.  This seems problematic as Enbridge is a Canadian corporation that will earn billions of dollars in profit by carrying privately owned oil for a limited number of oil companies. There are a lot of legal and constitutional questions in this case,” Frank Bibeau an attorney for Honor the Earth said

Second, after building a replacement for its old Line 3 pipeline, Enbridge does not intend to remove the original pipe but instead will just abandon it.  This pipe is 34 inches in diameter, such that if it rusts through it could drain entire lakes and streams, create sink holes, endanger livestock and vehicles In Canada, pipeline companies are required to set aside money to deal with abandoned pipelines, but in Minnesota the law does not yet protect landowners. The tribal governments of Minnesota need to have laws to protect our lands.

Third, all pipelines eventually spill, and multiple pipelines means the chance of a catastrophic spill is much higher. In fact, a just released article by Trudy Bell, former Editor of Scientific American , notes that there’s a 57% chance of a catastrophic spill.  Not good odds.    Enbridge’s mid-December spill of 57,000 gallons in Canada went undetected. .  Enbridge claims that it will respond appropriately to spills, but a letter released in early October by Minnesota  Senators Steve Dribble  and John Marty and Representatives Frank Hornstein and Jean Wagenius to the Environmental Quality Board,  pointed out that …

“ Enbridge and the pipeline industry were unwilling to agree to: 

  • Provide a qualified company employee to advise public sector incident commander by telephone within one hour of a major pipeline oil discharge;
  • Provide monitoring equipment within three hours of a discharge, or to develop an annual plan to deliver monitoring equipment to a discharge site to comply with the provision;
  • Provide qualified personnel to advise incident commanders at the discharge site within three hours of a major spill;
  • Provide containment booms  from land across sewer outfalls, creeks, ditches and other places where oil and other hazardous substances may drain in order to contain leaked material before it reaches those resources;
  • To have capability to deliver containment booms, boats, oil recovery equipment and trained staff within eight hours of a confirmed discharge to recover 10% of a worst case discharge, including protection of listed sensitive areas and potable water intakes within one mile of a discharge site
  • Deliver equipment to protect sensitive environmental areas and drinking water intakes, within 60 hours of a major spill

It is important to understand that Enbridge’s existing and proposed pipelines create a substantial risk of large spills. When asked about liability for spills, by Department of Commerce representatives at the hearings, the company noted that Enbridge is “self insured”, meaning that it will pay for spills and accidents. This has caused some concern in other communities, where limited liability corporations, like Enbridge, have sometimes declared bankruptcy if a problem was too expensive. The Center for Public Integrity for instance found that four companies connected by the Environmental Protection Agency to some of America's worst toxic waste sites have escaped more than half a billion dollars in pollution cleanup costs by declaring bankruptcy.   That potentially passes the tab onto taxpayers.

 Richard Smith, president of Friends of the Headwaters (of the Mississippi River) and Winona LaDuke, the executive director of Honor the Earth, both testified at the Sandpiper CN proceedings on behalf of the environmental interveners, and tribal people within the l855 treaty area .“It seems unreal at times that we can sit in a room for days listening to people discussing a new pipeline for Bakken oil when the Bakken field is shutting down because of the $2 a gallon gasoline we already have at our disposal,” LaDuke said. “It is crazy, that we are talking about burning more dinosaurs and putting our wild rice at risk.  And it amazing that after 150 years,  the state of Minnesota  still has so much disregard for Anishinaabeg people, and our lakes.”

 “Route selection for the Sandpiper pipeline will only be considered after a grant of the Certificate of Need by the PUC, which final decision is presently expected in June of 2015,” said Frank Bibeau, attorney for Honor the Earth. “We have post hearing briefing to file, there are various federal agency permits still process and being requested and the legislative session has pipeline legislation now, so the PUC is really one part of the puzzle and granting process.”

Interestingly enough, Enbridge has a First Nations and Indigenous people’s policy stating the corporation will, “…develop mutually beneficial relations with Aboriginal and Native American communities close to, or potentially affected by, our operations.

Enbridge’s policy identifies key principles for Aboriginal relations:

  • Respect for legal rights, traditional ways and land;
  • Heritage sites;
  • Environment;
  • Traditional knowledge.

This policy promotes the understanding of, and sensitivity to, Aboriginal and Native American people and the issues important to them.  It is designed to ensure a consistent, thorough approach to consultation and engagement with these groups”.  

When attorney Joe Plummer asked Enbridge witnesses about this, they were all unfamiliar with the policy.   

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