In Anishinaabe Akiing some new mining proposals, and pipelines threaten the water and land of this region. This past month, tribal governments stepped up to issue some big challenges to those plans.
In late February, the White Earth Tribal Council issued a resolution stating, “…it is opposed to the application field by the North Dakota Pipeline company with the Minnesota PUC with respect to a routing permit for the Sandpiper Petroleum pipeline between Tioga ND and Superior Wisconsin.” The White Earth tribe is concerned not only because the pipeline would be in Nora Township (one of the most northeastern townships within the l867 treaty reservation) just upstream from Rice Lake, the mother lode of ricing on White Earth. The tribe is also concerned because this pipeline, like the proposed expansion of the Alberta Clipper line, impacts the l855 treaty area lands, which White Earth tribal citizens need to feed our families and earn a modest living.
In early February, the Minnesota Chippewa Tribe admonished the Minnesota Pollution Control Agency, for “ecological ignorance,” wherein the PCA seems to be trying to re-designate some of the waters where wild rice is found, so that those waters can have diminished water quality. In short, Norman Deschampe said in a letter to John Linc Stine, Minnesota PCA commissioner, “ … waters used for the production of wild rice … must remain on the wild rice waters lists for regulatory purposes. They cannot be pulled off and dropped instead onto the proposed watch list, in effect delisting them as class 4 status of the state with the stroke of a pen.”
So it seems like the state of Minnesota might have been trying to pull a fast one on the tribes, and it doesn’t look like it worked. In another building in St. Paul, the Minnesota PUC is considering issuing some permits for two big pipelines the Sandpiper and the Clipper, and the state and federal government are considering Minnesota’s first copper mining proposal, one which will require water treatment for 250 to l,000 years or so. The copper mining industry is anxiously awaiting the outcome of the environmental review as there are six or more similar and even larger and more polluting copper mine projects waiting in the wings. One might ask the question if these agencies have sole jurisdiction, based on the l837, l854 and l855 treaties and court decisions which reaffirm the Anishinaabe rights in this area.
It’s more than a bit confusing, both state and federal agencies like boxes. If you ever try filling out a federal grant application, you know this to be true. It turns out, that ecosystems and Indigenous peoples do not live in boxes.
EPA or the Environmental Pollution Permitting Agency?
Enter the Environmental Protection Agency. In late January, I paid a visit to Region 5 EPA, sort of like an individual tribal citizen would. I came to ask a few questions of the EPA, which, in my mind was the one branch of the federal government which would protect the environment. After all, that’s its name. The conversation I had was disturbing. First, I asked why the proposed PolyMet copper Mine had been given an “F” rating, rare as that may be, in their 2009 Environmental Impact Statement and if there was any way to not fail with that project.
After all, a study of modern sulfide mines in the U.S. found that 100 percent of open pit mines in climates similar to northeastern Minnesota violated water quality standards. In the U.S. as a whole, 84 percent violated water quality standards; of these only 16 percent had predicted a high potential for contaminant leaching. Among sulfide mines predicting low acid mine drainage potential, 89 percent in fact resulted in on site acid mine drainage. The hard rock mining industry is the largest source of Superfund liability to taxpayers, costing more than $2.6 billion so far. The EPA estimated the cost of remediating existing pollution at hard rock mining facilities is between $20 and $54 billion. It would seem like these facts would not change.
In PolyMet Northmet proposal, the EPA, gave the PolyMet project a failing grade. The EPA gave this low a rating to less than one percent of similar projects. Undaunted, mining proponents spent over $20 million to reissue a supplemental draft of their environmental impact study.
So I asked the EPA, “What could PolyMet ever do to not fail the regulatory process?” I asked this, because water quality impacts, like the sulfuric acid which would come from the proposed mine would peak, say 500 years from now. And, I wasn’t really sure, which junior Canadian mining company was going to be around to take care of that. I was told by one of the EPA reviewers that I should be thinking about mitigation, basically, not preventing. This has bothered me ever since. Then, perhaps more bothersome was the lead officer there telling me that the EPA was really the “Environmental Pollution Permitting Agency.” That was their job nowadays. I basically said, “Say it ain’t true … after all, this is my agency.” So, what is this to say? In my opinion, it is to say that the EPA may have lost its way and need a bit of encouragement to protect some of those federal laws like the Clean Water Act.
It turns out, that this is actually a big thought coming down from somewhere in Washington, and this will also have possible implications for treaty rights, maybe even for Region 5 EPA, if they want abide by the U.S. Constitution. In 2013 Bob Perciasepe, Deputy Administrator of the EPA, wrote to all regional administrators, “ … treaties are the law, equal in statutes to federal laws under the US constitution, and the US has the responsibility to honor the rights and resources protected by the treaties. While treaties do not expand the authorities granted by the EPA’s underlying statutes, our programs should be implemented to protect treaty covered resources where we have the discretion to do so.” It would appear that the EPA has a broader scope than it has been taking, with the EIS process for the PolyMet mine. And, that scope should likely be considered as the pipelines, mines, tankers and increased need for coal impacts the whole region. I am hopeful.
