Enbridge may face tough legal battle to keep 60-yr-old pipeline running

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By Nia Williams

<span class="articleLocation”>Enbridge Inc may be set for a bruising
legal battle in Wisconsin after a Native American tribe voted
against renewing land use agreements on a major crude oil
pipeline, potentially shutting down a conduit that has been in
operation since the 1950s, legal experts said.

The vote last week has ratcheted up tension on Enbridge,
which already faces questions about the safety of the line
elsewhere in the U.S. Midwest.

The decision also opened a new avenue of opposition to North
American energy infrastructure, as it was a notable use of
tribal authority to move against an existing pipeline. Activists
have mostly concentrated on halting new pipeline construction
across the United States and Canada, most notably the Standing
Rock Sioux’s fight against the Dakota Access line in North

The Bad River Band decided that Enbridge should no longer be
allowed to operate the Line 5 pipeline across its reservation,
and is calling for the 64-year-old conduit to be removed because
of concerns about potential oil spills.

Line 5 is a vital part of Enbridge’s Mainline system, which
transports the bulk of Canadian crude exports to the United
States. The line originates in Superior, Wisconsin, and ends in
Sarnia, Ontario.

The 540,000 barrel-per-day pipeline is still flowing.
Spokesman Michael Barnes said Calgary-based Enbridge is reaching
out to the band to restart negotiations while also evaluating
its long-term strategy.

But legal experts said that if negotiations fail, Enbridge
is unlikely to be able to have state or federal authorities
force the band to allow Line 5 to operate, a process known as
condemnation, if it is on tribal lands.

“There’s not much you can do because tribes are sovereign;
you cannot exercise the power to condemn,” said James Freeman, a
partner with law firm Zabel Freeman in Houston.

Pipeline companies and public utilities can usually take
advantage of eminent domain laws that grant them the right to
build projects on land that is not theirs for the greater public
good. They also reach easement agreements, allowing the pipeline
company the legal right to use property owned by another party
for a special purpose.

Much may depend on whether the tracts in question are on
tribal land or on land allotted to individual tribe members, in
which case condemnation might be viable, said Jim Bowe, a
partner with King & Spalding law firm in Washington, D.C.

“Enbridge has got a real challenge here,” Bowe added. “If
it’s out of easements, the pipeline is a trespasser.”

Bowe said the Bad River Band could file a lawsuit to try to
have Line 5 removed or seek an injunction to force the pipeline
to stop operating.

Dylan Jennings, a Bad River tribal council member, said the
tribe was developing a plan of action with its legal staff and
would go to court if necessary.

“We are not convinced that a 64-year-old pipeline is
structurally sound enough to last even another few years and we
are not prepared to leave that behind for another generation,”
Jennings said. “No amount of compensation or negotiation will
change our minds.”

The line has not leaked since it was built in 1953,
according to Enbridge’s website. But the tribe’s concerns about
the age of Line 5 echoed worries in Michigan, where in 2015
Governor Rick Snyder established a pipeline safety advisory
board to address concerns that Line 5’s underwater crossing in
the Straits of Mackinac, connecting Lake Michigan and Lake
Huron, could leak.

That followed a 2010 leak of 20,000 barrels of crude into
the Kalamazoo River in Michigan from Enbridge’s Line 6B, the
largest onshore oil spill in U.S. history.

Michigan has ordered two independent reports, which Enbridge
is contributing to the cost of, to examine the reliability of
Line 5 and alternatives to the pipeline. Those reports are
expected to be finished by June.

A 2015 report produced by the Michigan Petroleum Pipeline
task force criticized Enbridge for lack of disclosure related to
its inspections of the pipeline. (Additional reporting Liz Hampton in Houston; E)

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