Attorneys for the Minnesota Public Utilities Commission, Minnesota Department of Commerce  and Enbridge Energy testified before three administrative law judges during a March 23 Appellate Court hearing.

The hearing was convened to review arguments about concerns DOC had raised about the adequacy of the certificate of need and the environmental impact statement for Enbridge’s Line 3 Replacement Project.

The Red Lake Nation, White Earth Nation, Indigenous environmental group Honor the Earth and the Sierra Club were among those who had joined DOC in filing the appeal.

The three-judge panel included Judge Lucinda Jesson, Judge Peter Reyes and Judge Michael Kirk.

It was facilitated by Scott Strand of the Environmental Law and Policy Center.


The two issues on which the judges were seeking responses were why Enbridge failed to demonstrate a need for the new Line 3 pipeline based on current and future demand for oil and why Enbridge chose to use a point on Little Otter Creek, a stream 30 miles from Lake Superior, to demonstrate the lack of impact on Superior from a hypothetical potential oil spill.


Jason Merisam, attorney for the PUC and Christy Brusven for Enbridge, maintained that the demand they demonstrated was for pipeline transport capacity, not a demand for oil.

Katherine Hinderlie, attorney for DOC, said, “The demanders of crude oil are refineries, and therefore the department believes you should look to refinery demand for crude oil ... producers desire to ship and sell as much as they can.”

The judges pointed out that the certificate of need was based in part on the assumption that there was a future demand for oil, not transport capacity.

With regard to the environmental impact of an oil spill on Lake Superior, Merisam made an argument that the measurements made on a creek in the Lake Superior watershed were a surrogate for an evaluation in the lake itself, even though the panel of judges pointed out that the location of the creek was so far from the lake that spilled oil could not possibly reach Lake Superior within the 24-hour time frame specified in the environmental impact study.


When the hearing was adjourned, the judges, led by Judge Jesson said they would provide a determination within the statutory time frame (90 days from the hearing date) about whether Enbridge would have to initiate a new request for permits to resume construction of the Line 3 pipeline and associated infrastructure.

The Age will update this story as more information becomes available.

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