On May 18 U.S. District Court Judge William Conley heard the Bad River Band of Lake Superior Chippewa’s emergency motion to shut down Enbridge Energy’s Line 5 crude oil pipeline. Line 5 is seventy years old, carrying up to 540,000 barrels per day through some of the world’s most ecologically sensitive areas: The Kakagon and Bad River sloughs on the shores of Lake Superior, and under the Straits of Mackinac at the confluence of Lakes Michigan and Huron.
Severe flooding in recent weeks has eroded the banks of the Bad River to within twelve feet of the location of the decrepit pipeline, now twenty years past its intended lifespan.
“At this moment, just one more storm could expose the oil pipeline to the river’s current, and we could experience a release of oil akin to what happened in the Yellowstone River in 2011 or the Arkansas River in 2013,” says Mike Wiggins Jr., Bad River Tribal Chair.
In 2019 the Bad River Band sued Enbridge to remove the pipeline from reservation land since Enbridge’s easement on Bad River territory expired in 2013 and was not renewed. Last year Judge Conley ruled that Enbridge had been actively trespassing on Bad River land, and ordered both parties to come up with a plan to remove the pipeline. Bad River’s emergency motion filed last week came after drone footage taken by Bad River member David Joe Bates showed a rapid erosion of the river banks near the site of the pipeline.
Still image from David Joe Bates’s drone footage taken May 14, 2023, showing Enbridge workers on the Line 5 pipeline site.
The Interprovincial Pipe Line Company was founded in 1949 and built its first pipeline moving crude oil from the city of Regina in Saskatchewan, Canada south across the border to Superior, Wisconsin. The company was renamed Enbridge in 1998, and in 2017 completed a merger with Spectra Energy, making it the largest energy infrastructure company in North America. Enbridge operates over 17,000 miles of crude oil and liquids pipelines and has a stake in more than 193,000 miles of natural gas and natural gas liquids (NGL) pipelines.
Based in Calgary, Alberta, more of their oil pipelines—9,299 miles—are in the U.S. with 8,510 miles in Canada. They produce for export, with large terminals in Texas, and others on the east and west coasts of Canada.
Their profits for 2022 top $15 billion, with $7 billion paid out in dividends to investors. They continue to attract massive investments, with $3.8 billion in 2022 and over $10 billion expected for 2024.
Enbridge owns the main pipelines out of the Alberta Tar Sands, and they are also involved in transporting oil from fields in North Dakota and Texas, as well as fracked gas in Colorado and Oklahoma. They own a significant portion of the Dakota Access Pipeline.
Enbridge has been “replacing” aging infrastructure in the Lakehead System built seventy years ago which includes pipelines originating in Alberta, and moving through Saskatchewan, Manitoba, Northern Minnesota, Wisconsin, Michigan, and back into Canada in Ontario and Quebec. In reality, these are brand new pipelines, the construction of which has produced enormous damage affecting the homelands of Indigenous peoples.
The construction of the Line 3 “replacement” project in northern Minnesota was rushed through in 2020 and 2021, causing massive damage to water and land. In order to get this new pipeline (now called Line 93) built, they paid more than $8.5 million to local law enforcement agencies to arrest and forcefully remove water protectors from areas in the vicinity of construction activities that were harming aquifers and destroying sensitive wetlands. More than 1,000 arrests were made, and while most of the charges have since been dismissed, two years later there are still people awaiting trial.
Enbridge has written the book on regulatory capture, whereby corporations control the entities that are supposed to be regulating and overseeing their activities. This happened at all levels of state government in Minnesota regarding Line 3 in the permitting process, in the reporting of polluting incidents and accountability for them, in law enforcement, and in the courts.
In Wisconsin they were able to get a law passed that makes it a felony to trespass specifically on pipeline easements. In 2022, they tried and failed to get one of their largest contractors, Tim Michels of Michels Corporation, elected as governor of Wisconsin.
In November 2020, Michigan Governor Gretchen Whitmer gave Enbridge notice that Line 5 would be shut down in May 2021. Stating that Enbridge had, “repeatedly violated the terms of the 1953 easement by ignoring structural problems that put our Great Lakes and our families at risk,” Whitmer added, “Enbridge has imposed on the people of Michigan an unacceptable risk of a catastrophic oil spill in the Great Lakes that could devastate our economy and way of life.”
In the sixteen-year period between 2002 and 2018, Enbridge pipelines spilled 307 times, releasing 2.8 million gallons of oil and toxic fluids.
The governor was speaking from the bitter experience of 2010, when Enbridge’s Line 6B broke and released over one million gallons of diluted bitumen—tar sands oil mixed with toxic diluent—into a tributary of the Kalamazoo River in Marshall, Michigan. Enbridge’s slow response to the spill resulted in extensive damage to a thirty-five mile stretch of the river, closing it down for two years and requiring repeated dredging to remove the heavy oil from the river bed. Cleanup activities were ongoing for four years and costs exceeded $1 billion. And this was just one instance. In the sixteen-year period between 2002 and 2018, Enbridge pipelines spilled 307 times, releasing 2.8 million gallons of oil and toxic fluids.
Enbridge has continued to operate Line 5 after the May 2021 deadline, getting the Canadian government to invoke a 1977 pipeline treaty between Canada and the United States claiming that neither Whitmer nor the Bad River Band had the authority to order the shutdown of the pipeline. Michigan Attorney General Dana Nessel filed suit against Enbridge for violating the order and has requested that the federal Appeals Court send the case back to state court for adjudication.
