Posted on by Hot Potato

Line 3 Hot Potato: Permit Process Failure and what we can do about it.

This video follows the broken process of Enbridge’s Line 3 tar sands oil pipeline in northern Minnesota. The issue and permitting of Line 3 has been a “hot potato” between Enbridge and different federal and state regulatory agencies. A flowchart and sources for all the facts cited in the video can be found below our statement of solidarity.

Despite massive public opposition to the project, Enbridge started construction in late 2020. To support the fight against Line 3, please share and follow the organizations through this link tree: https://linktr.ee/stopline3​, sign up to be involved and support the movement in many ways (near and far!): http://bit.ly/2NWQdxs

We are organized around the principle that science is a set of tools that can and should be used to advance human and environmental justice, rather than corporate profiteering resulting in ecocide and genocide. Acting on this principle has brought us into the Line 3 struggle and the fight for Missing and Murdered Indigenous Relatives, where powerful state institutions and actors use the veneer of science to shield themselves from accountability, while failing to take action consistent with what we know about the science of climate, land, and water. Governor Walz justifies his lack of action by saying he’ll listen to “science and the data” — and the Science for the People-Twin Cities Chapter is committed to demonstrating that the science and data clearly show we must reject Line 3. We recognize that the coordination of scientific research to support the movement against Line 3 does not add new information about the devastating impacts of this pipeline, but instead supports and upholds the knowledge held by the original caretakers and stewards of this land, the Dakota and Anishinaabe peoples. Our focus is to articulate the failures of the regulatory process, use our expertise to support legal challenges to permits, coordinate with and support community organizations, and participate in direct action and protest.

Black arrow = pushing off responsibility to another entity. Red arrow = putting constraints on another entity.

Walz

  1. Governor Walz is at the center of this game of hot potato, but he rarely took any responsibility for this disastrous pipeline, making weak statements, and going back on his promises. He left it to the State Agencies to make strong statements on it, yet he is ultimately responsible for the actions of all Executive Branch State Agencies. He didn’t, and still doesn’t listen to his Lieutenant Governor, Peggy Flanagan, who has consistently opposed Line 3. He voted for KXL as a Congressman.
  2. Walz appointed a former corporate executive, Laura Bishop, to lead the MPCA.
  3. Walz appointed multiple Commissioners to the PUC who have voted in support of Line 3. Commissioner Sullivan previously supported Line 3 back when he was Deputy Commissioner at the DOC.
  4. Governor Walz could have appointed a new Commissioner to follow in Steve Kelley’s footsteps, or instructed the Acting Commissioner to maintain the DOC’s lawsuit regarding Line 3. Instead he continued the trend of undermining the DOC’s decision making.

DEED

  1. The Trump Administration designated pipeline workers as essential during the pandemic. Governor Walz via the MN Department of Employment and Economic Development (DEED) chose to go along with this instead of maintaining the previous policy for Minnesota..

MDH

  1. The Minnesota Department of Health (MDH) in issuing their COVID-19 guidelines cited DEED/Walz’s previous decision to designate pipelines as essential. Consequently, Enbridge’s compliance plan is inadequate.

MPCA

  1. The Minnesota Pollution Control Agency (MPCA) in part cited the previous decision from the PUC as justification for approving the Line 3 permits.
  2. The MPCA also inhibited the judicial branch from robustly evaluating the contested case hearing.
  3. The Trump Administration relaxed environmental regulations and reporting during the pandemic. The MPCA chose to follow this lead, instead of diverging from them. MPCA Commissioner Kessler in December 2021 blamed the “crappy” Clean Air Act and Clean Water Act for not being able to deny permits for Line 3.

PUC

  1. The Minnesota Public Utilities Commission (PUC) cited that the main reason for granting the Line 3 Certificate of Need was the fact that the existing Line 3 is degraded, and vulnerable to polluting the environment. This reason is clearly within the realm of concern of PHMSA, the MPCA, perhaps the DNR, and something that shouldn’t have been allowed to happen in the first place.
  2. The PUC also claimed they were prevented from ordering the existing Line 3 to shut down due to current Minnesota laws (which are obviously set by the State Legislature, and the Governor), and federal laws, that authorize PHMSA as the regulator over pipeline safety.
  3. The PUC also punted the decision on whether to grant a stay of construction over to the courts.
  4. The PUC said they couldn’t grant a stay on construction because going against Walz/MDH’s COVID-19 Emergency Orders would be “treasonous.”

DOC

  1. The Minnesota Department of Commerce (DOC), is a party to many PUC cases. Under the strong leadership of Commissioner Steve Kelley, they filed a lawsuit against the PUC’s approval of Line 3, due to lack of proof of demand for the pipeline and its oil. After his departure, the DOC declined to take a position on the request to the PUC for stay of construction on Line 3.

AG

  1. MN Attorney General Keith Ellison represented the DOC in their lawsuit against the PUC, however he signed the letter that took a stance of neutrality on the request for stay of Construction on Line 3. He chose not to file an injunction in the Courts.

Legislature

  1. DOC Commissioner Kelley was fired by the MN State Senate, in large part due to the lawsuit regarding Line 3. Every Senator that voted against him was a Republican or a former Democrat-turned-Independent.
  2. The DOC’s Division of Energy Resources and the PUC have also historically been underfunded / understaffed in recent years – this can largely be attributed to the MN Legislature.
  3. Meanwhile, the Office of Legislative Auditors found in their report on the PUC and Public Engagement that the PUC had violated the law in their process. (Summary Report).

Federal

  1. The US EPA implemented a rule that limited States (MPCA) from denying 401 permits for reasons other than water quality and imposed a 1 year deadline for decision. Note: The Executive Order on Climate Change signed by President Biden in the first days of his administration removed much of the fossil fuel-favoring policies of the previous administration. This revealed that the MPCA was too passive in following the Trump administration’s lead in recent months.
  2. The Consent Decree issued by the Federal Government to Enbridge required them to seek a replacement pipeline for their Line 3. While Enbridge has not stopped the PUC from believing they must order replacement of their Line 3 pipeline for safety reasons, that decision is not actually within their jurisdiction (as that is the sole authority of the pipeline company as regulated by PHMSA). The Consent Decree orders that Enbridge run their pipeline at the reduced pressure until they can secure (through permitting with all proper reviews and analyses) a replacement. Else, they were required beginning in 2017 to perform much more stringent inspections in order to continue running current Line 3 (which reduces their carrying capacity even further as inspections require downtime).

DNR

21. Commissioner Strommen cited the PUC’s granting of a Certificate of Need, and the MPCA water permit as why they couldn’t deny Enbridge’s permits.

22. Commissioner Strommen cited a lack of new legislation as why they couldn’t deny the permits.