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Judge refuses to shut down Line 5, but says Enbridge is trespassing on Native American reservation

An Enbridge Energy sign near the route of Line 5 before it enters the Straits of Mackinac.
Lester Graham / Michigan Radio
An Enbridge Energy sign near the route of Line 5 before it enters the Straits of Mackinac.

A Native American tribe and Enbridge Energy are both claiming success after a federal judge’s decision. Neither side got all that it wanted.

The Bad River Band of Lake Superior Chippewa wants Line 5 shut down and off its reservation in Wisconsin after the tribe revoked the easement for the pipeline. It filed a lawsuit to get that done in 2019.

Enbridge Energy has a proposal to re-route the oil and liquid natural gas pipeline around the reservation and is working through the regulatory process. It says a 1992 agreement with the Bad River Band gives it until 2043 to complete the 41 mile re-route. In the meantime it’s kept Line 5 moving products through the pipeline segment on the reservation.

The judge says Enbridge is trespassing and some kind of compensation is due to the tribe.

“What the judge has said is that Line 5 needs to be off the reservation. It’s a question of when and it’s a question of the compensation,” said Mike Shriberg Executive Director of the Great Lakes Center of the National Wildlife Federation.

How the compensation will be calculated is still to be determined. It could be a portion of years’ of profits.

“And the judge also said that Enbridge’s arguments against the tribe being able to recover these damages, recover profits, were quote, ‘tone deaf and meritless,’” Shriberg added.

In a statement, Enbridge Energy said in part:

“The importance of Line 5 was affirmed today by the federal court judge’s decision ensuring the pipeline will continue to provide energy to millions of people in the Upper Midwest while Enbridge moves forward with the relocation of Line 5 around the Bad River Reservation.

The court further recognized that the Line 5 relocation project needs to move forward in a timely fashion.”

Both compensation and the timing of the completion of the re-routed pipeline segment will be decided later. The judge did say he’s inclined to give Enbridge five years to complete the construction of the Line 5 segment.

Part of the reason the judge was reluctant to shut down Line 5 is because Canada has invoked a 1977 pipeline transit treaty it has with the U.S. It’s the second time Canada has invoked the treaty. The first time was after Michigan Governor Gretchen Whitmer revoked the easement of the Line 5 segment sitting on the lakebed of the Straits of Maciknac. She said the risk of the pipeline being damaged and leaking oil into the Great Lakes was too great.

Lester Graham reports for The Environment Report. He has reported on public policy, politics, and issues regarding race and gender inequity. He was previously with The Environment Report at Michigan Public from 1998-2010.