Minnesota Center for Environmental Advocacy Using law, science. and research to protect Minnesota's environment. its natural resources. and the health of its people. In East Exchange Street - Suite 206 Saint Paul. MN 5510l-l667 (15].223.5960 65 fax in I'ni'i; mncentercrg Founding Director Sigurd Olson Board of Directors John Helland C?lmir' Alan Thmnetz ll't'i' ("hair 'fi'e'm'm'i'r Stir-J "I'lntrin Rollin .S'WI'Ji?nnji? rence Dmvning Douglas Hemer [Ellen I-Iermnn Steven Alexandra lilnss Melnnet Konnr?Slcenberg .ltll'lL? Krenly Frederick Morris Ircne Qualtei?s I Peter Reich Samuel .Iuelyn Schroeder Andrew Steiner Paige Strudlcy L?nrol 'I'omer [Executive Director Scott Strand August 24, 2016 Assistant Attorney General Environment and Natural Resources Division United States Department of Justice PO. Box 7611. Washington, DC 20044?761 I VIA EMAIL RE: United States v. Enbridge Energy, Limited Partnership, et Ref. No. 90-5?1-1-10099 Dear Sir or Madam: Minnesota Center for Environmental Advocacy and Friends of the Headwaters write to comment on the Proposed Consent Decree for resolution of the complaint that originated with the 2010 oil spills that occurred near Marshall, Michigan. In particular, MCEA and FOH are concerned with those portions of the decree relating to the proposed replacement of the Line 3 pipeline. The Consent Decree as currently drafted could unfortunately be interpreted as either influencmg or interfering with the ongoing environmental review and permitting processes in our state, and as such, the Decree should be modi?ed to clarify that it does not affect those processes in any way. Section VII of the Consent Decree concerns injunctive measures taken to reduce the risk of future pipeline Spills on Enbridge?s system. That section permanently enjoins Enbridge from operating Line 6B, the pipeline that ruptured near the Kalamazoo River. Line 3 however, which was built near the same time that the ruptured Line 6B was built,l continues to operate to this day. Rather than enjoin the operation of the same vintage pipeline, in fact, the Consent Decree obligates Enbridge to seek approval to replace it. I See Line 3 Replacement Project Summary, at p. 5, available at (Indicating that Line 3 was built ?in the 19605 and put into service in 1968?); Michigan Public Service Commission, 2010 Annual Report, p. 44, available at 0_Annual_Report_346978_7 .pdf (Line 6B built in 1969). Printed on post?consumer recycled paper using my inlx'h'. Comments on Enbridge Consent Decree, DJ. Ref. No. 90-5-1-1-10099 August 24, 2016 I I Page 2 Enbridge has already applied to the Minnesota PUC to ?replace? the exact segment of Line 3 referenced in the Consent Decree: ?the segment of the Lakehead System Line 3 oil transmission pipeline that spans approximately 292 miles from Neche, North Dakota, to Superior, Wisconsin." 260 of thosemiles are within the State of Minnesota. The application seeks approval for a new pipeline with double the capacity of the original Line 3 and which would run in a new corridor, bLit Enbridge has nonetheless termed the project the Line 3 Replacement Project The project is culrently undergoing environmental review, and a Draft Environmental Impact Statement is expected in the Spring of 2017. While the PrOposed Consent Decree does not explicitly refer to this project or the prOposed corridor, nevertheless, Enbridge has made a speci?c proposal to replace this pipeline, and thus any reference in the Consent Decreelto a ?replacement? of Line 3 could reasonably be interpreted as a reference to the particular Line 3 Replacement Project. State permitting law requires a crude oil pipeline project to'obtain two permits: a Certi?cate of Need Permit and Routing Permit.2 MCEA and FOH are currently parties to two dockets pending before the Minnesota Public Utilities Commission that relate to the two permits required for the L3R Project. The application for a Certi?cate of Need Permit has been docketed as No. 6, and the application for a Routing Permit has been docketed as No. Enbridge filed the Proposed Consent Decree in those two dockets, and ?led a letter in response, in which we noted that Enbridge was ?already using this language [of the Consent Decree] to attempt to rush the process, telling media that Enbridge is ?hopeful that the settlement will instill 'a new sense of urgency at all relevant levels of Minnesota government, from the Governor?s Of?ce to the agencies to the PUC From our conversations with DOJ representatives, MCEA and FOH understand that the Consent Decree is not intended to interfere in any way with the ongoing environmental review and permitting procedures in our state. Some of the draft language re?ects that intention. Paragraph 22a, for instance, states that ?Enbridge shall complete the replacement of Original US Line 3 . . . as expeditiously as practiCable after receiving required regulatory approvals and permits for new . Line 3 [and] Enbridge shall seek all approvals necessary for the replacement of Original US Line 3 . . . as expeditiously as practicable." The requirement to proceed ?as expeditiously as practicable? is imposed on Enbridge, not on the regulatory approval process. Nevertheless, we write to express Our concern that, despite this intention, the language of the decree could be interpreted as federal interference with a process expressly delegated to the states. 2 See Minn. R. 78530130, 78520100 etseq. 