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Three lawsuits filed against Minnesota Public Utilities Commission

On August 7, Ojibwe tribal governments and environmental groups filed three separate lawsuits against the Minnesota Public Utilities Commission (PUC), challenging the Environmental Impact Statement (EIS) prepared for the proposed new Line 3 pipeline.

All three lawsuits ask the Minnesota Court of Appeals to overturn the PUC’s May 2018 decision that found the EIS “adequate.”

Two of the appeals were filed by non-profit organizations: Honor the Earth , based on the White Earth Reservation, and Friends of the Headwaters, the local citizen's group in Park Rapids, that successfully appealed the PUC’s approval of the Sandpiper pipeline in 2015. The third was a joint filing by four tribal governments: the Fond du Lac, Mille Lacs, Red Lake, and White Earth Bands of Ojibwe.

The lawsuits outline a long list of deficiencies in the EIS and argue that these shortcomings, both procedural and substantive, constitute violations of the Minnesota Environmental Policy Act (MEPA). These lawsuits are the first opportunity for legal intervention into the PUC's decision.

“The EIS is long, but it is shallow, and was written to support approval of Line 3,” says Winona LaDuke, executive director of Honor the Earth. “The EIS simply failed to take a realistic look at the costs of Line 3 to all Minnesotans, the Anishinaabeg and the world we live in, and will make for future generations”.

Friends of the Headwaters (FOH) filed appeal documents with the Minnesota Court of Appeals on Aug 8. The all-volunteer organization represents citizens and lake associations concerned for the legacy and quality of the Mississippi Headwaters and northern Minnesota's lake country.

FOH President Richard Smith said, "With regard to Enbridge's proposed Line 3, nothing is over. Friends of the Headwaters contends that the seriously flawed Environmental Impact Statement (EIS) should not have been decreed 'adequate.' As the organization that won the Court of Appeals unanimous decision requiring an EIS on oil pipelines, we don't think the final EIS was conducted in accord with environmental law and feel an obligation to challenge the Public Utilities Commission's adequacy ruling."

According to their press release, some of FOH's concerns about final EIS (FEIS) are as follows:

1.The FEIS does not analyze the site-specific impacts of potential oil spills along any of the routes, and does not use generally accepted oil spill risk assessment methodologies.

2.The FEIS limits its consideration to a single 760,000 barrel per day pipeline, and does not consider the potential cumulative effects of opening up a new crude oil pipeline corridor in central Minnesota.

3.The FEIS does not consider likely "phased" or "connected" pipeline expansions in Wisconsin and Illinois to accommodate the additional oil carried by the new Line 3.

4.The FEIS does not include the results of a tribal cultural survey that is not yet completed for Enbridge's preferred route, and makes no effort at all to survey cultural resource impacts on any alternative routes.

5.The FEIS claims the net climate impact of any new pipeline will be zero based on the discredited industry argument that "the oil will just find its way to market some other way."

6.Only the draft EIS was available to the parties before the commencement of the certificate of need and route permit proceedings, and so the FEIS could not serve its statutory purpose of informing those proceedings.

Tribal issues with the PUC decision are that it does not include tribal consultation data within the EIS, does not adequately analyze impacts to treaty-protected tribal resources, including the potential impact of oil spills on such resources, does not include the results of a tribal cultural properties survey that is not yet completed for Enbridge’s preferred route, and lacks any assessments for the new route options ordered.

The Court of Appeals will now review the three initial filings and the PUC’s records for the case, and decide whether or not to hear oral argument from the attorneys. The process could take months, according to an Honor the Earth press release. In the meantime, additional regulatory reviews are underway. Enbridge plans to begin construction later this year, with a completion by the winter of 2019.

The groups that filed appeals could ask the Court for an injunction that would prohibit construction while the case is being heard. It is unclear if such a request would be granted.

In addition to these lawsuits contesting the adequacy of the EIS, separate lawsuits could be filed against the PUC challenging their approval of the permits. No such plans have been announced yet.