We’re back from our period of dormancy to mark the sixth anniversary of the Marshall spill. (Yes, despite what Enbridge says, today is the anniversary!).
By now you have probably heard the news: last week the Department of Justice, at long last, has announced penalties against Enbridge for the devastating Marshall spill. Why it took six full years and why the penalties were a matter of negotiation, we will never understand. But setting that aside, we’ve got a few things to say about the substance of the so-called “settlement”:
First, you probably read that Enbridge has been “hit with a $177 million bill” or some such. Everybody seems to be seizing upon this $177 million figure, even those who have been most outspoken or dogged in documenting Enbridge’s misdeeds. But don’t believe it. Enbridge was not hit with a $177 million dollar bill. The DoJ levied a $61 million civil penalty— for violations of the Clean Water Act. They were also “hit” with another $1 million for another spill. And they are required to pay back another $5 million to the Oil Spill Liability Fund, which they drew from during the cleanup.
So why is everybody saying $177 million? Well, it’s because Enbridge and DoJ estimate that it’s going to cost Enbridge an additional $110 million to comply with a number of provisions in the settlement, many of them having to do with safety tests of their pipeline network and others having to do with repairs and other costs.
But it’s a real stretch to pretend that money is some sort of penalty. After all, most of what the DoJ is requiring of Enbridge— hydrotests to assess the conditions of their pipelines, for instance— is stuff you’d expect them to be doing anyway. It’s the normal cost of operating pipelines.
Even worse, probably the largest chunk of that $110 million has to do with the replacement of Line 3, an aging pipeline Enbridge operates which runs from Neche, North Dakota to Superior, Wisconsin, which the consent decree requires. Trouble is, replacing that line is something Enbridge is already planning to do. So it’s a capital investment they are making anyway (or so they have hoped), regardless of what DoJ said.
Which brings us to our second point: as a provision in this settlement, the replacement of Line 3 is not a penalty. It’s a gift. In fact, it’s great news for Enbridge.
We told you a bit about Line 3 a long time ago. That proposed “replacement” project is an even greater boondoggle than the “replacement” of Line 6b was. That’s because Enbridge’s proposed route for the new Line 3 doesn’t even follow the same route as the original Line 3. It’s not a “replacement,” it’s new infrastructure. Enbridge wants to put that line in the same corridor as the proposed Sandpiper pipeline— a route that, as our friends at the Friends of the Headwaters know very well, is totally bonkers, as it threatens some of the most environmentally sensitive areas in the state.
Even worse, the route for the newly proposed Line 3 is identical to the route of the Sandpiper pipeline, which, frankly put, is just plain crazy. Our friends at the Friends of the Headwaters have explained why repeatedly— and convincingly.
So here’s the problem with the DoJ provision: it may well be that Line 3, an aging pipeline, needs to be replaced (just as Line 6b did). But that fact does not mean that Enbridge ought to get to do whatever it wants, however it wants. But that’s going to be exactly what happens now. Enbridge will use that provision as a cudgel to beat any sort of questions or opposition to that project into submission. Any questions anybody asks Enbridge about the Line 3 replacement (such as its route) are going to be met with “we’re legally obligated to do this according to the Department of Justice, so just shut up.” Essentially, that provision gives Enbridge’s Line 3 plans federal blessing.
The third problem with the settlement is the failure of the DoJ to file any kind of criminal charges. Here it’s worth remembering some basic facts (all readily available in the NTSB report from 2011): Enbridge knew about defects in Line 6b for five years, but chose to do nothing about them. For years, Enbridge fostered a “culture of deviance” from its own safety protocols, which directly contributed to the Marshall disaster. As if that’s not bad enough, Enbridge’s control room operators knew there was a problem with Line 6b SEVENTEEN HOURS before shutting the pipeline down.
Letting Enbridge off the criminal hook is a slap in the face to the families whose lives were ruined by Enbridge’s documented negligence. Here we’ll just quote our friend Susan Connolly:
“Six years have passed with questions unanswered and concerns remain,” Susan Connolly, a local Michigan mother whose children suffered rashes as a result of the Kalamazoo spill, said in a statement. “The fines related to the Clean Water Act should not be in the form of a ‘settlement’ discussed and agreed to between the agencies and the at fault party. The maximum penalty should be ordered, criminal penalties assessed, and a Michigan Pipeline Trust created.”
Fourth, the feds missed an opportunity to make some lasting good out of this disaster. It is common in cases like this one, where businesses reach settlements with the feds for failures to comply with environmental laws, to create what are called Supplemental Environmental Projects (SEP), which are designed to help protect the environment. In a state as reliant on its marvelous natural resources, it is frankly shocking that the settlement included no SEPs of any kind. This is a travesty.
Finally, the settlement includes a whole bunch of provisions related to Line 5. Mostly, these have to do with conducting tests to assess the condition of the lines and repairing any defects or problems with the pipelines’ supports or coverage. On the face of it, these seem like good measures (although, again, these are things Enbridge ought to be doing already). But as with Line 3, these provisions simply give Enbridge federal cover. In this case, cover to continue operating those lines indefinitely, when nearly everybody— even those whose judgement is generally suspect— now recognizes that those lines ought to be shut down and decommissioned permanently. But now Enbridge gets to pretend like the federal government has given its approval for them to continue to operate Line 5. And, unfortunately, they’re right about that. They’ll now tell everybody that these federal mandates preempt any and all state and local authority.
As we (and plenty of others) have said repeatedly, the Marshall spill was not just an accident. It was not an honest mistake. It was the result of systemic problems and preventable actions. Those problems and actions destroyed properties, uprooted families, affected individuals’ health in ways we still don’t even understand. The DoJ’s consent decree does not even come close to redressing those actions; it certainly won’t do anything to deter Enbridge from continuing to operate as it always has. Quite the contrary: given the modesty of the penalty and the friendly Line 3 and Line 5 provisions, the consent decree, six years in the making, rewards Enbridge’s behavior.