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Enbridge punches back on Line 5 challenge: ‘Nothing but counter-factual speculation’

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This photo taken in October 2016 shows an aboveground section of Enbridge’s Line 5 at the Mackinaw City, Mich., pump station. The Bad River Band of the Lake Superior Chippewa wants a federal judge in Wisconsin to order the pipeline closed, fearing a rupture on its territory due to spring flooding. THE CANADIAN PRESS/AP-John Flesher

By James McCarten in Washington

Michigan joined the Line 5 legal fray unfolding just across state lines Wednesday as lawyers for Enbridge Inc. and an Indigenous band prepared to square off over whether the controversial cross-border pipeline should be shut down.

The stage is set for oral arguments Thursday in the Wisconsin capital of Madison as a federal judge contemplates whether to order the taps turned off and the pipeline’s contents purged to forestall a watershed-fouling rupture.

That hearing will now also include lawyers fighting a similar legal battle with Enbridge in Michigan, where Attorney General Dana Nessel has so far been thwarted in her three-year campaign to seal off Line 5 for good.

The Bad River Band of the Lake Superior Chippewa, through whose northern Wisconsin territory the line runs, has filed a motion arguing that spring flooding along the riverbanks has rendered the risk of a breach too great to ignore.

Nonsense, Enbridge argues back in an opposition brief that takes direct aim at the band’s claims of a looming environmental emergency, as well as the “drastic remedy” its lawyers are requesting.

“Despite having to prove both liability and grounds for an injunction, the band has done neither. The motion must therefore be denied,” the brief reads, describing their argument as “alarmist” and “counterfactual speculation.”

“No release of oil is ‘ready to take place,’ ‘happening soon,’ or ‘real and immediate.'”

The 50-page filing includes among its exhibits an email exchange between Enbridge and the band’s natural resources officials to support its argument that the band has been unwilling to allow the company to do any remedial work.

“This court should contrast the evidence before it of Enbridge’s persistent efforts and overtures to reach a solution … with the band’s refusal to meaningfully engage or act.”

Even if the risk was high, shutting down the pipeline would not be the appropriate remedy, Enbridge says, pointing to a court-ordered contingency plan that spells out the steps it would take if the threat were indeed urgent.

“Enbridge will pre-emptively purge and shut down the line well in advance of any potential rupture,” the brief says, adding that the area remains under constant 24-hour video surveillance.

“Any flooding and erosion has not, and would not, catch Enbridge by surprise.”

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 argues, and it wants the pipeline closed off immediately to prevent catastrophe.

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.

At four locations, the river was less than 4.6 metres from the pipeline — just 3.4 metres in one particular spot — and the erosion has only continued.

Michigan, led by Nessel, has been arguing since 2019 that it’s only a matter of time before Line 5 leaks into the Straits of Mackinac, the ecologically delicate waterway where it crosses the Great Lakes.

“The alarming erosion at the Bad River meander poses an imminent threat of irreparable harm to Lake Superior which far outweighs the risk of impacts associated with a shutdown of the Line 5 pipeline,” she argues in her brief.

“Without judicial intervention, it is likely that this irreparable harm will be inflicted not only on the band, but also on Michigan, its residents, and its natural resources.”

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.

Its proponents, including the federal government, say a shutdown would cause major economic disruption across Alberta, Saskatchewan and the U.S. Midwest, where Line 5 provides feedstock to refineries in Michigan, Ohio and Pennsylvania.

It also supplies key refineries 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.

“The implications (of a shutdown) are significant — not only to Pearson airport, not only to the Detroit airport, but to our mutual economies,” Transport Minister Omar Alghabra said Wednesday on Parliament Hill.

Talks about possible contingency plans have been taking place, he added, though he hinted at something Enbridge and pipeline experts have been saying for years: there are no real alternatives.

“There’s been ongoing discussion,” Alghabra said. “But I can tell you that our focus is making sure that Line 5 continues operations.”

That was the idea behind a lengthy statement issued Tuesday by the Canadian Embassy, which warned of severe economic consequences as well as potential ramifications for bilateral relations were the line to close.

“The energy security of both Canada and the United States would be directly impacted by a Line 5 closure,” the statement said. Some 33,000 U.S. jobs and US$20 billion in economic activity would be at stake, it added.

“At a time of heightened concern over energy security and supply, including during the energy transition, maintaining and protecting existing infrastructure should be a top priority.”

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

Nonetheless, the embassy’s statement and the Enbridge brief tacitly acknowledge that the prospect of a shutdown order is very real.

