Opponents on Enbridge Line 3 project take case to Minnesota Supreme Court

Environmental groups and Ojibwe bands opposing Enbridge's new Line 3 oil pipeline have taken their legal claims to the Minnesota Supreme Court.

The groups petitioned the high court on Wednesday to overturn a June decision by the Minnesota Court of Appeals, which affirmed utility regulators' approval of the controversial $3 billion-plus project to replace Enbridge's corroding Line 3.

The state Supreme Court usually hears fewer than 15% of the petitions it receives.

The Minnesota Department of Commerce, which also lost its appeal of Line 3 in June, said Wednesday it will not petition the high court for a review.

The appellate court's decision in June — by a 2-1 vote — upheld the Minnesota Public Utilities Commission's 2020 final approval of the 340-mile oil pipeline across northern Minnesota.

"Now we appeal to the Minnesota Supreme Court to right the wrongs that the state and its rogue agencies have foisted on the Anishinaabe," Winona LaDuke, head of the indigenous environmental group Honor the Earth, said in a statement.

Honor the Earth and three other environmental groups — the Sierra Club, Friends of the Headwaters and Youth Climate Intervenors — petitioned the Supreme Court, along with the White Earth and Red Lake bands of Ojibwe. The Mille Lacs band, which was a plaintiff in the case before the court of appeals, is not a part of the petition to the Supreme Court

The new pipeline is more than 60% built. Calgary, Alberta,-based Enbridge expects it be transporting thick Canadian crude by the fourth quarter.

The company has said the appellate ruling was an "important acknowledgement" of the thorough review by the PUC and that the permits were "appropriately approved."

Opponents have made several legal arguments against the PUC's approval of Line 3, but the core complaint focuses on Enbridge's long-term oil demand forecast, which the PUC accepted when it approved a "certificate of need" for new Line 3.

The Commerce Department and pipeline foes have argued that under state law, Enbridge needed to consider total "energy demand" in its forecast — not just for oil, but for refined products like motor fuels. Gasoline demand is expected to fall if electric vehicles take off.

Enbridge has maintained that PUC rules call for a forecast based on demand for the transportation of oil — from oil shippers and producers. The appellate court rejected that reasoning.

The court also agreed with the Commerce Department and other appellants on some of their contentions about Enbridge's oil demand forecast.

But state law is vague on the issue, the majority justices concluded. Thus, the PUC had not "legally erred" in accepting the forecast as the Commerce Department argued. Judge Peter Reyes dissented, concluding the opposite.

In a statement Wednesday, the Commerce Department said that "while the Court of Appeals disagreed with the department that legal error had occurred, the court's opinion provided the department clarity for future certificate of need proceedings."

Enbridge says the new Line 3, built partly along a new route, will be safer and restore the full flow of oil. Pipeline opponents say it will expose new regions of lakes, rivers and wild rice waters to oil-spill degradation and will exacerbate climate change.

On Wednesday, pipeline opponents held a rally at the state Capital. They called upon Gov. Tim Walz and President Joe Biden to stop the project.

On Thursday, hundreds of water protectors, actor Marisa Tomei, writer and activist Eve Ensler, and Sierra Club Executive Director Michael Brune, plan to gather and rally at the Shell River where the pipeline is under construction.

The White Earth and Red Lake bands have been particularly angered recently by the state's decision to allow Enbridge to move 5 billion gallons of water during construction — up from 510 million in the company's original permit.

The water involved is in shallow aquifers, and it is temporarily being moved so that it doesn't drain into the pipeline's trench during construction. The Ojibwe bands say the Department of Natural Resources should rescind its permit amendment.

The tribes say the big increase in water transfers — particularly during a drought — imperil their wild rice crops.