US judge rejects bid for new review of Enbridge cross-border lines

A federal district judge ruled that two Enbridge Energy LP crude oil pipelines from Canada, which the partnership plans to either expand or replace, do not require a fresh US Department of State review because their original authorization was a presidential determination that is not subject to review.

The White Earth Nation, an Ojibwe tribe in Minnesota, sued to make DOS conduct reviews under the National Environmental Policy Act and National Historic Preservation Act for the projects involving Enbridge’s two 1,000-mile pipelines from Alberta to Superior, Wis. Four environmental organizations intervened in the proceeding.

Enbridge’s plans call for replacing Line 3, for which it obtained a presidential permit in January 1968, and increasing its average capacity to 760,000 b/d. It also plans to expand the capacity of Line 67, which received a presidential permit in 2009, from 400,000 b/d to 570,000 b/d initially and 800,000 b/d ultimately.

DOS notified Enbridge on July 24 that the projects did not require its authorization. Plaintiffs argued that the action violated NEPA, NHPA, and the federal Administrative Procedures Act.

US District Judge for Minnesota Michael J. Davis rejected the argument because DOS’s determinations were presidential in nature and not subject to judicial review.

“Here, Enbridge reached out to [DOS] to obtain confirmation that the replaced project for the border segment was consistent with the 1991 permit covering Line 3, and that the bypass project was outside the scope of the Line 67 permit as the interconnections were outside the border segment,” he wrote.

He also rejected the plaintiffs’ claims of an APA violation because they were not based on an agency action.

“Today’s decision leaves in place the [DOS] approval of Enbridge’s use of Line 3 and Line 67 consistent with its existing permits,” an Enbridge spokeswoman said on Dec. 9. “The interconnections are simply leveraging the flexibility we have under our existing permits to meet our obligations to shippers, and to continue the vital service of transporting reliable, secure supplies of North American crude oil.”

Lawyers for the environmental groups said they were disappointed with the ruling, and were considering a range of options including a possible appeal.

Contact Nick Snow at nicks@pennwell.com.

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