One of President Joe Biden’s first acts in office was to cancel the presidential permit for building the Keystone XL pipeline, which would have brought 850,000 barrels of extremely polluting tar sands oil per day across the border from Alberta, Canada. The pipeline would have connected with other pipelines carrying the oil through the Midwest to the Texas Gulf Coast for refining.
Exploitation of the tar sands has been passionately opposed by the indigenous residents of northern Alberta, where the industry is wreaking havoc on the ecosystem and their communities. Much less well known is another tar sands pipeline originating in Alberta, simply called “Line 3”. The developer, Enbridge, insists it doesn’t need a presidential permit because it secured one decades ago, while the company maintains Line 3 is just a replacement pipeline. Now under construction across the state of Minnesota, the pipeline passes through or near the reservations of three native tribes.
Between The Lines’ Melinda Tuhus spoke with Moneen Nasmith, a staff attorney with the public interest environmental law firm Earthjustice, representing the Red Lake band of Chippewas, the White Earth band of Ojibwe, the indigenous rights group Honor the Earth and the Sierra Club. Here, she talks about current efforts to shut down the Line 3 pipeline.
MONEEN NASMITH: The terms of Line 3’s cross-border permit – which is what was revoked for KXL because there was an existing project — there was a permit in 1991 that was entered into. However, the permit itself can be terminated at will by the secretary of state of the U.S. or the president, essentially. Also, there are provisions in that permit that raise questions about the extent to which Enbridge can modify the project as much as it has here. So, even though Enbridge is calling this a replacement pipeline, it in fact is a brand new project. What they’re building is an entirely new pipeline along an entirely new route. It’s much, much longer and it also is going to have about double the capacity of the existing line. So there is a real question mark that hasn’t gotten a lot of attention yet about whether or not the administration could rescind the same permit for Enbridge and Line 3 that it rescinded for KXL.
What more attention has been gathering is that there’s another way the Biden administration could pull the permits that are not the cross-border permit, but the Army Corps of Engineers – what allowed Enbridge to start constructing Line 3, quite recently in December – is the issuance of a series of permits, mostly under the Clean Water Act. And we have been representing two tribes and Honor the Earth as well as the Sierra Club, arguing already in court that those permits were granted illegally in November by the Trump administration. And this is actually a lot more analogous to another pipeline fight that has gotten a lot of attention, which is the Standing Rock Sioux fight against the Dakota Access pipeline.
But the law is very clear, that before issuing a permit under the Clean Water Act and an evaluation under the National Environmental Policy Act, or NEPA, that the Army Corps needed to look at the risk of spills from the pipeline and needed to look at how that risk of spills would affect local tribes and tribal resources. And they did neither here, in the Line 3. So, there is not only the KXL route that the Biden administration could have, but also, if they are going to take their obligations seriously under the environmental laws of this country. If they are going to take their obligations to the tribes seriously, they have to do a far better job of looking at, among other things, the risk of spills, climate change impacts of this project, and they have not done so, so there are regulatory provisions that the Army Corps has that would allow them to admit we didn’t look at the appropriate set of information in issuing these permits. These permits have to be rescinded and we have to go back and redo our analysis to include these very important pieces. And that gives them ample grounds to stop constructions and take the risks of this project seriously.
MELINDA TUHUS: Moneen Nasmith, we interviewed indigenous leader Winona LaDuke back in the fall about this fight, but fill us in on what’s happening on the ground right now?
MONEEN NASMITH: Enbridge is moving forward incredibly quickly with construction. They have cleared an incredible amount of trees – they’ve cut down large trees, small trees. They are actively digging and trenching and destroying wetlands. They are actively running incredible risks with respect to some very important cultural resources, and I think certainly there is real concern about the risk of Covid.
MELINDA TUHUS: Such unbelievable destruction, so even if the pipeline is stopped, the land and water have been permanently altered. And, of course, that also has a huge impact on the indigenous communities there. What’s happening on the fight in court right now?
MONEEN NASMITH: We filed our lawsuit on Christmas Eve, and despite the fact that the Army Corps didn’t give us all the documents that they used to make their decision, we moved as quickly as we could. And we also filed what’s called a motion for preliminary injunction that right now is in front of the judge. If we were to win that motion – and we’re obviously pointing to the irreparable harms that are being caused by things like cutting down these trees that will never grow back – that would, we would hope, stop pipeline construction while we have an opportunity to have our day in court. So that is fully briefed in front of the judge in the D.C. District Court and we hope to get a positive result there. If we don’t, we will obviously keep going and persist and try to move the case as quickly as possible. So in addition to calling on the Biden administration to do the right thing and at the very least admit that their analysis is so flawed that it needs to be redone, we are also hoping that we will prevail in court and stop construction and get the permits overturned.