The Minnesota Court of Appeals has upheld the Minnesota Pollution Control Agency’s water quality certification of the Enbridge Line 3 pipeline replacement.

The MPCA’s decision to issue a section 401 certification for the project under the federal Clean Water Act was challenged on appeal by the Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe, Sierra Club, Honor the Earth and Friends of the Headwaters.

According to an opinion published on Monday, Aug. 30, the groups argued that the MPCA failed to consider alternative routes for the pipeline, improperly determined the project would comply with state water-quality and wetland standards, improperly limited the scope of its section 401 authority to discharges and construction impacts and improperly shifted the burden of proof to the groups challenging their decision.

The opinion declared the appeal moot in view of the U.S. Army Corps of Engineers’ section 404 certification for the project, noting that reversing the section 401 certification will not affect the project’s permit. The court also held that the MPCA did not err in its decision.

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Enbridge response

In a statement released Monday, Enbridge called the decision an important affirmation that wetlands and water bodies are being appropriately protected during the project.

“Replacing existing Line 3 is about safety and maintenance,” the statement said. “Upgrading an aging line with new pipe made of thicker steel with technologically advance coatings will better protect Minnesota’s environment for generations to come.”

The statement said the project team is focused on protecting, conserving and reusing water, including water used to test sections of pipeline. The construction permits set specific conditions to protect wild rice waters, the statement said.

The project is nearly complete in Minnesota and is expected to be in service in the fourth quarter of 2021, the statement said.

Alternate views

Advocacy groups opposing the Line 3 project also responded to the court’s opinion.

A statement released Monday by Honor the Earth quotes attorney Paul Blackburn as saying, “Once again the courts have failed the Anishinaabe and its treaties, the people of Minnesota and the protection of our mutually shared natural resources.”

Blackburn added, “We will continue to press our case in tribal court whenever appropriate, and continue to resist the operation of Line 3 for the good of the state and the planet at a time of growing climate turmoil.”

A Monday statement from Friends of the Headwaters said the MPCA admitted the construction of Line 3 would mean the “degradation of high quality waters is unavoidable.”

The statement claimed that by deferring to the Public Utilities Commission, the MPCA neglected their obligations under the Minnesota Environmental Protection Act and ignored their responsibility for 200 water bodies and more than 800 protected wetlands.

“We are disappointed that the Minnesota Court of Appeals has deferred to the MPCA’s bad decision in granting the 40a permit to Enbridge,” the statement concluded. “Friends of the Headwaters will continue to devise thoughtful legal strategies to make state and federal agencies more accountable for their decisions around pipelines.”