STATE OF MINNESOTA
FOR THE MINNESOTA PUBLIC UTILITIES COMMISSION
Beverly Jones Heydinger
Nancy Lange
Dan Lipschultz
Matthew Schuerger
John Tuma

Chair
Commissioner
Commissioner
Commissioner
Commissioner

In the Matter of the Applications of
Enbridge Energy, Limited Partnership for
a Certificate of Need and Pipeline Routing
Permit for the Line 3 Replacement Project
in Minnesota from the North Dakota
Border to the Wisconsin Border

MPUC Docket Nos. PL-9/CN-14-916
and PPL-15-137
OAH Docket Nos. 11-2500-32764
and 65-2500-33377

ENBRIDGE ENERGY, LIMITED PARTNERSHIP’S RESPONSE TO FRIENDS OF THE
HEADWATERS’ AND MINNESOTA CENTER FOR ENVIRONMENTAL
ADVOCACY’S MOTION TO EXTEND OR REOPEN THE ENVIRONMENTAL
IMPACT STATEMENT SCOPING PERIOD AND SIERRA CLUB’S MOTION FOR
SUPPLEMENTAL SCOPING COMMENT PERIOD
I.

INTRODUCTION

Enbridge Energy, Limited Partnership (“Enbridge”) submits this Response to Friends of
the Headwaters’ (“FOH”) and Minnesota Center for Environmental Advocacy’s (“MCEA”)
Motion to Extend or Reopen the Environmental Impact Statement Scoping Period filed with the
Minnesota Public Utilities Commission (the “Commission” or the “MPUC”) on September 26,
2016, and Sierra Club’s Motion for Supplemental Scoping Comment period filed with the
Commission on September 27, 2016 and later amended on September 30, 2016 (together, the
Motions).

FOH, MCEA, and Sierra Club (collectively, the “Movants”) assert that the

Commission should order the Minnesota Department of Commerce, Energy Environmental
Review and Analysis unit (“DOC-EERA”) to initiate a new scoping period for the environmental
impact statement (“EIS”) for the Line 3 Replacement Project (“L3R” or the “Project”). As
discussed below, the scope of L3R has not changed, and scoping process completed to date met

 all legal requirements and generated broad public participation. The Motions lack merit, and
Enbridge respectfully requests that the Commission deny the Motions.
II.

BACKGROUND

Enbridge filed its Certificate of Need (“CN”) and Route Permit Applications for L3R on
April 24, 2015 (the “Application(s)”). The MPUC accepted the Applications as complete on
August 12, 2015.
On February 1, 2016, the MPUC issued its Order Joining Need and Routing Dockets,
which, among other things, authorized DOC-EERA to prepare a combined EIS for the L3R CN
and route permit dockets, analyzing numerous issues including the potential cumulative effects
of the Sandpiper Pipeline Project (“Sandpiper”). 1
DOC-EERA issued a draft Environmental Assessment Worksheet (“EAW”) and Draft
Scoping Decision Document for L3R on April 11, 2016, and provided notice thereof in the
Environmental Quality Board (“EQB”) Monitor, initiating the scoping period for L3R. 2 DOCEERA issued a separate draft EAW and separate Draft Scoping Decision Document for the
Sandpiper Pipeline Project (“Sandpiper”) on that same date, and provided separate notice thereof
in the EQB Monitor. 3 Between April 25 and May 11, 2016, DOC-EERA held 12 scoping
meetings, addressing both L3R and Sandpiper each of which was conducted for a minimum of

1

See Order Joining Need and Routing Dockets at 9-10, In re Application of Enbridge Energy, Limited Partnership
for a Certificate of Need for the Line 3 Replacement Project in Minnesota from the North Dakota Border to the
Wisconsin Border and In re Application of Enbridge Energy, Limited Partnership for a Routing Permit for the Line
3 Replacement Project in Minnesota from the North Dakota Border to the Wisconsin Border, Docket Nos. PL9/
CN14-916/PPL-15-137 (“L3R Dockets”), eDockets Document No. 20162-117877-01 (Feb. 1, 2016).
2

See 40 EQB Monitor 15 (Apr. 11, 2016).

