Indigenous Water Protectors Warn of Line 5 Pipeline’s Looming Dangers

According to Indigenous water protectors, it’s not a matter of whether a pipeline will rupture and leak, but when. The federal government’s own data supports this, with the Pipeline and Hazardous Materials Safety Administration reporting that there were 1.5 incidents per day in 2023.

But in northern Wisconsin on the Bad River Reservation, the incontrovertible claim that the safest way to build a pipeline is not to build one at all isn’t being heeded.

On Nov. 14, the Wisconsin Department of Natural Resources (DNR) granted the Canadian pipeline corporation Enbridge the permits needed to proceed with a plan to build a 41-mile section of pipeline around the Bad River Reservation. The permitting decision by the state DNR comes on the heels of a decade-long fight to protect the Bad River and Bad River watershed from potential pollution.

An existing section of the 645-mile Line 5 pipeline, which transports crude oil from Wisconsin to Sarnia, Canada, runs 3.3 miles through the Bad River Reservation. The section runs along allotment land — parcels of land divided by the federal government in an attempt to dilute tribal power. The pipeline is dangerously close to the Bad River meander, the curve of the river that changes over time as river flows increase or decrease.

The pipeline is currently exposed and unsupported in some areas, a mere 10 feet from the meander. When the pipeline was first built, it was 300 feet from the Bad River, but now the threat of pollution is imminent. A pipeline rupture here would be catastrophic, the tribe maintains. Since 1953, the pipeline has leaked a recorded 35 times, leaching more than one million gallons of oil into the ground.

“We want it out,” said the Bad River Band of Lake Superior Chippewa Vice Chair Patrick Bigboy. “We do hope the government looks at the risks versus the reward.”

In 2013, Enbridge’s lease to operate Line 5 on the homeland of the Bad River Band of Lake Superior Chippewa expired. The tribe refused to reauthorize the company’s presence, but Enbridge refused to cease pumping oil through the pipeline. In 2017, the tribal council passed a resolution to force Enbridge from the reservation, to no avail. In 2022, a federal court agreed with the tribe that Enbridge was trespassing on the reservation, and a 2023 court order gave the company until 2026 to remove the section of the pipeline.

However, rather than adhering to the court order, the pipeline corporation has remained on the reservation while also proposing a reroute project that is slated to wrap around tribal land instead of cutting through it. The company still needs permitting and approvals from the U.S. Army Corps of Engineers, the federal agency charged with overseeing infrastructure construction projects like pipelines.

The fact that the company has been allowed to apply for permits for the construction of a new pipeline while guilty of trespass isn’t anything new in the environmental arena, said Stefanie Tsosie, a senior attorney with Earthjustice, who is representing the Bad River Band.

“A lot of bad actor industries that are in violation and yet are allowed to continue to operate … that’s a standard practice,” Tsosie said.

Even without the go-ahead from the federal government, state approvals allow the company to initiate processes including sediment control and waterway construction, which authorize Enbridge to “place temporary and permanent structures in navigable waterways, temporarily bridge navigable waterways, dredge navigable waterways, drive on the bed of navigable waterways, and to discharge fill in wetlands.” Wetlands are some of the most biodiverse ecosystems in the world and are critical for mitigating climate change impacts. Their existence is also under renewed threat after a 2023 Supreme Court decision raised the threshold for federal intervention to protect wetlands against construction.

While no longer abutting the Bad River within the reservation’s bounds, the proposed pipeline route traverses the Bad River watershed, sits upstream of the Copper Falls State Park, and is part of a network of rivers and streams that feed into Lake Superior, one of largest sources of freshwater in the world. Construction of roads, sedimentation of rivers, and filling in wetlands will potentially degrade the north woods landscape to an irreversible degree — and, crucially, the threat of a spill still remains. All told, the proposed route crosses 186 streams and rivers and hundreds of acres of wetlands. Much like the human circulatory system, bodies of water are connected in an intricate system, meaning that a potential spill outside the reservation’s boundaries wouldn’t necessarily remain there.

In this way, there are still concerns that building a pipeline within the watershed violates treaty agreements signed between the Bad River Band and the federal government in 1837, 1842, and 1854 that guaranteed rights to hunt and fish. The reroute also threatens the Kakagon Slough, where wild rice, a first food, grows. An Environmental Protection Agency (EPA) comment on the proposed reroute said Line 5 construction “may result in substantial and unacceptable impacts” to the Bad River and the Kakagon-Bad River Sloughs. The EPA also identified these as aquatic resources of national importance.

“Not only are 40 million people’s drinking water at risk, it’s our own land,” said Bigboy. “It’s where we hunt, fish, [and] gather our wild rice. Our traditions are deeply tied in towards the river. We don’t like the fact that now the whole reservation is going to be compromised with this reroute.”

Per the 2022 federal court decision, Enbridge has been trespassing on Native land since 2013, when the easement agreement expired. But the company’s insistence that it has a right to operate — and that that right supersedes Indigenous rights to self-determination — may very well threaten Indigenous futures in the Great Lakes region.

Even the DNR’s review of the Line 5 proposal assumes that the pipeline is essentialized to the region — that both its presence and its function are inherently needed. Tsosie explained that the natural resources department is supposed to evaluate the environmental impact of all construction alternatives. Tsosie and Earthjustice argued that the baseline measurement of environmental quality should evaluate the land without Line 5, especially given that a court order says the current section of Line 5 that runs through Bad River Band lands shouldn’t exist. Instead, the DNR used the line’s presence on the reservation as the baseline.

That’s just one of many confounding aspects of the Line 5 reroute project. Another concern is who will benefit from the oil itself.

Most of the oil that flows through Line 5 makes its way back to Canada — the U.S. and the Bad River Band’s ancestral lands are merely a byway for the crude oil. Some of the oil is refined into propane and gasoline. Enbridge and business groups supportive of the Line 5 reroute project argue that shutting down the pipeline “would likely lead to a propane state of emergency in Wisconsin, including supply shortages and severe price spikes,” per an opinion editorial published by the Milwaukee Journal Sentinel. But per Enbridge’s own legal testimony, the impact on customers might be an increase of about 1 cent per gallon.

In an emailed comment to Prism, Enbridge spokesperson Juli Kellner emphasized what the company sees as business and consumer benefits of the pipeline, such as money spent on construction, employment, and “Native-owned businesses.”

But according to the tribe, money — what is gained or lost — isn’t a concern. The Bad River Band has repeatedly rejected settlement deals with Enbridge to pay for the easement across tribal lands. The concern is about what money can’t buy: clean and healthy water.

“I wish they would take a really good, honest look at the history of [Enbridge],” Bigboy said. “Water is life. If we don’t have water — clean water — our existence is at risk.”

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