In Enbridge’s case, the brief pre-emptively asks the judge to grant a stay of 30 days, should an injunction be ordered, to give lawyers time to mount an appeal.

And if “this specific, temporary flood situation” results in a shutdown, the embassy says, Canada expects the U.S. to comply with the treaty, “including the expeditious restoration of normal pipeline operations.”

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

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Alberta

Pierre Poilievre – Per Capita, Hardisty, Alberta Is the Most Important Little Town In Canada

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From Pierre Poilievre

The tiny town of Hardisty, Alberta (623 people) moves $90 billion in energy a year—that’s more than the GDP of some countries.

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Energy

If Canada Wants to be the World’s Energy Partner, We Need to Act Like It

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Photo by David Bloom / Postmedia file

From Energy Now

By Gary Mar


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With the Trans Mountain Expansion online, we have new access to Pacific markets and Asia has responded, with China now a top buyer of Canadian crude.

The world is short on reliable energy and long on instability. Tankers edge through choke points like the Strait of Hormuz. Wars threaten pipelines and power grids. Markets flinch with every headline. As authoritarian regimes rattle sabres and weaponize supply chains, the global appetite for energy from stable, democratic, responsible producers has never been greater.

Canada checks every box: vast reserves, rigorous environmental standards, rule of law and a commitment to Indigenous partnership. We should be leading the race, but instead we’ve effectively tied our own shoelaces together.

In 2024, Canada set new records for oil production and exports. Alberta alone pumped nearly 1.5 billion barrels, a 4.5 per cent increase over 2023. With the Trans Mountain Expansion (TMX) online, we have new access to Pacific markets and Asia has responded, with China now a top buyer of Canadian crude.

The bad news is that we’re limiting where energy can leave the country. Bill C-48, the so-called tanker ban, prohibits tankers carrying over 12,500 tons of crude oil from stopping or unloading crude at ports or marine installations along B.C.’s northern coast. That includes Kitimat and Prince Rupert, two ports with strategic access to Indo-Pacific markets. Yes, we must do all we can to mitigate risks to Canada’s coastlines, but this should be balanced against a need to reduce our reliance on trade with the U.S. and increase our access to global markets.

Add to that the Impact Assessment Act (IAA) which was designed in part to shorten approval times and add certainty about how long the process would take. It has not had that effect and it’s scaring off investment. Business confidence in Canada has dropped to pandemic-era lows, due in part to unpredictable rules.

At a time when Canada is facing a modest recession and needs to attract private capital, we’ve made building trade infrastructure feel like trying to drive a snowplow through molasses.

What’s needed isn’t revolutionary, just practical. A start would be to maximize the amount of crude transported through the Trans Mountain Expansion pipeline, which ran at 77 per cent capacity in 2024. Under-utilization is attributed to a variety of factors, one of which is higher tolls being charged to producers.

Canada also needs to overhaul the IAA and create a review system that’s fast, clear and focused on accountability, not red tape. Investors need to know where the goalposts are. And, while we are making recommendations, strategic ports like Prince Rupert should be able to participate in global energy trade under the same high safety standards used elsewhere in Canada.

Canada needs a national approach to energy exporting. A 10-year projects and partnerships plan would give governments, Indigenous nations and industry a common direction. This could be coupled with the development of a category of “strategic export infrastructure” to prioritize trade-enabling projects and move them through approvals faster.

Of course, none of this can take place without bringing Indigenous partners into the planning process. A dedicated federal mechanism should be put in place to streamline and strengthen Indigenous consultation for major trade infrastructure, ensuring the process is both faster and fairer and that Indigenous equity options are built in from the start.

None of this is about blocking the energy transition. It’s about bridging it. Until we invent, build and scale the clean technologies of tomorrow, responsibly produced oil and gas will remain part of the mix. The only question is who will supply it.

Canada is the most stable of the world’s top oil producers, but we are a puzzle to the rest of the world, which doesn’t understand why we can’t get more of our oil and natural gas to market. In recent years, Norway and the U.S. have increased crude oil production. Notably, the U.S. also increased its natural gas exports through the construction of new LNG export terminals, which have helped supply European allies seeking to reduce their reliance on Russian natural gas.

Canada could be the bridge between demand and security, but if we want to be the world’s go-to energy partner, we need to act like it. That means building faster, regulating smarter and treating trade infrastructure like the strategic asset it is.

The world is watching. The opportunity is now. Let’s not waste it.

Gary Mar is president and CEO of the Canada West Foundation

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