An administrative law judge has upheld state permits allowing Canadian energy company Enbridge to construct a 41-mile reroute of its Line 5 oil pipeline around the reservation of the Bad River Band of Lake Superior Chippewa, prompting the tribe to file a lawsuit seeking to block construction, according to WisPolitics.
Line 5 is a 645-mile pipeline built in 1953 that transports crude oil and natural gas liquids from Superior to Sarina, Ontario, according to Superior Rivers Watershed Association. About 12 miles of the existing line cross the Bad River reservation, according to Superior Rivers Watershed Association.
In 2022, a federal judge ruled that Enbridge was trespassing by operating on the reservation, according to WPR. In 2023, the court ordered the company to cease operations on that segment by June 16, 2026, according to Earthjustice.
Enbridge’s proposed 41-mile reroute is intended to move the pipeline off tribal land before that deadline, according to Enbridge.
Administrative Law Judge Angela Chaput Foy affirmed permits issued by the Wisconsin Department of Natural Resources for the reroute of the Line 5 project, which would cross more than 100 acres of wetlands and nearly 200 waterways in Ashland and Iron counties, according to Wisconsin Public Radio.
The Bad River Band, represented by Earthjustice, filed a petition Feb. 19 for judicial review in Iron County Circuit Court, asking a judge to pause the project’s wetland and waterway permits, water quality certification and stormwater discharge authorization while the case proceeds, according to the petition.
The proposed segment would be built upstream of waterways that flow through or are hydrologically connected to the reservation, effectively surrounding the reservation on three sides if constructed, according to the filing.
Campaign coordinator of the Sierra Club Jadine Sonoda said the ruling was disappointing but not unexpected.
“It doesn’t change anything in terms of what we need to see happen with Line 5,” Sonoda said. “It’s still a massive threat, and shutting it down is still very much needed when we’re thinking about protecting our communities, land and waters.”
As of Feb. 20, the Bad River Band had challenged the administrative decision and requested a stop to any construction, according to Sonoda.
Whether Enbridge can begin construction immediately now depends on how the circuit court rules on the tribe’s request to halt construction, according to Earthjustice’s senior associate attorney John Petoskey. Without a court order blocking the project, construction could proceed while litigation continues, according to Petoskey.
An attorney representing the Bad River Band said the tribe believes the DNR violated Wisconsin’s environmental statutes, including water quality and wetland protection laws under Chapters 281 and 30, as well as the Wisconsin Environmental Policy Act.
Wisconsin has robust wetlands protection laws, according to Petoskey.
“The law demands substantive consideration of impacts and addressing those impacts,” Petoskey said. “We don’t believe that happened here.”
The project would be severely destructive to public communal wetlands and waters, according to Petoskey. These public resources belong to everyone, and Wisconsin’s environmental statutes are designed to ensure big companies like Enbridge cannot buy their way into environmental destruction, according to Petoskey.
The tribe has asked the court for both an immediate and longer-term pause on construction, according to Petoskey.
“While the court considers our claims, it’s our position that construction should not move forward,” Petoskey said. “Construction is irreversible. If the pipeline is built and we prevail later, the Band wouldn’t be able to have a meaningful remedy.”
The case is grounded in state environmental law rather than a direct treaty rights claim, but the reroute would be built in territory where the Band relies on subsistence fishing, hunting and gathering, according to Petoskey.
Enbridge’s Line 3 replacement project in Minnesota serves as a warning for the Line 5 project, according to a statement by Chapter Director of the Wisconsin Sierra Club Elizabeth Ward.
Line 3 construction resulted in devastating damage, and Enbridge is proposing very similar work in vulnerable areas, according to Sonoda.
Sonoda cited concerns about frac-outs, or releases of drilling fluid during trenchless construction, and long-term changes to wetlands and hydrology.
“Folks who have been monitoring Line 3 are continuing to see impacts years after construction wrapped up,” Sonoda said. “Wetlands take so long to become what they are, and one reckless decision puts all of that at risk.”
Beyond construction impact, the operation of Line 5 raises broader concerns, according to Sonoda.
The threats of the project are two-fold, according to Sonoda. There is the immediate threat of construction, considering the damage from Enbridge’s previous projects, and if they complete the pipeline, there’s the existential threat of climate change and the risk of an oil spill, according to Sonoda.
“We’re hoping the court understands the stakes here and pauses construction while our case moves forward,” Petoskey said.
If a spill occurred in the Bad River watershed, cleanup could be extremely difficult, if not impossible, due to the geography of the region, according to Sonoda. Moreover, a spill would threaten wildlife crucial to Bad River and other Ojibwe tribes and undermine tourism and businesses reliant on the Great Lakes, according to Sonoda.
The environmental destruction of the Line 5 project outweighs the economic benefits cited by its supporters, according to Sonoda.
For now, the project’s fate hinges on the Iron County Circuit Court’s decision on the tribe’s request for halt in construction, according to Petoskey.
“There’s no way to put a price on clean water,” Sonoda said. “We all need it to live.”