3

See 40 EQB Monitor 15 (Apr. 11, 2016).

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 three hours. 4 The public meetings consisted of a one-hour open house during which members of
the public had an opportunity to pose questions about L3R to Minnesota regulators from key
agencies (including DOC-EERA, Minnesota Department of Natural Resources, Minnesota
Pollution Control Agency, and MPUC staff), followed by a formal presentation and a verbal
comment session. 5 MPUC accepted approximately 1,300 written public comments through the
end of the scoping period on May 26, 2016. 6
Separately, on July 20, 2016, the Department of Justice (“DOJ”) issued its Proposed
Consent Decree (the “Consent Decree”) in a proceeding related to an oil spill in Michigan, which
remains subject to judicial approval, and a copy of which Enbridge filed with the Commission in
the present proceeding on July 21, 2016. 7
On September 1, 2016, Enbridge filed with the Commission a letter indicating that North
Dakota Pipeline Company LLC no longer intended to pursue regulatory approvals necessary for
the construction of Sandpiper and requesting that the MPUC and DOC-EERA proceed with the
issuance of the EIS Scoping Decision Document focusing solely on L3R. 8 On September 22,
2016, DOC-EERA issued its proposed FSDD addressing the scope of the EIS to be prepared for
L3R. The Movants’ Motions followed thereafter on September 26 and 27, respectively.

4

DOC-EERA, Proposed Final Scoping Decision Document (“FSDD”) at 4, L3R Dockets, eDockets Document No.
20169-125058-06 (Sept. 22, 2016).
5

Id.

6

Id.

7

See Consent Decree United States of America v. Enbridge Energy Ltd. P’ship (W.D. Mich. 2016) (No. 1:16-cv
914) at 10 L3R Dockets, eDockets Document No. 20167-123488-04 (July 20, 2016).
8

Request PUC and DOC Proceed with Issuance of the EIS Scope Decision Document for the Line 3 Replacement
Project, L3R Dockets, eDockets Document No. 20169-124584-01 (Sept. 1, 2016).

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 III.

NO BASIS EXISTS FOR RE-OPENING THE SCOPING PERIOD

Movants argue that the Commission should re-open the scoping period for three reasons:
(1) Enbridge allegedly misrepresented its intent to permanently deactivate existing Line 3; (2)
integrity management measures in the Consent Decree materially changed the “no build”
alternative; and (3) the scoping process was inadequate because the concurrent evaluation of the
L3R and Sandpiper projects allegedly primarily focused on Sandpiper, resulting in an inadequate
analysis of L3R. Each of these arguments is fatally flawed, both factually and legally.
A.

THE CONSENT DECREE DOES NOT ALTER ENBRIDGE’S PLANS OR
THE SCOPE OF THE PROJECT.

1.

Enbridge Will Permanently Deactivate Original Line 3 After L3R is Placed
into Service.

In its notice of intent to file a CN Application in the L3R proceeding filed with the
MPUC on October 24, 2014, Enbridge stated: “The original Line 3 pipeline will be permanently
deactivated in place after the replacement pipeline is installed, tested, and operational.” 9 As
Enbridge has consistently stated over the last two years, Enbridge will permanently remove
existing Line 3 from service after L3R is placed into service. 10
Movants have cherry-picked text from the Consent Decree in an attempt to claim that
Enbridge no longer intends to permanently deactivate existing Line 3. Their claim is wrong.
The Consent Decree is unequivocal:

9

Petition for Approval of Notice Plan Proposal, Request for Exemptions, Protective Order, and Separate Docket and
Accompanying Protective Order for High Sensitive Nonpublic Data at 4, L3R Dockets, eDockets Document No.
201410-104138-02 (Oct. 24, 2014).
10

See, e.g., Route Permit Application at 1-2, L3R Dockets, eDockets Document Nos. 20154-109661-07 to -09 (Apr.
24, 2015) (“The existing Line 3 pipeline in Minnesota will be permanently removed from service after the
Replacement Program has received all regulatory approvals, and the 36-inch replacement pipeline is constructed,
tested, and placed into service.”); CN Application at 11-1 – 11-2, L3R Dockets, eDockets Document No. 20154109653-03 (April 24, 2015) (describing permanent deactivation of existing Line 3).

