Minnesota appeals court affirms state water quality permit for Enbridge's Line 3

The Minnesota Court of Appeals has upheld a state water quality and wetland permit for the construction of Enbridge's Line 3, another legal blow to pipeline opponents.

Two Ojibwe bands and three environmental groups had challenged the "401" permit issued in November by the Minnesota Pollution Control Agency (MPCA), saying the agency committed legal errors on several fronts.

A three-judge panel of the appellate court disagreed, saying in a ruling Monday: "We conclude that the MPCA's section 401 certification is not affected by legal error and is supported by substantial evidence in the record."

The appeal was filed by the Red Lake and White Earth bands of Ojibwe; Honor the Earth, an indigenous environmental group; and Friends of the Headwaters and the Sierra Club, two environmental organizations.

They say the MPCA was neglecting its obligations under the Minnesota Environmental Protection Act. The pipeline will cross 212 streams and affect more than 700 acres of wetlands in Minnesota,

"We are disappointed that the Minnesota Court of Appeals has deferred to the MPCA's bad decision in granting the 401 permit to Enbridge," Scott Strand, an attorney for Friends of the Headwaters said in a statement.

Enbridge, in a statement, said the court's decision "is an important affirmation of the Minnesota Pollution Control Agency's approval for Line 3's 401 Certification, confirming that wetlands and waterbodies are being appropriately protected during construction."

Monday's ruling is the latest legal setback for opponents of the controversial Line 3, which will transport a particularly heavy crude from Canada to Enbridge's terminal in Superior, Wis. Enbridge has completed more than the 90 % of the 340-mile pipeline across Minnesota.

Last week, the Minnesota Supreme Court rejected a petition by pipeline opponents that sought to overturn a June decision by the Minnesota Court of Appeals.

The appellate court — by a 2-1 vote — upheld the Minnesota Public Utilities Commission's (PUC) 2020 final approval of the pipeline that will replace Enbridge's current Line 3, which is corroding and can operate at only 51 % capacity.

In November, the MPCA said it issued its "most stringent" water-quality permit ever for the Line 3 project, and that Enbridge must do "extensive" mitigation of streams and wetlands that it disturbs, the agency said.

Line 3 opponents countered that the MPCA improperly limited the scope of its own authority over Line 3; erred in determining the new pipeline would comply with state water quality and wetland standards; and failed to consider alternative routes for Line 3.

The appellate court rejected all of those claims, and noted that the Minnesota Public Utilities Commission, not the MPCA, has jurisdiction over route alternatives.

Line 3 opponents' have a separate appeal that is pending against the U.S. Army Corps of Engineers, which granted a water and wetlands permit for Line 3 that is sort of a federal parallel to the MPCA's water permit.

Plaintiffs allege that deficiencies in the Corps permit should cause it to be rescinded by U.S. District Court in Washington D.C. If the Corps permit were to be rescinded after the pipeline is completed, there is a chance the court could order a temporary halt to any oil flow on Line 3.

Pipeline opponents had hoped the Biden administration would quash Line 3 by intervening in the suit against the Corps. But in a key court filing in late June, the Army Corps of Engineers strongly defended its Line 3 permit.

Enbridge maintains the $3 billion-plus new pipeline is a significant safety improvement; it will restore the full flow and boost the company's earnings.

The new Line 3 runs partly on a new route. Pipeline opponents say it will expose new regions of Minnesota's lakes, rivers and wild rice waters to oil-spill degradation — and will exacerbate climate change.