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SEEKING THE DENIAL OF ENBRIDGE’S APPLICATION FOR A PERMIT FOR THE LINE 5 TUNNEL

AND PIPLELINE PROJECT UNDER SECTION 404 OF THE CLEAN WATER ACT AND SECTION 10 OF

THE RIVERS AND HARBORS ACT

Application Number LRE-2010-004653-56-A19

EXHIBITS

EXHIBIT A

STATE OF M IC HIGAN

GRETCHEN W H IT MER

O FFIC E O F THE GOVERNO R

GARLIN GILCHRIST II

GOVERNOR

LANSING

LT. GOVERNOR

June 19, 2020

Al Monaco

CEO, Enbridge, Inc.

200, Fifth Avenue Place

425 – 1st Street S.W.

Calgary, Alberta

Canada T2P 3L8

Dear Mr. Monaco,

Yesterday evening your company informed the State of Michigan that an anchor support on

one of the Line 5 dual pipelines running along the bottomlands of the Straits of Mackinac

had incurred significant damage. This support lies approximately 150 feet from a section of

the pipeline where damage to the pipeline coating was discovered on or around May 26,

2020. At this point, as I understand it, the cause for this damage to the pipeline support is

unknown, although it appears the anchor support was subject to considerable force. After

discovering the damaged anchor support, Enbridge shut down the Line 5 pipeline and is

gathering more information through divers, the use of a remotely operated vehicle (ROV),

and other means. The pipeline remains shut down as Enbridge continues to gather more

information.

The information I have received about this incident leaves many unanswered questions as

to the cause of this damage, the catastrophe that may have been narrowly avoided, and the

threats that may remain as a result of the damaged infrastructure. As you know, under the

1953 easement Enbridge holds an ongoing duty of “due care” to the State of Michigan in the

“operating” and “maintaining” of the dual pipelines. There can be no question this duty

obligates Enbridge to proceed with the utmost caution and care at this moment.

As a first step toward fulfilling that duty, I ask that Enbridge provide Director Liesl Clark,

Department of Environment, Great Lakes, and Energy, and Director Dan Eichinger,

Department of Natural Resources, all information available to Enbridge about this

incident. This includes, but is not limited to, all engineering reports, photographs, video,

GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909

www.michigan.gov

PRINTED IN-HOUSE

and other demonstrative evidence of the damage. Please provide this information no later

Monday, June 22, 2020 and supplement that disclosure with all further information about

the incident as it becomes available. Information in digital form and available immediately

should be provided within 24 hours to Director Eichinger (EichingerD@michigan.gov) and

Director Clark (ClarkL20@michigan.gov). In addition, I ask that Enbridge provide

affirmative evidence, including appropriate diagnostic testing, that establishes the integrity

of the dual pipelines in the Straits of Mackinac.

As Governor of the State of Michigan – the Great Lakes State – I carry an immense burden

to protect this priceless treasure that defines the contours of our state and our way of life. I

anticipate and expect your full cooperation.

Sincerely,

Gretchen Whitmer

Governor

cc:

Liesl Clark, Director, Department of Environment, Great Lakes, and Energy, State

of Michigan

Dan Eichinger, Director, Department of Natural Resources, State of Michigan

Alan K. Mayberry, Associate Administrator for Pipeline Safety, Pipeline and

Hazardous Materials Safety Administration, U.S. Department of Transportation

EXHIBIT B

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EXHIBIT D

STATE OF MICHIGAN

CIRCUIT COURT FOR THE 30TH JUDICIAL CIRCUIT

INGHAM COUNTY

DANA NESSEL, ATTORNEY GENERAL OF

THE STATE OF MICHIGAN, ON BEHALF

OF THE PEOPLE OF THE STATE OF

MICHIGAN,

Plaintiff,

No. 19-474-CE

HON. JAMES S. JAMO

ENBRIDGE ENERGY, LIMITED

PARTNERSHIP; ENBRIDGE ENERGY

COMPANY, INC.; and ENBRIDGE ENERGY

PARTNERS, L.P.,

Defendants.

S. Peter Manning (P45719)

Robert P. Reichel (P31878)

Daniel P. Bock (P71246)

Charles A. Cavanagh (P79171)

Assistant Attorneys General

Attorneys for Plaintiff

Environment, Natural Resources, and

Agriculture Division

P.O. Box 30755

Lansing, MI 48909

(517) 335-7664

Peter H. Ellsworth (P23657)

Jeffery V. Stuckey (P34648)

Ryan M. Shannon (P74535)

Dickinson Wright PLLC

Attorneys for Defendants

215 South Washington Square

Suite 200

Lansing, MI 48933

(517) 371-1730

David H. Coburn (pro hac vice)

William T. Hassler (pro hac vice)

Alice Loughran (pro hac vice)

Joshua Runyan (pro hac vice)

Steptoe & Johnson LLP

Attorneys for Defendants

1330 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 429-3000

Phillip J. DeRosier (P55595)

Attorney for Defendants

500 Woodward Avenue

Suite 4000

Detroit, MI 48226

(313) 223-3866

PLAINTIFF’S EX PARTE MOTION FOR

TEMPORARY RESTRAINING ORDER PENDING

HEARING ON MOTION FOR PRELIMINARY INJUNCTION

The Plaintiff, Dana Nessel, Attorney General of the State of Michigan, on

behalf of the people of the State of Michigan, brings this ex parte motion for a

temporary restraining order pursuant to MCR 3.310(B).

The purpose of this motion is to preserve the status quo until the Court can

hear and decide the Plaintiff’s contemporaneously filed motion for preliminary

injunction. A temporary restraining order preserving the last peaceable,

uncontested status quo is necessary to prevent two irreparable injuries. First, the

grave risk of irreparable injury to the Great Lakes if Defendants continue operation

of the west leg of the Line 5 dual pipelines, or resume operation of the east leg of the

pipelines, before the Court can consider Plaintiff’s motion for a preliminary

injunction.

Second, the State of Michigan will suffer an irreparable injury if Defendants

continue operation of the west leg of the pipelines, or resume operation of the east

leg of the pipelines, without first providing legally required information to the State

for its review and determination that it is safe to resume pipeline operations.

Consistent with MCR 3.310(B)(2), undersigned counsel for the Plaintiff

certifies that he attempted to contact Defendants’ counsel Philip DeRosier, who has

been Plaintiff’s primary point of contact in this matter, via telephone at

approximately 3:40 p.m., and via email at approximately 3:50 p.m. on June 22,

2020, to provide notice of this motion.

For these reasons, as set forth more fully in the brief in support of this

motion, the Plaintiff respectfully requests that the Court enter a temporary

restraining order enjoining operation of the Line 5 dual pipelines in the Straits of

Mackinac until the Court can rule on Plaintiff’s motion for preliminary injunction.

Respectfully submitted,

Dana Nessel

Attorney General

/s/Daniel P. Bock

S. Peter Manning (P45719)

Robert P. Reichel (P31878)

Daniel P. Bock (P71246)

Charles A. Cavanagh (P79171)

Assistant Attorneys General

Attorneys for Plaintiff

Environment, Natural Resources,

and Agriculture Division

P.O. Box 30755

Lansing, MI 48909

(517) 335-7664

Dated: June 22, 2020

LF: Enbridge Straits (AG v)/AG #2019-0253664-B-L/Motion for TRO 2020-06-22

EXHIBIT E

S TATE OF M ICHIGAN

DEPARTMENT OF

ENVIRONMENT, GREAT LAKES, AND ENERGY

GRETCHEN WHITMER

G AYLORD D ISTRICT O FFICE

LIESL EICHLER CLARK

DIRECTOR

GOVERNOR

May 4, 2020

VIA E-MAIL

Mr. Paul Turner

Enbridge Energy, Limited Partnership

26 East Superior Street, Suite 309

Duluth, Minnesota 55802

Dear Mr. Turner:

SUBJECT: Correction Request

Submission No. HNY-NHX4-FSR2Q

Counties: Emmet and Mackinac

Site Name: Enbridge Energy-Line 5-Straits of Mackinac

The Department of Environment, Great Lakes, and Energy (EGLE), Water Resources Division

(WRD), has received and reviewed your application for a utility tunnel beneath the Straits of

Mackinac. Based on the review, the application has been determined to be incomplete as

received and cannot be further processed until the information and edits requested below have

been submitted.

EGLE requires a public notice document to explain the proposed regulated activities as

concisely as possible and to be easily accessible to the public. The public notice material is

intended to be published for the public to use in reviewing the proposal and offering substantive

comments on the proposed project. The materials, as submitted when compiled, total over 350

pages in length and are 86 MB in size. This is a very large sized document. EGLE requests

that Enbridge edit submitted materials for precision and relevance to actual proposed

construction. Please eliminate items that do not apply to the proposed work, as well as, adding

details where needed/requested. All Enbridge materials submitted to date will be retained in

MiWaters and will continue to be accessible to the public. EGLE is not advising elimination of

already submitted documents. EGLE is requesting refining of materials for appropriate public

noticing.

EGLE understands that design–build process is being used by overlapping the design phase

and construction phase of this project. This means that much of the exact dimensions and

specifications of structures and tunnel location and design are to be determined as the project

design is finalized. One example is the exact proposed tunnel inside diameter is not yet

determined. Enbridge is proposing the tunnel will be approximately 18 to 21 feet in finished

diameter, or other appropriate diameter determined through final design. Enbridge will be

required to provide appropriate and relevant final design details to EGLE WRD as soon as

designs are finalized and available.

Please consider the benefits of scheduling a conference call to discuss this correction request

and EGLE comments and requested edits to Enbridge application materials. EGLE

recommends that we discuss this application, its processing, and to go over the details of

2100 WEST M-32 • GAYLORD, MICHIGAN 49735-9282

Michigan.gov/EGLE • 989-731-4920

Mr. Paul Turner

May 4, 2020

implementing this application review including Enbridge future submittals of relevant design

products and specifications.

Under Part 17, Michigan Environmental Protection Act, of the Natural Resources and

Environmental Protection Act, 1994 PA 451, as amended (NREPA), the department is required

to assess whether there are any feasible or prudent alternatives to the tunnel project. The

application should include a complete assessment of the alternatives.

On page 2 of the application attachment titled “Investing in Michigan’s Future” two transportation

options are mentioned but not analyzed. Please include a detailed analysis of those options

and any others that are available to Enbridge.

EGLE anticipates requiring mitigation for permanent wetland impacts. Please provide a

conceptual wetland mitigation plan. If permanent wetland impacts are proposed and no

mitigation is offered, you must provide more than a request for wetland mitigation waiver. A

commentary is required with an explanation detailing why compensatory wetland mitigation is

not required.

The wetland restoration plan requires additional details. Please refer to R 281.925 (Rule 5) of

Part 303, Wetlands Protection, of the NREPA for guidance.

Houghton’s Goldenrod (Solidago houghtonii) and Dwarf Lake Iris (Iris lacustris), both plant

species that have been separately listed by Michigan and the United States Fish and Wildlife

Service as Threatened (legally protected), have been observed within the limits of disturbance

on the north side of the Straits of Mackinac. Please upload a mitigation plan for the anticipated

impacts to Houghton’s Goldenrod and Dwarf Lake Iris.

Please provide spoil disposal information detailing, as best estimated, anticipated amounts

including muck and rock that will be moved off-site and how and where this material will be both

temporarily and permanently disposed of. Once designs are final please update this

information.

There is known litigation involving the property with several ongoing legal challenges. On

page 8 of the application there is a question asking about any known litigation involving the

property. If not including known litigation information, Enbridge should explain why the still

pending litigation on the validity of Act 359, the Tunnel Agreement, and the Assignment of

Easement are not mentioned.

Please upload a copy of the referenced Michigan Department of Natural Resources Easement

to Construct and Maintain Underground Utility Tunnel at the Straits of Mackinac.

Please upload a copy of the Straits Geotechnical Data Report (GDR). Enbridge indicated that

additional laboratory testing was being completed and results of this analysis are proposed as

an addendum to the GDR. As this project moves forward, please provide any additional GDR

information as it is generated.

This is an effort to refine and reduce the total size and reduce number of pages to be included in

the final public notice. Edits can simply be uploaded into the existing MiWaters application as

an addition to already submitted materials.

Mr. Paul Turner

May 4, 2020

Additional information and/or filing fees may be required upon further review of your application.

Should we not receive the requested information from you within 30 days of this letter, we will

consider your application as withdrawn and will close your application. Fees are not refundable

on applications once a decision has been made or if an action has been taken, such as closing

an application due to no or incomplete response to a correction request letter, posting a public

notice, or conducting a site visit. A new application may be submitted, but fees are not

transferable.

If you have any questions regarding this letter or your application, please contact me at

989-330-9252; or HaasJ1@michigan.gov. Most EGLE staff, including myself, are working

remotely and we are attempting to complete as much as possible without going into the office.

Please do not mail any work/application products to the Gaylord District Office. Please submit

requested modifications as an amendment by uploading to the MiWaters site for this project and

copy me at my email address. Please include Submission No. HNY-NHX4-FSR2Q in your

response. The status of your application can be tracked online at

https://miwaters.deq.state.mi.us/miwaters/.

Sincerely,

Joseph Haas, District Supervisor

Gaylord District Office

Water Resources Division

cc:

Mr. Peter Holran, Enbridge

Mr. Jeff Benefiel, Stantec Consulting Services, Inc.

Ms. Katie Otanez, U.S. Army Corps of Engineers, Detroit

EXHIBIT F

DEPARTMENT OF THE ARMY

CORPS OF ENGINEERS, DETROIT DISTRICT

477 MICHIGAN AVENUE

DETROIT MI 48226-2550

REPLY TO

ATTENTION OF:

April 14, 2020

Engineering & Technical Services

Regulatory Office

File No. LRE-2010-00463-56-A19

Paul Turner

Enbridge Energy, Limited Partnership

26 East Superior Street, Suite 309

Duluth, Minnesota 55802

Dear Mr. Turner:

We have reviewed your application for a Department of the Army permit to construct

a tunnel under the bed of Lake Michigan between McGulpin Point and Point LaBarbe in

Emmet and Mackinac Counties, Michigan. Based on the scope of the proposed project

and its potential impacts, we have elected to review the project under our standard

permit review process, beginning with a public notice. In order to continue processing

the application, we require the following information:

a. Provide a site plan showing the proposed launch portal, retrieval shaft, and all

other temporary and permanent features that would be constructed within the

limits of disturbance. Define the areas that would be permanently impacted and

those that would be restored to natural conditions.

b. Provide an estimate of the total volume of rock cuttings that would be removed

from under the lakebed to construct the tunnel. Identify the final disposal area(s)

for tunnel spoils.

c. On project drawings, show the length, width, and depth of each proposed

wetland or waterway fill area.

d. Show the wetland limits and the federal Ordinary High Water Mark (OHWM) of

581.5 feet, IGLD 85 in all cross-section drawings of proposed wetland and

waterway fill areas.

e. For wetland fill areas associated with widening Boulevard Drive, provide crosssections at defined locations, and provide a plan view that shows the location of

the cross sections. Clarify on drawings which parts of the road would be

widened to 14 feet and which would be widened to 20 feet.

f. Provide drawings of the proposed outfalls, showing the wetland limits, the

OHWM, any parts of the structures that extend waterward of the OHWM, and all

discharges of fill material in wetlands or in the waterway. Show any riprap that

-2would be placed around culvert ends. Clarify whether the proposed outfall in the

south work area would involve discharges of fill in wetlands or structures or fill

waterward of the OHWM. Identify any intake structures that would extend

waterward of the OHWM, and provide drawings and dimensions.

g. Clarify the purpose and need for the proposed fill in wetland W3.

h. The construction sequence indicates that the pipeline may be tied in through

either open trench or trenchless (horizontal directional drilling) methods. Clarify

whether open trench methods may be used within Wetland 3. If you propose to

use open trench methods within Wetland 3, clarify why directional drilling under

the wetland is not practicable, and provide drawings of the trench and temporary

spoils sidecasting areas in the wetland, with all dimensions shown.

