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Politics and precedent seen in pipeline fight

Frank Bibeau, left, an attorney with Honor the Earth, says the fight over the pipeline is unlikely to wane, even if the PUC approves Enbridge’s preferred route. “I think we’re going to find out that people love water more than oil,” he said. (AP file photo)

Frank Bibeau, left, an attorney with Honor the Earth, says the fight over the pipeline is unlikely to wane, even if the PUC approves Enbridge’s preferred route. “I think we’re going to find out that people love water more than oil,” he said. (AP file photo)

In an echo of the long-running controversy over plans to mine copper and nickel on the edge of the Boundary Waters, a dispute over the routing of a proposed oil pipeline across northern Minnesota has started to take on the tone of a political brawl.

In a 3-2 vote earlier this month, the Public Utilities Commission gave a boost to opponents — a coalition of environmentalists, lake associations, and Native American activists — and ordered a review of six alternatives to Enbridge Energy’s preferred route for the Sandpiper Pipeline.

The decision, which both foes and supporters characterized as a significant break from the PUC’s past practices, throws a wrench into the timeline for the $2.6 billion project.

The route for the proposed pipeline, which would transport approximately 225,000 barrels of light crude oil a day from the Bakken oil fields in North Dakota to a refinery in Superior, Wisconsin, stretches across northern Minnesota from border to border.

Enbridge has already acquired easements from many property owners along the route and earlier this summer secured approval from regulators in North Dakota. The company hoped to begin construction on the Sandpiper this winter, but that timetable — and the 2016 completion date — now seems unlikely.

The PUC decision was decried by Republican critics of Gov. Mark Dayton, who pointedly noted that the three commissioners who voted in favor of the additional review are all Dayton appointees.

Rep. Pat Garofalo, R-Farmington, a leading energy policy expert in the House GOP caucus, tweeted his take shortly after the PUC decision, explicitly linking the pipeline decision to the fate of the better-known Polymet copper mining project. “Time 2 be honest, [liberals] will never approve Polymet,” Garofalo tweeted.

“This is a solution that puts more citizens at risk, causes more pollution and costs Minnesotans jobs,” said Garofalo. He characterized the Sandpiper opposition “as a small but vocal minority.”

Pipeline proponents like Garofalo argue that the delay will lead to continued reliance on railroads to ship oil, which poses a greater risk to human safety and the environment.  Garofalo noted that oil tankers from the Bakken are already clogging freight lines, leading to increased shipping costs for grain and other commodities.

Garofalo characterized the PUC-ordered review as “a significant departure” from past protocols.

“I’m not aware of another case in recent memory where that has happened,” he said. Even if Enbridge’s preferred route is ultimately approved, he added, the review will delay construction by as much as two years.

Kathryn Hoffman, an attorney with the Minnesota Center for Environmental Advocacy who has worked on other pipeline-related issues but not the Sandpiper, called the PUC’s order “a big deal.”

“It’s an acknowledgment that there needs to be a more expansive environmental review than the minimum required under the rules,” said Hoffman. “Historically, the PUC has not questioned pipeline routes.”

In a statement, Keith Downey, the chairman of the Republican Party of Minnesota, laid the blame for the delay squarely on Dayton, asserting that the governor was bowing to “environmental extremists.”

For his part, Dayton — who signed new railroad safety regulations last session following high profile accidents involving oil trains in Canada and North Dakota — said last week that he regrets the delays but that it’s necessary to consider alternative routes.

In the view of Rep. John Persell, DFL-Bemidji, the criticisms from across the aisle amount to little more than election season posturing.

“Quite frankly, I think they’re trying to make hay out of crab grass,” said Persell. “This is just some good planning and forward thinking and the PUC is doing the right thing here. Our agencies and the governor are pointing us in the right direction.”

The Department of Natural Resources and the Minnesota Pollution Control Agency have both urged the PUC to consider alternative routes. In an August letter to the PUC, the DNR noted that Enbridge’s preferred route runs through a region with “a concentration of important lakes for fisheries, trout streams [and] sensitive aquifers.”

In his north central Minnesota district, Persell said, there is scant support for routing the pipeline through the Mississippi Headwaters region, even among those constituents who favor a new pipeline. “There are likely much better routes along major transportation corridors,” said Persell.

But Persell said he also disagrees with those who oppose any expansion of pipeline system because they want to curtail the use of fossil fuels. “That’s not a real choice. I support renewable energy as much as anyone on the planet, but we’re going to need petroleum products for the foreseeable future,” he said.

Sandpiper foes invoke Enbridge’s past history of pipeline spills, including the company’s 2010 spill on the Kalamazoo River in Michigan. Ongoing cleanup costs for that spill, said to be the largest inland oil spill in the U.S. history, have exceeded $1 billion.

Frank Bibeau, an attorney with Honor the Earth, the Native American environmental activist group led by former Green Party vice presidential candidate Winona LaDuke, said the fight over the Sandpiper is unlikely to wane, even if the PUC ultimately grants Enbridge a permit to build along its preferred route.

If that happens, Bibeau said, a legal challenge is inevitable. While many property owners and others have tried in vain to stop similar projects, he said, Indian treaty rights could provide a more fruitful avenue of attack.

He noted that Embridge initially hoped to run the new pipeline adjacent to an existing pipeline that runs parallel to U.S. Highway 2 but was stymied because of objections from the Leech Lake Band of Ojibwe, which refused to allow an additional pipeline on reservation land.

While Enbridge’s preferred route does not pass through any existing reservation boundaries, Bibeau said there may be a legal toehold based on the 19th century treaties that guarantee the Ojibwe the right to hunt, fish, and harvest wild rice in large swaths of land along the route. The U.S. Supreme Court upheld those off-reservation treaty rights in 1999 ruling over tribal fishing on Lake Mille Lacs.

“Without divulging too much legal strategy, my preference would be to take it to the White Earth Tribal Court and make them come to our place and play by our rules,” said Bibeau.

Bibeau expressed optimism about the long term prospects for the opposition.

“I think we’re going to find out that people love water more than oil,” he said.


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