Federal judge orders Enbridge to shut down Line 5 in three years, pay tribe $5 million ⋆

Enbridge Inc. must shut down its Line 5 pipeline within three years and pay more than $5 million in profits to the Chippewa Indians Bad River Band, a federal judge in Madison, Wisc., ruled Friday.

Judge William Conley reaffirmed his September 2022 ruling upholding the tribe’s claim that Enbridge has been trespassing on its land since the June 2013 expiration of an agreement that gave the energy company an easement where 12 miles of pipeline passes through tribal land.

“Enbridge has and continues to commit conscious and willful trespass by operating Line 5 on the Band’s 12 former-allotment parcels for which 20-year rights of way expired in June 2013, making an appropriate remedy necessary to address the violation of the Band’s sovereign rights and to take away what otherwise would be a strong incentive for Enbridge to act in the future exactly as it has here,” Conley wrote in his decision.

Conley also ruled that while the risk of pipeline rupture is not immediate, evidence from flooding events this spring and subsequent erosion made the prospect of a rupture “a real and unreasonable risk” in the next five years.

The pipeline is currently underground where it passes near a bend in the Bad River on the tribe’s reservation.

The Bad River Band sued Enbridge in July 2019 over the company’s continued operation through the reservation beyond the easement’s expiration six years earlier.

Line 5 map | Laina G. Stebbins graphic

The 60-foot-wide Line 5 runs from far Northwest Wisconsin 645 miles into Michigan’s Upper Peninsula, under the Straits of Mackinac and out into Canada near Detroit. It transports about 23 million gallons of crude oil and natural gas liquids daily.

Testimony at a May 18 hearing included evidence that in the last three weeks of April “there were three separate, significant flood events” on the river, Conley wrote in his ruling Friday.

While Line 5 remains buried and well supported more than 6 feet underground at the bend, or meander, “the flooding caused significant erosion on the riverbank at and near the meander, with 3 to 4 feet of riverbank being lost in a 40-to-50-hour period just south of the meander.”

Conley wrote that “the pipeline could be exposed in a single, significant flooding event,” creating the potential for a rupture that would pollute the watershed.

Enbridge has made remediation proposals for the area at risk, but the Bad River Band has authority delegated by the U.S. Environmental Protection Agency to administer federal and tribal water quality under the Clean Water Act, Conley observed in his ruling.

The company must pay the Bad River Band $5.15 million in damages that include disgorged profits for the period since the easement expired, Conley ruled, and to keep making payments to the tribe every quarter as long as it operates the pipeline.

The judge ordered Enbridge to implement a December 2022 monitoring and shutdown plan for the line and issued an injunction ordering the company to “cease operation of Line 5 on any parcel within the Band’s tribal territory on which [the company and its subsidiaries] lack a valid right of way and to arrange reasonable remediation at those sites within three years of the date of this order.”

This story first ran in the Advance‘s sister outlet, the Wisconsin Examiner.

authored by Erik Gunn
First published at https%3A%2F%2Fmichiganadvance.com%2F2023%2F06%2F19%2Ffederal-judge-orders-enbridge-to-shut-down-line-5-in-three-years-pay-tribe-5-million%2F

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