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Enbridge has also been paying local police in Minnesota for support in cracking down on protests. The company has reimbursed police $2.4 million in police expenses, including for surveillance of protesters; defending pipeline construction, including through the use of rubber bullets; overtime; and meals. According to The Guardian, Enbridge and the police have had a close working relationship, meeting together to discuss both safety concerns and intelligence gathering. Tara Houska, an environmental and Indigenous rights advocate and attorney in Minnesota, described in Vogue her recent brutal encounter with police, and her subsequent arrest.
Enbridge already has a poor environmental track record. The Minnesota Department of Natural Resources found Enbridge in September 2021 ordered the company to pay mitigation and penalties of $3.32 million for an unauthorized groundwater appropriation during the Line 3 construction that caused millions of gallons of water to flow out of an aquifer. This summer, the company spilled between 80 and 100 gallons of drilling fluid into the Willow River.
In addition, the ~340-mile section of Line 3 that runs through Minnesota has been the subject of four lawsuits – two filed within the state of Minnesota, one federal, and one filed in tribal court that contested the state’s issuance of the permits the company needed to build the pipeline–a certificate of necessity and convenience and a permit under the Clean Water Act. These suits also argue that the Line 3 pipeline violates the rights of Indigenous tribes under their treaties with the U.S. government and the tribes’ rights protected by the U.S. Constitution, as well as the rights of wild rice, manoomin.
In August of this year, the White Earth Band of Ojibwe sued the state of Minnesota in the tribal government’s own court system, for its issuance of a permit to divert 5 billion gallons of water. The tribe brought several claims against the Minnesota Department of Natural Resources, including that the state violated rights guaranteed to the tribe under treaty, that the state violated the tribe’s Fourth Amendment rights by “seizing” five billion gallons of water when it issued a permit to Enbrdige, and that the state violated the rights of manoomin, wild rice. The White Earth Band of Ojibwe in 2018 enacted legal rights in the tribal code for manoomin, giving it rights as a natural entity, including the right to clean water, an environment free from pollution, and a stable climate.
The state of Minnesota contested the White Earth Band of Ojibwe’s ability to sue it in tribal court, arguing that said court did not have jurisdiction over the state. On August 18, 2021, the tribal court denied Minnesota’s motion to dismiss on this basis. Minnesota then sued the tribe in federal district court, asking the court to enjoin the tribal court proceedings. On September 10, 2021, the district court of Minnesota denied the Department of Natural Resources’ request for a preliminary injunction against the tribal court’s proceedings, and the state has since appealed to the 8th Circuit.
While these jurisdictional issues continue to play out, it is worth noting that the legal premise behind naming manoomin as a plaintiff, and therefore arguing that wild rice itself has rights, is a somewhat novel concept, at least in the United States. Ecuador introduced “rights of nature” in its constitution in September 2008 at the urging of a coalition of Indigenous activists, and in New Zealand, the Indigenous Māori people worked with the government to establish rights for Te Awa Tupua (the Whanganui River) in 2017. The U.N’s 6th Assessment on Climate Change, published just this past August, contains a chapter on the critical role that recognition of Indigenous knowledge, including systems of rights and governance, can play in climate change mitigation and adaptation. The points made by this chapter could be used to bolster the legal case against the Line 3 pipeline.
The two lawsuits filed in Minnesota state court have already run their full course, with courts siding in favor of the Line 3 pipeline and a third lawsuit is still pending in the D.C. Circuit. Both of those lawsuits concerned challenges to permits that the state issued to Enbridge.
The Minnesota Court of Appeals found in 2019 that Enbridge had not properly considered environmental impacts, including impacts of a potential spill. But in a June 2021 ruling, the court found that the company had corrected those defects, and ruled that the state properly granted a certificate of need to Enbridge to construct the pipeline. In August, the Minnesota Supreme Court declined to hear the appeal, filed by the White Earth Band of Ojibwe, the Red Lake Band of Chippewa, and nonprofit groups the Sierra Club, Honor the Earth, Friends of the Headwaters, and Youth Climate Interveners.
These tribal governments and environmental groups also challenged the Line 3 pipeline under the federal Clean Water Act. In a suit filed in Minnesota state court, the groups challenged the Minnesota Pollution Control Agency’s certification that the pipeline project met clean water standards. They argued that the agency did not consider alternative routes, with the pipeline crossing rivers and traveling through wetlands. Despite these claims, the Minnesota Court of Appeals affirmed the agency’s approval in August.
Finally, there is a fourth, still-pending suit against the Line 3 pipeline in the D.C. District Court from the same groups, against the U.S. Army Corps of Engineers, which under the Clean Water Act issued a permit to Enbridge for the “discharge of fill material” into navigable waters of the United States.
Thus far, the Biden administration has not signaled that it will move to block the Line 3 pipeline, as it did in January 2021 with Keystone XL, another controversial pipeline. Here, the administration is citing the pending legal challenges as the reason for not intervening, although some Democratic lawmakers have criticized the administration for allowing the pipeline to move forward.
As the remaining legal challenges make their way through the court system, activists continue to draw attention to the issue. In October, Indigenous groups and environmental activists staged a sit-in at the Department of the Interior and protested for a week in front of the Capitol.
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