By Summer Blaze Aubrey, Esq. LL.M. (Cherokee/Blackfeet) (1) & Patricia Handlin, Esq. (2)
 

This post was originally published on the CUNY Law Review Blog.

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Enbridge, Inc. is a Canadian company that moves oil from the Western Canadian oil tar sands through a pipeline from Alberta, Canada across Minnesota to Superior, Wisconsin on the shores of Lake Superior. Line 3 is new construction that will connect Alberta to Lake Superior along a different route. The pipeline’s route snakes through the wild rice fields of Minnesota, called manoomin or psίᶇ, a sacred food of the Anishinaabe, the Ojibwe and Minnesota Chippewa Tribes, and Dakota Tribes, respectively, and is at the center of their cultural identity, spiritual traditions, and physical and economic well-being. The route crosses the headwaters of the Mississippi River as well as hundreds of other rivers, bodies of water, and wetlands in Minnesota and ends on the shores of Lake Superior just across the Minnesota-Wisconsin border. 

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Line 3 will carry the same oil that TransCanada, recently renamed TC Energy, Inc., sought to send through the failed Keystone XL (KXL) pipeline—the dirtiest oil on the planet. Tar sands oil is substantially more carbon intensive than other crude oil, and its use will significantly increase carbon pollution affecting global warming. Line 3 would send 760,000 barrels of oil each day through a 36-inch pipe, emitting greenhouse gasses equal to the emissions of 50 coal plants or 193 million tons of (carbon dioxide equivalent) CO2e per year. President Barack Obama denied the presidential permit for construction of the KXL pipeline for this very reason. President Trump subsequently allowed the permit, and President Biden has withdrawn it. Heavy and sticky, tar sands oil will not flow through a pipeline efficiently, so it is mixed with diluents like naphtha, a highly flammable diluent that will severely impact the environment if released. Resulting in diluted bitumen or “dilbit,” this oil will thickly coat and adhere to anything it touches. By its very nature, dilbit undergoes very slow natural degradation, making its impact on the environment even more persistent and permanent. Normal environmental processes, such as wave action and sunlight, can intensify toxicity and exacerbate the difficulty with remediation and cleanup after a spill. As Dr. Jeffrey Short testified during a Water Management Board hearing in South Dakota in opposition to the KXL pipeline, all effects are exponentially worse for a dilbit spill because the properties make the substance particularly difficult to locate and clean up. Spills of diluted bitumen pose a severe threat to the environment and impacts of an oil spill will be particularly devastating to Indigenous communities including the Anishinaabe, the Ojibwe and Minnesota Chippewa Tribes.

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PRIOR SPILLS BY ENBRIDGE PIPELINES AS INDICATORS OF THE INEVITABLE DAMAGE LINE 3 MAY CAUSE

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Oil pipelines spill. It is not a question of if they will spill, but when and where. Enbridge has a long and ugly record of pipeline spills. Since 2000, the Enbridge pipeline system, including Line 3, had 194 pipeline incidents/accidents during which dilbit was spilled in the five states bordering the Great Lakes: 70 in Minnesota, 61 in Wisconsin, 21 in Michigan, 19 in Illinois, and 17 in Indiana, resulting in 2,489,554.2 gallons of dilbit released and 555,853.2 gallons that have never been recovered.  Included is the infamous 2010 Enbridge spill into the Kalamazoo River, which was not discovered for 17 hours, resulting in a spill of over one million gallons of dilbit.According to the U. S. Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA), the data is shocking: from 1986 to now, the Enbridge tar sands pipelines had 242 spills, releasing 7,399,690.2 gallons of dilbit into the environment; 2,351,732.2 gallons have never been recovered. These spills occurred primarily in five Great Lakes states: Minnesota, Michigan, Wisconsin, Indiana, and Illinois.

