In re Applications of Enbridge Energy, Limited Partnership, for a Certificate of Need and a Routing Permit for the Proposed Line 3 Replacement Project in Minnesota from the North Dakota Border to the Wisconsin Border.
Minnesota Public Utilities Commission File Nos.
C. Blackburn, Honor the Earth, Callaway, Minnesota; and Frank
Bibeau, Honor the Earth, Deer River, Minnesota (for relator
Honor the Earth)
J. Zoll, Charles N. Nauen, Rachel A. Kitze Collins, Arielle
S. Wagner, Lockridge Grindal Nauen, P.L.L.P., Minneapolis,
Minnesota (for relator Mille Lacs Band of Ojibwe)
Plumer, White Earth, Minnesota (for relators White Earth Band
of Ojibwe and Red Lake Band of Chippewa Indians)
R. Strand, Environmental Law & Policy Center,
Minneapolis, Minnesota (for relator Friends of the
H. Boyd, Eric F. Swanson, Betsy Schmiesing, Kyle R. Kroll,
Winthrop & Weinstine, P.A., Minneapolis, Minnesota (for
respondent Enbridge Energy, Limited Partnership)
Ellison, Attorney General, Lisa A. Crum, Assistant Attorney
General, St. Paul, Minnesota (for respondent Minnesota Public
Considered and decided by Florey, Presiding Judge; Cleary,
Chief Judge; and Connolly, Judge.
determining the project alternatives to be considered in an
environmental-impact statement (EIS) under the Minnesota
Environmental Policy Act (MEPA), a responsible governmental
unit (RGU) does not err by taking the project proposer's
objective into consideration when defining the purpose of and
need for the project, or by excluding from consideration
alternatives that would not meet that objective.
RGU acts in a manner that is arbitrary, capricious, and
unsupported by substantial evidence when it determines
adequate a final EIS that fails to address potentially
significant issues raised during scoping and in public
comments on the draft EIS.
MEPA does not require completion of a traditional cultural
properties (TCP) survey; an EIS may be determined adequate
before a federal TCP survey is complete if the discussion of
potential impacts to historic and cultural resources is
these consolidated certiorari appeals, relators environmental
organizations and tribal bands, challenge a decision by
respondent Minnesota Public Utilities Commission (commission)
determining adequate a final EIS (FEIS) for the proposed Line
3 pipeline project of respondent Enbridge Energy, Limited
Partnership (Enbridge). Although we reject most of
relators' assertions of error, we agree that the FEIS is
inadequate because it does not address the potential impact
of an oil spill into the Lake Superior watershed.
Accordingly, we reverse the commission's adequacy
determination and remand for further proceedings consistent
with this decision.
April 2015, Enbridge filed applications for a certificate of
need (CN) and routing permit (RP) to allow the installation
of 337 miles of 36-inch diameter pipe, and associated
facilities, from the North Dakota-Minnesota border to the
Minnesota-Wisconsin border. The proposed pipeline would
replace the existing Line 3, which is part of Enbridge's
Line 3 crosses into northwestern Minnesota from North Dakota,
connects to a terminal at Clearbrook (the Clearbrook
terminal), and continues east across northern Minnesota,
through Carlton, and into Wisconsin, where it connects with a
terminal in Superior, Wisconsin (the Superior terminal).
Existing Line 3 crosses through the Leech Lake and Fond du
Lac Reservations pursuant to leases that will expire in 2029.
In its CN and RP applications, Enbridge proposed a route for
the replacement Line 3 that would follow the existing Line 3
corridor from North Dakota to Clearbrook and Carlton to
Superior, but would take a more southerly route between
Clearbrook and Carlton, which would avoid crossing the
reservations. Figure 2.1-1 from the EIS, reproduced in color
below, illustrates the location of the existing mainline
corridor (which houses Line 3 and other pipelines) and
Enbridge's proposed new route (Applicant's Preferred
Route, or APR).
initially setting the CN and RP applications for separate
contested-case proceedings and initiating environmental
review in the RP docket, the commission combined the CN and
RP dockets and ordered that a joint EIS be prepared. The
commission, as the RGU, authorized the Minnesota Department
of Commerce's Energy Environmental Review and Analysis
division (DOC-EERA) to prepare the EIS, and the Minnesota
Department of Natural Resources (DNR) and Minnesota Pollution
Control Agency (MPCA) were brought in as assisting agencies.
project proceeded through scoping, a process that determines
the range of issues to be addressed in an EIS. A final
scoping decision document was issued on December 5, 2016, and
a draft EIS (DEIS) was released on May 15, 2017. Following a
public-comment period, during which DOC-EERA received
approximately 2, 860 public comments, an FEIS was released on
August 17, 2017.
receiving the FEIS, the commission issued an order extending
the statutory deadline for determining the adequacy of the
FEIS and referring the matter to the Office of Administrative
Hearings (OAH) for development of the record and a
recommendation on the adequacy of the FEIS. On November 1,
2017, an administrative-law judge (ALJ) issued proposed
findings and conclusions and a recommendation that the
commission determine the FEIS adequate.