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 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 (“Original US Line 3”). Enbridge shall complete
the replacement of Original US Line 3 and take Original US Line 3 out of service,
including depressurization of Original US Line 3, as expeditiously as practicable
after receiving required regulatory approvals and permits for new Line 3.
Enbridge shall seek all approvals necessary for the replacement of Original US
Line 3, and provide approval authorities with complete and adequate information
needed to support such approvals, as expeditiously as practicable, and Enbridge
shall respond as expeditiously as practicable to any requests by approval
authorities for supplemental information relating to the requested approvals. 11
Movant Sierra Club quotes this language from the Consent Decree—which clearly obligates
Enbridge to deactivate existing Line 3—in its Motion, before wholly ignoring it, focusing instead
on the measures DOJ would require to ever allow existing Line 3 to be placed back into
service. 12 Movants FOH and MCEA, meanwhile, completely ignored this language, perhaps
because it shatters the fundamental premise of their argument. 13
Contrary to the Movants’ claims, Enbridge will permanently deactivate existing Line 3
once L3R is placed into service, as stated by Enbridge in its Applications. To the extent there are
relevant takeaways for the Commission from the Consent Decree, it is that Enbridge, the DOJ,
the U.S. Environmental Protection Agency and U.S. Coast Guard are fully supportive of
replacing Line 3 and believe it should be done, subject to relevant state regulatory processes, as
expeditiously as possible.
2.

The Integrity Measures Required by the Consent Decree Do Not Provide a
Basis for Reopening the Scoping Process.

Movants also argue that the integrity management requirements contained in
Section B.22.d of the Consent Decree alter the “no-build” scenario and constitute cause to re11

Consent Decree at 25 (emphasis added).

12

Sierra Club Motion at 5.

13

See FOH and MCEA Motion at 9-10, 14-16.

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 open the scoping process.

As Enbridge has consistently stated from the inception of this

regulatory proceeding, replacement of existing Line 3 is necessary due to the condition of the
pipeline. However, Enbridge cannot begin the replacement process until it obtains the requisite
governmental approvals. The portion of the Consent Decree addressing operation of existing
Line 3 after December 31, 2017, simply accounts for the unfortunate possibility that Enbridge
may not secure regulatory approvals and have Line 3 replaced by that date. In that scenario,
Enbridge agrees to conduct additional testing to gather more information about the pipe’s
condition to inform the continued safe operation of the pipeline.

Enbridge has already

implemented many of the measures specified in the Consent Decree. While these measures will
provide some additional data regarding the condition of the pipeline, the measures will not
fundamentally change Enbridge’s ongoing obligations to safely maintain the pipeline prior to its
deactivation.
Movants have suggested that scoping comments may have been different if the public
had been aware of the required integrity measures contained in the Consent Decree. However,
by Sierra Club’s own admission, it cannot quantify, even now, how those measures differ from
the integrity measures Enbridge would have otherwise implemented during this timeframe. 14
More importantly, these arguments are fully discredited by Sierra Club’s own scoping
comments. Both in August 2015 and again in May 2016, well in advance of any announcements
related to the Consent Decree, Sierra Club’s scoping comments recommend that the EIS include
as an alternative “repair of existing Line 3 to allow expansion that does not require a certificate
of need (no action alternative).” 15 Thus, as demonstrated by Sierra Club itself, even absent the

14

Sierra Club Motion at 13-14.

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 provisions of the Consent Decree, the public offered suggestions regarding the viability of
continued operation of the existing Line 3 as a no-build alternative.

Accordingly, the

Commission should reject this argument and deny the request to re-open the scoping process.
B.

THE L3R SCOPING PROCESS MET ALL LEGAL REQUIREMENTS.

1.

The Scoping Record Appropriately Identified L3R-Only Issues.

