Enbridge punches back on Line 5 challenge: 'Nothing but counterfactual speculation'

There is no "imminent threat" of Line 5 spilling crude oil in Wisconsin, lawyers for Enbridge Inc. say in a fresh batch of court documents on the eve of a hearing that could see the controversial cross-border pipeline shut down.

The stage is set for oral arguments Thursday in the state capital of Madison as a federal judge contemplates whether to order the taps turned off and the pipeline's contents purged to forestall a watershed-fouling rupture.

The Bad River Band of the Lake Superior Chippewa, through whose territory the line runs, has filed a motion arguing that spring flooding along the riverbanks has rendered the risk of a breach too great to ignore.

Nonsense, Enbridge argues back in an opposition brief filed late Tuesday that takes direct aim at the band's claims of a looming environmental emergency, as well as the "drastic remedy" its lawyers are requesting.

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"Despite having to prove both liability and grounds for an injunction, the band has done neither. The motion must therefore be denied," the brief reads, describing their argument as "alarmist" and "counterfactual speculation."

"No release of oil is 'ready to take place,' 'happening soon' or 'real and immediate."'

The 50-page filing includes among its exhibits an email exchange between Enbridge and the band's natural resources officials to support its argument that the band has been unwilling to allow the Calgary-based company to do any remedial work.

"This court should contrast the evidence before it of Enbridge's persistent efforts and overtures to reach a solution — with the band's refusal to meaningfully engage or act."

Even if the risk were high, shutting down the pipeline would not be the appropriate remedy, Enbridge says, pointing to a court-ordered contingency plan that spells out the steps it would take if the threat were indeed urgent.

"Enbridge will pre-emptively purge and shut down the line well in advance of any potential rupture," the brief says, adding that the area remains under constant 24-hour video surveillance.

"Any flooding and erosion has not, and would not, catch Enbridge by surprise."

Riverbank weakened by flooding

Heavy flooding that began in early April washed away significant portions of the riverbank where Line 5 intersects the Bad River, a meandering, 120-kilometre course that feeds Lake Superior and a complex network of ecologically delicate wetlands.

The band has been in court with Enbridge since 2019 in an effort to compel the pipeline's owner and operator to reroute Line 5 around its traditional territory — something the company has already agreed to do.

But the flooding has turned a theoretical risk into a very real one, the band argues, and it wants the pipeline closed off immediately to prevent catastrophe.

Line 5 meets the river just past a location the court has come to know as the "meander," where the riverbed snakes back and forth multiple times, separated from itself only by several metres of forest and the pipeline itself.

At four locations, the river was less than 4.6 metres from the pipeline — just 3.4 metres in one particular spot — and the erosion has continued in recent days at an "alarming" rate, the band's motion says.

In one case, devices installed to measure the losses show that where there was more than 10 metres of riverbank before the flooding began, only 3.7 metres remained as of early last week.

"There can be little doubt now that the small amount of remaining bank could be eroded and the pipeline undermined and breached in short order," the band's lawyers argued.

"Very little margin for error remains."

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The economic argument against shutting down the pipeline — which carries 540,000 barrels of oil and natural gas liquids daily across Wisconsin and Michigan to refineries in Sarnia, Ont. — are by now well known.

Its proponents, including the federal government, say a shutdown would cause major economic disruption across Alberta, Saskatchewan and the U.S. Midwest, where Line 5 provides feedstock to refineries in Michigan, Ohio and Pennsylvania.

It also supplies key refineries in Ontario and Quebec, and is vital to the production of jet fuel for major airports on both sides of the Canada-U.S. border, including Pearson International in Toronto and Detroit Metropolitan.

"The implications (of a shutdown) are significant — not only to Pearson airport, not only to the Detroit airport, but to our mutual economies," Transport Minister Omar Alghabra said Wednesday on Parliament Hill.

Talks about possible contingency plans have been taking place, he added, though he hinted at something Enbridge and pipeline experts have been saying for years: there are no real alternatives.

"There's been ongoing discussion," Alghabra said. "But I can tell you that our focus is making sure that Line 5 continues operations."

That was the idea behind a lengthy statement issued Tuesday by the Canadian Embassy, which warned of severe economic consequences as well as potential ramifications for bilateral relations were the line to close.

"The energy security of both Canada and the United States would be directly impacted by a Line 5 closure," the statement said. Some 33,000 U.S. jobs and $20 billion US in economic activity would be at stake, it added.

"At a time of heightened concern over energy security and supply, including during the energy transition, maintaining and protecting existing infrastructure should be a top priority."

Months of talks

Talks have been ongoing for months under the terms of a 1977 pipelines treaty between the two countries that effectively prohibits either country from unilaterally closing off the flow of hydrocarbons.

Nonetheless, the embassy's statement and the Enbridge brief tacitly acknowledge that the prospect of a shutdown order is very real.

In Enbridge's case, the brief pre-emptively asks the judge to grant a stay of 30 days, should an injunction be ordered, to give lawyers time to mount an appeal.

And if "this specific, temporary flood situation" results in a shutdown, the embassy says, Canada expects the U.S. to comply with the treaty, "including the expeditious restoration of normal pipeline operations."