For more than 60 years, one section of Enbridge’s elaborate network of pipelines carrying petroleum across Canada has taken a detour through the Bad River Reservation in northern Wisconsin.
But despite being well within the path of a proposed pipeline, tribal authorities said this week that the tribe is constitutionally entitled to block the project.
Energy Transfer Partners, the Dallas-based firm behind the Dakota Access and Keystone XL pipelines, has considered building a pipeline through the Bad River reservation, as well as into Missouri and Illinois. Enbridge had never taken the product through their reservation before.
The pipeline was carried by Enbridge through their reservation, called Anderson County. As in the Dakotas, the pipeline has a clean drinking water treatment plant on site. On Thursday, tribal leaders filed an action in federal court in Madison, Wisconsin, that said they are now part of the U.S. system that can challenge the legality of pipelines.
“This tribe has been dealing with this issue since the 1930s!” said Carla Rochelhoeth, an attorney for the Bad River Band of Chippewa and other tribal groups. “They are getting cooperation both from the government and private landowners who are just trying to do business. But these pipelines are injecting in modern terms the advent of companies that don’t have to respect local concerns for these things.”
The historical connection started in 1962 when the federal government extended the pipeline right of way from Chicago to Maine, stopping in Manitoba, Saskatchewan and Manitoba again on their way to the United States.
Two years after that, President John F. Kennedy granted the rights of way to Trans-Canada International, which was owned by the Alberta-based Canadian government. In 1970, the company built a terminal in Indiantown, Indiana, where it could ship product directly to refineries in New York. That fully secured pipelines across Canada required approval from aboriginal communities for routes that crossed them.
Even though Enbridge hasn’t used the reservation’s right of way for at least 30 years, environmental groups argue that this week’s court filing has recognized a U.S. authority over them.
“The pipeline is a very concrete example of how environmental concerns and treaty rights have to be protected,” said Karl Freudenberg, director of the Tribal Law Section at Public Citizen, a group that supports pipelines. He said the group went to court on behalf of native tribes any time those issues came up.
Enbridge, which is based in Calgary, calls the tribe’s lawsuit “specious” and said it will seek to dismiss the claim.
Still, Kolbe Baker, a lawyer for the company, said in an interview that “this lawsuit simply reduces the chances of getting approval for this pipeline from the tribal leaders who have sent us a line every time for decades to “be reasonable.”
Baker argued that his clients were determined to defend themselves against environmental concerns, adding that he’s “certain that there are things that tribes with a stake in protecting the public are determined not to build.”
Enbridge has enough pipeline capacity to complete the terrain from Minnesota to Wisconsin, where it crosses the lake Superior watershed and as far north as Wilde Lake, though some of its oil is shipped on tankers through more treacherous waters farther north.
Baker said his clients could look to use legal avenues in a broader case involving sovereign immunity associated with treaties. “We expect its rich valuation and strange quirkiness, the filing is simply another dodge for dealing with the ridiculous allegations they’ve made to get a stay,” Baker said.
He said the company is considering litigation. “Energy Transfer Partners is probably reviewing or has already reviewed [the lawsuit] very quietly,”but “we expect this case to decide this pipeline right now.”
Enbridge had never planned to build gas pipelines through the reservation when it received the BRC’s approval, but that didn’t stop the firm from applying once President Barack Obama left office.