Read more here of ENR's "Engineering Justice" report. 

The line adheres to the original route until it reaches Clearbrook, Minn., then cuts a different path, with construction performed by MasTec subsidiary Precision Pipeline, until it reaches Chub Lake, Minn. Construction for that route change is at the center of a resistance movement involving Indigenous and environmental groups that has led to mass protests, hundreds of arrests, an array of legal battles to stop line completion and commissioning and even the intervention of the United Nations Committee on the Elimination of Racial Discrimination, which sent an Aug. 25 letter requesting that the U.S. respond to allegations of treaty violations and discrimination.

“Reportedly, this project would exacerbate the already disproportionate impact of climate change on indigenous peoples in Minnesota, putting at risk their watersheds and their wild rice ecosystem,” states the letter.

An unpermitted groundwater spill stemming from a January aquifer breach in a sensitive wetlands area, just recently disclosed by the state, highlights those concerns.

“The Line 3 site I think illustrates how communities can stand up and speak up about the issues that are happening,” including with the request for intervention by the UN, says Catherine Collentine, associate director of the Sierra Club’s Beyond Dirty Fuels Campaign. “But there's no point in any permitting process that we shouldn't be talking about environmental justice issues.”

Environmental justice has been the subject of both internal and external conflicts around permitting.

When the Minnesota Pollution Control Agency in November 2020 issued a state certification for the project to gain a federal dredge and fill permit in protected waters, 12 of 17 members of a group made up of both internal and external members that was created to advise the department on environmental justice issues resigned because they didn’t agree with the decision.

The optics of the group might have looked good, but officials "don't actually take your advice in any sense of the word—it’s just a lie,” said Lea Foushee, environmental justice director of the North American Water Office, and one of the resignees.

 

Seeking Tribal Rights

Court decisions affirmed the state permit certification and a certificate of need, but indigenous opponents have now filed on behalf of wild rice, or Manoomin, as a plaintiff, along with the White Earth Band of Ojibwe and tribal members. 

In the complaint filed in tribal court Aug. 5 against the Minnesota Dept. of Natural Resources (DNR), tribal attorneys Frank Bibeau and Joe Plumer seek declaratory relief on the inherent rights of wild rice as well as the “collective and individual right of sovereignty, self-determination, and self-government” for Chippewa tribal members, which include the White Earth band.

“A spill of tar sands in those waterways would be deeply problematic and would put at threat those treaty rights, and possibly destroy those bodies of water” where the rice is harvested, says Collentine.

Not just a food, “wild rice is part of our creation stories, and our migration stories from the east coast to where we are here in the Great Lakes in northern Minnesota,” says Bibeau.

Plaintiffs also want Line 3’s water permits rescinded, drawing attention specifically to one issued in 2020 that originally allowed Enbridge to withdraw up to 510 million gallons of water for dewatering during trench construction. An amended permit issued in June 2021 allowed the firm and contractors to withdraw almost 5 billion gallons, 10 times the original amount, which Enbridge said was necessary because there was more groundwater than previously thought.

Pipeline opponents are concerned that the dewatering process itself could affect the quality of environmental conditions in which the rice grows. 

 

Water Permits Challenged

The complaint says the state agency issued the amended permit “abruptly, unilaterally and without formal notice to tribal leaders (quasi-secretly), and without Chippewa consent,” going on to say it is “failing to protect freshwater resources for Manoomin … with callous disregard for the Rights of Nature, Rights of Manoomin and Rights of the Chippewas reserved by a series of 44 Treaties with the United States.”

An Enbridge spokesperson said that the project employed a “first-of-its kind Tribal Cultural Resource Survey led by the Fond du Lac Band of Lake Superior Chippewa who managed review” of the Minnesota route, with 60 “tribally significant cultural locations identified and recommended for further avoidance, mitigation treatments or Tribal monitoring.”

Originally opposed to the project, the Fond du Lac band allowed Enbridge, under a 2018 agreement, to build the pipeline replacement through its territory, where it returns to its original route. The alternative the band faced at the time was a rerouted pipeline through treaty territory.

The Enbridge spokesperson also added that “permit conditions protect the environment during construction, and specifically wild rice.” 

But Minnesota DNR is fining Enbridge $3.32 million for “failure to follow environmental laws” in a January incident. DNR determined Enbridge breached an artesian aquifer during construction near the Clearbrook Terminal, leading to “uncontrolled flow of groundwater” into a trench that was deeper than that in plans approved by the agency. Permission to work on the terminal, located near calcareous fen wetlands, hinged on those plans. “A calcareous fen is a unique type of wetland, with stringent statutory protections,” that depends on steady groundwater rich in calcium and magnesium bicarbonate for its survival, according to the agency.

On Aug. 19, Minnesota DNR filed for a preliminary injunction against the tribal lawsuit. U.S. district court Judge Wilhelmina M. Wright denied the request, writing that the federal court lacked jurisdiction. Minnesota is appealing the dismissal to the federal appeals court in St. Louis, saying it “must address these jurisdictional issues before anything further in this litigation can be resolved.”

The route of the new pipe is covered by a series of treaties between the Chippewa and the U.S. government, giving the tribes the right to hunt, fish and gather in lands ceded to the U.S., according to plaintiffs.

“They have essentially taken away our ability to exercise our rights to harvest wild rice and they’ve taken away water to essentially facilitate our worst climate change threat,” says Bibeau. “This is probably one of the shortest, fastest [harvesting] seasons I've seen in probably 30 years.” 

The amended permit was issued just as the state began to enter a drought that would quickly grow in severity, and is still ongoing in northern Minnesota. 

The Minnesota agency says “any localized impacts to natural resources due to the temporary lowering of the water table are short‐term and minimal,” and that between 95% and 97.5% of the original volume of pumped water is returned. “This summer’s dry conditions have reduced the amount of dewatering that was required,” it added, with Enbridge reporting that 814.4 million gallons were used by the end of August.

The rights of Manoomin fall under a relatively young legal doctrine called rights of nature, which seeks to recognize and protect the legal rights of the natural world. The case is the first of its kind to be filed in tribal court, and just the second such case filed this year in the U.S. “There isn’t a whole bunch of case law against us because it’s all new,” says Bibeau.

The White Earth band established the rights of Manoomin in 2018. In recent years, indigenous tribes, cities and some countries have established rights for everything from bodies of water to the animal kingdom.

Whatever happens in tribal court will likely not be the last step for Line 3 opponents. “When it comes to the injunction that I'm seeking, I’ll still probably have to go to federal court to have that enforced against the state of Minnesota,” says Bibeau.

 This article was updated on Sept. 21.