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The data and information regarding the spills are documented by PHMSA(3) and include failures of operation, construction, and materials, including pipe corrosion, excavation damage, incorrect operation, material/weld/equipment failure, and natural force. The cleanup cost of the 194 spills is $943,331,402.00, and does not include the costs to states, individuals, and the federal government. For example, the cleanup efforts from the Kalamazoo River spill cost more than $1 billion alone. More importantly, the damage done to the environment, waterways, surface, groundwater, humans, and animals, and the ultimate cost in greenhouse gas emissions, is incalculable.

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Enbridge uses the SCADA leak detections system, which fails to detect leaks 72% of the time. The federal district court judge in Standing Rock Sioux Tribe vs. US Army Corps of Engineers (2020), highlighted the serious failures of the various leak pipeline detection systems:

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…[A] 2012 PHMSA comprehensive leak detection study found one type of leak detection system [, called SCADA,] . . . detected hazardous liquid leaks 28 percent of the time,” and another, called CPM, “had a detection rate of 20 percent.” …  Another expert for Standing Rock had also presented this data in October 2016, adding that “[t]his low success rate” was “consistent with Accufacts’ many liquid pipeline failure investigations spanning more than 40 years, especially more recent investigations.”  … (Accufacts Report of October 2016). DAPL, it should be noted, uses a CPM leak-detection system.

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The United States Army Corps of Engineers (Corps) and the United States Environmental Protection Agency (EPA) failed to properly evaluate the Enbridge project before issuing a permit to cross more than 200 bodies of water. This determination is contrary to the ruling in Standing Rock Sioux Tribe, which vacated the Corps’ permit that allowed the Dakota Access Pipeline to cross the Missouri River because the Corps failed to complete and issue a proper environmental impact assessment. Additionally, the Corps is required by the National Environmental Protection Act (NEPA) to consider environmental justice in addition to the existing obligations of environmental impacts and failed to do so here.

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ENVIRONMENTAL DAMAGE DURING CONSTRUCTION OF THE PIPELINE

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Construction of the pipeline itself has caused serious environmental damage along the route.  In January 2021, during construction Enbridge breached the confining layer of an artesian aquifer allowing millions of gallons to flow out of the aquifer into a nearby wetland. The Minnesota Department of Natural Resources (DNR) only became aware of the breach in June 2021  because Enbridge failed to inform the DNR, despite an obligation to do so. In September 2021, the Minnesota DNR fined Enbridge $3.32 million dollars, ordered the company to stop the flow of water out of the aquifer within 30 days, and ordered the company to place $2.75 million dollars into an escrow fund for restoration of the wetland due to the damage that has been done. The breach occurred because Enbridge dug a trench and drove pilings 18 to 28 feet deep in a location where they had previously represented to the Minnesota DNR that they would only dig eight to ten feet deep. As of mid-September, 24.2 million gallons of groundwater have been released from the aquifer.

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In addition, between June 8 and August 5, 2021, there were 28 reported construction “mistakes” at river crossings called “frac-outs” during which Enbridge released drilling fluid into rivers while snaking the pipe under the rivers. One release was 80 to 100 gallons. Drilling fluid is composed of bentonite clay, xanthan gum, and other chemicals which remain undisclosed. The “frac-outs” are under investigation by the Minnesota Pollution Control Agency.  Moreover, Water Protectors discovered a huge quantity of drilling fluid seeping out of the ground and flowing downstream in late September. 

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IMPLEMENTATION OF LINE 3 CONSTITUTES A VIOLATION OF TREATIES WITH THE MINNESOTA CHIPPEWA TRIBES

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The Ojibwe and Minnesota Chippewa Tribes entered into treaties with the United States in the 1800s to reserve hunting, fishing, and gathering rights on the lands and waters ceded to the U.S., through which Line 3 is routed. Harvesting rice by hand fosters a deeply held belief that it is a gift from the Creator, and the land that sustains it, should be treated with respect and gratitude rather than cultivated and exploited. Hand-harvested rice is frequently offered as gifts and is used as offerings in spiritual ceremonies and funerals. Exercising these rights is fundamental to the Tribes’ cultures and ways of life. Indigenous peoples in this area eat manoomin/psίᶇ at least once a month. Surveys have established that manoomin/psίᶇ is the most consumed traditional food, and Indigenous peoples wish to eat it more often. The annual hand-harvest on Minnesota lakes and rivers is a cherished ritual that preserves time-honored traditions and builds Tribal community. 

