Where to Listen:
Northern Wisconsin is home to Lake Superior, to beautiful streams and wetlands, to thousands of acres of mesic forests–and to a 72-year-old oil pipeline called Line 5. Now the foreign oil company, Enbridge, that owns and operates the line is pushing to blast and trench its way across northern Wisconsin to build a reroute. Amy gets the latest on legal action to stop it.
Host:
Amy Barrilleaux
Guests:
Clean Wisconsin attorneys Brett Korte and Evan Feinauer
Resources for You:
What Line 5 means for me (video)
Clean Wisconsin News: Sign up for Line 5 updates and more
Transcript:
Amy Hi there, and welcome to The Defender, Wisconsin’s environmental podcast. I’m Amy Barrilleaux. The Defender is powered by Clean Wisconsin, your environmental voice since 1970. So how often do you think about Lake Superior? Well, if you live south of Wausau, maybe not all that often. Maybe only when you head up to the Apostle Islands or Bayfield. But it turns out it’s probably worth thinking about our cleanest, biggest Great Lake a whole lot more often, because Lake Superior is the largest freshwater lake in the controlled by surface area. It holds 10% of the earth’s fresh water. And in much of Wisconsin, it is bordered by pristine natural areas, sloughs, coastal lagoons, thousands of acres of mesic forests, streams, wetlands. If you’ve ever been up there, and plenty of visitors have, you know it’s a special place. But for decades, Lake Superior and all that irreplaceable land and resources around it have been under threat because of a major crude oil pipeline that stretches across the northern half of the state. It’s called Line 5 and it pumps 23 million gallons of Canadian tar sands oil across northern Wisconsin every single day and it brings that back up to refineries in Ontario. So you have oil coming from Canada, crossing some of our most beautiful natural areas and then heading back up into Canada. The Bad River Band of Lake Superior Chippewa has been fighting this pipeline and the threat it poses to our freshwater resources for years. Now, Clean Wisconsin is among the environmental groups joining in to help. The latest on legal action playing out right here in Wisconsin, that’s right now on The Defender. Northern Wisconsin is home to Lake Superior, to beautiful natural areas and ecosystems and wildlife, and a 72-year-old crude oil pipeline known as Line 5. Now the foreign oil company Inbridge that owns and operates the line is pushing to blast and trench its way across northern Wisconsin to build a reroute of the pipeline. Joining me are Clean Wisconsin attorneys Brett Korte and Evan Feinauer who are working on legal action to stop that reroute. Thanks for being here.
Brett Thanks for having us, Amy.
Evan Yeah, happy to talk today.
Amy So let’s get in, before we dive into what’s going on legally challenging line five, let’s talk about what Line 5 is. There’s the old version of Line 5, the one that’s currently carrying oil across Wisconsin, and then there is a proposed reroute. So Brett, tell me about the reroute and why does Enbridge want to build yet another section of this pipeline across the state.
Brett Sure. So line five is a 645 mile pipeline that runs from Superior, Wisconsin across Northern Wisconsin through the Upper Peninsula of Michigan through the Straits of Mackinac down through the rest of Michigan and ends up in Sarnia, Ontario. This pipeline has been in use since the 1950s and right now, primarily transports tar sand, crude oil and other petroleum products from the Alberta tar sands to Eastern refineries. When the line was initially put in place in Wisconsin, the federal government gave the pipeline company the authority to put the pipeline through the Bad River Band of Lake Superior Chippewa’s reservation. And that bit of the pipeline is what’s really come to a head in Wisconsin here recently. So in 2013, Enbridge, the pipeline company that now on the pipeline, their easements expired on the reservation and the band declined to renew those easements. They were concerned about impacts to their lands and waters. And since then, the pipe line has been operating in on the Bad River’s land. Ever since and, uh, in 2019, the band had to take Enbridge to court, to federal court, uh to adjudicate that and a district court found that indeed Enbridge was trespassing and gave the company, uh until June of 2026 to cease operation on, uh the band’s reservation. So that’s what brings us to the proposed reroute.
Amy So I want to understand that. So basically we’re under a time clock. Enbridge has got to stop operating the pipeline that exists right now and now wants to build a new pipeline by June, 2026. Is that basically what’s happening?
