In the U.S., pipeline battles are often long, slow, bureaucratic processes with devastating consequences on the ecosystems. Defense and protection of the land nearly always come second to the interests of oil companies, with victories over them arriving infrequently and hard-won from those who’ve always known that it’s not a matter of if an oil pipeline sprouts a leak, but when.
This is the case in northern parts of Wisconsin and Michigan, where a section of a 70-year-old Canadian pipeline called Line 5 traverses 645 miles from Superior, Wisconsin, to Sarnia, Ontario. For nearly a decade, tribal members and leaders of the Bad River Band of Lake Superior Chippewa have been working to excise 12 miles of Line 5 from the Bad River Reservation, but since 2013, when the easements that allowed the the oil company, Enbridge Inc., to use tribal territory expired, Enbridge has refused to stop pumping oil through Line 5 or remove it.
In 2019, the Bad River Band filed a suit against Enbridge, and in 2020, while the suit was still ongoing and the pipeline in operation, the company proposed a new route for the section of the pipeline, which would run about 41.1 miles alongside the reservation rather than through it. The proposed new construction, which would cost an estimated $450 million, would connect to an existing tunnel under the Straits of Mackinac, a channel that connects Lake Michigan to Lake Huron.
In November 2022, a federal judge found that the international oil conglomerate was trespassing on Bad River land. But rather than ordering the pipeline be decommissioned and removed, the judge ordered that the Bad River Band government and Enbridge decide on a mitigation plan for a potential spill.
Though the judge ordered that an agreement be reached by Dec. 24, 2022, it is not yet clear if one has been determined. The Bad River Band did not respond to Prism’s request regarding the status of this agreement.
Enbridge spokesperson Juli Kellner said that talks with the Bad River Band are ongoing.
With Enbridge’s proposal for an alternative route, a new pipeline fight has taken hold alongside the old, sounding a simultaneous call to decommission the existing Line 5 and prevent a new one from going into the ground. At stake are the risks of an oil spill, the sovereignty of Indigenous treaty rights, and an estimated $41 billion in climate change-related costs over the next 40 years if Line 5 is able to operate. If water defenders and environmental activists are successful, shutting down Line 5 could offer a blueprint of how to replicate the victory elsewhere.
“The issue isn’t with the river”
The section of Line 5 that cuts through the Bad River Reservation was never supposed to last this long. Built in 1953, Line 5 belongs to a network of 1,900 miles of pipeline in the Lakehead System’s U.S. portion, part of the Enbridge Mainline, which begins in northern Canada and stretches into parts of Minnesota, Illinois, Wisconsin, and Michigan before it skirts back into Canada. Line 5 alone ships as much as 540,000 barrels, or 22.68 million gallons, of crude oil and natural gas liquids per day.
Kellner said in an email to Prism, “When it was built there was no expiration date set for Line 5. A pipeline’s lifespan is determined by inspections and maintenance, and Line 5 continues to be in very good condition.”
Advocates for decommissioning the pipeline say there are places along the line where corrosion is visible and where smaller breakages have led to spills on and off Bad River Band reservation land.
Once oil spills into the surrounding environment, it’s nearly impossible to return that ecosystem to its condition before the spill; this is especially true if oil reaches the water table, where it’s likely to remain forever. The inevitability of a spill and the consequences to the environment make the judge’s ruling disappointing and confusing—all while the pipeline is literally growing closer to the Bad River itself.
A single snakelike cut in the land formed by the Bad River, called a meander, was 320 feet from the pipeline when it was first constructed 70 years ago. Now, due to changes in weather patterns, rainfall frequency, flooding, and natural shifts in water flow, the river is just 28 feet from the pipeline. Since 2015, the gap between the water and Line 5 has disappeared at a rate of 13 feet per year, meaning that a conservative estimate gives the pipeline two years before it comes into contact with pristine surface water.