Provide a cross-section drawing of the proposed tunnel showing the tunnel lining,

the pipeline, and other features within the tunnel.

j. Provide a decommissioning plan for the existing dual pipelines, specifically

identifying the extent of structure removal and other jurisdictional work with the

waterway. Include a construction sequence and drawings clearly showing all

jurisdictional work.

Please provide the above information within 30 days from the date of this letter. If

you need additional time, please request it, providing the reason(s) for the delay and

time required. If we do not hear from you, we will withdraw your application.

While not required for application completeness and our public notice, we request

your response to the items below before we begin consultation with the U.S. Fish &

Wildlife Service under Section 7 of the Endangered Species Act and with the State

Historic Preservation Office and federally recognized tribes under Section 106 of the

National Historic Preservation Act.

k. Provide a biological assessment, including surveys for federally listed threatened

or endangered species over the full project disturbance area. For each species,

provide the acreage of each impact area where the species is present. How was

the number of impacted stems estimated for dwarf lake iris and Houghton’s

goldenrod?

Provide a plan to mitigate for the impacts to dwarf lake iris and Houghton’s

goldenrod that would result from the proposed work.

m. Provide a Phase I cultural resources survey covering the full area within the limits

of disturbance.

-3Your response and any questions should be directed to Katie Otanez at the above

address, by E-Mail at Katie.L.Otanez@usace.army.mil, or by telephone at (313) 2265479. In all communications, please refer to File Number LRE-2010-00463-56-A19.

Sincerely,

Kerrie E. Kuhne

Chief, Permit Evaluation Western Branch

Regulatory Office

Copy Furnished

EGLE, 24/49-Enbridge Energy-Line 5- Straits of Mackinac

EXHIBIT G

February 21, 2019

Submitted via electronic mail to CEMVP-L3R-PN-Comments@usace.army.mil

Thomas Hingsberger

St. Paul District, Corps of Engineers

Regulatory Branch, CEMVP OP-R

180 Fifth St. E., Suite 700

St. Paul, Minnesota 55101-1678

Re:

Comments on Application No. 2014-01071-TJH

Dear Mr. Hingsberger:

On behalf of Sierra Club, Honor the Earth, Friends of the Headwaters, Minnesota

Interfaith Power & Light, and MN350, we submit the following comments on the application

No. 2014-01071-TJH for U.S. Army Corps of Engineers’ (the “Corps”) permits for the proposed

Enbridge Line 3 project (the “Project”).

INTRODUCTION

On December 20, 2018, the Corps issued a public notice inviting the public to comment

on applications submitted pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344, and

sections 10 and 14 of the Rivers and Harbors Act, 33 U.S.C. §§ 403, 408. On January 18, the

Corps extended the comment deadline from January 21 to February 21, 2019.

The undersigned groups have serious concerns about the direct, indirect, and cumulative

environmental impacts posed by the proposed Line 3 Pipeline, including, but not limited to, the

potential for oil spills along the pipeline route, the life-cycle greenhouse gas emissions associated

with the oil to be transported through the project, and impacts to waterways crossed by the

pipeline. A report prepared by Grobbel Environmental & Planning Associates on behalf of the

Sierra Club highlights additional concerns with the Line 3 application. Grobbel Environmental

& Planning Associates, Comments on Application No. 2014-01071-TJH, (Feb. 21, 2019)

(“Grobbel Report”) (attached as Ex. A).

As set forth in detail below, Enbridge’s application fails to provide sufficient information

for the Corps or the public to meaningfully assess the impacts of the proposed project. The

above groups hereby request that the Corps, as well as the Bureau of Indian Affairs and other

federal agencies, prepare an environmental impact statement (“EIS”) that analyzes the full host

of impacts of the Line 3 Pipeline, including all connected actions that fall within the jurisdiction

of federal agencies and all sections that fall outside of federal jurisdiction, and provide additional

opportunities for public participation and comment.

II.

REQUEST FOR PUBLIC HEARING

Public participation plays an important role in Clean Water Act (“CWA”) permitting

decisions. Section 404 states: “The Secretary may issue permits, after notice and opportunity for

public hearings for the discharge of dredged or fill material into the navigable waters at specified

disposal sites.” 33 U.S.C. § 1344(a). The applicable Corps regulations state: “[A]ny person may

request, in writing, ... that a public hearing be held .... Requests for a public hearing under this

paragraph shall be granted, unless the district engineer determines that the issues raised are

insubstantial or there is otherwise no valid interest to be served by a hearing.” 33 C.F.R.

§ 327.4(b).

As such, commenters hereby request a public hearing on the Line 3 application pursuant

to 33 C.F.R. § 327.4(b). The Corps would violate CWA’s clear mandate to involve the public

and allow public hearings if it approves a massive crude oil pipeline through Minnesota without

ever holding a single public hearing during the federal approval process.

III.

PROJECT BACKGROUND

Enbridge is proposing to replace and expand its existing Line 3 oil pipeline, which was

built in 1962 and runs from the Canadian border to Superior, Wisconsin. Enbridge proposes

replacement of approximately 282 miles of the existing 34-inch diameter Line 3 pipeline with

approximately 340 miles of 36-inch diameter pipeline and associated facilities between the North

Dakota/Minnesota border and the Minnesota/Wisconsin border (the “Project”). Replacement of

the pipeline from 34 inches to 36 inches would allow Enbridge to expand Line 3 from its current

operating capacity of approximately 390,000 barrels per day (“bpd”) to around 800,000 bpd and

potentially to 915,000 bpd in the future.

Replacement of the line using Enbridge’s preferred route would follow the existing

pipeline right-of-way from the Canadian border to Clearbrook, Minnesota, but would deviate

from the existing route and create a new pipeline right-of-way from Clearbrook to Superior.

Enbridge proposes to decommission and abandon-in-place the majority of the existing pipeline.

The Line 3 expansion would require the construction of associated facilities, including

eight new pump stations (four adjacent to existing pump stations and four at new locations),

electric transmission lines, access roads, and 37 mainline valves, as well as the expansion of the

Clearbrook Terminal.

The Project will cross Kittson, Marshall, Pennington, Polk, Red Lake, Clearwater,

Hubbard, Wadena, Cass, Crow Wing, Aitkin, and Carlton counties in Minnesota.

IV.

NATIONAL ENVIRONMENTAL POLICY ACT

Legal Background

The National Environmental Policy Act (“NEPA”) is our “basic national charter” for

environmental protection. 40 C.F.R. § 1500.1. Among the statute’s goals are to “insure that

environmental information is available to public officials and citizens before decisions are made

and actions are taken,” and to “help public officials make decisions that are based on [an]

understanding of environmental consequences, and take actions that protect, restore, and enhance

the environment.” Id. § 1500.1(b)–(c).

To achieve these objectives, NEPA requires all agencies of the federal government to

prepare an EIS for all “major Federal actions significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)(C). According to regulations promulgated by the Council

on Environmental Quality (“CEQ”), an agency created by Congress to implement NEPA, the

term “major Federal action” includes “actions with effects that may be major and which are

potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18.

Major federal actions include “new and continuing activities, including projects and

programs entirely or partly financed, assisted, conducted, regulated, or approved by federal

agencies,” id. § 1508.18(a), and “[a]pproval of specific projects, such as construction or

management activities located in a defined geographic area. Projects include actions approved

by permit or other regulatory decision as well as federal and federally assisted activities.”

Id. § 1508.18(b)(4). “Major reinforces but does not have a meaning independent of

significantly.” Id. § 1508.18.

The EIS must describe, among other things: (1) the environmental impact of the proposed

action, and (2) any adverse environmental effects that cannot be avoided should the proposal be

implemented. 42 U.S.C.§ 4332(2)(C)(i), (ii). CEQ regulations require that a “lead agency”

supervise the NEPA analysis. Lead agencies are selected according to the following factors,

among others: (1) the magnitude of the agency’s involvement; (2) the agency’s project

approval/disapproval authority; (3) the agency’s expertise concerning the action's environmental

effects; (4) the duration of the agency’s involvement; and the (5) the sequence of the agency’s

involvement. 40 C.F.R. § 1501.5(c).

To determine whether a proposed action significantly affects the environment, and

whether an EIS is required, the lead federal agency may first prepare an environmental

assessment (“EA”). Id. § 1508.9. An EA must provide sufficient evidence and analysis to

determine whether to prepare an EIS. Id. The lead agency must take a ‘hard look’ at the

relevant environmental concerns and alternatives to the proposed action. Id.

NEPA requires federal agencies to analyze a project and all of its connected, cumulative,

and similar actions together in a single EA or EIS before the project is allowed to proceed. Id.

§ 1508.25(a). Connected actions include: “(ii) Cannot or will not proceed unless other actions

are taken previously or simultaneously; or (iii) Are interdependent parts of a larger action and

depend on the larger action for their justification.” Id. § 1508.25 (a)(1) (emphasis added).

If the agency concludes in an EA that a project may have significant impacts on the

environment, then an EIS must be prepared. Id. § 1501.4. To determine whether a proposed

action may significantly affect the environment, the agency must consider both the context and

intensity of the proposed action, including whether the project will take place in “ecologically

critical areas,” and whether the project will affect endangered species. Id. §§ 1508.27 (a), (b).

NEPA also mandates that the lead agency consider “the degree to which the action is

related to other actions . . . with cumulatively significant impacts . . .” Id. § 1508.27(b)(7).

NEPA defines “cumulative impact” to mean “the impact on the environment which results from

the incremental impact of the action when added to other past, present, and reasonably

foreseeable future actions regardless of what agency (Federal or non-Federal) or person

undertakes such other actions.” Id. § 1508.7. A federal action will significantly affect the

environment “if it is reasonable to anticipate a cumulatively significant impact on the

environment. Significance cannot be avoided by terming an action temporary or by breaking it

down into small component parts.” Id. § 1508.27(b)(7). NEPA requires that a reviewing agency

consider in the same EIS any “connected” actions, including actions that are “interdependent

parts of a larger action” and “depend on the larger action for their justification.”

Id. § 1508.25(a)(1)(iii).

If an EA concludes that there are no potentially significant impacts to the environment,

the federal agency must provide a detailed statement of reasons why the project’s impacts are

insignificant and issue a finding of no significant impact (“FONSI”). Id. § 1508.13. If the

agency issues an EA and FONSI, it must make a convincing case for a finding of no significant

impact on the environment.

The CEQ regulations require a give and take between an agency and members of the

public. See id. §§ 1500.1(b) (2010) (“public scrutiny [is] essential”), 1500.2(d) (2010) (the

agency must “encourage and facilitate public involvement”), 1506.6 (2010) (the agency must

“[m]ake diligent efforts to involve the public” in preparing environmental documents, give

“public notice of . . . the availability of environmental documents so as to inform those persons .

. . who may be interested or affected,” and “solicit appropriate information from the public.”).

CEQ regulations require federal agencies to give the public as much information as is

practicable, so that the public has a sufficient basis to address those areas that the agency must

consider in preparing the environmental assessment. Id. § 1501.4 (2010).

The Corps Must Prepare an Environmental Impact Statement.

The Impacts of Line 3 Are Significant.

In determining whether to prepare an EIS as opposed to an EA, the Corps must consider a

range of factors to determine whether the impacts would be “significant” enough to warrant a

full EIS. Id. § 1508.27. NEPA regulations require consideration of two broad factors: “context

and intensity.” See id.; 42 U.S.C. § 4332(2)(C). Context refers to the setting in which the

proposed action takes place. 40 C.F.R. § 1508.27(a). Intensity means “the severity of the

impact,” and involves examining ten factors:

(1)

(2)

(3)

Impacts that may be both beneficial and adverse. A significant effect may exist even if

the Federal agency believes that on balance the effect will be beneficial.

The degree to which the proposed action affects public health or safety.

Unique characteristics of the geographic area such as proximity to historic or cultural

resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or

ecologically critical areas.

(4)

The degree to which the effects on the quality of the human environment are likely to

be highly controversial.

(5) The degree to which the possible effects on the human environment are highly

uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with

significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but

cumulatively significant impacts. Significance exists if it is reasonable to anticipate a

cumulatively significant impact on the environment. Significance cannot be avoided by

terming an action temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways,

structures, or objects listed in or eligible for listing in the National Register of

Historic Places or may cause loss or destruction of significant scientific, cultural, or

historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened

species or its habitat that has been determined to be critical under the Endangered

Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements

imposed for the protection of the environment.

See id. § 1508.27(b). The presence of “one of these factors may be sufficient to require

preparation of an EIS in appropriate circumstances.” Ocean Advocates v. U.S. Army Corps of

Engineers, 402 F.3d 846 (9th Cir. 2005).

As set forth in detail throughout these comments, many of those factors are met here,

indicating the need for a full EIS. For example, Line 3 would affect public health and safety (see

infra Section IV.F.); be constructed in the proximity of historic and cultural resources, park

lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas (see infra

Section V.C.1); would adversely affect protected species and habitat (see infra id.); and is related

to other project that would together have significant cumulative effects (see infra Section IV.E.).

Of the 340 miles of linear project, 78.3 miles is through wetlands, 13 miles are within the Fond

du Lac Reservation, and essentially all of the proposed route is through lands in which

Anishinaabe Tribes hold treaty-protected usufructary rights. The impacts of Line 3 are also

highly controversial, uncertain, and involve unique and unknown risks, as demonstrated by the

voluminous evidence presented by environmental organizations, tribes, and state agencies in

proceedings before the Minnesota Public Utilities Commission (“MN PUC”) proceedings

demonstrating, inter alia, the potential for the Project to cause significant greenhouse gas

emissions, pollute Minnesota’s waterways, and destroy historic and culturally significant

resources of tribal nations. The evidence, some of which is attached to these comments, further

shows a lack of demand for the Line 3 replacement and the existence of less environmentally

damaging alternatives.