Brett Yeah, the pipeline segment that crosses the reservation is about 12 miles long. And because they’re not able to renew those easements and continue operating there, Enbridge is proposing to build about a 41 mile segment of pipeline that would come just from the west of the reservation, go around the reservation to the south and connect back up to the existing pipeline. One of the big issues with this is that it doesn’t do anything to protect the watershed of the Bad River, which is what the tribe is most concerned about. They’ve got almost 200 square miles, their land is very pristine, they have hundreds of miles of waterways, and about 16,000 acres of high quality Lake Superior wetlands that supports wild rice, which was very important to the band, and the reroute would still across even more waterways in the reservation, and therefore a risk from a spill would still impact the entire watershed, potentially Lake Superior, and the impacts from the construction of the pipeline would also potentially impact the reservation. Despite the fact that the band has done everything in their power to protect themselves, and Enbridge says that they want to do this reroute to abide by the band’s wishes to no longer support the pipeling.
Amy Evan, you and I were both up in Ashland last summer where there was a hearing for the Army Corps talking about, where people got to talk about the pipeline, whether or not they supported it or didn’t support it. And a lot of the supporters were from the company, from Enbridge, talking about well, you know, this is the safest way to transport oil. So putting in this new pipeline to replace one that is aging makes sense, it’s safer. It’s better for those wetlands and Lake Superior, the things that Brett just mentioned. So what do you make of that, that this pipeline will be the safest way to bring oil across Wisconsin?
Evan Well, I think that’s framing the issue with the wrong premise. What they’re proposing to do is to trench and dig and blast and tear through 41 miles of, as Brett was talking, pretty pristine Northern Wisconsin wilderness, across a bunch of rivers and water lays, wetlands, so on and so forth. This is critical habitat for plants, animals. I mean, it’s just really an important ecosystem to mess with. We have a bunch of strong state water resource protections that any person that comes through the door and wants to impact has to meet. DNR’s obligation is to faithfully implement those permitting standards for every project. There’s no special exemption if you’re Enbridge to have to meet the requirements to not mess up wetlands, waterways, cause water pollution, impact, habitat. The proposed project is going to do those things. They can say, well, Is there some other hypothetical scenario where X, Y, and Z wouldn’t happen, but that’s not the relevant question. The relevant question is, are Wisconsin’s water resources going to be messed up so some company can build a pipeline across northern Wisconsin that ships oil from Canada east across Wisconsin that we don’t really use to mess up our ecosystem? And that’s obviously a bad deal for Wisconsin. More importantly, I think, is that those self-serving arguments are pretty speculative. And clearly what they’re intended to do is to try to force people to accept their project. It’s almost kind of like saying, well, if you don’t let us do this bad thing, maybe we’ll do something even worse, which is not a good way to have resolution of any public policy issue. And it certainly doesn’t make their project more legal because they could theoretically do something else that some people would like less. And that’s just not how any of this works.
Amy You mentioned that this new project is going to be, if it goes through, will be blasting its way through really some pristine areas of northern Wisconsin and we have some photos of those areas submitted actually by Enbridge, some of the areas where Enbridge is going to be doing the blasting if it’s allowed. So Clean Wisconsin has moved to taking legal action, I guess, to try to stop this clearing of trees, this reroute from happening. So explain to me what’s going on.
Evan Yeah, so the way this works is anybody who wants to conduct activities, whether it’s a small project or it’s a really big one like this, and file applications with DNR and then get permits that say, yes, you’re authorized to go do these things that you’re going to do, but DNR can only issue those permits if you meet a bunch of state standards that are designed to protect your water resources. So for waterways, you know, our public waterways that are navigable, state holds in trust for the use and enjoyment and benefit of all Wisconsinites. You can’t own the bed of a river. And so the issue there is about are these impacts, to our waterways going to be in the public interest for wetlands? Wetlands serve a whole range of functional values, what people might think of like ecosystem services. And that includes cleaning the water, helping reduce the incidence and severity of flooding, providing awesome habitat for plants and animals. And the project can’t result in significant adverse impacts to wetland functional values. Basically, the wetlands are really important. Don’t mess up all the great things they do for us. And we don’t think that the project meets those standards for wetlands and waterways. There’s also issues with storm water and some other related issues, but the big issues are, this is gonna negatively impact our wetlands and our waterways, the state law says you can’t do that. So we filed action to say DNR, you should not have issued those permits.
Amy Were you, either of you surprised when you saw the DNR issued these permits to Enbridge so that they could build this pipeline across the state?
