Worse Than Keystone

The pipeline project you’ve never heard of.

Winona LaDuke January 5, 2015

Ojibwe youth tend to a wild rice crop on Leech Lake reservation in Minnesota. An Enbridge pipeline cuts directly through the reservation. (Flickr / US Department of Agriculture)

This is land that has been in my fam­i­ly for decades. It is prime Red Riv­er Val­ley agri­cul­ture land. It was hand­ed down to me by my moth­er and father when they passed away, and I’m intend­ing to hand it down to my chil­dren when I pass away. Of course, if thou­sands of bar­rels of oil burst through this thing, that is the end of the fam­i­ly legacy. 

In short, we are talking about a lot of oil being moved by a company that has been cited for a slew of safety violations, including the largest inland oil spill in U.S. history

—James Bots­ford, whose land lies along the pro­posed route of Enbridge’s Sand­piper Pipeline Project

While the nation­al press has focused on the con­tro­ver­sy over TransCanada’s Key­stone XL pipeline, the Cana­di­an ener­gy giant Enbridge is plan­ning some­thing even big­ger. If the cor­po­ra­tion gets its way, it could soon be trans­port­ing near­ly 4 mil­lion bar­rels of oil every day — more than four times the amount piped by the pro­posed Key­stone XL — across the eco­log­i­cal­ly sen­si­tive Min­neso­ta Northwoods.

North­ern Min­neso­ta is becom­ing the super­high­way for oil,” says Paul Black­burn, an attor­ney for Minnesota’s branch of the nation­al cli­mate jus­tice group 350​.org.

Enbridge’s 50,000 miles of pipelines span the con­ti­nent, but the cor­po­ra­tion is plan­ning a mas­sive expan­sion in the Great Lakes basin. This scheme could prove dev­as­tat­ing to pub­lic and envi­ron­men­tal health, as well as the rights of the Anishi­naabeg peo­ple, who are enti­tled by fed­er­al treaties to use Minnesota’s nat­ur­al resources to main­tain their livelihoods.

The Enbridge Pipeline Sys­tem, some por­tions of which date back to 1950, trans­ports crude oil from pro­duc­tion facil­i­ties in the Athabas­ca oil sands of Alber­ta, Cana­da, to refiner­ies in the Unit­ed States and Ontario, Cana­da. Approx­i­mate­ly 2 mil­lion bar­rels of oil per day (bpd) are car­ried through a stretch of the pipeline net­work that extends from Gret­na, Man­i­to­ba, where it cross­es the bor­der, to a major junc­tion in Clear­brook, Min­neso­ta. From there, a small­er num­ber of pipelines con­tin­ue on to the sea­port of Supe­ri­or, Wis­con­sin, where the oil is final­ly shipped to refiner­ies through­out the Mid­west and East­ern Canada.

Enbridge is cur­rent­ly expand­ing two of the pipelines to Supe­ri­or in order to increase their car­ry­ing capac­i­ty. The com­pa­ny has also pro­posed con­struc­tion of an entire­ly new line: the $2.5 bil­lion, 600-mile-long Sand­piper Pipeline Project, which will car­ry light sweet crude oil — the most in-demand form of crude — from the Bakken shale in North Dako­ta to Lake Superior.

Let’s do some math. If both the expan­sions of Enbridge’s exist­ing pipelines and the con­struc­tion of the Sand­piper are com­plet­ed, an addi­tion­al vol­ume of oil exceed­ing 1 mil­lion bpd will soon be head­ed to Supe­ri­or, Wis­con­sin, home to the Calumet refinery.

Calumet has a capac­i­ty of just 45,000 bpd. Much of the crude oil will be piped on to larg­er refiner­ies in Sar­nia, Ontario. So, that means mov­ing more oil into an aging pipeline infra­struc­ture in the Great Lakes Basin, where many advo­cates believe that Enbridge’s pipelines des­per­ate­ly need updat­ing. Not to men­tion the oil that could be shipped on tankers through the Great Lakes, begin­ning with Gichi Gum­mi, as we Anishi­naabeg (also known as Ojib­we) call Lake Supe­ri­or. Gichi Gum­mi is unique in depth and puri­ty, and its water pret­ty much stays put. So one spill, and that’s not a good thing for the world’s largest fresh­wa­ter lake.