In fact, the Corps’ own NEPA regulations indicate that “[f]easibility reports for

authorization and construction of major projects” are “[a]ctions normally requiring an EIS.” 33

C.F.R. § 230.6. See also Stop the Pipeline v. White, 233 F. Supp. 2d 957, 961–63 (S.D. Ohio

2002) (The Corps prepared an EIS for a 149-mile oil pipeline). Simply put, Line 3 is a massive

pipeline project with the potential to cause significant impacts to the environment, and thus it

warrants the preparation of an EIS.

The Corps Cannot Adopt the State-Level EIS Prepared by the

Minnesota Department of Commerce.

During the pendency of the review process, the only existing EIS is one that was prepared

by the Minnesota Department of Commerce (“MN DOC”). However, NEPA regulations do not

allow the federal agencies to use this EIS to satisfy their NEPA obligations; and regardless, that

EIS fails to comply with NEPA in numerous respects.

Where projects fall under both federal and state jurisdiction, NEPA’s implementing

regulations require federal and state agencies to cooperate to the “fullest extent possible” to

reduce duplication between NEPA and State and local requirements. 40 CFR § 1506.2(b).

Specifically, the regulations require that “such cooperation shall to the fullest extent possible

include: (1) [j]oint planning processes; (2) [j]oint environmental research and studies; (3) [j]oint

public hearings (except where otherwise provided by statute); (4) [j]oint environmental

assessments,” and “joint environmental impact statements.” Id. §§ 1506.2(b)–(c) (emphasis

added). The regulations further require the federal and state agencies to act as “joint lead

agencies” and ensure compliance with NEPA as well as state environmental review laws.

Id. § 1506.2(c).

None of those things occurred here. Instead, MN DOC prepared an EIS for the Line 3

expansion (hereafter, “MN EIS”)1 without any involvement by or input from the Corps or any

other federal agencies.

While the Corps and other agencies may wish to simply adopt the MN EIS, NEPA does

not allow federal agencies to adopt EISs prepared by state agencies. NEPA regulations do allow

federal agencies to “adopt a Federal draft or final environmental impact statement or portion

thereof provided that the statement or portion thereof meets the standards for an adequate

statement under these regulations.” Id. § 1506.3 (emphasis added). However, there is no

provision that allows a federal agency to adopt a state EIS or portion thereof.

Even if the Corps could legally adopt or use an EIS prepared by a state agency, the Corps

cannot do so here because the MN EIS falls far short of fulfilling the requirements of NEPA. As

set forth in detail throughout these comments, the MN EIS fails to adequately analyze many of

the potential impacts of, and alternatives to, the Line 3 replacement project.

Some of the NEPA deficiencies of the MN EIS include, but are not limited to: it fails to

consider reasonable alternatives, such as alternative routes that would cause less damage to

aquatic ecosystems, conducting a “same-trench” replacement along the entire line, or upgrading

other Enbridge pipelines to achieve the desired capacity increase; fails to include an analysis of

construction methods at the crossing-by-crossing level; fails to evaluate the climate impacts of

See Minn. Dep’t of Commerce Final Environmental Impact Statement Text – Revised (Feb. 12,

2018), https://mn.gov/eera/web/file-list/3196/.

construction and operation of Line 3; fails to consider reasonably foreseeable cumulative effects

such as an eventual upgrade of Line 3 to 915,000 bpd or other future pipelines that may be built

in the same right-of-way or “downstream” of Line 3; and fails to evaluate worst case oil spill

discharges at specific places along or near the pipeline route. See Br. and Addendum of Relator

Honor the Earth, Mille Lacs Band of Ojibwe et al. v. Minn. Pub. Utils. Comm’n, Nos. A18-1283,

A18-1291, A18-1292 (Nov. 12, 2018) (“HTE Br”) (attached as Ex. B); Opening Br. and

Addendum of Relator Friends of the Headwaters, Mille Lacs Band of Ojibwe et al. v. Minn. Pub.

Utils. Comm’n, Nos. A18-1283, A18-1291, A18-1292 (Nov. 12, 2018) (attached as Ex. C); Br.

of Relators Mille Lacs Band of Ojibwe, Red Lake Band of Chippewa Indians, and White Earth

Band of Ojibwe, Mille Lacs Band of Ojibwe et al. v. Minn. Pub. Utils. Comm’n, Nos. A18-1283,

A18-1291, A18-1292 (Nov. 12, 2018) (attached as Ex. D).

Purpose and Need

NEPA requires federal agencies to prepare an EIS discussing, among other things, the

environmental impact of a proposed action and alternatives to the proposed action. 42 U.S.C.

§ 4332(2)(C). Implementing regulations also require the agency to state the underlying purpose

and need for the proposed action. 40 C.F.R. § 1502.13; Nat’l Parks & Conservation Ass’n v.

Bureau of Land Mgmt., 606 F.3d 1058, 1069 (9th Cir. 2010).

Because the statement of purpose and need is closely related to the discussion of

alternatives, “an agency cannot define its objectives in unreasonably narrow terms.” City of

Carmel–By–The–Sea v. U.S. Dep’t. of Transp., 123 F.3d 1142, 1155 (9th Cir.1997). “An agency

may not define the objectives of its action in terms so unreasonably narrow that only one

alternative from among the environmentally benign ones in the agency’s power would

accomplish the goals of the agency’s action, and the EIS would become a foreordained

formality.” Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998)

(quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991), cert.

denied, 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991)).

An agency must vigorously explore the no action alternative. The no action alternative

“provide[s] a baseline against which the action alternative . . . is evaluated.” Ctr. for Biological

Diversity v. U.S. Dep’t of the Interior, 623 F.3d 633, 642 (9th Cir. 2010). It is therefore

“meaningless if it assumes the existence of the very plan being proposed.” Pac. Coast Fed’n of

Fishermen’s Ass’ns v. U.S. Dep’t of the Interior, 655 F. App’x 595, 598 (9th Cir. 2016) (internal

quotation marks omitted). An agency violates NEPA “where it considers ‘essentially identical’

alternatives.” W. Org. of Res. Councils v. U.S. Bureau of Land Mgmt., No. CV 16-21-GF-BMM,

2018 WL 1475470, at *7 (D. Mont. Mar. 26, 2018) (citing Friends of Yosemite Valley v.

Kempthorne, 520 F.3d 1024, 1039 (9th Cir. 2008)).

According to the Corps’ Public Notice, Enbridge states Line 3 is needed “to improve

public safety and protection of the environment by replacing the existing Line 3, an aging

pipeline operating at reduced capacity with a large number of identified pipe defects and

anomalies, with a new pipeline constructed with the latest construction practices, technology and

materials.” Public Notice at 5. While improving public safety and protection of the environment

may certainly be valid purposes, the Corps cannot accept Enbridge’s proposition that

replacement of Line 3 with a new pipeline is the only way to achieve that goal. Similarly, the

Public Notice states that the Line 3 project “would enable Enbridge to better meet the demand

for crude oil by allowing Enbridge to more reliably and efficiently transport an economical and

secure supply of crude oil by restoring the capacity of the pipeline to its historic operating

capacity of 760,000 bpd.” Id. Again, if the purpose of the project is to meet a projected future

level of demand for crude oil, the Corps must independently verify Enbridge’s demand

projections (see infra section V.E.) and evaluate alternatives that would allow it to meet that

demand.

The Corps Must Evaluate all Connected Actions.

Connected Action Law

The Corps and other agencies must evaluate all components of the Line 3 expansion

project in a single EIS because all parts of this pipeline, including the parts that cross federal

jurisdiction and/or control, are connected actions because none would have independent utility.

As stated above, NEPA requires federal agencies to analyze a project and all of its

connected, cumulative, and similar actions together in a single EIS before the project is allowed

to proceed. 40 C.F.R. § 1508.25(a). Connected actions are defined as actions that: “(ii) Cannot

or will not proceed unless other actions are taken previously or simultaneously; or (iii) Are

interdependent parts of a larger action and depend on the larger action for their justification.”

Id. § 1508.25 (a)(1) (emphasis added).

“The justification for the rule against segmentation is obvious: it ‘prevent[s] agencies

from dividing one project into multiple individual actions each of which individually has an

insignificant environmental impact, but which collectively have a substantial impact.’” Del.

Riverkeeper Network v. FERC, 753 F.3d 1304, 1314 (D.C. Cir. 2014) (quoting NRDC v. Hodel,

865 F.2d 288, 297 (D.C. Cir. 1988)); see also Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d

294, 298–99 (D.C. Cir. 1987) (the segmentation doctrine “was developed to insure that

interrelated projects the overall effect of which is environmentally significant, not be

fractionalized into smaller, less significant actions.”).

Courts have allowed individual components of pipelines and other linear projects to be

analyzed in a separate NEPA document only if they would have “independent utility.”

Hammond v. Norton, 370 F. Supp. 2d 226, 244 (D.D.C. 2005) (applying the independent utility

test and holding that an entire 480-mile oil pipeline must be analyzed in a single NEPA

document); Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 69 (D.C. Cir. 1987) (applying

the independent utility test to a highway project). In Delaware Riverkeeper v. FERC, the court

held that the Federal Energy Regulatory Commission’s (“FERC”) EA for a 40-mile natural gas

pipeline project called the Northeast Project, violated NEPA by failing to include all connected

actions pursuant to 40 C.F.R. § 1508.25(a). 753 F.3d 1304. The court found that the Northeast

Project was actually one of four “physically, functionally, and financially connected and

interdependent” components that resulted in a complete overhaul of a 200-mile pipeline, and that

FERC had improperly segmented its NEPA analysis. Id. at 1308.

Line 3 Includes Numerous Connected Federal Actions.

The following subsections summarize some of the major federal actions being taken to

approve the Line 3 Pipeline that must be analyzed together in a single EIS as required by NEPA. 2

Army Corps’ Clean Water Act Section 404 Permit

The Corps’ issuance of a dredge and fill permit for the Enbridge Line 3 pipeline pursuant

to Section 404 of the Clean Water Act is a major federal action that requires compliance with

NEPA. See, e.g., Stop The Pipeline v. White, 233 F. Supp. 2d 957 (S.D. Ohio 2002) (the Corps

prepared EIS for individual 404 permit for an 149-mile petroleum pipeline); Hammond v.

Kempthorne, 448 F. Supp. 2d 114 (D.D.C. 2006) (BLM prepared EIS for the Williams oil

pipeline project); Spiller v. Walker, No. A-98-CA-255-SS, 2002 WL 1609722 (W.D. Tex. July

19, 2002), aff’d sub nom. Spiller v. White, 352 F.3d 235 (5th Cir. 2003) (Corps’ permitting of an

oil pipeline was a major federal action); Wilderness Soc’y v. Morton, 479 F.2d 842 (D.C. Cir.

1973) (DOI prepared EIS for trans-Alaska oil pipeline requiring rights-of-way and special land

use permits over federal land). The requirements for a permit under Section 404 are discussed in

greater detail below in Section V.

Army Corps’ Section 408 Permit

Section 14 of the Rivers and Harbors Act allows the Corps to “grant permission for the

alteration or permanent occupation or use of any of the aforementioned public works when in the

judgment of the Secretary such occupation or use will not be injurious to the public interest and

will not impair the usefulness of such work.” 33 U.S.C. § 408(a) (emphasis added). This

permission is commonly referred to as a “Section 408 Permit.” Enbridge’s September 2018

application submitted to the Corps notes that the Line 3 project requires a Section 408 Permit due

to the pipeline’s proposed crossing of the Lost River in Minnesota. 3

As the Corps has acknowledged with respect to Section 408 permit for other projects, a

“decision on a Section 408 request is a federal action, and therefore subject to [NEPA] and other

environmental compliance requirements.”4 The Corps guidance document for Section 408 (the

NEPA defines “major federal actions” subject to NEPA as: “actions …which are potentially

subject to Federal control and responsibility,” including "projects … entirely or partly …

regulated, or approved by federal agencies” and the “approval of specific projects … by permit

or other regulatory decision. . . .” 40 C.F.R. § 1508.18.

Enbridge Energy, Supplemental Information for an Application for U.S. Army Corps of

Engineers Permit, 36 (Sept. 2018), https://www.pca.state.mn.us/sites/default/files/wq-wwprm152g.pdf (“App.”).

U.S. Army Corps of Engineers, Des Moines Market and 1st Stormwater Pump Station

Improvements (Public Notice ID #2017-968) at 2 (June 16, 2018),

http://www.mvr.usace.army.mil/Portals/48/Users/050/86/1586/2017968%20Sec%20408%20PN%20nonCATEX%20Des%20Moines%201st%20Market%20pump%20station.pdf?ver=2018-06-01092555-340; see also 82 Fed. Reg. 5543 (Jan. 18, 2018) (discussing NEPA review for section

408 permit for the Dakota Access pipeline).

“Guidance”) discusses the Corps’ NEPA obligations in issuing a Section 408 Permit. 5 The

Guidance makes clear that the Corps’ “decision on a Section 408 request is a federal action

subject to NEPA and other federal environmental and cultural resources compliance

requirements, such as Section 7 of the Endangered Species Act (ESA), Section 106 of the

NHPA, essential fish habitat (EFH) consultation, tribal consultation, etc.” 6

To date, the Corps has not issued any public notices or indicated that it has conducted any

NEPA review for the Section 408 Permit for Line 3. The Corps must prepare an EIS for the

Section 408 determination in conjunction with all connected and cumulative actions pursuant to

NEPA regulations. 40 C.F.R. § 1508.25. The EIS must also evaluate all direct, indirect, and

cumulative impacts of the project. Those impacts include, but are not limited to, climate change

impacts, risk and impacts of oil spills, impacts to waterways, wildlife, and forested areas along

the pipeline route. A careful consideration of these impacts will demonstrate that the Line 3

Pipeline will be injurious to the public interest, and the Section 408 permit should be rejected.

Bureau of Indian Affairs Right-of-Way

The Bureau of Indian Affairs (“BIA”) must issue a right-of-way and/or special use permit

for Line 3 to cross approximately 13 miles of the reservation of the Fond du Lac Band of Lake

Superior Chippewa pursuant to 25 U.S.C. § 321 and § 323.

BIA is authorized by 25 U.S.C. § 321 to “grant a right-of-way in the nature of an

easement” for oil and gas pipelines to cross through any Indian reservation or other lands allotted

to Indian tribes. Similarly, 25 U.S.C. § 323 more broadly empowers the Secretary of the Interior

to grant rights-of-way “over and across any lands now or hereafter held in trust by the United

States for individual Indians or Indian tribes, communities, bands, or nations....” Title 25, Part

169 of the Code of Federal Regulations outlines the procedures and conditions under which BIA

would consider a request to approve right-of-ways over and across tribal lands pursuant to its

broad authority under 25 U.S.C. §§ 323–328.

