Court gives Enbridge 3 years to reroute part of Line 5 pipeline in Wisconsin

July 3, 2023

A federal judge in Wisconsin has given Enbridge Inc. 3 years to reroute its Line 5 oil pipeline off an Indian tribe’s territory or shut it down while expressing his doubt that a reroute can be accomplished in that time. The judge also ordered Enbridge to pay $5.15 million to the tribe and to pay additional amounts going forward until the line is off the tribe’s land.

The opinion and order by Judge William Conley of the US District Court for the Western District of Wisconsin was issued June 16 based in part on his decision Sept. 7 that Enbridge has been trespassing on 12 miles of the tribe’s land since a contract with the tribe expired in 2013. That September ruling had left open the question of what remedies the court would order for the trespass.

Enbridge, which has contended it is not trespassing, has said it will appeal the ruling. The case is Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Energy Co. Inc.

The Bad River Band wanted the pipeline shut down immediately, but the tribe refused to agree to any form of mitigation that Enbridge proposed to reduce the risk of a spill. That refusal led the judge to conclude that the tribe’s own stance indicated the threat of a pipeline rupture is not so imminent as to require immediate shutdown.

Line 5, a 30-in. OD line that has operated for about 70 years, carries about 540,000 b/d of crude oil and propane. Running from Superior, Wish., to Sarnia, Ont., it serves 10 refineries to varying degrees, in Michigan, Ohio, Pennsylvania, Ontario, and Quebec, according to the operator.

Reroute prospects

Enbridge has proposed that it build a 41-mile new segment to get around the edge of the Indian tribe’s reservation in northern Wisconsin. The Bad River Band opposes that, too, because the tribe does not want the pipeline in the Bad River watershed.

In its June 16 ruling, the federal district court looked at the reroute plan and said Enbridge had “obtained easements for all of the necessary rights-of-way for the project; hired a general contractor for the project; drafted construction schedules; and spent $86 million purchasing materials for the project. Enbridge also has applied for, though not yet obtained, permits needed for the project from the Wisconsin Department of Natural Resources and Army Corps of Engineers.”

The judge then noted opposition to the new route from the Bad River Band, affected landowners along the route, “various governmental bodies, and numerous environmental groups.” The various governmental bodies include the National Park Service and the US Environmental Protection Agency, the judge said.

Enbridge has said it could get the reroute done in 5 years, though the judge said even that sounded optimistic, given the organized opposition to it.

“Nevertheless, the court will give Enbridge an additional 3 years to complete a reroute,” Judge Conley said. “If Enbridge fails to do so, the 3 years will at least give the public and other affected market players time to adjust to a permanent closure of Line 5. It will also give Enbridge sufficient time to appeal this court’s injunctive order.”