In short, we are talk­ing about a lot of oil being moved by a com­pa­ny that has been cit­ed for a slew of safe­ty vio­la­tions, includ­ing the largest inland oil spill in U.S. his­to­ry. In 2010, an Enbridge pipeline trans­port­ing heavy crude oil from the Athabas­ca tar sands burst open, spilling 20,000 bar­rels of oil into the Kala­ma­zoo Riv­er in Michi­gan. Enbridge had safe­ty sys­tems in place — advanced ones. Nev­er­the­less, the spill went on for 17 hours. A 2010 Pipeline Acci­dent Report from the Nation­al Trans­porta­tion Safe­ty Board not­ed, the inad­e­qua­cy of Enbridge’s facil­i­ty response plan to ensure ade­quate train­ing of the first respon­ders and suf­fi­cient emer­gency response resources allo­cat­ed to respond to a worst-case release.” (Enbridge spokesper­son Lor­raine Lit­tle tells In These Times that since the 2010 spill, the com­pa­ny has invest­ed more than $4 bil­lion in staff train­ing and increased main­te­nance and improve­ments of their pipelines and facilities).

Fol­low­ing the spill, the Pipeline and Haz­ardous Mate­ri­als Safe­ty Admin­is­tra­tion (PHM­SA) issued a sys­temwide cor­rec­tive action order against Enbridge for the num­ber of vio­la­tions the com­pa­ny had accrued. The prob­lem, how­ev­er, lay in enforc­ing that order: PHM­SA has about 120 inspec­tors respon­si­ble for 2.5 mil­lion miles of pipelines nationwide.

In ear­ly Octo­ber, Min­neso­ta state Sens. Steve Drib­ble and John Mar­ty, and state Reps. Frank Horn­stein and Jean Wage­nius, released a let­ter they had sent to the state’s Envi­ron­men­tal Qual­i­ty Board, which point­ed out: Enbridge and the pipeline indus­try were unwill­ing to agree to … deliv­er equip­ment to pro­tect sen­si­tive envi­ron­men­tal areas and drink­ing water intakes, with­in 60 hours of a major spill.”

Let’s do some more math. In the event of a cat­a­stroph­ic break in the Sand­piper line, Bakken crude oil would spill out at a rate of about 260 bar­rels a minute. In the 60 hours before Enbridge could deliv­er equip­ment to pro­tect sen­si­tive envi­ron­men­tal areas, more than 900,000 bar­rels of oil would gush out.

Some folks say that before mak­ing new pipelines, we should fix the old ones — such as the two 61-year-old Enbridge pipelines, joint­ly known as Line 5, that run for 4.6 miles under the Straits of Mack­i­naw in north­ern Lake Michi­gan, trans­port­ing more than 475,000 bar­rels of crude oil and nat­ur­al gas flu­ids each day from Supe­ri­or, Wis­con­sin, to a refin­ery in Sar­nia, Ontario. As a 2012 Nation­al Wildlife Fed­er­a­tion report observes, A sig­nif­i­cant rup­ture [of Line 5] would cause an Exxon-Valdez scale oil spill spread­ing through Lakes Huron and Michi­gan, the heart of the largest fresh­wa­ter seas in the world.”

Enbridge main­tains that a pipeline’s age does not nec­es­sar­i­ly mean that it is unsafe or must be replaced. If prop­er­ly con­struct­ed, main­tained and pro­tect­ed, pipelines should have extra­or­di­nar­i­ly long lives,” says Little.

The Enbridge way

Enbridge is an aggres­sive corporation.