As indicated in Enbridge’s application, BIA’s issuance of a right-of-way to cross the

Fond-du-Lac reservation is a major federal action triggering NEPA. See App. at 27; see also All

Indian Pueblo Council v. United States, 975 F.2d 1437, 1440 (10th Cir. 1992) (BIA prepared an

EIS for an electric transmission line that would cross an Indian reservation); 25 C.F.R. § 169.123

(b)(acknowledging requirement to comply with NEPA). Nonetheless, Enbridge’s application to

the Corps is utterly devoid of any information describing the potential impacts of the Project’s

proposed crossing of the reservation.

Corps, EC 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter U.S.

Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408 (Sept. 10, 2018),

https://www.publications.usace.army.mil/Portals/76/Publications/EngineerCirculars/EC_1165-2220.pdf?ver=2018-09-07-115729-890.

Id. at 18.

The Corps Must Select a Lead Agency.

If one or more federal agencies are “involved in the same action” or are “involved in a

group of actions directly related to each other because of their functional interdependence or

geographical proximity,” a lead agency “shall supervise the preparation of an environmental

impact statement.” 40 C.F.R. § 1501.5(a)(emphasis added). “[T]he potential lead agencies shall

determine by letter or memorandum which agency shall be the lead agency and which shall be

cooperating agencies.” Id. § 1501.5(b)(emphasis added). There are clearly multiple agencies

involved with the approval of Line 3. Thus, the Corps and other agencies must select an agency

to act as lead agency in the preparation of an EIS that covers all federal actions.

The Corps Must Evaluate Associated Facilities.

The application describes some of the associated facilities necessary for the Line 3

project to proceed. See App. at 7. Those include, but are not limited to: a significant expansion

of the Clearbrook Terminal; eight new pump stations (four that would replace existing pump

stations located in Donaldson, Viking, Plummer, and Clearbrook, and four entirely new pump

stations located in Two Inlets, Backus, Swatara, and North Gowan); electric transmission lines to

power the pump stations; and at least thirty-seven valves that each require a permanent access

road. Id. at 7–8.

Because none of these associated facilities would have independent utility in absence of

the overall Line 3 project, they are connected actions pursuant to 40 C.F.R. § 1508.25(a) that

must be evaluated in a single EIS. However, the application suggests that at least some of these

associated facilities would undergo a separate CWA/NEPA review.

For example, the application states that for the four new pump stations south of

Clearbrook, “The transmission company or companies will submit a separate application(s) to

the USACE St. Paul District for discharge of dredged or fill material in navigable waters or

jurisdictional wetlands.” Id. at 7–8. None of the transmission lines or other associated facilities

can be segmented from the overall NEPA review of Line 3 because they are all connected

actions, and must be included in a single EIS.

The MN EIS provides some general information about the other associated facilities, but

fails to contain enough specifics to compare the impacts of alternatives. Enbridge has identified

the general location of the existing and proposed pump stations and valves. 7 The EIS includes a

general discussion of associated facilities, including pump stations, valves and access roads. 8

However, Enbridge has not identified the location and level of impact of all associated

facilities for each alternative. In fact, the MN EIS acknowledges:

See, e.g., MN EIS at 2-2.

See id. § 2.3.2.

Temporary and permanent access roads, pump stations, and valve sites have not been

determined for the route alternatives; therefore, the additional affected acreage from these

footprints cannot be quantified.9

Without this information, the Corps can neither discharge its obligations to analyze the

alternatives to the proposed Line 3 project (including all connected associated facilities), nor can

it determine whether the proposed alternative (including all connected associated facilities) is the

least damaging practicable alternative. See infra section V.B.

Similarly, the MN EIS provides only general information about the level of impacts of

associated facilities, but acknowledges that the specifics remain unknown. For example:

A total of 36 acres would be temporarily disturbed during construction of the new pump

stations, and 29 acres would be permanently converted (Table 2.3-2). 10

Enbridge is proposing to install 27 [Mainline Valves (“MLVs”)]. As a result of the action

of permitting agencies with jurisdiction, including [Pipeline and Hazardous Materials

Safety Administration (“PHMSA”)], however, the final number and location of MLVs may

be modified.11

Enbridge proposes to construct or improve permanent roads along the permanent right-ofway to access the pump stations. Enbridge also proposes to construct permanent roads

along the permanent right-of-way to access the MLVs in accordance with the request of

the Minnesota Public Utilities Commission. The amount of land required would range

from 0.1 to 0.5 acre, with the average being closer to 0.1. 12

Construction of the proposed Line 3 pipeline would require that land be temporarily used

for pipe and materials storage, construction staging, and offloading rail deliveries of

construction materials. These pipe and material storage yards, contractor yards, and rail

sidings would be located apart from the pipeline right-of-way. 13

Enbridge has proposed a preliminary list of 288 access roads distributed throughout the

counties in the Project (Appendix D). At some points along the pipeline route, final

construction planning and Project permitting could require additional or different access

roads. Enbridge estimates that roads used to access the construction work area along the

pipeline route would temporarily disturb approximately 271 acres, based on a standard 30foot-wide road. Of the proposed 288 access roads, 75 would be existing roads, 172 would

be new roads, and 41 would be a combination of new and existing roads.

Id. at 6-707.

Id. at 2-10.

Id.

Id. at 2-12.

Id.

A final list of roads proposed to access the construction work area and the degree to which

the roads would need improvement will not be available until the final planning and

engineering phase of the Project.

Temporary access roads will also use appropriate stormwater erosion prevention and

sediment control BMPs per Minnesota [Pollution Control Agency]’s [National Pollutant

Discharge Elimination System] General [Construction Stormwater] Permit. 14

This level of uncertainty regarding the location and impacts of associated facilities is

inadequate for the Corps to evaluate the impacts of Line 3 compared with alternatives. The MN

EIS provides a table describing thousands of acres of land use types to be impacted by associated

facilities, but provides no information about where these impacts would occur or how these

amounts compare to any of the considered alternatives. 15

The Corps Must Evaluate the Impacts of the Sections of Line 3

Outside of Minnesota.

Similarly, the application appears to be limited only to the section of the Line 3 project in

Minnesota, but excludes the sections located in Wisconsin, North Dakota, and Canada. All

sections of this project are connected actions that must be evaluated in single EIS pursuant to 40

C.F.R. § 1508.25(a).

The Application notes that only the Minnesota section of the pipeline is included in this

application. App. at 2. However, it acknowledges that the project also requires the replacement

of a portion of the pipeline in North Dakota between the Red River Valve and the North

Dakota/Minnesota border as well as a significant length of pipeline in Canada; and 27.3 miles of

pipeline that has already been replaced in North Dakota, 13 miles of pipeline that have already

been replaced in Wisconsin, and 14.2 miles that have already been replaced in Canada.

All of these sections are part of the overall Line 3 replacement project, the goal of which

Enbridge has claimed cannot be achieved by incremental or piecemeal replacement. The

sections in Wisconsin, North Dakota, and Canada would not have independent utility and would

not be able to function or meet its purpose independent of the total Line 3 project. Thus, they are

connected actions that must be evaluated in a single EIS. 16

The Corps Must Evaluate Cumulative Actions and Cumulative Effects.

In addition to “connected actions” discussed above, the scope of a NEPA analysis must

also include cumulative actions, “which when viewed with other proposed actions have

Id. at 2-12 to 2-13.

Id. at 6-15.

The fact that some sections are already built does not excuse them from inclusion in the EIS.

At the very least, they constitute past, present, and/or reasonably foreseeable “cumulative

actions” that must be included pursuant to 40 C.F.R. § 1508.25(a)(2) and 40 CFR § 1508.7. See

also infra Section IV.E.

cumulatively significant impacts and should therefore be discussed in the same impact

statement.” 40 C.F.R. § 1508.25(a)(2).

Similarly, NEPA requires an evaluation of cumulative effects, which are defined as “the

impact on the environment which results from the incremental impact of the action when added

to other past, present, and reasonably foreseeable future actions regardless of what agency

(Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result

from individually minor but collectively significant actions taking place over a period of time.”

Id. § 1508.7. Thus, the obligation to consider cumulative effects is not limited to actions taken

by a particular agency, nor actions that are “major federal actions” triggering NEPA. An agency

is required by 40 C.F.R. § 1508.7 to consider the cumulative effects of actions taken by other

agencies, and in fact other actions not subject to NEPA at all. See Grand Canyon Trust v. FAA,

290 F.3d 339, 345 (D.C. Cir. 2002) (the FAA’s EA for an airport expansion had to analyze the

cumulative increase in air traffic from other sources in the area).

Courts have articulated that “a meaningful cumulative impact analysis must identify (1)

the area in which the effects of the proposed project will be felt; (2) the impacts that are expected

in that area from the proposed project; (3) other actions—past, present, and proposed, and

reasonably foreseeable—that have had or are expected to have impacts in the same area; (4) the

impacts or expected impacts from these other actions; and (5) the overall impact that can be

expected if the individual impacts are allowed to accumulate.” Del. Riverkeeper Network, 753

F.3d at 1319 (quoting Grand Canyon Trust, 290 F.3d at 345).

In Delaware Riverkeeper, after determining that the various section of the pipeline

project were connected actions, the court found that FERC was required to analyze all of the

pipeline sections together as cumulative actions. The court discussed the requirements of 40

C.F.R. § 1508.7 and held:

It is apparent that FERC did not draft these pages with any serious consideration of the

cumulative effects of the other project upgrades on the Eastern Leg of the 300 Line. In

light of the close connection between the various sections of the line that have been

upgraded with new pipe and other infrastructure improvements, FERC was obliged to

assess cumulative impacts by analyzing the Northeast Project in conjunction with the other

three projects.

Id. at 1320.

All sections of the pipeline requiring federal approval must be analyzed together in a

single EIS as cumulative actions pursuant to 40 C.F.R. § 1508.25(a)(2); and/or as projects that

would have cumulative impacts pursuant to 40 C.F.R. § 1508.7. In addition, all of the nonfederal components of the Line 3 Pipeline—that is, the sections that fall outside of federal

jurisdiction—must also be analyzed in a single EA or EIS pursuant to 40 C.F.R. § 1508.25(a)(2)

and § 1508.7.

Furthermore, the Line 3 EIS must include other infrastructure projects within the project

area that may result in cumulative effects to waterways, such as projects that may result in

forested wetland conversion or otherwise impact wetlands in the same watershed. The EIS

should also evaluate other reasonably foreseeable projects or project expansions that could

proceed after Line 3, including but not limited to: other pipelines being constructed in, or moved

to, the new right of way / corridor that the Line 3 pipeline would create; the eventual expansion

of the Line 3 project to 915,000 bpd; and reasonably foreseeable “downstream” pipelines

designed (e.g., Line 61 or Line 66) to transport the expanded capacity of Line 3 from Superior,

Wisconsin to Illinois or other refinery markets.

The Corps Must Evaluate Oil Spills.

The Corps’ obligation under NEPA to analyze oil spills in conjunction with its issuance

of § 404 permits is well-recognized. In Stop the Pipeline v. White, the Corps was required to

analyze oil spills in issuing a Section 404 permit for an oil pipeline. 233 F. Supp. 2d at 967. In

Sierra Club v. Sigler, the court struck down a Corps EIS for a dredging project that would allow

increased oil tanker access in a port because its oil spill analysis did not analyze the “worst case”

scenario of an oil tanker spill. 695 F.2d 957, 968–75 (5th Cir. 1983). Similarly, Ocean

Advocates held that the Corps was required to analyze risks of tanker oil spills before issuing a

Section 404 permit for a dock extension, because “a ‘reasonably close causal relationship’ exists

between the Corps’ issuance of the permit, the environmental effect of increased vessel traffic,

and the attendant increased risk of oil spills” 402 F.3d at 868 (quoting Public Citizen, 541 U.S.

at 767).

Indeed, courts routinely require the Corps to consider the direct, indirect, and cumulative

effects—including non-aquatic effects—of the installations the Corps’ dredge and fill permits

authorize. For example, in Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of

Engineers, the court considered the validity of the Corps’ NEPA analysis when issuing a Section

404 dredge and fill permit for the construction of an intermodal rail/truck terminal. 702 F.3d

1156, 1162–63 (10th Cir. 2012). In its NEPA analysis, the Corps “considered both [the] direct

and reasonably foreseeable indirect impacts to land use, air quality, noise, traffic, water quality,

threatened and endangered species, and cultural resources” from the operation of the intermodal

terminal. Id. at 1164. The court made clear that NEPA requires the Corps to look beyond the

effects occurring directly within its jurisdictional waters.

The Impacts of Dilbit Spills Can Be Substantial.

One of the greatest risks of Line 3 is that Enbridge will spill millions of gallons of heavy

diluted bitumen (dilbit) and then fail to respond quickly and thoroughly, as it did in Kalamazoo,

Michigan. Enbridge’s own troubling history, along with an inadequate regulatory structure, the

extreme risks of transporting nearly impossible to clean-up diluted bitumen, and the oil

industry’s history of major spill disasters all point to the serious risk this project presents.

The transportation of diluted bitumen presents higher risks to communities, wildlife and

natural resources than conventional crude. These risks, particularly the risks and impacts after a

release of dilbit, differ substantially from conventional crude oil. Unlike conventional crude, tar

sands oil is derived from sand that is impregnated with viscous, extra-heavy oil known as

bitumen.17 Bitumen is the valuable component of tar sands because it can be refined into liquid

fuels.18 In many ways, bitumen is as akin to coal as it is oil, a solid mass that cannot be pumped

out of the ground under normal conditions. 19 For years, it was considered a junk fuel: too

expensive, too dirty, and too impractical to develop.20

Because it is so viscous and heavy, tar sands oil must be diluted with lighter

hydrocarbons before it can be pumped through a pipeline (this is the derivation of term diluted

bitumen).21 In contrast, conventional crude is a liquid fuel source that flows readily. As Nancy

Kinner, a civil and environmental engineering professor at the University of New Hampshire and

co-director of the Coastal Response and Research Center who researches submerged oil has

stated: “[O]ne would not consider tar sands typical crude oil…It’s not considered crude oil by

most people who deal with oil and oil spills.”22

Most troublingly, the impacts of spills can be much greater than conventional crude, and

effective clean-up methods simply do not yet exist, and may never exist.

Bitumen has a propensity to sink in water, attach itself to the bottom of waterbodies, and

persist in the affected environment, polluting impacted areas indefinitely. For example, the State

Department’s Final Supplemental EIS for the Keystone XL pipeline (“Keystone XL FSEIS”)

notes that:

A notable difference between dilbit and other forms of crude is its capacity to

precipitate out in water. After a period of several days in water, the diluent in dilbit

will eventually volatilize into air or dissolve into water, leaving the heavy bitumen

behind to sink or become suspended. This could occur with dilbit more so than

with other forms of crude due to the higher percentage of heavy compounds

present.23

The State Department further acknowledges that unlike conventional crude, dilbit will not

readily biodegrade, concluding that:

Alberta Energy, What is Oil Sands?,

https://www.energy.alberta.ca/OS/AOS/Pages/WOS.aspx.

