Support for Enbridge’s appeal comes from Government of Canada, unions, industry and commerce

Enbridge filed its opening brief in the 7th Circuit Court of Appeals on Sept. 11, respectfully disagreeing with the district court's decision on many points, including the ordered shutdown of Line 5 across the Bad River Band’s Reservation in Wisconsin by June 2026.

Court briefs ‘eloquently explain the real consequences of a Line 5 shutdown impacting millions of people on both sides of the border’

Sept. 20, 2023

Briefs in support of Enbridge’s appeal in the 7th Circuit Court of Appeals have been filed by the Government of Canada; North America’s Building Trades Unions (NABTU) and the United Steelworkers, CFL-CIO-CLC; the Michigan Propane Gas Association, the National Propane Gas Association and the Wisconsin Gas Association; the U.S. Chamber of Commerce, the Canadian Chamber of Commerce, Wisconsin Manufacturers and Commerce, the Michigan Chamber of Commerce, and the Ohio Chamber of Commerce; and the American Fuel & Petrochemical Manufacturers, Petroleum Institute, and Liquid Energy Pipeline Association.

The Government of Canada’s brief in support of Enbridge’s appeal argues that the shutdown injunction of Line 5 across the Bad River Band’s Reservation violates Canada’s rights under the 1977 Treaty and usurps the ongoing Treaty dispute resolution process between the Government of Canada and the Government of the United States.

The Government of Canada makes clear that it’s committed to reconciliation and ensuring full rights of Indigenous peoples, as such Canada supports efforts to relocate Line 5 away from the Reservation and that keeping Line 5 operating safely in the interim protects everyone. Further, a shutdown would cause grave harm to North American energy security and economic prosperity.

North America’s Building Trades Unions (NABTU) and United Steelworkers, CFL-CIO-CLC amicus brief also argues that the district court’s order violates the 1977 Transit Pipeline Treaty and Foreign Affairs doctrine. The unions explain that any exercise of equitable relief must provide time for Enbridge to relocate the pipeline around the Reservation. They emphasize the devastating effect a shutdown order will have on skilled workers, the loss of jobs maintaining the pipeline and at facilities and refineries that depend on Line 5. The adverse impacts go beyond the loss of income, to loss of health insurance and pension benefit funds, and to the loss of training opportunities for the next generation of workers.

North America’s Building Trades Unions (NABTU) is composed of fourteen unions collectively representing more than 3 million workers in construction trades in the U.S. and Canada. The United Steelworkers, CFL-CIO-CLC represents 600,000 workers in energy and other sectors.

Collectively, the Michigan Propane Gas Association, the National Propane Gas Association and the Wisconsin Gas Association’s briefs emphasize the critical role the Line 5 pipeline plays in ensuring the safe and reliable distribution of propane and the adverse impact a Line 5 shutdown would have on the public. They argue Line 5 is essential to providing propane to meet the needs of citizens in Michigan and the broader Midwest region of the U.S., in addition to Ontario. They further assert that the district court abused its discretion by entering the injunction order given the serious adverse consequences to the public.

The American Fuel & Petrochemical Manufacturers, Petroleum Institute, and Liquid Energy Pipeline Association, also filing a brief in support of Enbridge, argued that the court’s decision on the Band’s nuisance claim is displaced by federal law—specifically the Pipeline Safety Act. Their brief explains that Congress vested an expert federal agency with jurisdiction to set uniform safety standards, which would be entirely contravened by the Band seeking to have a court impose a contradictory set of non-uniform pipeline standards.

The U.S. Chamber of Commerce, the Canadian Chamber of Commerce, Wisconsin Manufacturers and Commerce, the Michigan Chamber of Commerce, and the Ohio Chamber of Commerce also filed a brief in support of Enbridge’s appeal, arguing that Line 5 is vital to energy markets in both countries and that shutting down any segment of Line 5 would have serious consequences to the energy security and economies of both the U.S. and Canada.

“We deeply appreciate this support of our appeal. These briefs eloquently explain the real consequences of a Line 5 shutdown impacting millions of people on both sides of the border, and energy security, as well as the economies of both the U.S. and Canada,” said Tom Schwartz, Senior Vice President of Strategic Projects and Partnerships for Enbridge.

He added, “We would prefer that Bad River leadership sit down with us to negotiate a resolution, but until that happens, we will continue to pursue legal remedies as well as the necessary permits to relocate Line 5.”

Enbridge filed its opening brief in the 7th Circuit Court of Appeals on Sept. 11, respectfully disagreeing with the district court's decision on many points, including the ordered shutdown of Line 5 by June 2026. Enbridge applied for permits for the relocation project in 2020, however the Bad River Band is also opposing necessary approvals for the relocation project.

Enbridge further asserted that shutting down Line 5 violates the Transit Treaty between the U.S. and Canada and ignores the Pipeline Safety Act, which empowers an expert federal agency, the Pipeline and Hazardous Materials Safety Administration (PHMSA), to regulate U.S. pipelines, including Line 5. Millions of people rely on Line 5 to deliver safe, affordable and secure energy on both sides of the international boundary. Simply put, shutting down Line 5 is not in the public interest.

Line 5 is safe and fully complies with Pipeline Safety Act and PHMSA safety standards. Enbridge has proposed over a dozen different projects to address erosion concerns of a riverbank on the Bad River near Line 5. For years, the Band’s leadership has been unwilling to work in good faith with Enbridge while denying each proposal arbitrarily. The Band leadership also continues to oppose the Line 5 Segment Relocation Project, a solution that removes the line from the reservation while preserving energy security for millions. 

Enbridge has come to agreement with 100% of landowners along the relocation route. This project will create 700 family supporting union jobs and over $46 million will be dedicated specifically to working with Indigenous-owned businesses and hiring and training Native American workers.