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Red tape before black oil: Line 3 still has regulatory ground to plow before pipeline construction

Ben, a Line 3 pipeline opponent who only wants his first name to be used, hangs from a tripod in the middle of a downtown St. Paul street, just outside the Public Utilities Commission offices June 28, 2018. Evan Frost | MPR News File1 / 2
Supporters and opponents of the Line 3 oil pipeline line up outside of the Public Utilities Commission in St. Paul June 28, 2018. Evan Frost | MPR News File2 / 2

ST. PAUL—Before Enbridge Energy can bring in the bulldozers and backhoes to build its Line 3 pipeline across northern Minnesota, it still has to go through more months of regulatory scrutiny.

The project took a big step forward late last month when it won approval from the Minnesota Public Utilities Commission after nearly four years of review—but it was by no means the last hurdle the controversial project faces. Gov. Mark Dayton's office has tallied 29 more approvals needed before construction can start.

And even if Enbridge gets all of those permits approved by state agencies, county governments and federal regulators, there's still the likelihood that one or more decisions will be challenged in court.

"Patience is a virtue in advocacy for large-scale infrastructure projects and large-scale natural resource development projects," said Nancy Norr of Jobs for Minnesotans, a group that supports Line 3.

The company expects the bulk of the permits will be in hand by Nov. 1, according to Guy Jarvis, executive vice president for pipelines and projects at Enbridge.

"Once you have all that, it's still several months of mobilization before you're actually out doing significant construction," he said, predicting that construction could start in early 2019.

The first thing on Enbridge's to-do list is filling in the details on an agreement with the PUC to adhere to certain conditions. That includes a plan for paying for cleanup, should the new pipeline spill, and offering jobs to Native American contractors. Those details are due next week, and project opponents say they'll be heavily scrutinized.

"We still have a long way to go at the PUC," said Scott Strand, the attorney representing Friends of the Headwaters. He says once the conditions are clarified, groups opposing Line 3 can ask for reconsideration, and can also ask the Minnesota Court of Appeals to review the decision.

As for the two dozen plus permits Enbridge needs, Strand says some of them, especially those that fall under the federal Clean Water Act, could take a long time. There are also permits involving land use, air quality and endangered species.

"It's too early to know what's going to happen. There's a lot of things that have to be decided between now and the time any kind of a pipeline project were to start," Strand said. "And in the meantime, the economics of all of this can change."

That includes the global price of oil. And this fall's election results could also have an impact on how fossil fuel infrastructure is regulated both in Minnesota and nationally.

Some of the state agencies expecting permit applications from Enbridge haven't received them yet. That doesn't surprise Willis Mattison, a retired Minnesota Pollution Control Agency official who has been a vocal critic of the project.

"They must know that the headwinds are still against them," he said. "Even though they got past this preliminary part, they have some major battles to win yet."

For example, Mattison said, the state certification of a federal water quality permit could get complicated, because Enbridge will be disturbing thousands of acres of land previously untouched by pipelines.

"These waters are extremely sensitive to disturbance. So to think you can cut a swath several hundred feet wide across these waters, disturb the ground and surface water flows, plants and organisms that grow there and not adversely impact the ecosystem is folly," he said.

By law, environmental impacts must be minimized, but sometimes potential impacts don't surface until construction. A pipeline on the East Coast was forced to halt construction earlier this year to protect endangered bats and birds.

The replacement pipeline will carry 760,000 barrels of oil per day, restoring Line 3 to its original capacity. Enbridge wanted to take a largely new route for the pipeline and leave most of the original 50-year-old Line 3 in the ground unless landowners wanted it removed. That line runs near Bemidji. The new route would run to the Clearbrook terminal, then head south rather than through Bemidji, and then head east toward Superior, Wis. Commissioners voted 3-2 to approve the pipeline's route — a slightly modified version of Enbridge's preferred path. The company will work with the Fond du Lac Band of Chippewa during the next two months to determine the path through or around the reservation.