Cong. Research Serv., R42611, Oil Sands and the Keystone XL Pipeline: Background and

Selected Environmental Issues 3 (Apr. 14, 2014), http://www.fas.org/sgp/crs/misc/R42611.pdf.

The Pembina Inst., Oilsands, Heavy Crudes, and the EU Fuel-Quality Directive 2 (Mar. 2012),

http://www.pembina.org/pub/2325.

Robert Kunzig, Scraping Bottom, Nat’l Geographic Mag. (Mar. 2009),

https://www.nationalgeographic.com/magazine/2009/03/canadian-oil-sands/.

Cong. Research Serv., R42611 at 3.

Lisa Song, A Dilbit Primer: How It’s Different from Conventional Oil, InsideClimate News,

(June 26, 2012), http://insideclimatenews.org/news/20120626/dilbit-primer-diluted-bitumenconventional-oil-tar-sands-Alberta-Kalamazoo-Keystone-XL-Enbridge.

Keystone XL FSEIS at 3.13-10 (2014), https://keystonepipeline-xl.state.gov/finalseis/.

Dilbit…is largely comprised of branched hydrocarbon chains and heavy

hydrocarbons, which are less readily biodegradable [than conventional crude]. A

biodegradation study conducted by the USEPA in response to the 2010 Enbridge

dilbit spill in the Kalamazoo River in Michigan concluded that only 25 percent of

the residual hydrocarbons impacting the river could be reasonably removed by

natural attenuation (USEPA 2013).24

The Keystone XL FSEIS further finds that, “Due to the capacity for dilbit to precipitate

out in water and its resistance to biodegradation, in the event of a release to a waterbody, more

difficult cleanup scenarios (e.g., dredging) for dilbit may be expected than with other types of

crude oil”25 and that this sinking bitumen could be “a continual source of oil.” 26

The State Department elaborates on the clean-up concerns regarding dilbit. The FSEIS

concludes that, “The release of dilbit to a river or other aquatic environment introduces the

potential for additional impacts and additional recovery challenges for responders of such an

event to the environment.”27 The FSEIS then describes the challenges presented by dilbit and the

fact that how to handle these challenges is not fully understood:

As with some other types of oil, dilbit would not float on water indefinitely. The

dilbit-specific characteristics, water temperature, and particulate load in the water

could result in oil being submerged in the water column. Submerged oil could be

suspended in the water column, suspended just above the river bed, or intermixed

with sediment and trapped in the river bed and shoreline. In flowing waters, the

spreading of the oil in three dimensions creates many challenges for responders to

minimize the impacts of the release. Consideration of submerged oil in a flowing

water environment would require to a certain extent different response action

planning and response equipment to contain and recover the submerged oil. Dilbit

intermixed with sediment and trapped in the river bed and shoreline results in a

persistent source of oil and has the potential to present additional response and

recovery challenges. The understanding and adaptation of response and recovery

techniques to dilbit spills in flowing water scenarios continues along the

Kalamazoo River in response to the 2010 Enbridge release near Marshall,

Michigan.28

The persistence of long-term pollution from a spill is explicitly realized by the State

Department:

Dilbit intermixed with sediment could persist for years. A biodegradation study

conducted by the USEPA in response to the 2010 Enbridge dilbit spill in the

Kalamazoo River in Michigan concluded that only 25 percent of the residual

Id.

Id. at 3.13-3.

Id. at 4.13-84.

Id.at 4.13-88 (emphasis added).

hydrocarbons impacting the river could be reasonably removed by natural

attenuation (USEPA 2013).29

Both the immediate and long-term implications of a spill can be catastrophic. The State

Department itself outlines the immense impacts to health from a tar sands spill and its long-term

persistence in the environment. They include:



Benzene toxicity, with is a known carcinogen and long-term exposure which can

adversely affect bone marrow and cause anemia, leukemia, and possibly death.

Long-term exposure to toluene, which may affect the nervous system or kidneys.

Long-term exposure to ethylbenzene, which has been observed in animal studies

to cause damage to the kidneys, inner ear, and hearing.

Long-term exposure to xylene, which may cause impaired reaction time,

impaired concentration and memory, and changes in the liver and kidneys.

Long-term exposure to [hydrogen sulfide (“H2S”)], which may cause permanent

or long-term effects including headaches, impaired attention span, impaired

memory, or impaired motor function.

Symptoms of long-term exposure to [polycyclic aromatic hydrocarbons

(“PAHs”)], which may include chronic bronchitis, chronic cough irritation,

bronchogenic cancer, and dermatitis.30

The National Academies of Science, Engineering, and Medicine were in turn asked by

DOT to conduct a study to help answer this question. Their resulting study, unequivocally

concludes, “it is clear that the differences in the chemical and physical properties relevant to

environmental impact warrant modifications to the regulations governing diluted bitumen spill

response plans, preparedness, and cleanup.”31

The study shows that tar sands diluted bitumen has a series of properties that differentiate

it from historically transported crude oil and that, taken together, those properties mean that tar

sands spills pose higher risks to people and the environment. The study also found that U.S.

“regulations and agency practices do not take the unique properties of diluted bitumen into

account, nor do they encourage effective planning for spills of diluted bitumen.” 32 In addition to

identifying deficiencies in the current regulatory structure, the study outlines seven

recommendations to develop “a more comprehensive and focused approach to diluted bitumen

across the oil industry and the relevant federal agencies.” 33

Id. at 4.13-112 (emphasis added).

Id. at 3.13-30.

Nat’l Acads. of Scis., Eng’g, & Med., Spills of Diluted Bitumen from Pipelines: A

Comparative Study of Environmental Fate, Effects, and Response 4 (2016),

http://www.nap.edu/catalog/21834/spills-of-diluted-bitumen-from-pipelines-a-comparativestudy-of.

Id.

Id. at 6-8.

The attached testimony of Richard Kuprewicz further discusses the unique properties of

dilbit which cause greater impacts in the case of a spill and pose challenges to responders:

It is important to recognize that a dilbit spill can do extensive damage and irremediable harm

and requires more expensive and significantly different oil spill response than conventional

oil spills. The spill location and its impact on the specific environment where it might occur

places greater importance on dilbit pipeline routing decisions when compared to conventional

oil pipeline routing and design. Despite industry attempts to characterize dilbit as heavy oil,

upon release dilbit will not act like conventional heavy oil that floats on water.

Direct Testimony of Richard Kuprewicz at 2 (Sept. 11, 2017) (“Kuprewicz test”) (attached as Ex. E).

Given the severe impacts that are already known or suspected, it is simply irresponsible

to subject people, wildlife and communities to the risks of a major bitumen release where proper

clean-up methods have not, and may not ever be, developed, and where the likelihood of longterm toxic persistence is high because bitumen does not readily break down over time.

The Kalamazoo River Spill and Disaster in Mayflower, Arkansas

Demonstrate the Extreme Consequences of a Tar Sands Spill.

The substantial and unacceptable risks of tar sands oil on the environment are have

tragically been illustrated by two recent spills: the Kalamazoo River spill and the tar sands spill

in Mayflower, Arkansas.34 The July 2010 Kalamazoo River spill especially illustrates the

immense and long-term damage that tar sands can do. It also serves a poster child for the

complete inadequacy of current regulations and of relying on the company responsible for the

disaster to prevent and respond to it.

On July 26, 2010, Enbridge reported that its 30-inch diameter 6B Pipeline had ruptured

and released an estimated 840,000 gallons of crude oil (approximately 94 semi tanker trucks) 35

of diluted bitumen in a rural area about one mile south of Marshall, Michigan. 36 Investigation

showed that the oil flowed into a culvert, which led to Talmadge Creek, then followed the creek

to the Kalamazoo River, ultimately contaminating about 30 to 35 miles of the River before it was

contained. After the spill, the River flooded and stranded oil on floodplains, wetlands,

backwaters, and islands. The spill threatened to flow all the way to Lake Michigan, which would

have fouled many more miles of river, as well as the lake’s shoreline.

EPA, Region V, Pollution/Situation Report #166 8 (Oct. 29, 2012),

https://archive.epa.gov/region5/enbridgespill/pdfs/web/pdf/20121025_sitrep_166.pdf.

This number has varied some, with 840,000 gallons being at the low end.

Nat’l Transp. Safety Bd. (“NTSB”), PB2012-916501, Enbridge Incorporated Hazardous

Liquid Pipeline Rupture and Release, Marshall, Michigan, July 25, 2010 at xii (July 10, 2012),

https://www.ntsb.gov/investigations/AccidentReports/Reports/PAR1201.pdf (“NTSB Report”);

Mem. from Staff to Members of H. Comm. on Transp. & Infrastructure, 111th Congr., Hearing

on “Enbridge Pipeline Oil Spill in Marshall Michigan” (Sept. 14, 2010).

In the Kalamazoo River, the heavy bitumen sank to the river bottom, coating wildlife,

rocks and sediment.37 The lighter chemicals used to dilute the bitumen stayed on the surface and

evaporated.38 Resulting toxic fumes forced local residents to flee from their homes and over 300

people suffered from immediate illness due to benzene exposure. 39 A report filed by the

Michigan Department of Community Health found that nearly sixty percent of individuals living

in the vicinity of the Kalamazoo River spill experienced respiratory, gastrointestinal, and

neurological symptoms consistent with acute exposure to benzene and other petroleum related

chemicals.40 The long term consequences for these people who were exposed to benzene and

other compounds contained in the diluted bitumen remain unknown. It took several weeks for

officials to be informed that the spilled substance was diluted bitumen: up to that point they did

not even know the name of the substance they were responding to because federal law does not

require pipeline operators to reveal the specific contents of their pipelines and Enbridge did not

initially volunteer this information.41

The response to this diluted bitumen spill is far from complete, and may never be

complete.42 Enbridge recently disclosed that the cleanup costs have exceeded one billion dollars,

making Kalamazoo by far the most expensive pipeline oil spill in U.S. history. 43 The response to

the Kalamazoo River spill has required more than 2000 personnel, over 150,000 feet of boom,

175 heavy spill response trucks, forty-three boats, and forty-eight oil skimmers. 44 The river may

never be restored.45 Despite already spending eighteen times more than would be spent on a spill

NTSB Report, supra note 36; David Sassoon, Crude, Dirty and Dangerous, N.Y. Times (Aug.

20 2012), available at http://www.nytimes.com/2012/08/21/opinion/the-dangers-of-dilutedbitumen-oil.html?_r=0.

Sassoon, supra note 37.

Press Release, NTSB, Pipeline Rupture and Oil Spill Accident Caused by Organizational

Failures and Weak Regulations (July 10, 2012), https://www.ntsb.gov/news/pressreleases/Pages/PR20120710.aspx.

Martha Stanbury et al., Mich. Dep’t of Community Health, Acute Health Effects of the

Enbridge Oil Spill (2010),

http://www.michigan.gov/documents/mdch/enbridge_oil_spill_epi_report_with_cover_11_22_1

0_339101_7.pdf.

Sassoon, supra note 37.

Carol Linnitt, Official Price of the Enbridge Kalamazoo Spill, A Whopping $1,039,000,000,

The Narwhal (Aug. 26, 2013), https://thenarwhal.ca/official-price-enbridge-kalamazoo-spillwhopping-1-039-000-000.

http://desmog.ca/2013/08/26/official-price-enbridge-kalamazoo-spill-whopping-1-039-000000.

Plains Justice, The Northern Great Plains at Risk: Oil Spill Planning Deficiencies in Keystone

Pipeline System 9 (Nov. 23, 2010),

http://plainsjustice.org/files/Keystone_XL/Keystone%20Pipeline%20Oil%20Spill%20Response

%20Planning%20Report%202010-11-23%20FINAL.pdf.

See Press Release, EPA, EPA Orders Enbridge to Perform Additional Dredging to Remove Oil

from Kalamazoo River (Mar. 14, 2013),

https://archive.epa.gov/epapages/newsroom_archive/newsreleases/19cdd21822f762cd85257b2e0

06ecbb9.html.

of conventional oil, cleanup crews are still working to remove residual oil from the riverbed and

wetlands.46 On October 3, 2012 EPA issued an order to Enbridge demanding that the company

undertake additional efforts to continue to “remove and mitigate the effects of oil discharged.” 47

On March 14, 2013, EPA ordered dredging of the river to contain further contamination from

lingering oil. 48 The response to this spill is likely to continue for many years. As reported in a

New York Times piece the Kalamazoo spill, the “accident underscored not only how different

dilbit is from conventional oil, but how unprepared we are for the impending flood of imports.” 49

In the aftermath of the Kalamazoo Spill, the statements made by EPA give context to the

above conclusions that dilbit presents vastly different challenges from conventional crude. For

instance, EPA’s On-Site Spill Coordinator Mark Durno stated that, “The submerged oil is a real

story—it’s a real eye-opener. … In larger spills we’ve dealt with before, we haven’t seen nearly

this footprint of submerged oil, if we’ve seen any at all.” 50 Similarly, Susan Hedman, EPA

Region 5 Administrator, said in a press interview that, “Capturing and cleaning up this heavy oil

is a unique challenge. No one at the EPA can remember dealing with this much submerged oil in

a river.”51 Ralph Dollhopf, EPA incident commander for Kalamazoo, stated that when

Enbridge’s pipeline ruptured, the lighter part of the oil evaporated, “making the heavy mixture

even more heavy as it moved down the creek and down the river; it had an increased tendency to

sink… It’s the nature of the mixture of the oil that caused it to sink.” 52

The tragic consequences of the Kalamazoo spill were detailed in a July 2012 report by

the NTSB. The NTSB Report was highly critical of Enbridge, the pipeline operator, and the

existing federal regulatory framework.53 The NTSB Report shows precisely why allowing

companies to be in charge of their own clean-up is a recipe for disaster. Not only was the

pipeline rupture not addressed for over seventeen hours, Enbridge’s operators twice pumped

Nat’l Wildlife Fed’n, Importing Disaster: the Anatomy of Enbridge’s Once and Future Oil

Spills 3 (2012), http://www.nwf.org/~/media/PDFs/GlobalWarming/Reports/NWF_EnbridgeOilSpill_WEB_Final.ashx.

EPA Region 5, In the Matter of Enbridge et. al., Docket No. CWA 1321-5-13-001, Order for

Removal Under Section 311(c) of the Clean Water Act (2012),

https://www.epa.gov/sites/production/files/2016-06/documents/enbridge-AR-1720.pdf.

See Press Release, EPA, supra note 45.

Sassoon, supra note 37.

50 50

Anthony Swift, Kalamazoo One Year Later: Anatomy of a Tar Sands Spill, NRDC: Expert

Blog (July 26, 2011), https://www.nrdc.org/experts/anthony-swift/kalamazoo-one-year-lateranatomy-tar-sands-spill.