John Bots­ford, a North Dako­ta farm own­er, learned that in Sep­tem­ber 2013, when Enbridge informed him that the com­pa­ny was seek­ing a tem­po­rary restrain­ing order against him. Bots­ford, who is also an attor­ney and a Supreme Court judge for the Win­neba­go Tribe of Nebras­ka, had tried to pre­vent Enbridge from sur­vey­ing his land for the Sandpiper’s pos­si­ble route. Bots­ford, who strong­ly oppos­es the pipeline’s con­struc­tion, believed that the sur­vey would be the camel’s nose under the tent.” He attempt­ed to refuse the com­pa­ny access to his farm.

To that, they basi­cal­ly said, We’re Enbridge, we don’t go around any­thing, we go through it,’ ” says Botsford.

Enbridge got its restrain­ing order, forc­ing Bots­ford to allow the com­pa­ny to com­plete the sur­vey. The pipeline’s route, Bots­ford believes, was basi­cal­ly already a done deal,” and he soon heard from the com­pa­ny again. This time, Enbridge want­ed Bots­ford to grant him an ease­ment — a legal right to use another’s prop­er­ty for a spe­cif­ic pur­pose, in this case the con­struc­tion and main­te­nance of a pipeline. After Bots­ford refused, twice, to sign an ease­ment agree­ment, the com­pa­ny filed a civ­il suit against him in June.

Enbridge is seek­ing to use the pow­er of emi­nent domain to gain access to Botsford’s land. The out­come of this David vs. Goliath bat­tle will be deter­mined by a jury tri­al that begins in May 2015.

I’ve told them that I’m not going to give them any­thing — they’ll have to take it,” says Botsford.

Sandpiper’s pro­posed route will require ease­ments from some 2,100 landown­ers. Enbridge’s Lit­tle tells In These Times that the com­pa­ny is com­mit­ted to work­ing coop­er­a­tive­ly with landown­ers and the com­mu­ni­ties in which we oper­ate.” She adds that 92 per­cent of landown­ers whose pri­vate prop­er­ty will be crossed have signed ease­ment agree­ments, and that more than 75 per­cent of the Sand­piper route fol­lows exist­ing infra­struc­ture or pipelines already in operation.

It’s pos­si­ble that the Key­stone rout­ing fias­co of Feb­ru­ary 2014 should give Enbridge some cause for con­cern. That’s when Nebras­ka Lan­cast­er Coun­ty Dis­trict Judge Stephanie Sta­cy declared uncon­sti­tu­tion­al a law that had giv­en Gov. Dave Heine­man the pow­er to push the project through pri­vate land. In an act of sol­i­dar­i­ty with his west­ern neigh­bors, Iowa state Sen. Rob Hogg (D) wrote in a let­ter to Rep. Bruce Bra­ley (D‑Iowa): The inter­ests in oil prof­its should not super­sede the rights of prop­er­ty own­ers. … It is not in America’s nation­al inter­ests to allow a for­eign oil com­pa­ny [like Key­stone XL’s Tran­sCana­da] to con­demn Amer­i­can farms and ranch­es to take for­eign oil to the Gulf Coast for sale on the glob­al market.”

Enbridge had ini­tial­ly hoped to begin con­struc­tion on the Sand­piper by 2015, but road­blocks in the reg­u­la­to­ry process — includ­ing dif­fi­cul­ty secur­ing the nec­es­sary per­mits in Min­neso­ta — have forced the com­pa­ny to delay by at least a year.

Nev­er­the­less, activists say that Enbridge is already mov­ing ahead with clear­ing land and stock­pil­ing mate­ri­als along the planned route. The pro­posed pipeline cross­es through a cor­ner of White Earth reser­va­tion that is dis­put­ed between the Ojib­we and the state of Min­neso­ta. Michael Dahl, an Anishi­naabe com­mu­ni­ty orga­niz­er who lives on the reser­va­tion, says he’s seen these activ­i­ties tak­ing place. Enbridge’s Lit­tle denies that the com­pa­ny has begun clear­ing land for the Sand­piper, or that the pipeline cross­es through White Earth reservation.

When treaties matter

Nimanoo­minike omaa. (I har­vest wild rice here.)

In fact, I har­vest wild rice on the Crow Wing Chain of Lakes, because it is abun­dant, and because it ripens ear­li­er than the manoomin on my own reser­va­tion of White Earth. That is how our peo­ple have been. We go to where the rice is, and that is not always on the reser­va­tion. Those are our reserved treaty, or usufruc­tu­ary,” rights.