Movants’ claims that the scoping process inappropriately focused on Sandpiper are
unfounded. As noted above, during the EIS scoping process, DOC-EERA issued separate EAWs
and Draft Scoping Decision Documents for Sandpiper and L3R. The EAWs and Draft Scoping
Decision Documents evaluated the impacts of each project independent of the other, in addition
to addressing cumulative impacts of the two projects. For example, the L3R EAW stated, “[t]he
Sandpiper Pipeline Project has a separate permitting and environmental documentation process
from L3R.” 16 The Draft Scoping Decision Document further clarified, “[s]eparate approvals are
needed from the PUC for the Sandpiper Project and the L3R Project. Each project will have its
own EIS, and cumulative impacts of each project will be addressed in both EISs.” 17 The
Commission’s notice also stressed that it was soliciting public and agency scoping comments
separately for the two projects, stating, “Note: Each project will have its own scope and EIS,
however, public meetings will address both projects.” 18
15

Sierra Club Scoping Comments at 28, L3R Dockets, eDockets Document No. 20165-121701-02 (May 26, 2016);
Sierra Club Scoping Comments at 28-29, L3R Dockets, eDockets Document No. 20159-114471-02 (Oct. 1 2015)
(“The Commission must consider the ‘no action’ alternative, which would essentially allow Enbridge to perform
ongoing repair and maintenance.”).
16

See EAW at 46, L3R Dockets, eDockets Document No. 20164-119956-01 (Apr. 12, 2016).

17

Line 3 Draft Scoping Decision Document at 13, L3R Dockets, eDockets Document No. 20164-119960-02 (Apr.
12, 2016).
18

Notice of Availability of Scoping EAW and Draft Scope for Sandpiper Pipeline and Line 3 Replacement Projects
and Schedule for EIS Scoping Meetings at 3, L3R Dockets (Apr. 11, 2016); see also id. at 1 (describing the projects
separately). (emphasis added).

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 Movants also grossly misstate the Commission’s prior orders by stating that they required
preparation of a “combined” EIS for L3R and Sandpiper. This argument ignores the clear
language of the Commission’s Order Joining the Need and Routing Dockets which stated that
the “combined” EIS for L3R was to address issues related to both the certificate of need and
routing dockets and also consider the cumulative impacts of Sandpiper and L3R. 19

Thus,

“combined” referenced the CN and route permit proceedings, not L3R and Sandpiper. Movants’
attempt to argue that the scoping process for L3R was somehow inextricably intertwined with the
Sandpiper process is demonstrably false.
2.

Movants Addressed L3R Separately in Their Previously-filed Written
Comments.

Movants themselves filed extensive written comments covering both the Sandpiper and
L3R projects, specifically and individually addressing L3R on numerous occasions. For example,
MCEA/FOH commented on the description of the purpose and need for L3R, discussed non-pipe
alternatives to L3R, and identified potential impacts specific to Canadian oil production, among
other L3R issues. 20 Sierra Club similarly provided suggested system and no-build alternatives to
L3R alone and discussed deactivation of L3R. 21

Accordingly, the substantive comments

submitted by Movants themselves directly undercut their newfound arguments that a combined
scoping process obfuscated issues for L3R alone.
19

Order Joining Need and Routing Dockets at 3, L3R Dockets (Feb. 1, 2016) (emphasis added).

20

See MCEA and FOH Comments on the EAW and Draft Scoping Document for the Sandpiper Pipeline Project and
the Line 3 Replacement Project at 5, L3R Dockets, eDockets Document No. 20166-122237-02 (asserting that the
Purpose Statements in the EAW and DSDD for the L3R Project were too narrow), 7-8 (discussing non-pipeline
alternatives to L3R), 12 (discussing “no-action” alternative for L3R), 15-16 (addressing oil spill modeling for L3R),
20-21 (addressing impacts of oil sand extraction in the Alberta Oil Sands Region) (June 14, 2016).
21

Sierra Club, Scoping Comments at 12-15 (identifying alternatives for consideration in the EIS relating to L3R),
15-24 (discussing environmental issues associated with deactivation of existing Line 3) eDockets Document No.
20165-121701-02 (May 26, 2016).

