A Native American tribe from the northeast shore of Lake Michigan is trying to halt the approval of a multi-million-dollar settlement between Canadian pipeline giant Enbridge, Inc., and the U.S. Environmental Protection Agency. And it is using arguments similar to those made by a Sioux tribe in its campaign against a North Dakota oil pipeline that has so far succeeded in stopping construction.
The Grand Traverse Band of Ottawa and Chippewa Indians has objected to a deal that calls for Enbridge to pay a $61 million fine for its 2010 Michigan oil spill and spend $110 million on safety upgrades across its North American pipeline network.
One of those pipelines is the aging Line 5, which carries oil under the Straits of Mackinac, a 4.5-by-30-mile stretch of pristine water where the tribe has fishing rights.
The tribe says it was never consulted on that part of the settlement. And that, they contend, ignores a 180-year-old treaty that gives members some say over the Straits of Mackinac.
Had the tribe of nearly 4,000 been consulted, it would have raised the same issues stoking the standoff in North Dakota between the Standing Rock Sioux tribe and developers of the Dakota Access pipeline, according to Bill Rastetter, an attorney representing the Michigan tribe.
The tribe, he said, would have requested a full environmental impact review of any work on Line 5 under the National Environmental Policy Act and Clean Water Act because of potential tragic consequences of a rupture. Under the current deal, safety improvements would not be subject to extensive environmental review.
"We're saying, 'Wait a minute, you should look at those arguments that have been put forth in Standing Rock and think about a NEPA analysis,'" he said.
Enbridge did not respond to a request for comment. On its website the company says the federal Pipeline and Hazardous Materials Safety Administration has "concluded that the Line 5 Straits crossing is safe and fit for purpose."
Before finalizing the proposed consent decree, the tribe is demanding that the EPA and the Department of Justice consult with it on the possible treaty impacts, according to the objection filed in U.S. District Court for the western district of Michigan. And it has asked the government to reopen the public comment period after the consultation process.
According to the tribe, the settlement agreement breaches the 1836 Treaty of Washington, which granted it fishing rights to the Straits of Mackinac; consequently, any agreements that might affect those rights should have involved them, it said.
"The 1836 Treaty Tribes' immediate concern is whether the Line 5 provisions might preclude the Tribes from litigating CWA [Clean Water Act] and/or other potential claims against Enbridge with respect to the imminent likelihood of a catastrophic failure of Line 5 within the Straits of Mackinac," the objection said.
Wyn Hornbuckle, a spokesman for the Justice Department, said the agency is reviewing the tribe's objection.
The EPA and Enbridge reached the settlement in July after more than a year of negotiations. The monetary fine is the largest ever assessed for violations of the federal Clean Water Act involving oil spills except those stemming from the 2010 Deepwater Horizon spill in the Gulf of Mexico. The accident was the biggest inland oil spill in U.S. history, resulting in a massive cleanup that kept the river closed for nearly two years.
The deal also requires measures to prevent future spills, detect leaks and prepare for emergencies across Enbridge's Lakehead network, a web of 14 pipelines extending more than 2,000 miles from the Canadian border across seven states, including North Dakota, Wisconsin, Illinois and Michigan.
Particular scrutiny was required for the twin underwater pipelines of Line 5 that cross the Straits of Mackinac, although the agreement does not call for shutting down those 63-year-old lines, as the tribe and many environmental activists have demanded.
The attempt to block the Enbridge settlement comes at a time when protests by the Standing Rock Sioux tribe to halt the Dakota Access pipeline have raised the profile of Native American activism. Representatives of as many as 90 tribes from across the nation have joined the months-long protest to stop the Dakota Access pipeline.
At the heart of the standoff in North Dakota is the Sioux tribe's contention that the pipeline project was approved without a full environmental review––the same concern that is prompting the Michigan tribe to try to halt the settlement with Enbridge. (Enbridge recently announced that it was acquiring a large percentage of ownership in the Dakota Access pipeline.)
Last week, in the wake of mounting tribal opposition, the Obama administration suspended construction of a portion of the Dakota Access pipeline near Sioux land pending further and extensive review. It also said it would would reassess how tribal input is taken into account in other project reviews, a decision with potentially wide-ranging implications.
The Grand Traverse Band has passed a resolution supporting the Sioux tribe. And tribal chairman Thurlow "Sam" McClellan wrote a letter to President Obama linking the concerns of his tribe with those of the North Dakota Sioux.
"Both the Dakota Pipeline and the Enbridge Line pose significant risks to Treaty reserved rights for a safe and clean environment," according to McClellan's letter to the president.
Tara Houska, national campaigns director of Honor the Earth, a non-profit organization devoted to Native American environmental issues, said tribes have always fought for justice when it involved their land and water.
"I don't believe what we are seeing now means we are being any more assertive, but we are at a point where the federal government and private parties are being forced listen to tribes' concerns," she said.
"We are in the era of self-determination and that is the message that is being delivered...The past action of broken treaty rights and running over Native Americans is no longer acceptable."