December 14, 2017, the commission issued an order determining
the FEIS inadequate and identifying four deficiencies to be
remedied before the FEIS could be determined adequate. On
February 12, 2018, DOC-EERA issued a revised FEIS,
which the commission met to discuss on March 15, 2018. On May
1, 2018, the commission issued an order adopting the ALJ
report as revised and determining the FEIS adequate. The
commission issued an order denying reconsideration on July 3,
Friends of the Headwaters (FOH), Honor the Earth (HTE), and
Mille Lacs Band of Ojibwe, Red Lake Band of Chippewa Indians,
and White Earth Band of Ojibwe (the Bands), filed three
certiorari appeals, which this court consolidated for
commission's decision determining the FEIS adequate based
on errors of law, unsupported by substantial evidence, or
arbitrary or capricious?
review in Minnesota is governed by the Minnesota
Environmental Policy Act (MEPA), Minn. Stat. §§
116D.01-.11 (2018). MEPA is patterned on the National
Environmental Policy Act (NEPA), 42 U.S.C. §§
4321-4370m-12 (2012 & Supp. 2017), and Minnesota courts
have in appropriate circumstances relied on federal caselaw
applying NEPA. See No Power Line, Inc. v. Minn. Envtl.
Quality Council, 262 N.W.2d 312, 323 n.28 (Minn. 1977)
(noting that court had used federal caselaw to interpret
MEPA); In re N.D. Pipeline Co. LLC, 869 N.W.2d 693,
698 (Minn.App. 2015) (noting that court may look to federal
courts' application of NEPA for guidance), review
denied (Minn. Dec. 15, 2015); see also Citizens
Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of
Comm'rs, 713 N.W.2d 817, 826 (Minn. 2006)
(CARD) (declining to apply language in NEPA
regulations that is not present in MEPA regulations). As
directed by MEPA, the Minnesota Environmental Quality Board
(EQB) has promulgated administrative rules governing
environmental review under the act. See Minn. Stat.
§ 116D.04, subd. 5a (directing promulgation of rules);
Minn. R. 4410.0200-.9910 (2017) (EQB rules).
of an EIS is mandatory under MEPA in relation to both CN and
RP proceedings, and the commission is the RGU tasked with
completing the EIS. See Minn. Stat. § 116D.04,
subd. 2a(a) (requiring EIS when "there is potential for
significant environmental effects resulting from any major
governmental action"); Minn. R. 4410.4400, subp. 24
(designating commission as RGU for "routing of a
pipeline subject to the full route selection procedures under
[Minn. Stat. §] 216G.02"); see also In re N.D.
Pipeline Co., 869 N.W.2d at 698 (interpreting MEPA to
require commission to complete EIS before issuing CN).
is an "analytical rather than an encyclopedic document
which describes the proposed action in detail, analyzes its
significant environmental impacts, discusses appropriate
alternatives to the proposed action and their impacts, and
explores methods by which adverse environmental impacts of an
action could be mitigated." Minn. Stat. § 116D.04,
subd. 2a(a). "The [EIS] shall also analyze those
economic, employment, and sociological effects that cannot be
avoided should the action be implemented." Id.
purpose of an EIS is to provide information for governmental
units, the proposer of the project, and other persons to
evaluate proposed projects which have the potential for
significant environmental effects, to consider alternatives
to the proposed projects, and to explore methods for reducing
adverse environmental effects." Minn. R. 4410.2000,
subp. 1. "The agency's role in the preparation of an
EIS is not to serve as an arbiter between two opposing
parties, as a judge is expected to do in the adversary
process." No Power Line, 262 N.W.2d at 327.
"Instead, it is expected to be a source of independent
expertise whose scientific investigation can uncover the data
necessary to make an informed environmental decision."
investigative tool, the EIS does not authorize or preclude an
action and does not take the place of permit or other
proceedings governing a particular project. See,
e.g., Iron Rangers for Responsible Ridge Action v.
Iron Range Res., 531 N.W.2d 874, 880 (Minn.App. 1995)
("MEPA's purpose is to force agencies to make their
own impartial evaluation of environmental considerations
before reaching their decisions." (quotation omitted)),
review denied (Minn. July 28, 1995). When an EIS is
required, however, no permits may be issued until an EIS has
been determined adequate. Minn. Stat. § 116D.04, subd.
2b(3). And, "[t]o ensure its use in the decision-making
process, the [EIS] shall be prepared as early as practical in
the formulation of an action." Minn. Stat. §
116D.04, subd. 2a.
process begins with "scoping" to determine the
appropriate limits of the EIS in terms of "form,
content, and level of detail" and to determine "the
alternatives [to the project] that are appropriate for
consideration in the [EIS]." Id., subd. 2a(h);
see also Minn. R. 4410.2100 (governing scoping
process). For projects for which an EIS is mandatory, an
environmental-assessment worksheet is used as a scoping
document. Minn. R. 4410.2100, subp. 2. And the RGU must
prepare a draft scoping-decision document that is released
for public comment and hold at least one scoping meeting
before a final scoping-decision document is completed.
