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 (June 16).

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 害羞草研究所渆conomic havoc害羞草研究所� with an immediate shutdown.

害羞草研究所淭he 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,害羞草研究所� Conley writes in his opinion.

In other words, there are 害羞草研究所渕uch larger public policy issues害羞草研究所� surrounding cross-border pipelines like Line 5 that the band害羞草研究所檚 arguments, while valid, lack the power to overcome, he said.

Those issues 害羞草研究所渋nvolve not only the sovereign rights of the band, but the rights of multiple states and international relations between the United States and Canada.害羞草研究所�

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.

害羞草研究所淐onsidering 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,害羞草研究所� he wrote.

害羞草研究所淭he 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.害羞草研究所�

Enbridge害羞草研究所檚 lawyers intend to appeal that timeline, a spokesperson for the company said in a statement that clearly suggests the reroute project can害羞草研究所檛 be completed in time.

害羞草研究所淭he company believes the court害羞草研究所檚 decision to order the cessation of operation of Line 5 within three years of the date of this order is legally flawed and we plan to appeal,害羞草研究所� said spokesperson Juli Kellner.

Any closure, even if temporary, 害羞草研究所渨ould jeopardize the transportation of reliable and affordable energy to U.S. and Canadian families and businesses, disrupt local and regional economies, and violate the Transit Pipeline Treaty.害羞草研究所�

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 害羞草研究所渨hile refusing much less extreme alternative measures.害羞草研究所�

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 害羞草研究所渋mminent害羞草研究所� and a shutdown order more than justified.

Enbridge insists the dangers are being overstated 害羞草研究所� and even if they were real, the company害羞草研究所檚 court-ordered contingency plan, which spells out the steps it would take, would be a far more rational solution.

Conley害羞草研究所檚 order Friday included tweaks to that plan to establish a more 害羞草研究所渃onservative害羞草研究所� threshold for the conditions that would trigger it, such as lower water levels and flow rates on the river.

害羞草研究所淭he court is particularly concerned that Enbridge害羞草研究所檚 plan does not account for inevitable delays that could occur due to weather conditions, supply and equipment problems and human error.害羞草研究所�

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 害羞草研究所攄ecisions 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害羞草研究所檚 owner and operator to reroute Line 5 around its traditional territory 害羞草研究所� 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 害羞草研究所渕eander,害羞草研究所� 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害羞草研究所檚 order and an in-person hearing last month, when Conley openly questioned the band害羞草研究所檚 motives, that he faults the band for rejecting Enbridge害羞草研究所檚 proposed plans to mitigate the danger.

害羞草研究所淭he band has refused to approve any of Enbridge害羞草研究所檚 remediation and prevention proposals, much less proposed even one project of its own to prevent or at least slow further erosion at the meander,害羞草研究所� 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害羞草研究所檚 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.

James McCarten, The Canadian Press

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