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 3.

The Scope of L3R Is Unchanged.

The scope of L3R has not changed since the close of the scoping comment period; the
Project’s potential environmental impacts remain the same before and following withdrawal of
the Sandpiper Applications. The L3R CN Application established need for L3R as a separate
and distinct pipeline project, and the L3R Route Permit Application 22 and the L3R EAW 23
provided data regarding potential impacts both with and without the construction of Sandpiper.
The Commission, too, recognized the projects as separate, denying an early attempt to
consolidate all Sandpiper and L3R dockets, on the basis that the “Sandpiper pipeline and the
Line 3 pipeline are distinct and separate projects, which must be examined on each project’s
individual merits.” 24
Thus, L3R was fully subject to Movants, public and agency scrutiny and comment
throughout the scoping process. For these reasons, Movants have not—and cannot—provide any
examples of comments they were unable to submit during the L3R scoping period due to the
contemporaneous Sandpiper scoping process.
4.

Movants Requested Combined Environmental Scoping for Sandpiper and
L3R and No Public Confusion Resulted Therefrom.

The Movants’ claims that combining the public scoping meetings created some sort of
procedural flaw are wholly inconsistent with their prior procedural recommendations to the

22

See Pipeline Routing Permit Application at 6-7 to 6-34, Appendix B, L3R Docket, eDockets Document Nos.
20154-109661-07 to -09 (Apr. 24, 2015).

23

See EAW at 28, 35-38, 41-42, 68-69, 73, 80-81, 86-88, 93-95, L3R Dockets, eDockets Document No. 20164119956-01 (Apr. 12, 2016) (analyzing the separate and cumulative impacts of the L3R and Sandpiper Projects).
24

Order Granting Certificate of Need with Conditions at 24, In re Application of North Dakota Pipeline Company
LLC for a Certificate of Need for the Sandpiper Pipeline Project in Minnesota, Docket Nos. PL-6668/CN-13-473
(“Sandpiper Dockets”), eDockets Document No. 20158-112984-01 (August 3, 2015). (Emphasis added).

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 Commission advocating for a process where the public could comment on L3R and Sandpiper at
the same meetings.
In prior comments, Movants underscored the benefits of a combined scoping process for
reducing public confusion and increasing the transparency of the process. Sierra Club previously
stated, “[c]oordination of the scoping for independent reviews would reduce the potential for
confusion, ensure consistency of approach, and avoid potential gaps in review.” 25 MCEA and
FOH previously advocated additional coordination in the EIS process, stating “a single EIS will
avoid confusion and unnecessary burden on the public. When the public is asked to comment on
two draft EISs for two pipelines proposed for a single corridor, it should be permitted to submit a
single comment for both pipelines. The public should not be asked to comment separately on
two pipelines as part of two different EISs.” 26
Based in part on party recommendations, Sandpiper and L3R were independently
evaluated during a scoping process that allowed members of the public to comment on one or
both of the projects at the same public meeting or through the same written comments. Movants’
most recent claim that conducting simultaneous scoping for Sandpiper and L3R generated mass
public confusion is inconsistent with the scoping processes as it actually occurred.
Minnesota law requires a 30-day scoping period, which begins when the notice of the
availability of the EAW is published.27 Pursuant to law, the scoping period began on April 11,
2016 with publication of the notice of the availability of the EAW in the EQB Monitor and
extended to May 26, 2016, a 45-day comment period. Minnesota Rules 4410.2100, subp. 3(B)
25

Sierra Club, Comments on Procedure at 21-22, L3R Dockets (Sept. 30, 2015).

26

FOH/MCEA Comments on the EAW and Draft Scoping Document for the Sandpiper Pipeline Project and the
Line 3 Replacement Project at 30-31, L3R Dockets (June 14, 2016).

27

Minn. R. 4410.2100, Subp. 3(A).

