A U.S. judge has ruled ■ Enbridge can continue to operate on an Indigenous band’s territory in Wisconsin, but only until June 2026.

Firm still hoping to avoid shutdown before pipeline gets rerouted around Indigenous land

This article was written by James McCarten and was published in the Toronto Star on June 27, 2023.

The controversial Line 5 pipeline can keep moving fossil fuels through an Indigenous band’s territory in Wisconsin for now, but operations on that property “must cease” on June 16, 2026, a U.S. judge says.

Calgary-based Enbridge Energy Inc., the pipeline’s owner, had asked Wisconsin district court Judge William Conley to clarify his order this month giving the company just three years to relocate that section of the pipeline.

Enbridge plans to build a 66-kilometre detour around the sovereign territory of the Bad River Band of the Lake Superior Chippewa to replace the contested 19-kilometre stretch that runs directly through it. And court documents filed on Friday suggest the energy transmission giant had been hoping for assurances that Line 5 would not be shut down entirely in the event that the detour isn’t completed in time.

The answer they got Monday was unequivocal. “Enbridge seeks confirmation that it can continue to operate Line 5 in the normal course of business for three years from the date of judgment on the parcels for which it lacks a valid right of way,” Conley wrote. “Enbridge’s understanding is generally accurate,” he continued, provided the parcels in question were part of the lawsuit and that the company abides by the order to share the profits with the band. However, as just noted, operation of Line 5 on those parcels must cease on June 16, 2026.”

Enbridge says the reroute’s timing depends on approval decisions from the Wisconsin Department of Natural Resources and the U.S. Army Corps of Engineers, expected in 2025. Relocating the pipe is expected to take about a year.

But the three-year window — which opened 10 days ago, Conley confirmed — may still be too narrow for the company’s comfort, judging from the arguments its lawyers made in its court filing Friday.

“Enbridge respectfully maintains it has presented legal authority to delay any injunction until the reroute is operational, thereby avoiding any loss of service and resulting substantial harm to the public,” that document says. “The court has the authority not to issue, or to stay, any injunction order to coincide with the reroute becoming operational to ensure that the public interest remains protected from substantial adverse consequences.”

The Bad River band has been fighting Enbridge in court since 2019, saying the company lost permission to operate on the reservation in 2013. Conley agreed; Enbridge insists a 1992 agreement with the band allowed it to keep operating.

But the judge has long been wary of an immediate shutdown, citing the risk of dire economic consequences, lingering fuel shortages in the Midwest, Ontario and Quebec and a lasting scar on Canada-U.S. relations.

So while he found that a rupture on Bad River territory would “unquestionably” meet the definition of a public nuisance under federal law, Conley gave Enbridge a threeyear deadline and ordered it to share Line 5’s profit with the band, starting with a $5.1-million (U.S.) back payment. The order left both sides unsatisfied.

Three years is too long to wait, given the risk of a spill in a key Lake Superior watershed, and the financial penalty too modest to prevent Indigenous sovereignty from being further violated in the future, the band’s lawyers say.

And Enbridge said it disputes Conley’s finding that the company is trespassing and that it intends to appeal the decision and may also seek a stay of the order pending that appeal.

Talks between Canada and the U.S. have been going on for months under the terms of the Pipeline Transit Treaty, a 1977 agreement that effectively prohibits either side from unilaterally closing off the flow of hydrocarbons.

Enbridge says the reroute’s timing depends on approval decisions from the Wisconsin Department of Natural Resources and the U.S. Army Corps of Engineers, expected in 2025

Author: Ray Nakano

Ray is a retired, third generation Japanese Canadian born and raised in Hamilton, Ontario. He resides in Toronto where he worked for the Ontario Government for 28 years. Ray was ordained by Thich Nhat Hanh in 2011 and practises in the Plum Village tradition, supporting sanghas in their mindfulness practice. Ray is very concerned about our climate crisis. He has been actively involved with the ClimateFast group (https://climatefast.ca) for the past 5 years. He works to bring awareness of our climate crisis to others and motivate them to take action. He has created the myclimatechange.home.blog website, for tracking climate-related news articles, reports, and organizations. He has created mobilizecanada.ca to focus on what you can do to address the climate crisis. He is always looking for opportunities to reach out to communities, politicians, and governments to communicate about our climate crisis and what we need to do. He says: “Our world is in dire straits. We have to bend the curve on our heat-trapping pollutants in the next few years if we hope to avoid the most serious impacts of human-caused global warming. Doing nothing is not an option. We must do everything we can to create a livable future for our children, our grandchildren, and all future generations.”