Manoo­minikewag. (They are mak­ing wild rice.)

Long before Min­neso­ta became a state, the Ojib­we hunt­ed, fished and har­vest­ed wild rice in the North­woods. Wild rice is the food that grows on the water, and it is cen­tral to Anishi­naabe peo­ple and cul­ture, as well as the ecosys­tem. Wild rice is, well, sort of a gift. There is no cul­ti­va­tion, just a care for the lakes and a care­ful prayer.

When the Ojib­we and sev­er­al oth­er tribes ced­ed land to the Unit­ed States in what lat­er became Min­neso­ta, Wis­con­sin and Michi­gan, they retained rights to hunt, fish and gath­er on the lost lands. The Treaty of 1837 enshrines the usufruc­tu­ary rights of the Anishi­naabeg. In addi­tion to reser­va­tion rights estab­lished in lat­er treaties, we are enti­tled to con­tin­ue using all of the region’s lands to main­tain our liveli­hoods. Though usufruc­tu­ary rights have been reg­u­lar­ly vio­lat­ed by state gov­ern­ments — and occa­sion­al­ly chal­lenged out­right — a 1999 Supreme Court deci­sion reaf­firmed them. That may be news to Enbridge, whose pro­posed Sand­piper route cross­es 137 pub­lic lands, includ­ing Mis­sis­sip­pi Head­wa­ters State For­est, and 76 pub­lic water­ways. Many of those waters are cru­cial to the liveli­hoods of the Anishi­naabeg, and there­fore also pro­tect­ed through treaty rights.

For exam­ple, the pro­posed route of the Sand­piper cross­es the water­shed of Low­er Rice Lake — the largest wild rice bed on the White Earth reser­va­tion. After that, the line will cross more lakes, creeks and water­sheds, includ­ing those where tribes have worked to restore the stur­geon pop­u­la­tions and pro­tect wild rice. Imag­ine that one day you woke up and found out that a com­pa­ny wants to run a 30-inch pipeline car­ry­ing 375,000 bpd’s through your bur­ial grounds, sacred sites and med­i­c­i­nal plant har­vest­ing areas. And the com­pa­ny didn’t even both­er to tell you about it. While landown­ers whose prop­er­ty will be crossed by the pipeline received notice and were approached with ease­ment agree­ments, the Ojib­we were nev­er consulted.

In response, the Anishi­naabeg have launched a unit­ed push to reassert their treaty rights and insist that Enbridge can’t cross north­ern Min­neso­ta with­out nego­ti­at­ing the route with them. They think that by avoid­ing the reser­va­tion, they’re avoid­ing the lim­its of our juris­dic­tion and rights, but in actu­al­i­ty, those rights go bor­der to bor­der [in Min­neso­ta],” says Frank Bibeau, an attor­ney for Hon­or the Earth, a non­prof­it focused on indige­nous envi­ron­men­tal jus­tice, and a for­mer trib­al attor­ney for Leech Lake reser­va­tion, where he resides. (Full dis­clo­sure: I am the exec­u­tive direc­tor of Hon­or the Earth.) That’s what Bibeau and Hon­or the Earth have insist­ed before the state Pub­lic Util­i­ties Com­mis­sion (PUC), the agency respon­si­ble for rout­ing and per­mit­ting gas and oil pipelines. In a land­mark argu­ment, Bibeau and a co-coun­sel from the Inter­na­tion­al Human­i­tar­i­an Law Insti­tute chal­lenged the PUC’s author­i­ty to uni­lat­er­al­ly deter­mine the pipeline’s route in a May 2014 hear­ing before a Min­neso­ta admin­is­tra­tive law judge, assert­ing that treaty rights enti­tle tribes to a say in the process.

The judge, who is review­ing the pipeline project for the PUC, reject­ed the claim, but fur­ther chal­lenges in state and fed­er­al courts are like­ly. Mean­while, the orga­ni­za­tion is also mov­ing for­ward with a chal­lenge against anoth­er of Enbridge’s pipeline projects: the Alber­ta Clip­per Expan­sion Project.

