WASHINGTON – Ottawa is urging a U.S. appeals court to overturn a Wisconsin judge’s order threatening to shut down cross-border Line 5 by June 2026.
Forcing its closure would violate Canada’s treaty rights, government lawyers argue in an amicus curiae brief filed Monday with the U.S. Court of Appeals for the Seventh Circuit.
A Wisconsin court order issued in June by Judge William Conley gave Calgary-based Enbridge just three years – and not a day more – to reroute the pipeline around the territory of the Bad River band of Lake Superior Chippewa.
Enbridge is planning a 66-kilometer detour to replace the 19-kilometer stretch that crosses the Bad River Band’s sovereign territory.
Both sides are appealing the decision.
Canada has long argued that any court-ordered shutdown would violate a 1977 treaty with the United States intended to ensure the continuous, uninterrupted flow of energy in both directions across the border.
The brief goes on to insist that the federal government is committed to reconciliation and defending the rights of indigenous peoples in Canada, and that it “respects the rights and interests” of its counterparts in the United States.
Canada also supports “rapid and cooperative efforts” to divert the pipeline from the reserve, a goal that is fully achievable without resorting to a shutdown, the document continues.
Not enough time
Enbridge only needs federal and state regulatory approval, as well as continued operation of the pipeline, to complete the diversion. But it will probably also require more time, states the letter, which also questions the three-year period, considered insufficient for the North American market to adapt to the potential reality of a closure of Line 5.
“Respectfully, Canada considers that the Court’s economic forecasts are speculative and overly optimistic,” the letter reads. “Markets rarely adapt quickly and effectively under conditions of great uncertainty.”
“Even with complete and verified information, the market could not adapt to the closure of Line 5 without seriously harming North America’s energy security and economic prosperity,” the government communication states.
All alternative pipeline routes are at or near capacity, while transporting oil and gas by rail or truck would be costly and carry myriad environmental and safety consequences, the report warns.
“Canada believes that even with a three-year delay, the economic consequences of a shutdown would be severe,” both for fossil fuel producers and refineries and facilities in central Canada and the American Midwest.
Judge Conley’s decision appears to ignore the binding nature of international treaties, which constitutes a “clear error of law,” the brief also reads.
The Bad River Band Council has been fighting Enbridge in court since 2019, alleging that the company lost its permit to operate on the reservation in 2013. Enbridge insists that a 1992 agreement with the band allowed it to continue its activities.
Judge Conley, reluctant to order an immediate shutdown, instead sought a compromise, giving Enbridge until June 2026 to complete the bypass and ordering the company to share profits from Line 5 with the gang, starting with a $5 accrual. .1 million dollars.
Neither party was satisfied.
Environmental groups call the 70-year-old pipeline a “time bomb” with a questionable safety record, despite Enbridge’s claims to the contrary.
Neighboring Michigan, led by Attorney General Dana Nessel, is also waging war against Line 5, fearing a leak in the Straits of Mackinac, the waterway through which the pipeline crosses the Great Lakes.
Line 5 transports 540,000 barrels of liquid oil and natural gas daily through Wisconsin and Michigan to refineries in Sarnia, Ontario.
It also supplies key refining facilities in Ontario and Quebec and is essential to the production of jet fuel for major airports on both sides of the Canada-U.S. border, including Detroit Metropolitan and Pearson International in Toronto.