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Additionally, wild rice sustains the entire ecosystem in which it grows:

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[It] grows in shallow water and slow-flowing streams and produces an edible grain. It is native to Minnesota and can be found in 55 counties in the northern region of the state … its range once covered the entire state. Current coverage of wild rice has declined to [] 64,000 acres when growing conditions are favorable. A fast-growing, aquatic grass … providing critical food and shelter at every stage of its growth and throughout all four seasons. Migrating and resident species alike rely on the plant’s nutritious and abundant seeds. [] [W]ild rice lakes and streams serve as breeding and nesting areas for at least 17 species listed as “species of greatest conservation need[.]” [I]t also provides habitat for fish. Wild rice improv[ed] the quality of ecosystems, allowing for increased ecosystem function. By sequestering nutrients such as phosphorous and nitrogen, wild rice enriches soils while countering the negative effects of nutrient loading in water bodies that can cause algal growth and turbidity. Stands of wild rice form windbreaks and slow water velocity, limiting the mixing of soil nutrients into the water column [and] stabiliz[e] loose soil.

 

The White Earth Band of Ojibwe passed resolutions to provide for the conservation, and management of fish, wildlife, natural resources, plant populations including manoomin/psίᶇ, and the pristine freshwaters that support the ecosystems in ceded territories through the regulations of the treaty beneficiaries use and harvesting activities. The resolutions provide that the White Earth Tribal Court has jurisdiction to hear all actions arising under any code, resolution or ordinance enacted to conserve, manage, or protect the resources, regardless of the boundaries of the reservation and may sue any entity in Tribal Court that violates the resolutions of the territory. In June 2021, the Minnesota DNR granted a permit to Enbridge for construction of Line 3 to use over 5 billion gallons of water from ceded territory at the time of drought, increasing the allotment of water without consultation with the Tribes, negatively impacting manoomin/psίᶇ. Consequently, the White Earth Band of Ojibwe sued the Minnesota DNR in Tribal Court.  That litigation remains pending.  The Minnesota DNR sought to enjoin the Tribe from suing and argued that the Tribe lacked jurisdiction but was dismissed. There is an appeal at the federal appellate level.

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FREE PRIOR INFORMED CONSENT – CONSENT TO LINE 3 BY THE CONSENSUS OF TRIBAL NATIONS’ 

 

The basic principle of inherent sovereignty is defined as the authority and powers lawfully vested in a Tribal Nation that predate contact and have never been extinguished. Self-governance is the inherent sovereignty of Tribes to enter into Nation-to-Nation policy agreements with the U.S. via treaties. The Supremacy Clause of the U.S. Constitution, as set forth in Article VI, Clause 2, states that “all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”

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As such, the Corps and Untied States Department of State must obtain consent by consensus, and engage in meaningful, non-perfunctory Nation-to-Nation consultation that goes beyond simply “checking a box.” Without doubt, the Corps and Department of State have failed to obtain consent by consensus and engage in adequate and meaningful Nation-to-Nation consultation with affected Tribal Nations about Line 3.

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Additionally, according to the Native American Graves Protection and Repatriation Act of 1990 (“NAGPRA”), federal land managing agencies are required to “consult” –a legal term of art in Federal Indian Law–with federally recognized Indian Tribes prior to actions that involve the intentional removal or excavation of Native American human remains and other cultural items and according to the National Historic Preservation Act (“NHPA”) as it applies to historical properties. As defined by the United States Department of the Interior, “Consultation is built upon government-to-government exchange of information and promotes enhanced communication that emphasizes trust, respect, and shared responsibility.” Once again, mere consultation as a procedural mechanism is not sufficient – it must also amount to consent by consensus.