Tim Martin, A Year Later, Michigan Oil Spill Cleanup Continues, Associated Press (July 22,

2011), https://www.deseretnews.com/article/700165207/A-year-later-Michigan-oil-spill-cleanupcontinues.html.

Fritz Klug, Kalamazoo River Oil Spill Responders 'Writing the Book' on Submerged Oil Clean

Up, The Kalamazoo Gazette (July 24, 2011),

http://www.mlive.com/news/kalamazoo/index.ssf/2011/07/kalamazoo_river_oil_spill_resp.html

NTSB Report, supra note 36.

additional oil through the pipeline, constituting eighty-one percent of the total release. 54 In other

words, the systems that were in place to prevent such a spill failed catastrophically.

The fact of the matter is that while Kalamazoo has taught us some lessons, the biggest

lesson is that we are unprepared for a spill of that magnitude. There is still no indication that

dilbit, which would be traveling along the Line 3 pipeline, can be effectively cleaned up, that

Enbridge would prove any more adept or responsive to the emergency than it did in Kalamazoo;

and there has been no change in the inadequate regulatory structure that in part allowed the

Kalamazoo disaster to happen.

In fact, the EPA submitted comments objecting to the Corps’ EA for Enbridge’s Flanagan

South tar sands pipeline on December 23, 2013. 55 The EPA argued that the EA’s analysis of oil

spills and Enbridge’s response capabilities were insufficient and vague. 56 The EPA argued that

the Corps should have discussed lessons learned from Enbridge’s 2010 spill of heavy crude oil

into the Kalamazoo River in Michigan and required special prevention, protection, and

mitigation measures to ensure that such an accident does not occur in the sensitive areas that

Flanagan South would cross, including the Upper Mississippi River System, a “nationally

significant ecosystem and nationally significant commercial navigation system.” 57 For example,

EPA recommended “commissioning an independent engineering analysis to review Enbridge’s

risks assessment of the potential impacts from oil discharges to surface and groundwater

resources along the entire route as well as placing mainline valves along the route and installing

leak detection equipment”; requiring a “network of sentinel or monitoring wells along the entire

length of the pipeline, especially in sensitive or ecologically important areas… to provide a

practical means for early detection of leaks…”; requiring that the emergency response plans

address submerged oil and require “pre-positioned response assets”; and allowing an opportunity

for public review and comment on these issues.58 The same analysis and mitigation measures

should be required for Line 3.

The March 2013 Mayflower, Arkansas disaster.

The Kalamazoo River is not the only major tar sands spill to plague an American

community. On March 29, 2013, a pipe carrying dilbit ruptured in a small neighborhood in

Mayflower, Arkansas, spilling approximately 210,000 gallons of dilbit through the streets, into

nearby wetlands and streams and may have contaminated portions of Lake Conway, 59 one of the

Id. at xii.

Letter from Jeffrey Robichaud, EPA Region 5 to Joe Jordan, U.S. Army Corps of Engineers

(Dec. 23, 2013).

Id. at 3–4.

Id. at 3.

Id. at 3–4.

See Jacob Kauffman, Tar Sands Oil in Lake Conway?, KUAR Pub. Radio (Apr. 23, 2013),

http://ualrpublicradio.org/post/tar-sands-oil-lake-conway. There is a dispute as to whether tests

in the lake were adequate, as they focused on the water itself, rather than the bottom materials.

Some have reported oil contamination in the lake. Indeed, the Arkansas Attorney General stated

that because a cove of Lake Conway was deemed contaminated, the lake was contaminated

because “the cove is part of Lake Conway.” Maria Gallucci, Cove Where Exxon Oil Has Been

State’s most prized warm water fisheries. The pipeline is the Pegasus Pipeline owned by the

ExxonMobil Pipeline Company.

As with the Michigan spill, there was some question at the time of the spill regarding

whether or not it was bitumen that was spilled. It was not until April 10, 2013 that the company

admitted in a letter that the material spilled was indeed bitumen. 60

The incident has forced twenty-two families from their homes.61 It has also caused

numerous health problems. As detailed in the New Republic:

Ever since ExxonMobil’s Pegasus pipeline burst in March and spilled an estimated

210,000 gallons of Canadian heavy crude oil two miles from [Jason Thompson’s]

house, he’s had headaches of preternatural intensity, so bad they wake him up in

the middle of the night. He has nosebleeds, and hemorrhoids even though he’s only

36; there’s a rash on his neck that has only gotten worse in the eight months since

the spill; and some days he feels so weak that he can hardly get out of bed. He

estimates that he has lost almost 35 pounds since the rupture, falling from a fit 220

down to 185. When he went to see a doctor in April, he was told he has a mysterious

spot on one lung—but he hasn’t been able to afford to go back.

Hundreds of people in this working-class town of 2,200 have complained of

symptoms like Thompson’s. And their maladies—respiratory disorders, nausea,

fatigue, nosebleeds, bowel issues, throbbing headaches—echo the ones that

appeared in Marshall, Michigan, where an Enbridge Energy pipeline burst in 2010.

The two pipelines were carrying the same kind of oil: a heavy crude, or bitumen[.]62

As with the tragedy in Michigan, in Mayflower, the owner of the pipeline, Exxon,

demonstrated it could not be trusted to protect the public. In a November 6, 2013 letter of

probable violations sent to Exxon, PHMSA found nine probable violations by Exxon. 63 These

Found Is Part of Lake Conway, InsideClimate News (Apr. 10, 2013),

http://insideclimatenews.org/news/20130410/cove-where-exxon-oil-has-been-found-part-lakeconway.

Letter from Richard E. Byrne, Exxon Mobil to Edwin Quinones, EPA Region 6 (Apr. 10,

2013) (“ExxonMobil considers the oil released on March 29, 2013 to be conventionally produced

Wabasca Heavy crude. ExxonMobil was advised today by the Government of Alberta’s Energy

Resources Conservation Board that Canadian producers report their production of Wabasca

Heavy as bitumen.”).

Maria Gallucci, Dilbit or Not? Wabasca Crude Is the Question, InsideClimate News (Apr. 18,

2013), www. http://insideclimatenews.org/news/20130418/dilbit-or-not-wabasca-crude-question.

Nora Caplan-Bricker, This Is What Happens When a Pipeline Bursts in Your Town, New

Republic (Nov. 18, 2013), http://www.newrepublic.com/article/115624/exxon-oil-spill-arkansas2013-how-pipeline-burst-mayflower.

PHMSA, CPF No. 4-2013-5027, Notice of Probable Violation and Proposed Compliance

Order (Nov. 6, 2013),

probable violations make clear that a long-standing problem with a seam that caused the accident

should have been apparent to Exxon for some time. PHMSA stated that:

The pipe manufacturing information, fracture toughness, and hydrostatic testing

failure history of the Youngstown pre-1970 low frequency ERW pipe in the Patoka

to Corsicana segments of the Pegasus Pipeline provided more than adequate

information for the pipe to be considered susceptible to seam failure. Further, the

operator did not present an acceptable engineering analysis to PHMSA to

demonstrate that the pre-1970 ERW pipe in the Pegasus Pipeline was not

susceptible to seam failure.64

The letter detailed basic safety procedures Exxon failed to follow, many of which

concern oversight of the seam that failed. 65 These failures were long-standing. Testing from as

far back as 1991 demonstrated the existence of the defect that eventually led to the spill twentyfour years later. Thus, the problem was left unaddressed by Exxon for almost a quarter century

until the line burst. In addition, there is speculation that pressure cycling, which is associated

with transportation of dilbit, may have caused this long-standing defects in the pipe to finally

rupture.66

Exxon may well have been betting the costs of dealing with a spill were less than the

costs of taking measures to prevent one. As a result of these probable violations, Exxon incurred

just a $2.6 million fine from PHMSA for the incident, just .0003 percent of the company’s $7.8

billion profit in just the third quarter of 2013. 67

Regardless, Mayflower, Arkansas stands as yet another tragic example of what happens

when pipeline companies shipping tar sands are trusted to police themselves.

Inadequate Measures Are in Place to Protect the Public from a Spill

of Dilbit from Line 3.

As is detailed in the NTSB Report, the current regulatory structure fails to account for the

unique risks of transporting and responding to tar sands spills and to protect the public and the

environment from diluted bitumen spill risks. There is simply not an adequate regulatory

structure to deal with the extreme risks of dilbit.

The NTSB account of the Kalamazoo spill is sobering and identifies key failures in the

regulation of the diluted bitumen pipeline that spilled. The NTSB cited “[i]nsufficient public

https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/420135027_NOPV%20%26%20PCO

_11062013.pdf.

Id. at 2 (emphasis added).

See id.

Elizabeth Douglass, Experts Say Dilbit Could Have Created Pressure Swings, Hydrogen

Cracks in Pegasus Rupture, Ark. Times (Sept. 12, 2013),

http://www.arktimes.com/arkansas/experts-say-dilbit-could-have-created-pressure-swingshydrogen-cracks-in-pegasus-rupture/Content?oid=3037915.

Caplan-Bricker, supra note 62.

awareness and education,” “weak regulation” and “ineffective oversight of pipeline integrity

management programs, control center procedures, and public awareness” as factors in the

Kalamazoo disaster.68 The NTSB specifically found that the regulatory oversight for the pipeline

was “inadequate.”69 It also faulted “inadequate regulatory requirements for facility response

plans,” the inadequacy of the “facility response plan to ensure adequate training of the first

responders and sufficient emergency response resources allocated to respond,” and “inadequate

review and approval of Enbridge’s facility response plan that failed to verify that the plan

content was accurate and timely” for the spill. 70 The NTSB also concludes that it is “improbable

that PHMSA would be able to perform an adequate review of facility response plans or enforce

Federal requirements that pipeline operators identify and ensure that adequate response resources

are available to respond to worst-case discharges.” 71 Put another way, PHMSA’s response

resource regulations are unenforceable. The NTSB also found that, “[e]ssentially, the

regulations allow the pipeline industry to dictate the requirements of an adequate spill response

and to determine whether those requirements have been met.” 72 As a consequence, communities

along the pipeline route can expect no greater amount of spill response resources from

TransCanada than those that TransCanada, in its sole discretion, believes is due them.

The NTSB additionally found that PHMSA has only 1.5 full-time employees managing

about 450 response plans, far fewer than either the Coast Guard or EPA which also have spill

response responsibilities, despite the fact that it receives significantly greater funding from the

Oil Spill Liability Trust Fund,73 which, ironically, is not funded by dilbit shippers such as

TransCanada.74 It also found that PHMSA had approved Enbridge’s Facility Response Plan

(“FRP”) within two weeks of its receipt without comment and that only a “cursory” review of the

plan could have been conducted within this time period.75

The NTSB Line 6b Report also found that PHMSA does “not perform on-site audits to

verify the content and adequacy of plans before approving them. In contrast, both the Coast

Guard and the EPA conduct on-site audits and plan reviews after the initial review and approval

of the submitted plan.”76 Thus, PHMSA appears to do little more than bean count whether an

FRP has all required parts, rubber stamp whatever pipeline companies’ submit with no

meaningful review process, and then ignore FRP’s until the process repeats itself.

NTSB Report, supra note 36, at xii.

Id. at xiii.

Id. at xiii-xiv.

Id.

Id. at 113.

Id.

IRS Nat’l Office, Technical Advice Memorandum 201120019 at 3 (Jan. 12, 2011)

(“Accordingly, tar sands imported into the United States from Country by Company are not

subject to the excise tax on petroleum imposed by § 4611.”).

NTSB Report, supra note 36, at 113.

Id.

This weak and inadequate regulatory structure—which is not currently being addressed

or revised by PHMSA—is essentially all the serves to protect the people and places that will be

impacted by the Line 3 pipeline and a potentially major release of heavy crude oil.

The attached testimony of Richard Kuprewicz discusses some of the deficiencies of

federal pipeline safety regulations, their inability to prevent failures, inadequacies of Enbridge’s

“safety management systems” and the “serious deficiencies in current integrity management

regulations and/or approaches.” Kuprewicz test, Ex. E, at 3–6. For example:

PHMSA does not verify nor certify that oil spill response plans are effective. PHMSA’s task

is to assure compliance with the specific oil spill response regulations. Based on my

experience, the oil spill response regulations are deficient in several areas. For example, worst

case release defined in 49 C.F.R. § 194.105 does not reflect oil spill release rates from a liquid

transmission pipeline rupture where pumping flow rates can easily exceed the “maximum daily

capacity of the pipeline” outlined in the regulation. Another key example, the regulation fails

to capture the potential impact from dilbit. It makes a difference in spill response approaches,

whether the released oil will float or sink when hitting water, and dilbit’s demonstrated ability

to sink, such as in the Marshall, MI Line 6B release, has nothing to do with the dilbit’s gravity.

Id. at 6.

I must point to a U.S. Department of Transportation 2012 study that found that pipeline

controllers/control rooms identified that a release occurred around 16% of the time. This low

percentage of remote identification is supported by Accufacts’ many pipeline failure

investigations as well. Remote identification of pipeline release via SCADA can be very

challenging even for pipeline ruptures. Those of us very familiar with the complex transient

dynamics of hydrocarbon pipeline release detection appreciate the challenges of trying to make

such detection reliable. This is one reason such requirements have not been codified into

pipeline safety regulation. The timely success of remote release detection can be very pipeline

specific, and Enbridge has not provided sufficient information to support their assertions of

rapid remote rupture determination for Line 3.

Id. at 7; see also id. at 11–12 (discussing common construction related issues that can lead to

pipeline ruptures).

The Commandant of the U.S. Coast Guard, Adm. Paul Zukunft, testified in April 2015 to

Congress that he was “not comfortable” with spill response plans in the Great Lakes. Stmt. of

Admiral Paul Zukunft, S. Hrg. 114-93, 19 (Apr. 28, 2015) (attached as Ex. CC). He explained “that

information is then factored in what we call an Area Contingency Plan, when you look at what a

worst case discharge might be . . . we found out during Deepwater Horizon that those Area

Contingency Plans were inadequate for a spill of that volume, so I need to do a deeper read on that . .

. to say how ready we are for a major spill in the Great Lakes.” Id. In November 2017 he testified

before the United States Senate Commerce, Science and Transportation Committee and on several

other occasions that: “I would go on the record to say that the Coast Guard is not Semper Paratus for

a major pipeline oil spill in the Great Lakes.” Stmt. of Admiral Paul Zukunft to Senate Commerce,

Science and Transportation Subcommittee on Oceans, Atmosphere, Fisheries, and the Coast Guard,

at 19 (Nov. 16, 2017) (attached as Ex. DD). The U.S. Coast Guard lacks the capacity or technology

to recover crude oil from deep water, including Lake Superior. In a 2013 Coast Guard analysis on

bottom oil recovery systems, the Coast Guard explained its limited capability to detect and recover

submerged oil in deep waters.77 This report stated that agency responders have “limited capability in

detection and recovery” for higher profile submerged oil spills, and “[e]xisting systems are

inadequate to meet Federal On Scene Coordinator (FOSC) current needs for heavy and sunken oil

detection and recovery.”78

Further, since May 1999, the Coast Guard has prohibited tank vessels from transiting the

U.S.-side of Lake Superior due to a failure to meet Oil Pollution Act equipment response time

requirements, which indicates that the Coast Guard is not prepared to respond to a worst case

discharge from Line 3.