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 also requires the responsible government unit to hold at least one public scoping meeting.
During the scoping period, the MPUC held 12 public meetings. 28 As discussed above, the
scoping notice discussed the separate nature of the projects but noted that comments could be
provided on one or both projects during the scoping period. As evidence of the effectiveness of
the notice, DOC-EERA received roughly 1,300 written comments, many of which pertained to
both proposed projects, some of which were specific to Sandpiper, and some of which were
specific to L3R. 29
The creation of coordinated scoping processes did not create mass confusion, but rather
aided in clarity because members of the public were able to address with greater particularity
their concerns and questions specific to Sandpiper or L3R, or cumulative effects generated by the
projects together. There is no indication whatsoever that conducting scoping in this manner
rendered either scoping process deficient.
5.

The Motions are Disingenuous.

Enbridge respectfully requests that the Commission recognize the Motions for what they
are: another poorly disguised delay tactic. The purpose of environmental review is not to
indefinitely delay beneficial infrastructure improvements. It is to ensure that agencies take a
“hard look” at environmental consequences during their decision-making processes. 30
As previously described, the scope of L3R has not changed since Enbridge filed its CN
and Route Permit Applications. It follows that the appropriate scope of environmental review
28

FSDD at 2, L3R Dockets.

29

Id. at 2.

30

See Minn. Stat. § 116D.02, Subd. 1; Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs,
713 N.W.2d 817, 832 (Minn. 2006) (“Our role when reviewing agency action is to determine whether the agency
has taken a ‘hard look’ at the problems involved, and whether it has ‘genuinely engaged in reasoned decisionmaking.’” (quoting Estate of Atkinson v. Minn. Dep’t of Human Servs., 564 N.W.2d 209, 213 (Minn. 1997))).

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 also remains unchanged. The L3R scoping process adhered to MEPA: all members of the public
and relevant governmental agencies had ample opportunity to comment on the appropriate scope
of environmental review during the prescribed scoping period. The nearly-completed scoping
process stretched nearly nine months from the Commission’s authorization, providing an
extended written comment period, tribal and local government consultations, 12 public scoping
meetings and significant interagency coordination. Prolonging the scoping period even further is
unlikely to result in benefits to the public or generate any new, relevant scoping comments that
could not have been offered during the called-for process.

The Movants are essentially

attempting to use procedure as a substantive means to indefinitely delay L3R. That is not the
purpose of environmental review. Furthermore, replacement of existing Line 3 is necessary to
address known integrity issues and eliminate the need for the large number of forecasted
integrity digs. Continued unnecessary delay further extends the use of existing Line 3, which
Enbridge planned to take out of service by the end of 2017 following installation of its
replacement.
Finally, it should be noted that Movants waited, respectively, until the day before and the
day of the prehearing conference to file the Motions: after issuance of the FSDD, more than
three weeks after Enbridge withdrew its Sandpiper Application on September 1, 2016, and more
than two months after a copy of the Consent Decree was filed with the Commission on July 21,
2016.
IV.

CONCLUSION

The Movants’ claims that language in the Consent Decree somehow creates reason to reopen the scoping process are without factual or legal support. Enbridge’s commitment is
unwavering: the existing Line 3 will be permanently deactivated once L3R is placed into service.

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 Additionally, the ongoing integrity measures required during existing Line 3’s continued
operations do not create a changed circumstance that alters the Line 3 Replacement Project or the
breadth of alternatives that would have been proposed. Further, the Commission’s scoping
process provided standalone scoping EAWs and proposed scoping decisions for L3R and
Sandpiper, allowed members of the public an opportunity to comment on one or both pipeline
proposals, and exceeded the statutorily-required opportunities for public comment.
Enbridge is committed to a complete and full debate regarding the merits of the Project.
Enbridge respectfully requests that the Commission deny the Motions and take action on the
FSDD.

DATED: October 7, 2016

Respectfully submitted,

/s/ Christina K. Brusven
Christina K. Brusven (#0388226)
Patrick D.J. Mahlberg (#0388028)
Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402
Phone: (612) 492-7412
Fax: (612) 492-7077
ATTORNEYS FOR ENBRIDGE ENERGY,
LIMITED PARTNERSHIP
59729595

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