This June 29, 2018 photo shows tanks at the Enbridge Energy terminal in Superior, Wisc. A U.S. judge in that state has ordered the Calgary-based energy giant to pay an Indigenous band US$5.1 million and to remove the Line 5 pipeline from the band’s property within three years. THE CANADIAN PRESS/AP-Jim Mone

By James McCarten in Washington

Calgary-based Enbridge Inc. must pay an Indigenous band in Wisconsin more than US$5 million in Line 5 profits and relocate the controversial cross-border pipeline within the next three years, a U.S. judge says.

A rupture on territory that belongs to the Bad River Band of the Lake Superior Chippewa would constitute a clear public nuisance under federal law, district court Judge William Conley said in a decision late Friday.

But while the order affirms that Enbridge has been trespassing on Bad River land since 2013, when certain permits for the 70-year-old pipeline were allowed to lapse, it stops short of causing “economic havoc” with an immediate shutdown.

“The use of trespass on a few parcels to drive the effective closure of all of Line 5 has always been about a tail wagging a much larger dog,” Conley writes in his opinion.

In other words, there are “much larger public policy issues” surrounding cross-border pipelines like Line 5 that the band’s arguments, while valid, lack the power to overcome, he said.

Those issues “involve not only the sovereign rights of the band, but the rights of multiple states and international relations between the United States and Canada.”

Enbridge has already agreed to reroute the line, an essential energy conduit for much of the U.S. Midwest as well as Ontario and Quebec. But Conley wants that project completed more quickly than currently planned.

“Considering all the evidence, the court cannot countenance an infinite delay or even justify what would amount to a five-year forced easement with little realistic prospect of a reroute proceeding even then,” he wrote.

“The court will give Enbridge an additional three years to complete a reroute. If Enbridge fails to do so, the three years will at least give the public and other affected market players time to adjust to a permanent closure of Line 5.”

Enbridge’s lawyers continue to dispute the finding that the company is trespassing on Indigenous territory and intend to appeal the decision, and may also request a stay pending its outcome, said spokesperson Juli Kellner.

“Enbridge’s position has long been that a 1992 contract between Enbridge and the band provides legal permission for the line to remain in its current location,” Kellner said.

“Timely government permit approvals” would be necessary to complete the reroute within three years, while relocating the pipe currently on Bad River territory would take about a year, she added.

Any shutdown before then “would jeopardize the delivery of reliable and affordable energy to U.S. and Canadian families and businesses, disrupt local and regional economies, and violate the Transit Pipeline Treaty.”

Talks between the two countries have been ongoing for months under the terms of that treaty, a 1977 agreement that effectively prohibits either side from unilaterally closing off the flow of hydrocarbons.

In prior court documents, Enbridge has accused the band of being focused on a single outcome: the permanent closure of the pipeline on their territory “while refusing much less extreme alternative measures.”

The band argues that several weeks of spring flooding along the Bad River has washed away so much of the riverbank and supporting terrain that a breach is “imminent” and a shutdown order more than justified.

Enbridge insists the dangers are being overstated — and even if they were real, the company’s court-ordered contingency plan, which spells out the steps it would take, would be a far more rational solution.

Conley’s order Friday included tweaks to that plan to establish a more “conservative” threshold for the conditions that would trigger it, such as lower water levels and flow rates on the river.

“The court is particularly concerned that Enbridge’s plan does not account for inevitable delays that could occur due to weather conditions, supply and equipment problems and human error.”

Enbridge has also been rebuffed repeatedly in its efforts to perform remedial work on the site, which would include using sandbags and trees to fortify the riverbanks —decisions the band has defended as its sovereign right.

Heavy flooding that began in early April washed away significant portions of the riverbank where Line 5 intersects the Bad River, a meandering, 120-kilometre course that feeds Lake Superior and a complex network of ecologically delicate wetlands.

The band has been in court with Enbridge since 2019 in an effort to compel the pipeline’s owner and operator to reroute Line 5 around its traditional territory — something the company has already agreed to do.

But the flooding has turned a theoretical risk into a very real one, the band argued, and time is now of the essence.

Line 5 meets the river just past a location the court has come to know as the “meander,” where the riverbed snakes back and forth multiple times, separated from itself only by several metres of forest and the pipeline itself.

But it was clear both from Friday’s order and an in-person hearing last month, when Conley openly questioned the band’s motives, that he faults the band for rejecting Enbridge’s proposed plans to mitigate the danger.

“The band has refused to approve any of Enbridge’s remediation and prevention proposals, much less proposed even one project of its own to prevent or at least slow further erosion at the meander,” he wrote.

The neighbouring state of Michigan, led by Attorney General Dana Nessel, has been waging its own war against Line 5, fearing a leak in the Straits of Mackinac, the ecologically delicate waterway where the pipeline crosses the Great Lakes.

The economic arguments against shutting down the pipeline, which carries 540,000 barrels of oil and natural gas liquids daily across Wisconsin and Michigan to refineries in Sarnia, Ont., are by now well-known.

Line 5’s defenders, which include the federal government, say a shutdown would cause major economic disruption across the Prairies and the U.S. Midwest, where it provides feedstock to refineries in Michigan, Ohio and Pennsylvania.

It also supplies key refining facilities in Ontario and Quebec, and is vital to the production of jet fuel for major airports on both sides of the Canada-U.S. border, including Detroit Metropolitan and Pearson International in Toronto.

This report by The Canadian Press was first published June 17, 2023.