Since the U.S. Coast Guard’s Western Lake Superior Area Response Plan recognizes that a

rupture of an Enbridge pipeline facility could be the source of a worst-case discharge for western

Lake Superior,79 the Commandant’s testimony indicates that oil spill preparation measures for Lake

Superior are inadequate, putting the public and tribal interests in Lake Superior at risk.

The Corps’ EIS Must Evaluate Worst Case Discharge Scenarios for

Sensitive Locations Along the Pipeline Route.

As set forth above, NEPA requires the Corps to prepare an EIS considers the potential

environmental effects of an oil spill on specific and important natural resources. Stop the Pipeline,

233 F. Supp. 2d at 967 (requiring the Corps to evaluate oil spills in issuing a Section 404 permit

for an oil pipeline); Sigler, 695 F.2d at 968–75 (Corps EIS failed to analyze the “worst case” oil

spill scenario); Ocean Advocates, 402 F.3d at 867 (NEPA required Corps to analyze risks of

tanker oil spills in issuing a Section 404 permit for a dock extension).

NEPA requires federal agencies to analyze both the probability of a given harm occurring

and the consequences of that harm if it does occur. New York v. Nuclear Regulatory Comm’n, 681

F.3d 471, 482 (D.C. Cir. 2012). “When the degree of potential harm could be great, i.e.,

catastrophic, the degree of analysis and mitigation should also be great.” Gov’t of the Province of

Manitoba v. Salazar, 691 F.Supp.2d 37, 50 (D.D.C. 2010). When the evidence of the possibility of

severe accidents is disputed, an agency must “admit that such accidents are possible,” determine the

probability of occurrence, and “discuss[ ] their potential effects.” Sierra Club v. Watkins, 808 F.

Supp. 852, 868 (D.D.C. 1991). Federal courts have found that NEPA requires analysis of the risk

that a spill will occur and an assessment of the potential impacts of a spill on particular resources.

Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 133–134 (D.D.C.

2017) (EA inadequate because it did not describe the potential impacts of an oil spill on specific

Homeland Security, Acquisition Directorate Research & Development Center, Development

of Bottom Oil Recovery Systems—Final Project Report (June 2013),

https://homeport.uscg.mil/Lists/Content/Attachments/1275/Bottom%20Oil%20Recovery%20Fin

al%20Report.pdf.

Id. at 1.

Western Lake Superior Area Contingency Plan, App’x D at 21 (October 2009),

https://homeport.uscg.mil/Lists/Content/DispForm.aspx?ID=1320 (“W. Lake Superior Plan,”

attached as Ex. M).

tribal hunting and fishing rights). Given the potentially catastrophic nature of an oil spill from the

Project, NEPA also requires analysis of both the risk of a spill and its impact on important resources.

Therefore, the Corps must conduct a worst case scenario oil spill analysis for any and all

sensitive water resources or other locations along the pipeline route, including an evaluation of

potential site-specific impacts and response capabilities.

The Western Lake Superior Plan provides an example of the minimum amount of site

specific information this analysis should contain. W. Lake Superior Plan, Ex. M. For example,

Appendix D, Amplifying Information on Worst Case Scenarios, discusses specific sites, their

sensitivity, geographic challenges, land ownership, access points, response strategies, and

protection strategy requirements. Id. at 1–17. It further discusses spill response strategies and

practices, including notifications, incident organization, staging areas, boom deployment, and

resource requirements. Id. at 17–20. It specifically discusses a worst case discharge from an

Enbridge pipeline facility in particularly sensitive places, including the Duluth/Superior Port

Area. Id. at 20–25.

The attached Honor the Earth brief describes the potential environmental impacts of an

oil spill in St. Louis River Estuary, the Duluth-Superior Harbor, and Lake Superior— the largest

body of fresh water in North America, holding ten percent of the entire Earth’s fresh water —via the

St. Louis River and Nemadji River watersheds that are traversed by the Project:

A rupture of the Project into a tributary of either of those rivers or into the rivers themselves

could result in the transport of large amounts of crude oil downstream into the St. Louis

River Estuary, the Duluth-Superior Harbor, and Lake Superior. The Project, therefore,

creates a risk of a major oil spill into the St. Louis and Nemadji Rivers, and via them into

their receiving waters of Duluth-Superior Harbor and Lake Superior….A rupture of the

Project could inflict substantial adverse environmental effects on all of these waters and

the benefits they provide to society.

A release of crude oil into any of these aquatic resources poses unique and serious harm

and would raise unique mitigation concerns. An oil spill could severely harm the numerous

bays, wetlands, and forested areas of the estuary, including areas of significant cultural

importance to the Ojibwe. A spill could also adversely impact Duluth-Superior Harbor at

the mouth of the estuary, including its shipping, recreation, and tourism industries. The

harbor is Lake Superior’s largest port, supporting approximately 2,000 jobs and shipping

goods estimated at $1.9 billion.

An oil spill could also damage the substantial mitigation measures taken to isolate

hazardous materials contained in at least two underwater hazardous waste sites on the U.S.

Environmental Protection Agency’s National Priorities List, both of which are in the St.

Louis River Estuary: the U.S. Steel Superfund Site and the St. Louis River/Interlake/Duluth

Tar Site.

If an oil spill occurred in either the Nemadji or St. Louis River, it could enter Lake Superior,

thereby damaging its water quality and recreation and tourism industries.

Moreover, the deep water of Lake Superior would make cleanup of submerged oil

challenging, if not impossible. An oil spill affecting the St. Louis River Estuary, DuluthSuperior Harbor, and Lake Superior would have environmental, socioeconomic, and

cultural impacts unlike those of any other water resources in Minnesota.

HTE Br, Ex. B, at 45–46 (internal citations omitted).

The MN EIS failed to evaluate the potential impacts of a spill in this area and the

difficulties associated with responding to such a spill. Instead, it modeled seven “representative

release locations,” including three sites on the Mississippi River and four others on smaller rivers and

creeks. However, Honor the Earth’s Brief explains why this approach is insufficient:

No sites on the Nemadji River or the St. Louis River and no sites potentially affecting the St.

Louis River Estuary, the Duluth-Superior Harbor, or Lake Superior were evaluated. None of

the representative locations or their downstream receiving waters bear any resemblance to the

St. Louis River Estuary, the Duluth-Superior Harbor, or Lake Superior, in terms of the physical,

ecological, cultural, economic, and aesthetic resources that would be impacted by an oil spill.

A spill into the Mississippi River would not have the same impacts as a spill into Lake Superior.

The EIS assumed that a spill of equivalent volume at any non-modelled locations along the

APR would, at most, have similar consequences to one of its “representative” locations. The

EIS suggested that citizens will be able to read through the list of representative spill sites in

Table 10.3-1, select the one that is most similar to the St. Louis and Nemadji Rivers, and then

use the corresponding impacts in EIS Table 10.3-2 to extrapolate how a spill into these rivers

would impact the Duluth-Superior Harbor and Lake Superior. Although one or more of the

stream flow volumes at the representative locations may bear some superficial resemblance to

those in the St. Louis and Nemadji Rivers, this cannot be determined from data contained in

the EIS. Even if there were some hydrological correlation between the representative sites and

the St. Louis and Nemadji Rivers, none of the aquatic resources downstream from the

“representative” locations contain any of the unique features of the St. Louis River Estuary,

the Duluth-Superior Harbor, or Lake Superior, such as a major port, large metropolitan area,

major tourist destinations, commercial and recreational fisheries, water as deep as Lake

Superior, or underwater superfund sites on the National Priorities List. Also, none of the

representative release locations contain tribal resources that have the same values as those

found in and around the St. Louis River Estuary and Lake Superior. This region is of unique

significance to the Ojibwe people. Therefore, the EIS does not indirectly evaluate or provide

the tools needed to evaluate the adverse effects of an oil spill into these sensitive, valuable, and

culturally important waters.

The “representative” spill approach used by the EIS means that it contains generic descriptions

of the impacts of oil spills on various types of resources, but does not contain an assessment of

any specific adverse effects of an oil spill on the unique features of the St. Louis River Estuary,

the Duluth-Superior Harbor, or Lake Superior, including adverse effects on the interests of

indigenous peoples. Therefore, the EIS fails to provide any indirect analysis of the potential

for or the impacts of major oil spills into the St. Louis River Estuary, Duluth-Superior Harbor,

or Lake Superior.

Just as the EIS fails to consider impacts to these critical waters, it also fails to discuss any

mitigation measures specifically designed to respond to a spill into the St. Louis River Estuary,

Duluth-Superior Harbor or Lake Superior. The EIS provides a very general discussion of oil

spill prevention, preparedness, response measures, and laws. None of this discussion describes

the specific spill response measures that would be appropriate for the Duluth-Superior Harbor.

None of these mitigation measures identify any technology that can remove crude oil from the

deep waters of the Duluth-Superior Harbor or the deeper waters of Lake Superior.

Id. at 47–48 (internal citations omitted).

The surrebuttal testimony of Richard Kuprewicz further discusses why the use of

“representative sites” is not an acceptable approach:

Enbridge’s witnesses endorse the methodology of using seven “representative” sites along the

proposed route to access the risks of an oil spill on the new Line 3. Such an oversimplification

seriously misrepresents the risks and understates the maximum release volume that are system

specific. The maximum volume of oil release is driven by a specific pipeline elevation and

hydraulic profile dictated by a particular pipeline route, the response time to recognize a release

and initiate pipeline shutdown and segment isolation, the type of oil, size of the pipeline

opening, and sensitivity of the area that could be affect by the oil spill. Note that the size of an

opening such as a full-bore rupture does not necessarily control the maximum volume of the

oil that can be released. My experience in pipeline rupture investigations indicates that federal

oil spill pipeline regulations do not adequately capture a possible worst case release for a

transmission pipeline rupture.

Surrebuttal Testimony of Richard Kuprewicz on Behalf of Friends of the Headwaters, at 4 (Oct. 23,

2017) (“Kuprewicz Surrebuttal test”) (attached as Ex. F).

The Corps’ EIS Must Consider Oil Spill Risks in Evaluating

Alternative Routes.

The oil spill analysis in the Corps’ EIS, including an analysis of impacts of dilbit spills and

worst case scenario discharge scenarios, must be conducted so that it can inform the Corps’ selection

of the least environmentally damaging alternative route. The Kuprewicz Testimony argued that the

MN PUC must conduct this analysis before making a pipeline routing decision:

The Line 3 [MN EIS] fails to provide critical key details and relevant information on many

issues, especially related to routing, that would allow the PUC to make a prudent decision as

to the risks of moving dilbit in a pipeline such as Line 3, and assure the best route to avoid

unnecessary environmental risks has been presented.

Kuprewicz test, Ex. E, at 3.

Q. Do you believe Enbridge’s testimony is sufficient to make a pipeline routing decision?

A. No. Certain details that would assist in evaluating routing decisions are missing, such as

the approximate pipeline elevation profile and hydraulic profile of the pipeline at the flow rate

and oil gravity and temperature of the design rate stream day case. There should be sufficient

information on elevation and hydraulic profiles to screen possible route alternatives, given that

pump station locations have apparently been determined for the various routes.

In addition, it is important that any unusually sensitive area location, such as karst aquifers be

identified for any route proposal. A dilbit release into a karst aquifer renders the water supply

unfit for life because such dilbit contamination cannot be remediated in rapidly flowing

underground dispersion conditions associated with karst aquifers. Possible routing proposals

should also clearly identify other environmentally sensitive area classifications that could be

impacted such as lakes, rivers, wetlands, porous soil areas with vulnerable groundwater, etc.,

as well.

Id. at 9–10.

The [MN EIS] and Enbridge witness testimony does not provide the information needed by the

PUC to make a prudent decision concerning the Line 3 proposal, including routing. Without

these additional details, the PUC will unnecessarily be taking on enormous risk, significantly

understated by Enbridge as demonstrated by my testimony today. Routing decisions should

take under consideration the unique characteristics of a dilbit release on the environment that

sets dilbit pipelines apart from more conventional oil pipeline movements.

Id. at 12–13.

The Corps Must Evaluate Climate Change Impacts, Including from

Increased Tar Sands Development.

The Corps must analyze the climate change impacts of the Line 3 project, including but

not limited to the greenhouse gas (“GHG”) emissions associated with the extraction, processing,

transportation, refining, and end-use combustion of the crude oil associated with Line 3.

NEPA Requires an Analysis of Climate Change Impacts.

“The impact of greenhouse gas emissions on climate change is precisely the kind of

cumulative impacts analysis that NEPA requires agencies to conduct.” Ctr. for Biological

Diversity v. NHTSA., 508 F.3d 508, 550 (9th Cir. 2007)); Mid States Coal. for Progress v.

Surface Trans. Bd., 345 F.3d 520 (8th Cir. 2003); Border Power Plant Working Grp. v. DOE,

260 F. Supp 2d 997 (S.D. Cal. 2003). The courts also underscore the need to analyze climate

change when the proposed action is regional or national in scope, which is clearly the case for

the proposed project which extends from Canada through several U.S. states.

Moreover, NEPA calls for a quantification of the “incremental impact[s] that [the

proposed project’s] emissions will have on climate change… in light of other past, present, and

reasonably foreseeable actions.” Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1216

(9th Cir. 2008). This is true “regardless of what agency or person undertakes such other

actions.” Id. at 1217. Even if a proposed project has an “individually minor” effect on the

environment, this and other such actions are “collectively significant actions taking place over a

period of time.” 40 C.F.R. § 1508.7; see also Native Ecosystems Council v. Dombeck, 304 F.3d

886, 897 (9th Cir. 2002) (holding that the Forest Service's road density standard amendments

must be subject to cumulative impacts analysis because otherwise, “the Forest Service will be

free to amend road density standards throughout the forest piecemeal, without ever having to

evaluate the amendments’ cumulative environmental impacts.”); City of Los Angeles v. NHTSA,

912 F.2d 478, 501 (D.C.Cir.1990) (Wald, C.J., dissenting) (“[W]e cannot afford to ignore even

modest contributions to global warming. If global warming is the result of the cumulative

contributions of myriad sources, any one modest in itself, is there not a danger of losing the

forest by closing our eyes to the felling of the individual trees?”), overruled on other grounds by

Fla. Audubon Soc. v. Bentsen, 94 F.3d 658 (D.C.Cir.1996). NEPA requires analysis of the

“actual environmental effects resulting from those emissions.” Ctr. for Biological Diversity v.