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The United Nations Declaration on the Rights of Indigenous Peoples recognizes that Free, Prior and Informed Consent (FPIC) is a pre-requisite for any activity that affects Indigenous ancestral lands, territories, or natural resources. FPIC recognizes:

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Indigenous peoples’ inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them based on the principle of informed consent. Procedurally, free, prior and informed consent requires processes that allow and support meaningful choices by Indigenous peoples about their development path.

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FPIC is intrinsically tied to the concept of self-determination, as explained by James Anaya, former United Nations Special Rapporteur on the Rights of Indigenous Peoples, that “human beings, individually and as groups, are equally entitled to be in control of their own destinies."(4) As such, the Corps and Department of State must obtain consent by consensus, and engage in meaningful, non-perfunctory Nation-to-Nation consultation that goes beyond simply “checking a box.”  Without doubt, the Corps and Department of State have failed to obtain consent by consensus and engage in adequate and meaningful Nation-to-Nation consultation with all affected Tribal Nations about Line 3. The Red Lake Band of Chippewa Indians and the White Earth Band of Ojibwe (Indigenous Nations) and organizations, Honor the Earth and Sierra Club have filed suit in federal district court opposing Line 3 construction and alleging, among other things, the Army Corps of Engineers’ failure to obtain free prior and informed consent from the tribes. Further, as stated in the Charter of the United Nations, Article 1 of the U.N. International Covenant on Economic, Social and Cultural Rights, self-determination is to be provided to “‘all peoples.’” Accordingly, Tribes must be afforded more than mere consultation.

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President Joe Biden has conveyed his commitment to Nation-to-Nation consultation with Tribal nations in a memorandum:

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It is a priority of my Administration to make respect for Tribal sovereignty and self-governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations, and regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy.  The United States has made solemn promises to Tribal Nations for more than two centuries.  Honoring those commitments is particularly vital now, as our Nation faces crises related to health, the economy, racial justice, and climate change—all of which disproportionately harm Native Americans.

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LINE 3 IS NOT IN THE NATIONAL INTEREST

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On February 5, 2021, 38 Minnesota state legislators sent a letter to President Biden asking him to cancel the permits for Line 3. They estimate the societal cost of this project is $287 billion. They wrote:

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We are requesting that your administration halt construction of the Line 3 pipeline, a massive tar sands oil project in Northern Minnesota that is effectively a KXL clone. Line 3 would be the same diameter as KXL and would carry the same heavy crude through the U.S. Midwest with the same motive of enabling further expansion of the Canadian tar sands industry, a move that would leave “no possible pathway to achieving the Paris goals.” (Climate On The Line report, OCI).

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VIOLENCE AGAINST INDIGENOUS WOMEN

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Oil-producing counties in North Dakota and Montana experienced a 70% increase in aggravated assault against indigenous women while non-oil-producing counties in those states experienced a corresponding decrease during the same time frame. More specifically, women in the oil-producing counties experienced a 54% increase in sexual assault, including heightened rates of sex trafficking of women and children and of missing and murdered Indigenous women. Increase in crimes against Indigenous women is due to the transient nature of the pipeline workers.

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CONCLUSION – SHUT DOWN LINE 3

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President Biden must immediately shut down Line 3, as was done with the Keystone XL pipeline. In both instances, oil would be brought from Alberta through the U.S. to foreign markets.   Enbridge, through its Line 3 project, will continue to cause irreparable harm, consistent with its previous record. President Biden must honor the treaties with the Minnesota Chippewa Tribe, rescind the Presidential Permit which has allowed this pipeline to bring oil across the U.S.-Canada border, and order the Corps to re-examine Line 3’s impact on the environment and climate change, and to recognize the overriding importance of environmental justice.