Brett No. The application process had gone on for years, and it was pretty clear that DNR was gonna do everything they could to try to issue these. The permits themselves have over hundreds of conditions, and even with all the work that went in from DNR, we still don’t think that they got it right here.
Amy So when you say they have hundreds of conditions, so basically the DNR is saying, okay, you can build if you do this, this, and that, is that…?
Evan Yeah, what the conditions do is they’re supposed to operate as assurances that if Enbridge does everything that the permit says they have to do, then those things that I mentioned earlier won’t happen, right? That there won’t be impacts to navigable waters that are adverse to the public interest, that there won’t t be adverse impacts to these wetland functional values I was mentioning. So it’s kind of like a conditional approval. You have to all the things in the permit, all the conditions. And then DNR feels good that there won’t be those impacts. The problem, though, if you think about it, is it’s kind of like saying, well, you have to do these 300 things. And if, I guess, you don’t do any single one of them, because we think all these conditions are necessary to avoid these impacts, then we’re kind of conceding that there will be impacts, right? It’s sort of like if somebody came to you and said, I want to take you on a spaceship to Mars. And I say, well, that sounds really hard and dangerous. And they say, don’t worry. We have this really long plan. And as long as we do everything in this super long, complicated plan, we’re gonna get there safely. And it’s like, well, that’s another way of saying if anything goes wrong, you’re gonna have these impacts you’re not supposed to have. So we look at the number and complexity of the conditions not really as assuring. We look at them as a tacit admission that, gee, this project is risky, complicated, and there’s a lot of things that we really don’t know in terms of the impacts it’ll cause, whether those impacts can even be monitored for. And whether those impacts can be restored after the fact. I mean, that’s the big thing is a lot of these conditions are things like, well, if you mess it up, fix it. Well, it’s fine to say that, but that’s a plan to have a plan. It isn’t an actual assurance that any outcome is gonna happen in the real world.
Brett And how do you fix a wetland, right?
Evan I mean, there’s certain things that are a little superficial about some of these conditions, you know, as Brett just said, how do you fix a wetland? There are very delicate features in these wetlands, things like springs and seeps and these little kind of amazing things that nature has created over a very long time period, that if you blow up or plow through or trench through, they don’t necessarily bounce back. And they’re also not amenable to just people fixing, you know, we aren’t – people are smart and we’ve figured a lot of things out, but we can’t do what nature does to create landscapes. And it’s pretty arrogant, frankly, to think that we always can.
Amy The area that we’re talking about, northern Wisconsin, and as I mentioned, we’re going to have photographs provided by Inbridge of the very areas where they’re going to be doing some blasting. I don’t want to assume that everybody’s been up to northern Wisconsin. But Brett, how would you describe this area where Inbridge wants to blast and trench its way through with this pipeline?
Brett Yeah, I mean, it really is incredible. If you are familiar more with the southern half of Wisconsin, as you head north, you’ll hit a line where things kind of become very different. You change from rolling farmland and deciduous trees to more evergreens, and you get the really dense woodlands. You get some amazing wetland complexes, like the ones we’re trying to protect. And then when you get up towards Lake Superior, you see a bunch of rivers that, you know, they’re not flowing into the Mississippi, they are not flowing into the Wisconsin and the rivers that come south, they flowing directly into the Great Lakes and into Lake Superior in particular. And, you know this is where you see kind of the incredible geologic formations like Apostle Islands and Copper Falls State Park, which is there. It has to do with the glaciers and everything that’s happened over geologic time to make the landscape what it is, but it’s pretty rugged and it’s gorgeous. The water resources are very lovely. You’ll get, you know, clear water and cool water. It’s really important for like trout habitat, for example. You know, it’s where all the, all the people from Chicago want to come vacation, right?
Amy Of course they do! But, you know, I do think what you’re describing, maybe sometimes we don’t think about it because we’re right here in Wisconsin, but this is the largest freshwater system in the world. And I think there’s a really kind of important moment that we’re looking at. So we have the largest fresh water system in world. We have an existing pipeline that has been threatening it for, you now, more than a half century. And now, uh, chance to protect this area, maybe a bit better than it’s been protected. How difficult is it though, we’re talking about Enbridge, this is a huge oil interest, very, very deep pockets. So how difficult is for groups like Clean Wisconsin and our partners and the band to stand up to protect the area that really is one of the most treasured places in the world.
