President Joe Biden's administration has signaled it has no intention of yanking federal permits for Enbridge's controversial Line 3 pipeline — despite pleas to do so by environmental groups and two Indian bands.
The U.S. Army Corps of Engineers continued defending the water permit it granted Enbridge in November in a federal court filing late Wednesday night. The permit was the last major approval the company needed to begin construction on its 340-mile pipeline across northern Minnesota.
The filing marks the first time President Joe Biden's administration has taken a position on the $3 billion-plus Line 3, which will transport particularly thick oil from western Canada to Enbridge's terminal in Superior, Wis. Several environmental organizations voiced their displeasure Thursday.
"Allowing Line 3 to move forward is, at best, inconsistent with the bold promises on climate and environmental justice President Biden campaigned and was elected on," said Michael Brune, executive director of the Sierra Club, in a press statement.
Calgary-based Enbridge said in a statement that the Corps' filing "is an expected next step in the court appeal process," laying out the agency's "very thorough review" of Line 3's federal permits.
Two Ojibwe bands and three environmental groups sued the Corps in U.S. District Court in Washington, D.C., late last year. They claimed the Corps did not properly evaluate the pipeline's impact on climate change and that the agency should have conducted its own environmental impact statement (EIS) on the pipeline.
Their lawsuit also alleges that the Corps failed to fully assess Line 3's impacts on tribal treaty rights. While the new Line 3 would cross only one of seven Ojibwe reservations — Fond du Lac — it goes through lands where Native Americans have treaty rights to hunt, gather and fish.
Earlier this year, the plaintiffs asked the court for a summary judgment, which would mean that all factual issues are decided and that the case need not be tried.
On Wednesday, the Corps also asked for a summary judgment — but in its favor — countering plaintiffs' allegations and saying it met all Line 3 permitting requirements under federal environmental law.
The Corps permit allows Enbridge to drill beneath certain rivers during construction and to discharge dredged material into U.S. waters.
"The Corps found that the large majority of wetland impacts from the construction of [the new] Line 3 will be temporary, and mitigation will be performed to compensate for the small amount of loss of aquatic resource function," the filing said.
The Army Corps did an environmental assessment for Line 3, though not a full EIS as pipeline opponents say the law requires. The Corps argues that it did not need to do an EIS; the Minnesota Department of Commerce had already done one.
"The Corps considered [the state EIS] as it made its decisions," it said in Wednesday's filing. "The Corps also considered a reasonable range of alternatives, before incorporating important protections for wetlands, wild rice and cultural resources."
The plaintiffs are the Red Lake and White Earth Ojibwe bands; the Indigenous environmental organization Honor the Earth; and the environmental groups the Sierra Club and Friends of the Headwaters.
Since Biden took office in January, opponents of Line 3 have repeatedly called for him to intervene and stop construction. The most practical legal way for Biden to do that is by pulling Line 3's Army Corps permit, or by ordering that the permit be redone.
"Today's decision is the Biden administration on autopilot, defending a Trump water permit for a massive tar sands pipeline that is actually indefensible," said Andy Pearson, an organizer with MN350, a climate activist group.
Enbridge, in a federal court filing Wednesday supporting the Corps, said pipeline opponents' claims "are mostly recycled versions of the same arguments the Minnesota Court of Appeals rejected."
The appellate court last week struck down a challenge by environmental groups and tribes to the approval of Line 3 by the Minnesota Public Utilities Commission (PUC), the state's primary pipeline regulator. The appellate court ruled 2-1 in favor of the PUC.
Pipeline opponents say new Line 3, which partly follows a new route, will open a new region of Minnesota lakes, streams and wild rice waters to oil spill degradation, as well as exacerbate climate change.
Enbridge says the new pipeline, which replaces its aging and corroding current Line 3, is a necessary safety enhancement that will restore the full flow of oil. The current Line 3 operates at only 51% of capacity due to safety concerns.
The pipeline is more than 60% completed, and Enbridge has said it expects to start transporting oil during the fourth quarter. Meanwhile, protests along the pipeline route have ramped up significantly over the past few weeks.