The State Depart­ment is cur­rent­ly con­sid­er­ing a per­mit appli­ca­tion by Enbridge for an expan­sion project that would dou­ble the exist­ing pipeline’s capac­i­ty to trans­port tar sands crude from Alber­ta to Supe­ri­or. Sev­er­al envi­ron­men­tal groups learned in August 2014 that the State Depart­ment was allow­ing Enbridge to move ahead on a por­tion of the project with­out first requir­ing an envi­ron­men­tal impact study (EIS). In Novem­ber 2014, Hon­or the Earth, along with sev­er­al envi­ron­men­tal orga­ni­za­tions and the White Earth trib­al gov­ern­ment, brought a com­plaint against the State Depart­ment, charg­ing that it had vio­lat­ed fed­er­al law and that the pipeline’s expan­sion should be blocked pend­ing an EIS. The law­suit, Hon­or the Earth v. Ker­ry, was filed in fed­er­al court in Minnesota.

The suit was filed after com­mu­ni­ty mem­bers, includ­ing my fam­i­ly and I, spent two weeks on horse­back, rid­ing along the pro­posed route of the Sand­piper. That ride took us from the Rice Lake Nation­al Wildlife Refuge near the Mille Lacs reser­va­tion to Low­er Rice Lake on the White Earth reser­va­tion in Min­neso­ta. The fact that the Sand­piper pipeline would go very close to both of these lakes where wild rice grows explains why Anishi­naabe elders and spir­i­tu­al lead­ers instruct­ed our peo­ple to pray and ride these routes, while at the same time we filed fed­er­al law­suits and inter­vened in the state reg­u­la­to­ry process.

Sim­ply stat­ed, oil and water don’t mix well. And we live in the land of 10,000 lakes. The sig­nif­i­cance of this bat­tle can’t be over­stat­ed. A suc­cess­ful asser­tion of treaty rights could force the oil and gas indus­try to alter its entire process for rout­ing oil and gas pipelines — some­thing that Enbridge itself argued dur­ing the hear­ing before the PUC, notes Bibeau. Enbridge basi­cal­ly said, The whole indus­try is watch­ing this.’ If our rights were actu­al­ly rec­og­nized and tak­en into con­sid­er­a­tion, that could change the whole ball­game,” Bibeau says.

This legal bat­tle is tak­ing place along­side a grass­roots effort to edu­cate tribe mem­bers about their rights and how to assert them. Dahl, who is help­ing to push this effort for­ward, explains, We all know we have treaty rights, but now we’re real­ly push­ing to edu­cate our­selves — and the rest of colo­nial Amer­i­ca — about what those treaties real­ly mean.”

Got a plan?

Which brings us back to spills.

It’s almost cer­tain, quite frankly, that there will be spills — Enbridge had over 800 between 1999 and 2010. The way it works with pipelines is that the prof­it is at the begin­ning and at the end. In the mid­dle is a lot of risk. Some­one told me that pipelines are bet­ter than tankers. Then some­one else said, It’s like the choice of dri­ving the car with bad brakes, or dri­ving the car with bad steer­ing.” I’m tak­ing a Tes­la: advo­cat­ing that we need a long-term plan with­out fos­sil fuels. But for now, it seems that some North­ern­ers are going to have to raise their voic­es and chal­lenge a set of pipelines that no one real­ly wants.

Winona LaDuke is Anishi­naabe, a writer, an econ­o­mist and a hemp farmer, work­ing on a book about the Eighth Fire and the Green New Deal. She is ready for the Green Path, and would pre­fer not to spend her gold­en years clean­ing up the mess­es of enti­tled white men.LaDuke lives and works on the White Earth reser­va­tion in north­ern Min­neso­ta, where she found­ed the White Earth Land Recov­ery Project. She is pro­gram direc­tor of Hon­or the Earth and a two-time vice pres­i­den­tial can­di­date with Ralph Nad­er on the Green Par­ty ticket.
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