Evan Well, it’s extremely difficult. I mean, make no mistake about it. They have way more resources to pour into this case than we do in terms of money, lawyers they can hire, experts they can hire, and that’s just the reality. And the reason for that is that they’re a for-profit business. Their job is to make money moving fossil fuels. So it shouldn’t be surprising that they are trying to make moving fossil fuels. That’s what they’re for. The reason we don’t just let companies do whatever they want to do, whatever they want to, do it is because there are sometimes impacts on other people. And this is one of those cases and the law affords us the opportunity to tell DNR we got this one wrong. And I think what I think about when we’re doing a case like this is it isn’t just clean Wisconsin and our partners versus this massive company, because I think of ourselves as not just representing all of our members. But really everyone across the state who cares about this issue. And I think when I think about it like that, we are out-resourced, but we have, I think, so many people behind us that send us so many nice things and so many wonderful words of support that you feel like you’re part of a bigger group of people that are working towards the same goal. And that’s incredibly motivating. It doesn’t make it less daunting to go up against somebody with a lot more money than you, which unfortunately that does have a big impact on how our legal system works, but the silver lining is that the way the law is written and the way we try to have our legal system work when it’s working correctly, it shouldn’t matter how much money you get paid as a lawyer or how much money you’re able to pay your witnesses to testify, which should matter whether or not you’re right on the facts in the law. I’m optimistic that the judge is going to see that despite all the things that Enbridge will do to try to win this case, and we’re going to win at the end of the day.
Brett And yeah, I mean, it’s just important to remember that when this pipeline was, you know, put in in 1953, we didn’t have all the legal protections for the environment that we do now. We didn’t have the Wisconsin Environmental Policy Act, we didn’t, not sure where we were on the wetland statutes, but we didn’t have, you know nearly the same legal regime to protect our resources. So if someone sitting back and thinking like, well, it’ been operating for so long, how come this stuff’s coming up now? It’s because we’ve the policy has changed and we now, you know, really value protecting our water resources in a way that, you now, wasn’t on the books, at least, in the 1950s.
Amy So Clean Wisconsin and others have taken legal action to say, hey, DNR, we don’t think you should have issued these permits for this pipeline to blast and trench its way across the state. So what are the next steps in that? How does that move forward?
Evan Yeah, so we have a hearing scheduled for September. It’ll take about a month. And what we’re doing now is preparing for that hearing. We’re gonna have a lot of testimony from witnesses. We have witnesses, DNR is gonna have witnesses. Enbridge is gonna to have witnesses and we’re all gonna have chance to tell our story about what we think the environmental impacts from the project will be. So what we are doing is making sure that we are putting our best foot forward in terms of explaining in very simple terms why this project is bad for Wisconsin’s environment and why it doesn’t comport with the law. So that’s, that’s the main purpose of the hearing. Then the parties will write up briefs, explaining what they think the evidence shows to the ALJ and why they should win. And then the administrative law judge or ALJ, as I just said, will issue a decision that’ll happen, you know, sometimes maybe very late this year or early in 2026, so those are the big outlines of the case. Um, but there’s a lot of details and a lot of work going on beyond that.
Amy I know you both have been really hard at work every single day on this case. So we’ve got two attorneys here at Clean Wisconsin working on this case. How many attorneys does Enbridge have or do you know?
Brett We don’t know. We know the ones that have been in conferences with us, but that’s not necessarily indicative of how many folks they have.
Amy I mean, is this like a David versus Goliath kind of situation?
Evan Well, I mean, of course it is. I mean we are scraping together resources in terms of money for experts and attorney time that’s very limited to do this case. And that doesn’t mean we can’t win it, but what it means is that we’re, it is an example I think of what you were alluding to earlier about is the playing field always super even when big economic interests go up against, you know, a small non-profit like us. And what I, what I like though about this case is, as you mentioned, we have partners, there’s other environmental groups that we’ve been working with as our co-petitioners, as Brett mentioned earlier, the band has filed its own challenge, and so there are at least a sort of a coalition of folks who have similar and overlapping and shared concerns about the project, and we’ve been able to do some pooling of resources. The bottom line is you’re absolutely right, there’s no way that’s ever going to be equivalent to what a company like Enbridge can put out there.
Amy I think we are in a time where we’re seeing the presidential administration really put all of its weight behind fossil fuels, so oil, gas, coal. Does that, do you think that that kind of shift in priority could impact this case at all?