Jadine Sonoda, a campaign coordinator with the Wisconsin chapter of the Sierra Club, said that the Bad River’s movement has been painted as a kind of risk factor in and of itself to pipeline operations. But she said that healthy rivers shift their course; it’s part of how they function. “The issue isn’t with the river,” Sonoda said. “The issue is with the pipeline.”
How a pipeline can eliminate a treaty right
Line 5’s operation began before environmental protections and legislation affirming Indigenous and tribal sovereignty were formalized, like the Clean Water Act, the Clean Air Act, and the National Environmental Policy Act. The timing of this is important, said Esteban Chiriboga, an environmental specialist at the Great Lakes Indian Fish and Wildlife Commission, an inter-tribal agency of the 11 Ojibwe tribes that are located in Minnesota, Wisconsin, and Michigan.
Line 5 was approved just as scientists had begun to track the connection between the burning of fossil fuels and increases in the planet’s temperature. Whispers of the “greenhouse effect” wouldn’t be taken seriously by the U.S. government for another six decades. And the Supreme Court wouldn’t begin to affirm inherent tribal authority until the late 1950s.
In 1953, “these pipelines were essentially constructed without the knowledge or consent of any of these tribes,” Chiriboga said. “They’re basically features in the environment that appeared one day.”
The commission’s job, Chiriboga said, is to protect and preserve the habitats the tribes’ harvests depend upon. The rights to use and benefit from property that belongs to someone else are established by treaties and protect tribal members’ ability to hunt, fish, and gather on reservations and ceded territories. If the habitat quality becomes degraded to the point where tribes can no longer harvest a particular resource, “then we’ve essentially eliminated a treaty right,” Chiriboga said.
These rights in Indigenous homelands are constrained to the reservation and outlined ceded territory areas, which means that tribal nations can’t move anywhere else to access the species needed for survival, Chiriboga said.
In other words, neither the landscape nor the rights to its stewardship can be replicated elsewhere.
The Bad River Band is adamant about the protection of wild rice, a central element of the band’s creation story. At 16,000 acres, the neighboring Kakagon Slough and Bad River wild rice fields are one of the largest freshwater wetland estuaries in the Midwest. The pristine sloughs and wetlands play such a critical role in overall watershed and ecosystem health that they’re referred to as the “Everglades of the North.”
Oil companies given a free pass
The judge’s ruling that the Bad River Band and Enbridge come to a consensus on a spill mitigation plan evinces a belief that crude oil, once leached into the environment, can be wiped clean. This guise of “cleanup” helps paper over the snowball effects to human and non-human parts of the ecosystem caused by pipeline spills, not to mention the fact that those responsible for monitoring and reporting leaks are the pipeline companies themselves.
Pipeline companies’ failures of accountability are numerous. According to Inside Climate News, pipeline companies are not required to report what fuels are transported through which lines, the Environmental Protection Agency (EPA) has historically underestimated the severity and long-term impacts of oil spills, and the Pipeline and Hazardous Materials Safety Administration (PHMSA) housed within the Department of Transportation (DOT) is “perennially underfunded and understaffed.”
This self-accountability isn’t tenable. In the 20 years between 1990 and 2010, more than 5,600 pipeline spills were reported, amounting to 110 million gallons of crude and other petroleum products. According to a The New York Times review of federal records, pipeline companies removed less than half of the pollution.
What happens when an oil company has what amounts to self-oversight of its operations is something communities living along Michigan’s Kalamazoo River know too well. In 2010, Enbridge’s 6B pipeline ruptured, spilling 843,000 gallons of oil into the river, making it the largest inland pipeline spill ever in U.S. history. About 150 families were forced to move away permanently, as benzene-laden fumes rendered their homes carcinogenic.
The line defect that led to the spill was detected three times prior to the rupture but never repaired. Fewer than two weeks before the spill, Enbridge’s vice president of operations boasted about the company’s response plan. Recently released National Transportation Safety Board records show that Enbridge contacted its public affairs office in Houston before alerting the National Response Center, the federal agency companies alert when there’s been a chemical spill of some kind.
