The federal government has agreed to postpone final approval of a multi-million-dollar settlement with Canadian pipeline giant Enbridge, Inc., a move that will allow time for a Native American tribe from the northeast shore of Lake Michigan to protest terms of the agreement.
In the wake of objections to the settlement by the Grand Traverse Band of Ottawa and Chippewa Indians, and a pledge by the Obama administration to be more sensitive to Native American concerns, the U.S. Department of Justice has extended the deadline for comments on the $177 million settlement until Oct. 23.
The tribe contends it was not consulted on a key part of the deal with Enbridge that affects a 180-year-old treaty they say gives them some say over the Straits of Mackinac. The pipeline in dispute, Enbridge's Line 5, runs under the straits.
The 1836 Treaty of Washington granted the tribe fishing rights to the straits, and it claims that any agreements impacting those rights should have involved the tribe.
The new deadline could allow the tribe a chance to meet with the government or file detailed objections over its concerns. Tribal leadership said that a full environmental study must be conducted before any work is done on Line 5. No meeting has been scheduled or even promised, said William Rastetter, an attorney representing the tribe. But he said the unusual reopening of the comment period and the timing of it suggests the Justice Department and the Environmental Protection Agency may be receptive.
"We would certainly like to be in the room with them," he said.
A spokesman for the Justice Department did not respond to a request for comment. Neither did Enbridge spokespeople.
As part of the settlement reached in July over the 2010 spill of tar sands oil from Enbridge's Line 6B, the company pledged to enhance safety measures along its entire 2,000-mile Lakehead system of 14 pipelines. The system includes Line 5. The pipe crosses a pristine 4.5-by-30-mile stretch of water that connects Lake Michigan and Lake Huron, where a treaty grants the Grand Traverse Band and four other tribes fishing rights.
The key tribal argument is that improvements to Line 5 should be subject to a full environmental review under the National Environmental Policy Act and the Clean Water Act. It's the same argument the Standing Rock Sioux tribe is using in trying to stop the Dakota Access pipeline.
In North Dakota, the Sioux tribe has been waging a battle against the construction of that project over concerns the pipeline will negatively impact water quality on its reservation and imperil cultural heritage sites. Representatives from as many as 90 tribes from across the nation have joined the protest.
Rastetter said he is not optimistic the Justice Department and EPA will be open to the Grand Traverse Band's argument in favor of a full environmental review.
"What we would like is for them to understand there are serious environmental questions about the continued operation of Line 5 through the Straits of Mackinac," he said.
There are a number of factors that Rastetter calls troubling: The line is 63 years old, its capacity has quadrupled from 120,000 barrels of oil a day to 540,000, and Enbridge has been vague as to the type of oil being pumped through it.
A rupture of Line 5 where it runs under the Straits of Mackinac could be potentially devastating to the tribe of 4,000 as well as the millions of people who depend on water from the Great Lakes for drinking, Rastetter said.
Rastetter said treaties like the Treaty of Washington obligate the federal government to safeguard Indian lands and resources.
"Applying these treaties is a way of protecting the resources for the tribes and as a means of protecting these resources for everyone," he said.
The Justice Department and EPA reached a settlement with Enbridge 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.
Under the consent decree, Enbridge would be allowed to do additional construction as part of safety maintenance measures. Rastetter said he worries that it could be another opportunity for Enbridge to enlarge the capacity while escaping rigorous review. There is no evidence Enbridge plans to further increase Line 5's capacity.
The decision by the Justice Department to reopen the Enbridge comment period, which had closed last month, comes in the wake of a decision by the Obama administration to suspend construction of a portion of the Dakota Access pipeline near Sioux land pending a comprehensive review of the tribe's concerns.
The Dakota Access decision included a key nod to Native Americans.
"This case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes' views on these types of infrastructure projects," according to a statement issued by the Justice Department, the Department of the Army and the Department of the Interior.
The three agencies said tribes will be invited to meetings this fall focusing on what the federal government can do to better ensure meaningful tribal input into infrastructure-related reviews, and whether new legislation should be proposed to Congress to alter that statutory framework and promote those goals.