NHTSA., 538 F.3d at 1216. Accordingly, the Corps must quantify and evaluate the cumulative

and incremental effects of climate change resulting from the Line 3 and connected actions in

comparison to and in conjunction with the effects of emissions of other reasonable alternatives or

actions—past, present and reasonably foreseeable.

The Corps EIS Must Evaluate the Risks and Impacts Posed by

Climate Change.

Climate change threatens the nation’s communities with extended periods of heat, greater

numbers of heavy downpours, more regional drought, increased wildfires in parts of the

American West, permafrost thawing in Alaska, ocean acidification, and sea-level rise in coastal

communities. Tar sands oil production generates almost triple the global warming pollution as

conventional oil production due to the massive amounts of energy needed to extract, upgrade,

and refine the oil.

A warmer environment is making heat waves hotter, droughts deeper and longer, and

causing an increase in extreme rainfall events. As climate models predicted 30 years ago, wet

areas are trending wetter and dry areas are trending drier. Increased droughts and dryness has

influenced the frequency and intensity of wildfires across the western United States. Warmer

temperatures are believed to be driving more frequent severe hurricanes in the western Pacific,

and creating hurricanes in the Atlantic that are more likely to reach Category 45 strength.

During the Line 3 proceedings before the MN PUC, Dr. John Abraham, an internationally

acclaimed climate scientist, provided a synthesis of his research on climate change. Direct

Testimony of Dr. John Abraham (“Abraham test”) (Nov. 7, 2017) (attached as Ex. G). He

testified that average global temperatures reached record highs in 2014, 2015, and 2016,

respectively. Heat contained within the Earth’s climate continues to increase, and as Dr.

Abraham stated, “[t]he amount of warming that is entering the oceans is equal to 4–5 Hiroshima

explosions of heat every second.” Id. at 5. Consequently, he warned that long-term trends of sea

ice loss have been observed and are projected to raise sea levels by a conservative minimum of

one meter by 2100 unless greenhouse gas emissions are substantially reduced. The brief of the

Line 3 Youth Climate Intervenors also provides an overview of the climate crisis. Initial Br. of

the Youth Climate Intervenors, In the Matter of the Application of Enbridge Energy, Limited

Partnership for a Certificate of Need and Pipeline Route Permit for the Line 3 Replacement

Project in Minnesota from the North Dakota Border to the Wisconsin Border OAH 11-250032764, No. PL-9/CN-14-619, OAH 11-2500-33377, No. PL-9/CN-15-137, at 15–17 (Jan. 23,

2017) (“YCI Br”) (attached as Ex. H).

In addition, the State Department prepared several environmental impact statements for

the proposed Keystone XL tar sands pipeline, the most recent being in 2014. 80 That document

contains a discussion of the science of climate change as it existed at that time, as well as various

studies estimating the well-to-wheel GHG emissions associated with tar sands crude oil. 81 The

U.S. Army Corps of Engineers was a cooperating agency in the Keystone XL NEPA process and

the preparation of this EIS in particular.82 Therefore, the Corps is aware of, and already

possesses the information contained in the Keystone EIS, and must consider that information in

its entirety as it prepares the EIS for Line 3.

In fact, the State Department and Army Corps participated in the preparation of a

Supplemental EIS for Enbridge’s proposed expansion of its Alberta Clipper pipeline (also known

as Line 67) across the U.S. border in 2017.83 The expansions of Alberta Clipper and Line 3 are

closely linked—the two pipelines share a right-of-way, and because the Alberta Clipper pipeline

was occupying the Line 3 border crossing segment in 2017, Enbridge needed to first expand its

lower-capacity Alberta Clipper border crossing before it could free up the Line 3 border crossing

in order to allow the expansion of Line 3 pipeline at issue here. In other words, the expansion of

the Alberta Clipper border crossing would allow the Line 3 expansion. In that context, the

Alberta Clipper SEIS again discussed the science of climate change; acknowledged a new model

suggesting life-cycle greenhouse gas emissions from tar sands crude may be 20% higher than

previously estimated; and evaluated the potential level of greenhouse gas emissions attributable

to the Alberta Clipper / Line 3 expansions under various scenarios. 84 The SEIS estimated that

the expansion of both Line 3 and Alberta Clipper could result in up to 155.6 million metric tons

of greenhouse gas emissions per year.85 The Corps must perform a similar analysis in an EIS

for Line 3.

The Corps’ EIS Must Evaluate Climate Change Impacts to Minnesota

and its Water Resources.

The Corps’ EIS must also evaluate the potential impacts climate change is likely to have

on the local environmental along and near the proposed pipeline route in Minnesota, including

but not limited to climate change impacts to wetlands and waterways. See YCI Br, Ex. H, at 16–

20; Direct Testimony of Paul Douglas (Sept. 9, 2017) (“Douglas test”) (attached as Ex. I);

Abraham test, Ex. G.

Minnesota, due to its northerly latitudinal location, is already experiencing the effects of

climate change more than areas closer to the equator due to positive feedback effects such as a

Keystone XL FSEIS, https://keystonepipeline-xl.state.gov/finalseis/.

Id. at Volume 3: Chapter 4, https://2012-keystonepipelinexl.state.gov/documents/organization/221190.pdf.

See id. at 3 (cover page listing “Cooperating Agencies”), https://2012-keystonepipelinexl.state.gov/documents/organization/221137.pdf.

See Alberta Clipper Supplemental Environmental Impact Statement (“Alberta Clipper SEIS”),

available at https://www.state.gov/e/enr/applicant/applicants/environmentalreview/.

Id. at Sections 4.10 and 6.4.

Id. at 6-64–6-69.

weakening albedo (a measure of the amount of solar energy reflected from Earth back into

space) and the release of methane into the atmosphere from melting permafrost. YCI Br, at 16–

17; Douglas test, Ex. I, at 3.

These warming effects may be impacting jet stream winds. As reported by Mr. Douglas,

“this may be creating a slower, wavier pattern, with greater amplification, more dips and bulges

in the jet stream.” The jet stream is an important global weather regulator, and changes to it

“may be leaving [Minnesota] weather more susceptible to stalling storms and fronts, in turn

capable of magnifying rainfall amounts.” YCI Br, Ex. H at 16–17; Douglas test, Ex. I, at 3.

Dr. Bruce Snyder also detailed Minnesota’s climate irregularities. He testified that,

“Minnesota’s average temperature has risen about 2F in the past century,” and, “[s]even of

Minnesota’s ten warmest years occurred since 2000.” Direct Testimony of Bruce Snyder

(September 10, 2017) (“Snyder test”) (attached as Ex. X). Every county in Minnesota is,

“experiencing more climate related stresses: extreme storms, flash floods, excessive heat,

droughts.” If business continues as usual, the average temperature of the Midwest is projected to

increase by ~5°F or ~9°F, respectively, under for low or high emission scenarios. This would be

a massive shift to our normal climate, which we are already observing. YCI Br, Ex. H at 17;

Snyder test, Ex. X, at 3, 11.

The observed humidity and tropical dew points, have exceeded 70–80°F more frequently

over time. Our winters are also getting much warmer, with substantially fewer nights reaching

below -20°F in the metro area or -40°F in northern Minnesota. Mark Seeley, a climatologist and

meteorologist from St. Paul, Minnesota has recorded a “fourfold increase in midwinter rain and

ice across Minnesota.” YCI Br, Ex. H, at 17–18; Douglas test, Ex. I, at 4–7.

Mr. Douglas observed that, “[t]he most obvious change has been the frequency and

intensity of extreme rainfall events, statewide.” Douglas test, Ex. I, at 4. Minnesota has had 14

“Mega-Rains” since 1858 (six inches or more rain falling over at least 1,000 square miles), and

half of them have occurred since 2002. Our state has also observed four separate 1,000 year

floods since 2000. YCI Br, Ex. H, at 17–18; Douglas test, Ex. I, at 4–7.

More rainfall does not necessarily mean wetter soils, however. Rain has been falling in

larger pulses across the state and subsequently evaporating quickly due to greater heat or simply

running off into storm sewers. Mr. Douglas testified that, “retaining water for Ag, maintaining

consistent soil moisture, will be a challenge in the years ahead.” YCI Br, Ex. H, at 18 (quoting

Douglas test, Ex. I, at 9).

Aggregate Minnesota rainfall amounts have increased over time as well. “Average annual

Twin Cities precipitation was 25.93 [inches] during the 30-year period from 1941 to 1970. The

most recent 30-year average from 1981 to 2010 is 31.16 [inches] in Minneapolis/St. Paul.” YCI

Br, Ex. H, at 17–18; Douglas test, Ex. I, at 4–7.

Forests in Minnesota will also be damaged by climate change. Dr. Peter Reich, a Sr.

Professor at the University of Minnesota’s Department of Forest Resources, explained that a

changing climate will cause “major problems to our forests, including slower growth, greater

mortality and poorer regeneration. This is due to the greater frequency of temperature extremes,

soil water shortages, and floods...increased frequency of wildfires, windstorms, native insect

pests, and non-native invasive plants, worms, insects, and diseases.” YCI Br, Ex. H, at 18.

According to Dr. Reich, unhealthy forests will mean “fewer economic benefits and ecosystem

services in terms of timber production, water quality, tourism and recreation.” Id. at 18–19.

An especially prevalent effect of climate change in Minnesota is the increase in pests and

the infectious diseases that come with them. Warmer temperatures are causing mosquitos and

ticks to thrive in places they normally do not. In the Twin Cities, an annual average of 42 “ideal

mosquito days” have been added as a result of the warming climate, and the black-legged deer

tick has migrated throughout our state from southeastern Minnesota, where it used to be isolated

20 years ago. Id. at 21; Snyder test, Ex. X, at 10.

The Corps EIS Must Evaluate the Climate Change Impacts of Line 3

Due to the Potential for Increased Tar Sands Development.

The Corps must analyze the cumulative greenhouse gas emission that would result from

the Corps’ approval of Line 3, along with the other tar sands pipelines, particularly relating to the

emissions from increased levels of tar sands production in Alberta that these pipelines would

allow.

The Line 3 expansion will presumably carry 65% heavy crude oil. That heavy crude oil

is produced by extracting bitumen from the tar sands. Extraction of bitumen from the tar sands

requires the combustion of large amounts of natural gas to turn water into steam, which is then

pumped underground to heat the bitumen so it will flow. The raw bitumen must then be

processed, blended with diluent, and transported long distances to refineries. Thus, tar sands oil

requires significantly more energy input to generate the same amount of usable energy output

than the refining of conventional crude oil. YCI Br, Ex. H, at 12–14; Abraham test, Ex. G, at 4.

The testimony of Anthony Swift, Direct Testimony of Anthony Swift (Sept. 11, 2017)

(attached as Ex. J), and of Adam Scott, Direct Testimony of Adam Scott (Sept. 10, 2017) (“Scott

test”) (attached as Ex. K), both discuss in detail the connection between additional pipeline

capacity and upstream tar sands growth. Tar sands crude oil is significantly more GHGintensive than conventional crude oil. And because the tar sands deposits are landlocked in

Northern Alberta and are more expensive to extract and process than conventional crude oil, the

growth of tar sands development in coming years is uniquely dependent on additional export

pipeline capacity.

Enbridge acknowledges that Line 3 would allow additional transportation of heavy crude

oil from Western Canada, which includes tar sands crude. Line 3 would be capable of

transporting 760,000 bpd of additional oil to refineries. If not for Line 3, some portion or even

all of this amount of oil would not be capable of being developed and transported to refineries.

Thus there is a causal connection between Line 3 and the greenhouse gas emissions associated

with 760,000 bpd of heavy and light crude oil.

The Alberta Clipper Supplemental EIS (“SEIS”) discussed the GHG emissions associated

with the Alberta Clipper/Line 3 expansions, including the likelihood that these expansions would

lead to more upstream development of high-carbon tar sands crude oil. 86 The Alberta Clipper

SEIS explains how it quantified the lifecycle GHG emissions associated with tar sands:

The analysis of estimated lifecycle greenhouse gas emissions in this SEIS uses publicly

available data from published studies to provide quantitative estimates of total lifecycle

greenhouse gas emissions (on a per barrel bases) for WCSB…. The Department relied

upon 10 studies from government, industry, and academic sources to obtain lifecycle

greenhouse gas emissions of WCSB crude oil and crude oil from other sources (Bergerson

et al. 2012; Brandt et al. 2015; Cai et al. 2015; Charpentier et al. 2011; Cooney et al. 2017;

Ghandi et al. 2015; Keesom et al. 2009; National Energy Technology Laboratory 2009;

Nimana et al. 2015; TIAX LLC and MathPro, Inc. 2009). These studies used engineering

models and industry data to generate lifecycle emissions estimates for WCSB and other

crude oils.87

The State Department estimated that the Alberta Clipper and Line 3 expansions,

assuming no displacement of other crude oils, could result in up to an additional 7.78 billion

metric tons of GHG emissions over the projects’ 50 year lifespan. 88 In addition, the Alberta

Clipper SEIS estimated that if the Enbridge Alberta Clipper/Line 3 expansions were built in

addition to the TransCanada Keystone XL tar sands pipeline, they could result in up to 49.9

million metric tons of GHG emissions per year assuming full displacement of other crude oils

(much more assuming no displacement).89

In November 2018, a federal court ruled that the State Department’s approval of

Keystone XL without considering these cumulative climate change of Keystone XL and Alberta

Clipper/Line 3 violated NEPA by failing to evaluate these cumulative climate impacts in

approving the Keystone XL pipeline despite the information being available to the agency.

Indigenous Envtl. Network v. U.S. Dep’t of State, 347 F. Supp. 3d 561, 577–78 (D. Mont. 2018).

The Army Corps now has the same obligations under NEPA, and must evaluate the climate

impacts of its approval of the Line 3 expansion.

The Corps EIS Must Weigh the Social Cost of Carbon Pollution.

Finally, the Corps’ EIS needs to evaluate the social cost of carbon (“SCC”) of Line 3.

Federal and state policy recognizes that there is a social cost associated with carbon emissions

that can be considered in decision making, YCI Br, Ex. H, at 11–12.

The “social cost of carbon” is a common measurement used by government agencies to

contextualize the greenhouse gas emissions associated with a project. As the Youth Climate

Intervenors brief explains:

See Alberta Clipper SEIS at 4.10, 6.4. The State Department similarly discussed these impacts

in the 2014 Final SEIS for the Keystone XL project. Keystone XL

FSEIS, https://keystonepipeline-xl.state.gov/finalseis/.

Alberta Clipper SEIS at 6-76.

Id. at 6-86.

Id.

The [social cost of carbon] is meant to be a comprehensive estimate of climate change

damages. It includes changes in net agricultural productivity; human health; property

damages from increased flood risk; and changes in

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