Pipelines Take Two
Back on the pipelines. Enbridge wants to expand the tar sands pipeline because it suggests there is a need for this for their customers – far away, and the second is the Sandpiper line, which is a new pipeline of fracked oil, coming from North Dakota (the Ft. Berthold reservation) and will be full of that highly volatile stuff and run up almost against Rice Lake, the mother lode of ricing on White Earth. This is what White Earth is very concerned about.
Tribes might have made some decisions to take money the last time for the Enbridge, but they don’t need to do it again. Leech Lake in fact had a $ l0 million settlement, which ended up in a pretty controversial trail – about $ 2.4 million of that was used by then Secretary/Treasurer Mike Bongo and former tribal Legal Director Eric Lochen and Executive Director Robert Aitken as an uncollateralized loan to Moondance Ranch, for their summer concerts. It was a fiasco and the Leech Lake Band of Ojibwe Tribal Council voted to prosecute their own tribal citizens for the unapproved loan. I hope the tribe got some good box seats in the least.
The Fond du Lac Band made a different agreement, although it did accept the proposal. Its agreement had to do with previous Enbridge lines which were put in 50 years ago and it is rumored that Enbridge, threatened to leave those aging pipelines and instead create a line just south of the reservation, but nevertheless impacting the tribe. It was a tough negotiation, but Fond du Lac ended up with a line. Today, Chairwoman Karen Diver is a is very prominent in her opposition to the mining proposals. But it is not clear what position the band will take on an expansion of the Clipper pipeline, based on agreements with Enbridge. It is unlikely however that Enbridge wants to negotiate again with the band on anything.
These difficult agreements were made, perhaps binding the tribe into whatever Enbridge would propose. Times and information have changed and we know more, particularly about risk, as the volume of dilbit oil (from the tar sands) doubles in the lines which cross these reservations. As attorney Paul Blackburn explained in an interview, “The Alberta Clipper pipeline is the newest one … As pipelines get old they do tend to corrode and when they corrode, there’s a bigger risk of them rupturing.” Dilbit is highly corrosive.
A few other recent findings:
Minnesota or Anishinaabe Akiing is the primary super highway for Canadian (tar sands oil) to come into the U.S. There are seven pipelines running through the 1855 and l854 treaty areas, as well as the Fond du Lac, Red Lake and Leech Lake reservation territories. As Blackburn explained, “They’re shipping sort of the equivalent of the Exxon-Valdez amount of oil across Minnesota each day and some of those pipelines are quite old. So if you think about two million barrels of crude oil potentially coming into the United States, they can bring in a huge amount of oil into the United States through Minnesota and most people don’t know that. It is the primary interstate highway in from Canada to the United States to bring in crude oil.”
And the spills problem: There’s spills that have not been reported. There’s the 865,000-gallon spill in the Tioga farm field and that seeped up from six feet down in a six-inch pipe that they said maybe got hit by lightning with a thumb-size leak in it. It leaked for weeks. That’s a lot of not monitoring. Pipelines are generally monitored by the companies. They have this thing called the PIG: The pipeline inspection gauge. Reassuring.
And then they have a super-remote monitoring system, which doesn’t seem to work. As Blackburn explained about the largest spill in U.S. history, the Enbridge Kalamazoo Spill, “ … went for 17 hours. The oil companies say they’ve got all this great technology, all this computer equipment and remote sensors that will detect a spill instantly and shut it off. Well the truth is there’s been studies done about this. I believe it’s less than 20 percent of the spills are detected by the technology, by the super-system. So the rest of them are detected by guess who? The people who live there, local emergency response folks, by people who smell the spill.” That is, possibly a bit of a local concern for fire departments. Better have a lot of disposable diapers and bounty paper towels, that’s the standard for spill clean up as of last year.
At stake is really the future of one-fifth of the world’s water and the people, land and animals that live there. It is the Anishinaabe universe. It is worth protecting. This spring, tribal governments appear ready to take on that challenge. On the tribal citizen front, Honor the Earth intervened to become an official party to the PUC proceedings for the pipelines with attorneys Peter Erlinder of the International Humanitarian Law Institute and William Mitchell Law Professor and Frank Bibeau, free range civil rights attorney and White Earth Tribal citizen. Working together, might help all of us.
For more information on the battle to keep the Anishinaabe universe pipeline-free, visit www.HonorTheEarth.org.