WASHINGTON — The U.S. government has been asked to explain to a federal appeals court precisely how it believes the country's 1977 pipeline treaty with Canada should impact efforts to shut down the controversial cross-border Line 5.
A forthcoming Department of Justice brief will mark the Biden administration's first public foray into the long-running dispute between Calgary-based Enbridge Inc. and an Indigenous band in Wisconsin.
The Seventh Circuit Court of Appeals wants the written amicus brief by Feb. 8, when it is scheduled to hear oral arguments from both Enbridge and the Bad River Band of Lake Superior Chippewa.
"The court requests the United States to file a brief in this appeal as amicus curiae to address the effect of the agreement … and any other issues that the United States believes to be material," the court ordered last month.
Canada invoked the treaty in the Wisconsin case in August 2022, less than a year after it did much the same in Michigan, where state Attorney General Dana Nessel has been waging a similar legal battle against Line 5.
Both sides are appealing last year's decision by Wisconsin district court Judge William Conley, who concluded Enbridge had been trespassing on band territory since 2013 and ordered Line 5 rerouted by June 2026.
Neither side was satisfied with the ruling: Bad River wants the contested 19-kilometre stretch shut down right away, while the company, which rejects the trespass finding, wants more time to prevent a wholesale shutdown.
The U.S. has so far been largely silent on the little-known 47-year-old treaty, which has become a central issue in the case after both Enbridge and Ottawa cited it as a key reason why Line 5 must keep operating.
A Justice Department spokesman refused to comment on the request or the status of the brief, citing an ongoing court proceeding.
In an appeal brief filed with the Seventh Circuit last month, lawyers for Bad River bluntly accused Enbridge of flouting the band's rights over its own territory and refusing to take no for an answer.
"Enbridge's position boils down to this: Enbridge can continue trespassing over tribal land for the foreseeable future so long as it pays 'fair rental value,'" the band argued.
That's despite the fact that the band expressly refused to renew Enbridge's easements on the reservation in 2013 and that Conley concluded last summer that the company has been trespassing on tribal land ever since.
"Although courts have long held that tribal land is absolutely 'beyond the reach of condemnation' … Enbridge insists that it can achieve the functional equivalent by consciously trespassing and then refusing to leave."
Ever since Conley's ruling, the band has complained both about the three-year timeline, as well as an order to pay $5.1 million in restitution, which the Bad River brief denounces as a "paltry pay-as-you-trespass toll."
"If a company knows it can make over $1 billion by trespassing on tribal land … by paying a mere $5.1-million toll calculated in a manner that ignores tribal sovereignty and the unavailability of eminent domain, then it will trespass every time," it argues.
"The district court's award contravenes core restitution principles and undermines federal statutes protecting tribal sovereignty and tribal land."
The band also dismisses the familiar argument from the pipeline's proponents that shutting down Line 5 would have a dramatic and painful impact on both the price and supply of energy in both the U.S. and Canada.
Bad River lawyers say shutting down Line 5 would have a negligible impact on gas prices, and that existing infrastructure could offset most of the lost Line 5 crude oil capacity, minimizing the impact on jobs and refinery output.
In its own appeal brief, Enbridge argued that shutting down Line 5 would be a violation of the 1977 treaty, which expressly prohibits a "public authority" — either the courts or the band itself — from "impeding … or interfering in any way with the transmission of hydrocarbons."
Nor does the treaty expressly allow any "exception or qualification for expired easements or trespass claims," the brief says.
The Biden administration's treaty talks with Canada are "specifically focused on whether the band's claims are a permissible basis for shutting down a key piece of binational energy infrastructure: Line 5," Enbridge says.
"A trespass claim over a small tract of land that can readily be remedied through damages provides no basis for a court to usurp that process and prevent the U.S. government from speaking in one voice on the matter."
The band also maintains that its own 1854 land-secession treaty with Congress should take precedence over the pipeline treaty. The supremacy clause of the U.S. Constitution says otherwise, Enbridge says.
"The supremacy clause makes clear that treaties are supreme federal law alongside federal statutes," the company argued. "No authority suggests that a treaty with Canada on matters of international commerce has less power than a statute affecting Indian affairs."
The band has been fighting Enbridge in court since 2019, saying the company lost permission to operate on the reservation in 2013. Conley agreed; Enbridge insists a 1992 agreement with the band allowed it to keep operating.
But the judge was wary of an immediate shutdown, citing the risk of dire economic consequences, lingering fuel shortages in the Midwest, Ontario and Quebec and a lasting scar on Canada-U.S. relations.
Line 5 carries 540,000 barrels of oil and natural gas liquids daily across Wisconsin and Michigan to refineries in Sarnia, Ont. Environmental groups call the 70-year-old pipeline a "ticking time bomb" with a dubious safety record, despite Enbridge's claims to the contrary.
Defenders 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, as well as Ontario and Quebec.
This report by The Canadian Press was first published Jan. 22, 2024.
James McCarten, The Canadian Press