Enbridge’s Line 5 and Line 6B are component parts of the same pipeline system.
Opposing regulatory entities weigh in
In September 2020, Michigan Gov. Gretchen Whitmer issued an executive order to help the state achieve decarbonization by 2050. In line with the order, Whitmer revoked the Line 5 permit in her state in November 2020, citing concerns of climate change and environmental justice. But whether or not the executive order will have any impact remains in question.
For starters, the U.S. and Canada entered a treaty in 1977 called the Transit Pipelines Treaty. About a year after Whitmer’s executive order, the Canadian foreign affairs minister invoked the treaty, which stipulates that neither government can interrupt the transport of crude oil and natural gas between the countries.
The international treaty is just one of many points in federal and state law built to support the fossil fuel industry rather than curtail it.
It’s extremely difficult to decommission a pipeline once it’s in operation, and it’s equally challenging to prevent a pipeline from going in the ground, said Rob Lee, a staff attorney at Midwest Environmental Advocates, a nonprofit law center that’s working to ensure that the permitting agencies in Wisconsin consider all possible environmental consequences in their review and approval processes.
When environmental protections were first enacted in the 1970s, they were “aspirational,” Lee said, and have slowly been “eroded over those subsequent five decades to a point where we essentially have permitted pollution.”
Lee said that it’s standard operating procedure for a Department of Natural Resources (DNR) to grant a pipeline permit, as is the case for the federal Army Corps of Engineers. And in lieu of executive action from the Biden administration, Lee said that it’s critical to build a record of environmental concern that can later be used to challenge Enbridge in court. Lee said that the governor does not have the power to revoke a pipeline permit in Wisconsin.
Lee explained that a final Environmental Impact Statement (EIS) is forthcoming from the Wisconsin DNR, which will then be used to determine if and how Enbridge is granted a permit.
Benjamin Callan, a spokesperson for the Wisconsin DNR, said he would expect the EIS to be released in 2023 and that the agency is “still evaluating and modifying” the document. Callan confirmed that the DNR had communicated with Enbridge in the process of drafting the EIS. Callan also said that the DNR had communicated with the Great Lakes Indian Fish and Wildlife Commission and met with “environmental staff from the natural resource agencies of at least four or five of the tribes.”
”We’re trying to ensure that the environmental impact statement is comprehensive regarding the scope of the proposed project and its alternatives and the effects of that proposed project and its alternatives,” Callan said.
Cheryl Nenn, the riverkeeper at Milwaukee Riverkeeper, a nonprofit organization that works to heal and advocate for the Milwaukee, Menomonee, and Kinnickinnic rivers’ watersheds, said that Line 5 would be devastating for Wisconsin’s rivers and streams. She said that 40 million residents in the Midwest get their drinking water from the Great Lakes, which also hold 21% of the world’s fresh surface water.
“It’s probably the worst possible place for an oil spill,” Nenn said.
Kellner said that Enbridge’s proposed tunnel project through the straits would ensure the protection of the water with around-the-clock monitoring equipment.
Part of that risk is because the currents of the lakes shift frequently, meaning that if there was an oil spill in one section of the pipe it could spread rapidly to other parts of the lake. Not to mention that Milwaukee’s rivers and streams are already struggling from phosphorus and chloride pollution, Nenn said.
The North Woods area of Wisconsin, where Line 5 begins, is also vulnerable. The terrain is a rich ecosystem of pine, sugar maple, and oak trees, and forested areas known as the Pine Barrens, which are already endangered ecosystems. The proposed Line 5 reconstruction would further endanger the area by crossing 186 water bodies, three different drinking water aquifers, and 885 wetlands. “It’s a very water-rich part of our state,” Nenn said.
The pipeline already crosses over important spawning grounds for walleye, sturgeon, and other aquatic life, as well as critical habitat for many endangered birds, bears, and wolves that call the North Woods their home, Nenn said.
“I feel like we’re basically sending oil products from Canada to Canada,” Nenn said, “and bearing almost 100% of the environmental risk.”