# COMMENTS OF BAY MILLS INDIAN COMMUNITY

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A840093857884f452

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

COMMENTS OF BAY MILLS INDIAN COMMUNITY
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

2

EXHIBIT B

EXHIBIT C

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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

v
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

2

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

2

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

3

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.
i.

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?
l.

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”).
I.

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
A.

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
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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).

3

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).
B.

The Corps Must Prepare an Environmental Impact Statement.
1.

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

(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
5

pipeline project with the potential to cause significant impacts to the environment, and thus it
warrants the preparation of an EIS.
2.

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
1

See Minn. Dep’t of Commerce Final Environmental Impact Statement Text – Revised (Feb. 12,
2018), https://mn.gov/eera/web/file-list/3196/.
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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).
C.

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
7

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.
D.

The Corps Must Evaluate all Connected Actions.
1.

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.

8

2.

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
a.

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.
b.

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
2

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.
3
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.”).
4
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).
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“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.
c.

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.

5

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.
6
Id. at 18.
10

3.

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.
4.

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:

7
8

See, e.g., MN EIS at 2-2.
See id. § 2.3.2.
11

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.

9

Id. at 6-707.
Id. at 2-10.
11
Id.
12
Id. at 2-12.
13
Id.
10

12

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
5.

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
E.

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

14

Id. at 2-12 to 2-13.
Id. at 6-15.
16
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.
15

13

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
14

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.
F.

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.
1.

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

15

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:

17

Alberta Energy, What is Oil Sands?,
https://www.energy.alberta.ca/OS/AOS/Pages/WOS.aspx.
18
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.
19
The Pembina Inst., Oilsands, Heavy Crudes, and the EU Fuel-Quality Directive 2 (Mar. 2012),
http://www.pembina.org/pub/2325.
20
Robert Kunzig, Scraping Bottom, Nat’l Geographic Mag. (Mar. 2009),
https://www.nationalgeographic.com/magazine/2009/03/canadian-oil-sands/.
21
Cong. Research Serv., R42611 at 3.
22
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.
23
Keystone XL FSEIS at 3.13-10 (2014), https://keystonepipeline-xl.state.gov/finalseis/.
16

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
24

Id.
Id.
26
Id. at 3.13-3.
27
Id. at 4.13-84.
28
Id.at 4.13-88 (emphasis added).
25

17

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

29

Id. at 4.13-112 (emphasis added).
Id. at 3.13-30.
31
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.
32
Id.
33
Id. at 6-8.
30

18

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.
2.

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.

34

EPA, Region V, Pollution/Situation Report #166 8 (Oct. 29, 2012),
https://archive.epa.gov/region5/enbridgespill/pdfs/web/pdf/20121025_sitrep_166.pdf.
35
This number has varied some, with 840,000 gallons being at the low end.
36
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).
19

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
37

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.
38
Sassoon, supra note 37.
39
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.
40
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.
41
Sassoon, supra note 37.
42
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.
43
http://desmog.ca/2013/08/26/official-price-enbridge-kalamazoo-spill-whopping-1-039-000000.
44
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.
45
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.
20

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

46

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.
47
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.
48
See Press Release, EPA, supra note 45.
49
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.
51
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.
52
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
53
NTSB Report, supra note 36.
21

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.
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
54

Id. at xii.
Letter from Jeffrey Robichaud, EPA Region 5 to Joe Jordan, U.S. Army Corps of Engineers
(Dec. 23, 2013).
56
Id. at 3–4.
57
Id. at 3.
58
Id. at 3–4.
59
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
55

22

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.
60
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.”).
61
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.
62
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.
63
PHMSA, CPF No. 4-2013-5027, Notice of Probable Violation and Proposed Compliance
Order (Nov. 6, 2013),
23

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.
4.

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.
64
Id. at 2 (emphasis added).
65
See id.
66
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.
67
Caplan-Bricker, supra note 62.
24

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.

68

NTSB Report, supra note 36, at xii.
Id. at xiii.
70
Id. at xiii-xiv.
71
Id.
72
Id. at 113.
73
Id.
74
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.”).
75
NTSB Report, supra note 36, at 113.
76
Id.
69

25

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

26

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.

5.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A840093857884f452. Public record. Not legal advice.