Appealing Line 3 Pipeline: Supply and Demand at Root of Hearing

Minneapolis, MN – Attorneys for multiple Indigenous tribes, environmental and Indigenous rights groups, and the Minnesota Department of Commerce made oral arguments on Tuesday, March 23, against the Line 3 pipeline approvals by the Minnesota Public Utilities Commission.

The Commission approved the second-to-last permit needed for Enbridge to begin construction in the state at the end of November 2020. (The final permit needed was approved by the Minnesota Pollution Control Agency a few days later.) Although only four months have passed, the MN section of the pipeline is about halfway complete.

These last four months, and for years prior, have been full of actions taken outside of legal proceedings, as well. Water protector, Tania Aubid, was on a hunger strike opposing Line 3Tuesday was her 38th and last day. We heard from Aubid during a protest in Bemidji against neglect in Beltrami County Jail, where several have died in recent years.

During the appeals hearing, the plaintiffs made various arguments, but the one they kept coming back to concerned the Certificate of Need. Katherine Hinderlie, attorney for the MN Department of Commerce, told the court that the decision by the Commission was “affected by legal error” and that it failed to evaluate a demand forecast for the energy being transported.

Hinderlie shared with the court that Enbridge did not provide evidence of a projected demand by consumers who will use the crude oil shipped through the pipeline, such as refineries, rather the “desire of crude oil producers to sell and ship as much oil as they can.”

Scott Strand, attorney for Friends of the Headwaters, added to Hinderlie’s argument by speculating that if Enbridge had evidence showing a demand forecast that was consumer-supported, they would have submitted it into record. Strand mentioned how Enbridge did not submit testimony from refineries proving the need for this crude oil because of consumer demand or buyer demand.

When the attorney for Enbridge, Christina Brusven, rebutted the plaintiffs’ arguments about supply and demand, she asserted that all Enbridge needed to prove as far as the need for the pipeline was that it will be used. Brusven argued that providing proof of the “utilization of the main line” shows that there is demand for the new line. Instead of showing any proof that forecasts the public’s need for more crude oil products, Enbridge chose to focus on how there is enough crude being produced in Canada from tar sands to ship it through the pipeline.

Line 3 Pipeline above ground near Crow Wing River on February 16, 2021

The two judges presiding over the hearing, Judge Lucinda E. Jesson and Judge Peter M. Reyes, Jr., questioned Brusven over and over about evidence for the demand, not the supply; however, she continued to assert that the supply is the demand.

Jason Marisam, attorney for the MN Public Utilities Commission, also argued that the demand for the pipeline can be seen through how it’s used, such as its capacity.

Judge Jesson and Judge Reyes questioned Marisam about evidence of the demand. He then declared an assumption of the constant demand can be made with historical and current data.

Judge Reyes pushed Marisam further by reminding him that Enbridge is required to submit a forecast of demand, including from refineries. Reyes asked him directly if there was a forecast of demand for refineries, to which Marisam said, “I don’t accept all of that.”

Reyes snapped back: “It’s a ‘yes’ or ‘no’ question.”

Plaintiffs brought up the Environmental Impact Statement model by the Commission for a potential spill into Lake Superior and its watershed. David Zoll, attorney for the Mille Lacs Band of Ojibwe, argued that the Commission should have chosen a closer water crossing to modelthe Commission chose Little Otter Creek, which is thirty miles upstream.

Zoll questioned why they did that, and argued that they needed to choose a place where it was most likely for a spill to reach Lake Superior, so people of the court and the public could know the consequences.

At the end of the hearing, which lasted an hour and a half over Zoom, the judges reminded everyone that their decision would be made no later than June 21. Because the court denied an injunction to halt construction until a decision is made, the pipeline could be complete or incredibly close by then.

“With respect to whether the appeal would be rendered meaningless, the Tribes relied on Enbridge’s estimate that construction will take six to nine months to argue that construction of the pipeline may be completed before this court issues a final decision, potentially mooting the appeal.”

MN Court of Appeals Denial of Stay

The MN Court of Appeals wrote in their denial, that “even if construction is complete, this court will be able to ‘cease operation of the pipeline,’ which would ‘remove the risk of an accidental oil spill . . . the most serious potential impact raised by opponents of the Project.’”

Even with the possibility that the construction is complete by the court’s decision, the plaintiffs’ attorneys expressed optimism that the court will side with them.

“I’m feeling good, and I am hopeful that this gets sent back, which, you know, would not be the end of the Line 3 fight, but would be a pretty darn huge win.”

Brent Murcia, student attorney for Youth Climate Intervenors

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