Enbridge Fights to Keep Pipeline Running through Wisconsin Tribal Reservation

MADISON, Wis. — Enbridge, an energy company, is battling in a federal appellate court to overturn an order that would require the shutdown of a section of a pipeline passing through a tribal reservation in Wisconsin.

The company argues that U.S. District Judge William Conley's order to close a 12-mile stretch of Line 5 within three years is unjust. This particular segment cuts through the Bad River Band of Lake Superior Chippewa's reservation. Additionally, Conley mandated that Enbridge pay millions of dollars in trespassing fees to the tribe. Enbridge's attorney, Alice Loughran, voiced these concerns to a three-judge panel at the 7th U.S. Circuit Court of Appeals in Chicago.

Loughran contended that Conley's order violates a 1977 treaty between the United States and Canada, which explicitly states that neither country can obstruct the flow of oil and natural gas through pipelines between the two nations. Enbridge is seeking to reroute the pipeline away from the reservation but requires more time to secure permits from various government agencies.

"The court's shutdown order is prohibited," Loughran stressed.

On the opposing side, attorney Paul Clement, representing the Bad River tribe, implored the judges to go beyond Conley's ruling. He urged them to immediately shut down the pipeline as a measure to protect the environment from potential spills and to increase the financial penalties imposed on Enbridge for trespassing on tribal land.

Clement stated, "Enbridge wants to continue business as usual."

Line 5 currently transports up to 23 million gallons of oil and liquid natural gas daily. The pipeline originates from Superior, Wis., passes through northern Wisconsin and Michigan, and terminates in Sarnia, Ontario.

In 2019, the Bad River tribe filed a lawsuit against Enbridge with the goal of compelling the company to remove the portion of Line 5 that crosses their reservation. The tribe argues that the 71-year-old pipeline poses a danger, and the land easements permitting Enbridge's operation on the reservation expired in 2013. Enbridge has proposed relocating the pipeline outside the reservation, but the project hinges upon obtaining permits from multiple government agencies.

Bad River Tribe Seeks Action Against Enbridge

Members of the Bad River tribe have called on Conley to compel Enbridge to shut down certain sections of Line 5 that run through their reservation. They argue that erosion poses an immediate danger of rupture and contamination. Enbridge claims that no spills have occurred in Wisconsin since 2002 when a leak was contained at their Superior terminal.

In response, Conley issued a directive in June ordering Enbridge to cease operations on any part of the pipeline that crosses tribal land by June 2026. Additionally, the company has been ordered to pay the tribe over $5.2 million for trespassing, with ongoing payments required as long as the pipeline continues to operate on tribal territory.

During the hearing, the appellate judges expressed frustration at the slow pace of government agencies in granting Enbridge permits to reroute the pipeline. They also criticized the tribe for not taking preventative measures, such as placing sandbags, to safeguard against potential spills.

While Loughran, representing the tribe, argued that Enbridge was not permitted to take protective steps, Clement countered that it shouldn't be the tribe's responsibility since Enbridge is trespassing.

The judges voiced their exasperation with both sides for their refusal to collaborate. "The parties have mutually declared war against each other," stated Judge Michael Scudder.

Judge Frank Easterbrook informed the parties that a ruling is unlikely to be issued for several months.

Enbridge has faced scrutiny since 2010 when their Line 6B pipeline ruptured in southern Michigan, resulting in the release of 800,000 gallons of oil into the Kalamazoo River system.

Michigan's Democratic attorney general, Dana Nessel, filed a lawsuit in 2019 seeking to shut down two sections of Line 5 that pass beneath the Straits of Mackinac—the narrow waterways connecting Lake Michigan and Lake Huron. Nessel argued that the line could be ruptured by anchor strikes, causing a catastrophic spill. This lawsuit is currently pending in a federal appellate court.

In December, Michigan regulators approved Enbridge's $500 million plan to encase the pipeline section beneath the straits in a tunnel as a risk mitigation measure. The plan is awaiting approval from the U.S. Army Corps of Engineers.