3 In the Matters ofrlie Applications QfEnbridge Energy, Limited Partners/upfor a of Need and Routing Permirfor the Line 3 Replacement Project, Docket Nos. MCEA OH Letter of August 4, 2016 (quoting ?Enbridge Agrees to Settlement for 2010 Oil Pipeline Spills," July 20, 2016, available at Comments on Enbridge Consent Decree, DJ. Ref. No. 90-5-1-1-10099 August 24, 2016 Page 3 Paragraph 22a of the Consent Decree states that ?Enbridge shall replace the segment of the Lakehead System Line 3 oil transmission pipeline that spans approximately 292 miles from Neche, North Dakota, to Superior, Wisconsin." This sentence as drafted is direCtly contrary to Minnesota state statutes, and is therefore clearly an unenforceable provision of the Consent Decree. Minnesota Statutes 2166.02 states: A person may not construct a pipeline without a pipeline routing permit issued by the Public Utilities Commission unless the pipeline is exempted from the commission's routing authority under this section or rules adopted under this section. A pipeline requiring a permit may only be constructed on a route designated by the commission.4 Enbridge has no legal authority to replace Line .3 on their own; the authority to permit crude oil pipeline construction in Minnesota lies solely with the state PUC. Enbridge cannot legally comply with the sentence as currently drafted, rendering it legally unenforceable.5 To remedy this deficiency, MCEA and FOH suggest that all references to ?replacement? of Line 3 be omitted from the consent decree. The Department of Justice and the Environmental Protection Agency have. a vested'interest in the safe Operation of the existing Line 3, as well as its safe decommissioning if necessary. They have no vested interest in whether the capacity to ship crude oil on Line 3 is maintained, replaced or even increased, as Enbridge?s current replacement proposal specifies.6 That is a business determination by Enbridge and its shippers, subject to approval by permitting authorities. Thus, to the extent that the consent decree addresses Line 3, it should be limited to safe operation and decommissioning of the existing line. In the alternative, MCEA and FOH request that the language of Paragraph 22a be modi?ed to I state ?Enbridge shall seek approval to replace the segment of the Lakehead system Line 3 oil Minn. Stat. 216G022, subd. 2. - 5 See. cg, United States v. A/slrabklrorm, 277 F.3d 930, 934 (7th Cir. 2002) (?For purposes of construCtion, a judicially approved consent decree is essentially a Gm?es v. Games, 60 F.3d 525, 530 (9th Cir. 1995) consent decree is construed with reference to ordinary-Contract principles of the state in which the decree is signed"); Brjausc/r v. Browse/r, 770 77, 84 (Ct. App. Mich. 2009) (contract provision was in violation of law, and therefore unenforceable, because it permitted the plaintiff to take an action without prior court approval, despite law mandating that approval); Neal v. -Dep 'r of Carrectr'orrs, 824 285, 2.90 (Ct. App. Mich. 2012) (a contract provision that would violate law is unenforceable). . 6 Indeed, arguably the federal government has a vested interest in the shipping capacity ofLine 3 not being replaced, given that President Obama has already determined that pipelines shipping tar sands oil are inconsistent with the United State's goals of leadership on climate change. See, ?Obama rejects Keystone XL Pipeline,? CNN Politics, Nov. 6, 2015, available at (?America is now a global leader when it comes to taking serious action to ?ght climate'change, and frankly, approving [the Keystone XL Pipeline] would have undercut that leadership,? Obama said?). However, OH and MC EA understand that this is beyond the scope of this consent decree. - Comments on Enbridge Consent Decree, DJ. Ref. No. 9054440099 August 24, 2016 . Page 4 transmission pipeline that spans approximately 292 miles from-Neche, North Dakota, to Superior, Wisconsin.? To further clarify the legal operation and scope of the document, MCEA and FOH also request that the following language be added to Paragraph 22a: This Consent Decree is not intended to in any way in?uence or interfere with state authority over the permitting and environmental review of crude oil pipelines. Nothing in this Consent Decree shall be implemented in a manner which could in?uence or interfere with state environmental review and permitting of crude oil pipelines. MCEA and believe that these modifications will clarify that Enbridge?s entreaties to ?instill - a new sense of urgency? among state regulatory authorities do not bear any federal imprimatur. The 2010 Kalamazoo oil spill was a devastating event that illustrates first and foremost the need to adequately understand the risks and impacts of pipeline spills before those risks are undertaken. Should this Consent Decree be understood as bearing federal approval of an expedited environmental review and permitting process for the L3R Project, the document would effectively require the State of Minnesota to bear the risks of those spills without the benefit of adequate study and evaluation beforehand; To ensure this does not occur, MCEA and FOH urge - the Department to modify the Consent Decree to reflect the well established principle that states and only states hold the primary authority to oversee crude oil pipeline permitting and environmental review processes. Sincerely, M. Hoffman M. Hoffman Interim Legal Director I