Line 3 and Keystone XL: How similar are they?

This article was originally published by MinnPost and is republished here with permission.

Opponents of Enbridge Energy’s Line 3 oil pipeline in Minnesota have pressured President Joe Biden to stop construction on the project, saying he should treat Line 3 just like the Keystone XL pipeline he canceled.

Biden nixed a crucial permit for Keystone XL on his first day in office, leading TC Energy to drop the project. The president said the move was aimed at stopping new fossil fuel infrastructure during a climate crisis; it rankled Republicans in Congress and other supporters of the project who saw the pipeline as a source of jobs and economic development.

Where some supporters and opponents of Line 3 see the Minnesota project and Keystone XL as largely similar issues, there are some major and minor differences between the pipeline proposals.

Here’s how the two projects stack up:

Origin

Enbridge first began the permitting process for Line 3 in October of 2014. It’s intended to replace a smaller existing pipeline that first began operating in the 1960s that is aging, corroding and considered a dangerous spill risk. The existing Line 3 is one of a handful of pipelines that cut through northern Minnesota, largely along the same corridor ending in Superior, Wisconsin.

In 2017, the Department of Justice and the Environmental Protection Agency issued a consent decree first proposed under President Barack Obama that required Enbridge to replace the old Line 3 if it could get necessary state and federal permits. The decision followed two oil spills on other Enbridge pipelines in Michigan and Illinois.

Alexandra Klass, a Distinguished McKnight University Professor at the University of Minnesota with expertise in energy and environmental law, said the fact that some consider the new Line 3 to be a replacement pipeline can make it easier for the pipeline to get approved by a federal government wary of potential climate impacts compared to a brand new pipeline.

While Line 3 originated from talks to improve an existing pipeline, the Keystone XL pipeline was an attempt from TC Energy to construct an entirely new pipeline that would cross through multiple states and originally included two segments, a southern leg that has been completed and is now known as the Gulf Coast Pipeline that runs from Oklahoma to Texas, and the now defunct route from Alberta to Nebraska. TC Energy said it hoped the route would provide a shortcut to the existing Keystone pipeline, and hoped to carry current U.S. and Canadian oil reserves to new markets.

TC Energy applied for a permit with the State Department in 2008, which determined that the pipeline as proposed was not in the national interest. TC Energy then reapplied in 2012; the State Department again denied a permit after completing additional environmental review. At the time, the pipeline seemed dead as it would not have utility without a permit to cross the border.

In March 2017, the State Department under President Donald Trump issued a presidential permit to TC Energy. A district judge in Montana blocked the permit in 2018, stating that a supplemental environmental review was needed before construction could be completed; in 2020, the Supreme Court maintained the district court ruling.

On his first day in office, Biden signed an executive order revoking the permit.

Route and size

Enbridge’s new Line 3 starts in Alberta, Canada, and crosses a small portion of North Dakota before, if completed, traversing a 337-mile route across northern Minnesota and ending at a terminal in Superior, Wisconsin. The North Dakota and Wisconsin segments have already been built. Line 3 travels a different, but similar route as the old Line 3 pipeline it is intended to replace, crossing the central lakes region of the state and the Mississippi Headwaters area.

The old Line 3 notably runs through the Leech Lake Band of Ojibwe reservation. While an administrative law judge recommended the new pipeline go in the same route to avoid clearing a new path, the Leech Lake Band said it wouldn’t give Enbridge permission to keep Line 3 on the reservation. The company, and state regulators, opted for the alternate route.

The new Line 3 is a 36-inch pipeline that can carry 760,000 barrels of oil per day. The old, smaller, 34-inch pipeline is currently operating at half capacity because it is aging, corroding and a spill risk.

Keystone XL, by contrast, was to be a 1,210-mile pipeline capable of transporting 830,000 barrels of oil per day. It was planned to start in Hardisty, Alberta, and end in Steele City, Nebraska, where it would meet up with existing facilities owned by TC Energy that power Gulf refineries.

How the federal government is involved in permitting

When Biden ordered a halt to Keystone XL, he revoked an unusual permit allowing the pipeline to cross the Canadian border into Montana that is currently issued solely at the discretion of the president, not approved or denied after more extensive review by a federal agency, Klass said.

Trump had approved the permit unilaterally in 2019, pulling it from the jurisdiction of the State Department, which had previously issued the permits.

Line 3 does start in Canada before crossing the border into North Dakota. But the federal government has said Enbridge doesn’t need a new border-crossing presidential permit.

Despite lawsuits that argue a larger pipeline that travels a partially new route can’t be considered a replacement, and calls for Biden to revoke or alter the permit by groups like the Sierra Club, the border-crossing permit issued in 1968 and amended in 1991 still stands. The Minnesota portion of the new Line 3 route doesn’t cross any international borders. The Line 3 replacement in the short section of North Dakota has already been completed and is operating.

“Unlike Keystone XL, Line 3 is an existing pipeline which has been operating since the 1960s,” said Enbridge spokeswoman Juli Kellner.

In Minnesota, local state agencies have handled much of the regulatory and environmental review for Line 3. Some do that on behalf of federal agencies, namely the EPA. And those federal regulators can step in to veto a permit they feel was wrongly issued. But they haven’t done so on Line 3. The most important approvals also come from the five-member Minnesota Public Utilities Commission (PUC), a state-run body.

The Enbridge pipeline does need approval, however, from the U.S. Army Corps of Engineers for construction that involves waterways. The Corps granted the permit in November of 2020 and the Biden administration has since stood by it.

