Judge: Groups didn't prove Line 3 construction could damage wetlands, streams

The Minnesota Pollution Control Agency has until Nov. 14 to make a decision on the water permit.

People holding signs during a protest
Opponents to the Line 3 oil pipeline replacement project demonstrate outside the governor's residence Aug. 18, 2020.
Christine T. Nguyen | MPR News/Christine T. Nguyen

By Jimmy Lovrien | Duluth News Tribune

An administrative law judge said opponents of Enbridge’s proposed Line 3 oil pipeline did not prove construction of the project would harm wetlands and streams.

In a non-binding recommendation issued Friday, Judge James LaFave said the coalition of environmental and tribal groups failed to meet the burden of proof in a contested-case hearing on the Minnesota Pollution Control Agency’s water permits over the summer and urged the MPCA commissioner to make the same finding when considering the 340-mile pipeline’s 401 certification, a permit awarded by a state's regulators if the project's impact on water falls within the state's standard. The MPCA’s decision is due Nov. 14.

“The Joint Petitioners’ challenge brought additional transparency and insight to this important process,” LaFave wrote. “At the same time, agencies charged with scrutinizing the plans and proposals submitted by Enbridge are experts in their fields ...The Joint Petitioners bear the burden of proving, by a preponderance of the evidence, that the facts forming the basis for the MPCA’s decisions in the five issues under consideration are erroneous. The Joint Petitioners have not met that burden.”

The report followed a contested-case hearing ordered by MPCA Commissioner Laura Bishop in June after more than 20 comments on a draft permit called for such a hearing, which put the issues in front of an administrative law judge to examine additional evidence and testimony and then make a recommendation to the agency.

The MPCA has until Nov. 14 to make a decision on the permit under the Clean Water Act. At that point, the permit will be sent to the U.S. Army Corps of Engineers for a final approval to make sure it meets Section 404 of the Clean Water Act.

In a statement, MPCA spokesperson Darin Broton said the contested-case hearing “was an important opportunity to ensure the recommended water crossing methods protected all impacted streams and wetlands” and that the judge’s findings would be considered in the agency’s decision.

Broton did not say whether it would issue, deny or waive its authority to issue the certification.

Friday’s recommendation was welcome news for Enbridge, which has completed and put into service 650 miles of Line 3 in Canada, 13 miles in Wisconsin and is “largely complete” with the 12-mile segment through the northeast corner of North Dakota, leaving only the Minnesota segment remaining.

Once complete, the pipeline will replace the existing, aging Line 3 and ferry 760,000 barrels of oil (31.92 million gallons) per day from Alberta, Canada, to Enbridge's terminal in Superior, following a new route through much of northern Minnesota.

“We are extremely pleased that the Administrative Law Judge report was positive on all counts and clears the way for the permitting decision,” Julie Kellner, an Enbridge spokesperson, said in a statement. “The (administrative law judge’s) report confirms that Enbridge and the Minnesota Pollution Control Agency have identified the best and most prudent method for each stream crossing, identified and counted the full acreage of wetlands, and correctly determined the best protections for wetlands and waterbodies.”

But the recommendation was unwelcome news to opponents of the project.

Environmental group Friends of the Headwaters said in a statement it was “disappointed that the judge simply rejected the evidence that river, stream, and wetland crossings for a pipeline of this size can cause permanent damage to waterbodies that extends well beyond the narrow boundaries of the pipeline trench itself.”

Other groups urged the MPCA not to take the judge’s recommendations and deny the certification.

The contested-case hearing considered the following questions, which were raised by Friends of the Headwaters, Sierra Club, Honor the Earth, White Earth Band of Ojibwe and the Red Lake Band of Chippewa Indians in a joint petition but could not be proven by the groups in the hearing:

  • Does Enbridge's proposed use of trench methods for stream crossings have temporary or permanent impacts on water quality parameters of concern?

  • Have Enbridge and the MPCA identified the least-degrading crossing method that is prudent and feasible for each stream crossing?

  • Have Enbridge and the MPCA undercounted the full acreage of the project's wetland impacts due to flaws in wetland delineation and survey methodologies related to the seasonality of delineation activities?

  • Have Enbridge and the MPCA undercounted the full acreage of wetlands that are physically altered by trenching?

  • Have Enbridge and the MPCA incorrectly determined that the impacts to wetlands that are physically altered by trenching are temporary?

In addition to permitting from the MPCA and Army Corps, the project must navigate other hurdles before construction can begin on the Minnesota segment, including an appeal by Gov. Tim Walz’s administration that argues state regulators relied on the wrong demand forecast when considering if the state needed the pipeline.

This reporting is by the Duluth News Tribune. Click here to read it on their website.