See Minn. R. 4410.2100, subps. 2-3.
scoping, an RGU must complete and make available for public
comment a DEIS and hold an informational meeting in the
county where the project is proposed. Minn. R. 4410.2600,
subp. 2. The RGU must then respond to timely substantive
comments received on the DEIS and prepare the FEIS.
Id., subp. 10.
an FEIS is released and distributed, see Minn. R.
4410.2700, subps. 3-5, the RGU must make a determination on
the adequacy of the FEIS, see Minn. R. 4410.2800
(2017). An FEIS shall be deemed adequate if it
A. addresses the potentially significant issues and
alternatives raised in scoping so that all significant issues
for which information can be reasonably obtained have been
analyzed in conformance with [Minn. R.] 4410.2300, items G
B. provides responses to the substantive comments received
during the [DEIS] review concerning issues raised in scoping;
C. was prepared in compliance with the procedures of the act
and [Minn. R.] 4410.0200 to 4410.6500.
R. 4410.2800, subp. 4. "An [EIS] shall be prepared and
its adequacy determined within 280 days after notice of its
preparation unless the time is extended by consent of the
parties or by the governor for good cause." Minn. Stat.
§ 116D.04, subd. 2a(j). If the RGU determines the FEIS
inadequate, the RGU has 60 days to prepare an adequate EIS.
Minn. R. 4410.2800, subp. 5.
RGU's decision on the adequacy of an EIS is appealable to
this court by petition for a writ of certiorari. Minn. Stat.
§ 116D.04, subd. 10. This court reviews the decision
under the Minnesota Administrative Procedure Act (MAPA),
Minn. Stat. §§ 14.001-.69 (2018) to determine
the substantial rights of the [relators] may have been
prejudiced because the administrative finding, inferences,
conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of
the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire
record as submitted; or
(f) arbitrary or capricious.
Stat. § 14.69; see Minn. Stat. § 116D.04,
subd. 10 (directing review under MAPA). "Substantial
evidence consists of: 1) such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion; 2) more than a scintilla of evidence; 3) more
than 'some evidence'; 4) more than 'any
evidence'; and 5) evidence considered in its
entirety." CARD, 713 N.W.2d at 832 (quotation
an agency ruling is arbitrary and capricious if the agency
(a) relied on factors not intended by the legislature; (b)
entirely failed to consider an important aspect of the
problem; (c) offered an explanation that runs counter to the
evidence; or (d) the decision is so implausible that it could
not be explained as a difference in view or the result of the
courts "accord substantial deference to the agency's
decision." Id. at 833. The burden is on
relators to demonstrate agency error. Id.
"[This court's] role when reviewing agency action is
to determine whether the agency has taken a 'hard
look' at the problems involved, and whether it has
'genuinely engaged in reasoned
decision-making.'" Id. at 832 (quoting
Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825
all of these principles in mind, we turn to relators'
arguments for reversing the commission's decision
determining the FEIS adequate. We address the numerous
arguments in the following sections covering (1) the
identification of alternatives in the FEIS; (2) the analysis
of environmental impacts in the FEIS; and (3) alleged
"danger signals" indicating that the commission
failed to take a "hard look" at the adequacy
The FEIS sufficiently identifies alternatives to the
project, including a "no action"
must address "appropriate alternatives to the proposed
action and their impacts." Minn. Stat. § 116D.04,
subd. 2a(a). With respect to alternatives, the EQB rules
[T]he EIS shall compare the potentially significant impacts
of the proposal with those of other reasonable alternatives
to the proposed project. The EIS must address one or more
alternatives of each of the following types of alternatives
or provide a concise explanation of why no alternative of a
particular type is included in the EIS: alternative sites,
alternative technologies, modified designs or layouts,
modified scale or magnitude, and alternatives incorporating
reasonable mitigation measures identified through comments
received during the comment periods for EIS scoping or for
the draft EIS. An alternative may be excluded from analysis
in the EIS if it would not meet the underlying need for or
purpose of the project, it would likely not have any
significant environmental benefit compared to the project as
proposed, or another alternative, of any type, that will be
analyzed in the EIS would likely have similar environmental
benefits but substantially less adverse economic, employment,
or sociological impacts. Alternatives included in the scope
of the EIS . . . that were considered but eliminated based on
information developed through the EIS analysis shall be
discussed briefly and the reasons for their elimination shall
be stated. The alternative of no action shall be addressed.
In this case, the FEIS examines the potential environmental
impacts of Enbridge's proposed project and separately
analyzes potential impacts of alternatives for the CN
decision (system alternatives) and RP decision (route
alternatives and route-segment alternatives). For the CN
decision, the FEIS identifies and analyzes the alternatives
of no action, continued use of existing Line 3, use of other
pipelines, system alternative SA-04,  transportation by rail,
transportation by truck, existing Line 3 supplemented by
rail, and existing Line 3 supplemented by truck. For the RP
decision, the FEIS identifies and analyzes impacts for four
route alternatives (RA-03AM, RA-06, RA-07, ...