The permit is considered by some to be a relatively narrow one in comparison to the expansive review done by the PUC, but it has nevertheless drawn criticism — and lawsuits — from pipeline opponents. Klass said the permit doesn’t look at whether the project “should or shouldn’t be built as a whole,” unlike the critical Certificate of Need process run by the PUC or a presidential permit. “There are less federal hooks here,” Klass said of Line 3.

Klass said the Army Corps could re-evaluate the permit or ask for more environmental review, which would delay the pipeline. She said the permit is based more on process than on the whim of the president.

Still, some Minnesota House DFL legislators hoped to appeal to Biden by stating in a letter that they believe continuing with the pipeline would make it difficult to achieve goals set in the Paris Climate Accords and requested that he “urge” the Army Corps of Engineers to re-evaluate the permit.

Keystone XL needed state approvals along its route as well, but the presidential permit is still a key difference.

Local politics matter

The Keystone XL pipeline would have run through Montana, South Dakota and Nebraska, all states currently run by pro-pipeline Republican governors. (Some current and former Democratic officials in those states support the project, however.)

In Minnesota, Line 3 permits were approved by a bevy of Democratic state regulators, from Gov. Tim Walz’s Department of Natural Resources, Minnesota Pollution Control Agency and the DFL-majority PUC. The state Department of Commerce challenged Line 3 in court, arguing the company hasn’t properly shown demand for the oil it would transport. But the state Court of Appeals recently rejected the argument.

Still, Biden would have to cross a governor largely friendly to the pipeline in the case of Line 3, rather than a host of Republican officials in the case of Keystone XL. That could perhaps influence his actions.

Unions

Local union leaders said other than the technical differences of a new pipeline versus a replacement, there is little to no difference between Line 3 and Keystone XL for the thousands of union workers who would build such projects.

“We had a project-labor agreement on both projects and that would have been 100 percent union labor on Keystone,” said Jason George, the financial secretary of the International Union of Operating Engineers Local 49. “There’s not a lot of differences in terms of what it means for the union. They both had thousands of jobs.”

George said that many members of his union faced uncertainty after Biden revoked the presidential permit for Keystone.

“We had people working in South Dakota that were sent home immediately and I don’t know if they’ve gotten back out, but it was definitely a disruption in their lives,” George said. “They were told they had to immediately leave.”

TC Energy told PolitiFact that Biden’s revocation of the permit resulted in a loss of 1,000 employees; currently Line 3 employs some 4,600 employees, of which 1,800 belong to a local union.

Brian Hanson, board chairman of Jobs For Minnesotans, a coalition for business, industry and trade unions, said that projects like Line 3 are rare in scope of length and employment.

“It’s a job that spans several months, where you are able to be in one workplace and one crew, Hanson said. “Long-term projects of the nature of Line 3 is the ideal situation if you’re in the trades.”

Tribal views

Minnesota’s tribes have taken differing stances on the construction of Line 3. The Leech Lake Band of Ojibwe wants the old pipeline off its land and has not opposed the new Line 3 for that reason. The Fond du Lac Band of Lake Superior Chippewa dropped legal challenges to Line 3 after cutting a deal with Enbridge on routing the project through its land. The White Earth Band of Ojibwe, Red Lake Band of Chippewa Indians and the Mille Lacs Band of Ojibwe have opposed the pipeline, along with many Native activists. Wesley James Furlong, an attorney at the Native Americans Rights Fund who represented the Rosebud Sioux tribe in South Dakota and the Fort Belknap Indian community in Montana in lawsuits against Keystone XL, said American tribes were unanimously opposed to the construction of that pipeline.

“Within the United States, Indian country was pretty uniformly opposed to Keystone, both its immediate, direct and potential impacts to the tribes in the region and to their resources,” Furlong said. “More broadly there was concern of an existential threat to Indian country and treaty rights.”

In 2018, the National Congress of American Indians passed a resolution in opposition to construction of the pipeline and urged a reduction in oil use.

While TC Energy attempted to mediate concerns with Oklahoma and Texas tribes, other tribes including Rosebud Sioux and Fort Belknap filed a lawsuit against the Trump administration claiming Trump’s issuance of the permit was in violation of the permitting process and asked the court to rescind the permit. The court held that the president’s permit applied only to the border and not the entire pipeline.

Water rights of tribes in question

Tribes near the route of Keystone XL expressed concern over the possible impact of the pipeline on their resources. For the Rosebud reservation in South Dakota, the pipeline would have run through the Ogallala aquifer, a water source the tribe relies on.

“It’s a source of much of the drinking water that the tribes used and the tribe also has its own water utility service,” Furlong said. “So there was an additional concern if there was a rupture or a spill along the portion of the pipeline that crosses the aquifer, that there would be groundwater contamination that would make it impossible to utilize.”

Similarly, Frank Bibeau, an attorney for the White Earth Band, said he believes that the significance of the wild rice waters to Minnesota tribes could be enough to stop the new Line 3 pipeline. Wild rice is the only protected crop mentioned in the 1837 treaty that ceded Ojibwe and Dakota land and established reservations in the states of Minnesota and Wisconsin.

“Those are the defenses that we believe are the strongest and that will ultimately prevail,” Bibeau said. “Our water rights are different from other people’s water rights for a couple of different reasons because of the full expanse of the upper Mississippi River and just how much that giant watershed really houses.”

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