Brett It could, at the federal level, there’s a related issue going on where Enbridge is trying to put a tunnel underneath the Straits of Mackinac in Michigan, and that’s being opposed both by state leadership and tribes and other advocates in Michigan. And that federal permitting process got fast-tracked apparently by the Trump administration. Um, as did the Army Corps side of our issue, but our case is against DNR and it’s over state statutes and regulations. It doesn’t help to have the Trump administration really stacking the deck in favor of fossil fuels but ultimately that’s one of the beauties of federalism and we still have Wisconsin’s regulations and laws that we get to challenge these permits under.
Amy What would happen if the ALJ said, yep, we agree with Clean Wisconsin and the other folks who are challenging these permits? What would the next thing be?
Evan Well, the remedy, the overall remedy we’re asking for in the case is that the permits be declared invalid. So what the administrative law judge is doing is kind of checking DNR’s homework. And what that means is at the end of the hearing, if we prevail, the ALJ will say, you got this wrong, you shouldn’t have issued these permits. That’ll mean Enbridge doesn’t have the permits it needs to construct the project. They won’t be able to construct a project. So it kind of is that simple.
Amy I think we’re at a time where we’re seeing federal actions that seem to have maybe a little regard for the law, and we’re some really interesting and potentially questionable decisions by the Supreme Court. We’re at time when it feels like the justice system isn’t as firm as maybe we once thought it was. So, for you two, who, this is what you do. You’re attorneys you find for environment in the court of law, how are you feeling seeing some of this stuff happening at the federal level?
Brett Well, I mean, I think you’re right. I think we’re kind of in a moment with especially the federal courts where there’s a lot of kind of shift in ideology and kind of legal theory that judges bring to the federal judiciary. And that’s playing out in all kinds of issues and certainly with the environment. And I think. You know, as a state-based organization, we are involved in federal issues, but really our bread and butter is working under state law and in the state systems and. Lucky here in Wisconsin to have, uh, some pretty good, especially wetland and waterway protections in our statutes. And that’s, you know, kind of what we’re trying to focus on here. Um, I think kind of big picture, I don’t expect the, um, kind of environmental rollbacks to be permanent, at least I hope not. I think that there’s plenty of public support for environmental protection. And… Uh, you know, cleaner air, cleaner water. And, you, I think the political tides will, will, we’ll turn back. I think we’re in a bit of a reactionary moment right now. And, uh, You know, we kind of have to ride that out, but as far as our work, we, we staying the course and we’ll use, you know, all the avenues and tools available to us to do our jobs.
Evan Yeah, I’d echo the point about just trying to remind ourselves that we’re a state-based organization. And it’s a little bit like that phrase, think globally, act locally, in the sense of I pay attention to everything that happens at the U.S. Supreme Court in any Washington, D.C. because it does affect us. And when that’s frustrating, what I’m reading and learning about, I just channel that into the work we’re doing here in Wisconsin. So it provides a nice outlet to put that energy that’s productive and useful. Helps preserve your mental health a little bit. In terms of the practice of law right now, I think there are a lot of concerns about are folks getting a fair shake? Is it still possible for the truth to win out? And I continue to feel like we’re in these cases, and ultimately what you’re trying to do is you’re trying to convince the judge that you’re right on the facts and the law, and I continue think that if you do a better job than the folks you’re up against, you will win the case. And that’s because these people are trying. In good faith to figure out what are the facts and what are the law and apply and that’s been my experience, notwithstanding whatever might be happening someplace else. And at the end of the day, there is just a lot of you control what you can control and you do your best. Um, I have a three-year-old and a five-year old at home and they’re going to inherit this planet and it’s going to be 2050 at some point. And we’re going to blink. And it’s gonna be that, and we’re gonna have a lot of problems from pollution and loss of biodiversity and global warming. And it’s important that I be able to look them in the eye and say, I did what I could, and I think we should all be thinking about that. We should be thinking about the future and doing what we can, no matter how hard the circumstances are. You know, it’s not an option to say it was hard so I gave up. That’s not the way this works.
Amy Clean Wisconsin Attorneys Brett Korte and Evan Feinauer, thank you so much for taking the time to talk with me about this.
Brett Thanks a lot, Amy.
Evan Thanks.
Amy And thank you for listening to The Defender. For more information on Line 5, and how you can sign up to follow the legal proceedings once they get underway next month, check out the links in the show notes, or head to cleanwisconsin.org, and click on the podcast page. I’m Amy Barrilleaux, talk to you later.
