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Commentary: Oil, water and the judges

The recent Husky Oil Refinery's catastrophic spill and fire illustrate the problem of oil and water. With immense gratitude for the firefighters who extinguished the fire, we are alive. They were able to stop the fire before it spread to the tank of hydrogen fluoride, 200 feet away. That would have been a major catastrophe. According to the Star Tribune, a "dense cold killing cloud" would have put l80,000 people at risk. We got a break; we all should be grateful.

The situation we are in is dangerous and getting more so. The oil/asphalt which gushed and burned was delivered by Enbridge, through their present lines to the Husky Refinery. Enbridge and Husky are both Canadian corporations, who have an immense impact on the future of our region. The impact on Gichi Gummi, or Lake Superior, and our health of this accident is not clear, nor will it be this year as lingering contamination is unknown.

All we know is that we are lucky, and that it's time to clean up, not make more of a mess.

Minnesota judge does not recommend pipeline route

Essentially, that's what Administrative Law Judge (ALJ) Anne O'Reilly said in the April 23 decision on the proposed Line 3. She noted climate change is increasing; Enbridge's liability is limited; and the old pipeline would be abandoned, leaving the mess for Minnesota landowners and tribes.

The judge did believe that Enbridge needs a non-leaking pipeline but did not recommend approving the so called "preferred route" and opening a new corridor. Instead, she ruled that the permit, if granted, should be in the present corridor. The ALJ noted clearly that she could not order sovereign tribes to grant an easement. This is a problem for Enbridge, as a quarter of the line crosses Leech Lake, Red Lake and Fond du Lac reservations, and more crosses treaty territory.

The Leech Lake government has been adamant about the opposition to the routing of the pipeline in the old corridor, while Red Lake has asked the company to remove pipes illegally trespassing on tribal trust land. This leaves Enbridge in a legal and policy conundrum. Enbridge has proceeded with extreme confidence and placed all corporate eggs in one basket — a new route — which cuts south of Park Rapids, Outing, the White Fish Lake chain, and the heart of Sandy Lake territory. They have done no major assessment of another route. Although the company says that most landowners support the line, the company does not disclose that many easements are granted across the tax forfeiture land in some of the poorest counties in the state.

Climate change and the necessity defense

Last year, climate change-related disasters caused the U.S. $190 billion, from the collapse of Puerto Rican infrastructure to the California wildfires.

This year, we hit 440 PPM CO2 — the largest amount of carbon in our atmosphere in history. Enbridge's proposed Line 3 would add 220 million more metric tons of CO2 to the environment annually. It turns out that Enbridge would not liable for a catastrophic spill here, whether in Hubbard County or the heart of Wild Rice territory. That's what Judge O'Reilly found in her 450-plus page decision, recommending against issuing Enbridge a permit for a new route.

Although Enbridge is the third largest corporation in Canada, O'Reilly found that through a series of limited liability subsidiaries, the mothership is protected from liability for a spill of catastrophic magnitude. "As explained by Applicant's own witness, Chris Johnston, neither Enbridge, Inc. nor Applicant's limited partner, EEP, would be liable for spills or costs of cleanup that could or might result from the Line 3 Project.... as a limited partner, EEP's financial exposure and risk is limited solely to its capital contribution in Applicant."

In short, O'Reilly finds that liability would remain with the people and land of Minnesota, not the big Canadian corporation.

That's a bit of a problem in her mind, and along with the recognition of the ecologically sensitive corridor, the broader issues of energy economics, survival of Anishinaabe people, and deep concerns about "abandonment," which span many pages of the report. Thus, no recommendation for the new corridor.

For Superior Mayor Jim Paine, the potential hydrogen fluoride catastrophe at the Husky Refinery was probably enough to jar his city and all of us, frankly, into a dose of reality of not only that oil and water do not mix, but that we are in a dangerous time.

The dangers in this period were also recognized by the Minnesota Court of Appeals in a landmark case of two women charged with turning the valves at Enbridge's Clearbrook facility and stopping the flow of oil. On April 23, hours before the ALJ decision, the judges at the Minnesota Court of Appeals recognized the unusual "necessity defense" case for the Water Protectors. Faced with felony charges, Emily Johnston and Annette Klapstein shut off valves on Oct. 11, 2016 as a part of a national coordinated effort by Climate Direct Action activists who shut down five pipelines carrying tar sands oil from Canada. Tar Sands oil is considered the dirtiest oil in the world.

State agencies like the Department of Health, Commerce, the Administrative Law Judge, tribal governments and at least the 68,000 people have testified against Enbridge's Line 3 proposal. This is indeed a moment in history, as spring is finally here, full of promise after a brutal winter. Let us pray for our Gichi Gummi, Lake Superior, and those who live on her shores in Superior. And, let us be grateful for the water and life bestowed upon us.

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