A statement released by the Canadian embassy in Washington, D.C., on May 16 said, “Canada invoked the treaty’s dispute settlement provisions because actions to close Line 5 represent a violation of Canada’s rights under the treaty to an uninterrupted flow of hydrocarbons in transit.”
That claim is a slap in the face not only to the people of Michigan and the Bad River Band, but to all Indigenous Nations that are signatories to treaties with governments on both sides of the U.S.-Canadian border that guarantee their access to clean water and natural resources for subsistence that predate and precede the 1977 treaty. Invoking the treaty goes against the U.N. Declaration on the Rights of Indigenous People that includes the rights to health, water, and subsistence, sacred sites, Treaty Rights, cultural and ceremonial practices, free prior and informed consent, traditional lands and resources including water, productive capacity of the environment, and self-determination.
On May 16, I joined a delegation of water protectors on a trip to Ottawa to deliver a letter to Prime Minister Justin Trudeau and four of his Cabinet Ministers. The letter was written by the Cross Border Organizing work group of the Line 5 Coalition, a voluntary affiliation of organizations and individuals who came together in 2020 to support the Bad River Band’s position on Line 5 and to organize widespread opposition to a proposed reroute of the pipeline.
Signed by nearly 300 organizations and more than 5,000 individuals from Canada, the United States, and a handful of other countries, the letter demands that the Canadian government rescind its invocation of the treaty, stating, “Your favoritism toward the fossil fuel industry mocks your own pretensions of concern for the environment. Stop impeding the efforts to shut down Line 5 by those who depend on clean water in the Great Lakes region, and uphold the inherent rights of the Indigenous Nations of the Great Lakes while honoring all of the treaties with Indigenous Nations north and south of the border that predate and precede the 1977 pipeline treaty.”
The delegation met with Green Party Member of Parliament Mike Morrice, who agrees that the pipeline should be shut down and is calling out the undue influence of Enbridge and other fossil fuel companies in the Canadian government. After attending COP26 conference in Glasgow last year he wrote, “For our part in Canada, we’re the only one in the G7 whose emissions continue to rise, and to give a sense of our inaction, we continue to prop up the oil and gas industry with approximately $17B in public financing last year alone—even after our government announced our intention to eliminate international subsidies.”
“We’re playing Russian roulette—which one of these pipelines is going to burst? How can we navigate between the waters and the oil? Water and oil don’t mix.”
After the meeting we joined a rally and press conference in front of Parliament led by traditional knowledge holder Great Grandmother Mary Lyons of the Leech Lake Band of Ojibwe. “We’re here to bring the truth to what is happening. We’re having a genocide within our waterways, and we have to start building a new tomorrow for our children,” said Lyons. “Water is supposed to be free and sustain us all and now we’re getting water bills because we can’t trust the water in the ground. We need to save this planet and it’s gonna take us all to do it.”
Joe Hill, member of the Seneca Nation, talked about climate chaos, the increase of catastrophic weather events and the recent flooding of the Bad River. “This is just a start,” he said. “So if we have a chance of mitigating the damage to come, let’s start by shutting down the tar sands. The leaders of this country and the United States need to come around to a different way of thinking and they need to start now,” he added.
Alain Mignault from Quebec said, “I live downstream from Line 5 on Line 9. Our government only thinks short term, they only think about money. We should think of future generations, biodiversity and our health. These are the criteria that should determine their decision rather than money.”
Jason Goward, a former Enbridge construction worker and member of the Fond du Lac Band of Ojibwe, talked about the shoddy work done on the construction of Enbridge Line 3 in Minnesota in 2020 and 2021. “We’re playing Russian roulette—which one of these pipelines is going to burst? How can we navigate between the waters and the oil? Water and oil don’t mix.”
Afterwards we marched to the Royal Bank of Canada (RBC) where Goward sang an Ojibwe song and Greg Mikkelson, a former McGill University professor who quit when the university refused to divest from fossil fuels, spoke about the financing of fossil fuels. Pointing out that RBC shares a building with Canadian government offices, Mikkelson said, “Unfortunately, the Oil Bank of Canada became the largest funder of fossil fuels in the entire world in 2022.” He encouraged anyone with an account or an RBC branch in their communities to pressure them to stop funding climate chaos.
Enbridge attorneys are hard at work filing affidavits and statements from “experts” minimizing the potential for environmental destruction of Line 5 under the Bad River, and opposing Michigan Attorney General Ness’s motion in the federal Court of Appeals. But a multi-billion dollar corporation can afford all these court battles, so long as their oil—and profits—continue to flow.
For Chairman Wiggins and those who depend on clean water from the Bad River and Lake Superior, the threat of an oil spill is not about money but their very existence. “The interconnected waters flowing through the Mashkiiziibii—the Bad River—are inseparable from our people’s existence. We cannot afford to place our trust wholly in Enbridge’s assurances that these waters are safe. Instead, we must follow the science and our own traditional knowledge gathered by generations whose lives depended on this ecosystem.”
The matter has been tied up in court for nearly four years, and the floods have increased Wiggins’s sense of urgency: “This is an imminent threat not just to our way of life, but to the clean waters that sustain all the residents and businesses throughout the Lake Superior basin. The court needs to take action to shut down and purge Line 5 before it’s too late.” Judge Conley said he would deliver a decision within a week.