As Biden Axes KXL Pipeline, Water Protectors Urge Him to Reject DAPL and Line 3

As President Joe Biden moved to kill a key permit for the Keystone XL pipeline on his first day in office Wednesday, Indigenous Water Protectors in Minnesota want to see Biden’s campaign promise extended to another notorious tar sands pipeline project: Enbridge’s Line 3 expansion, which, like Keystone XL, also crosses an international border and would lock in dangerous, planet-warming pollution.

On Monday, Minnesota Water Protector Nia Zekan shut down construction on Line 3 for several hours after climbing into a pipe trench along an easement site located on the Fond du Lac Indian Reservation. Zekan was arrested and bailed out shortly afterward, according to Taysha Martineau, a Fond du Lac tribal member and founder of Camp Miigizi, a recently opened space near the reservation for Water Protectors.

“I’ve gone to protests. I’ve signed petitions. I’ve always voted for politicians who sell themselves as pro-environment, but pipelines are still being built everywhere,” Zekan said in a statement. “We’re still tearing through the woods and disturbing deep into the Earth to put a piece of piping in.”

Zekan’s action is just the latest in a series of nonviolent direct actions delaying construction on the $2.6 billion, 338-mile pipeline since construction began in early December. Several other Water Protectors were arrested earlier this month after locking themselves together inside a pipe segment. At least two other Protectors were taken into custody and face charges of trespassing and obstructing.

“It was a powerful day for direct action, it was Martin Luther King Jr. Day, there was a lot of [Black, Indigenous, people of color] solidarity with that action,” Martineau told Truthout. “To hear that [the Keystone XL permit is being revoked], I celebrate it and it makes me happy…. But I don’t hold much hope that politicians are going to come here and save us in Fond du Lac, and that’s why I’m going to remain out here until the elders and the children of the tribe tell me to go on home.”

Indigenous and environmental activists in Minnesota have been fighting Enbridge’s Line 3 expansion for nearly as long as activists have been fighting Keystone XL, but the struggle has taken on a new sense of urgency after Minnesota environmental regulators greenlit the project late last year and Enbridge broke ground on December 1.

If completed, the Line 3 expansion is slated to cut across several tribal reservations, 200 water bodies and 800 wetlands along its northern Minnesota route to deliver tar sands crude from Edmonton in Alberta, Canada, before ending at a terminal in Superior, Wisconsin. The 36-inch pipe would replace a smaller line built in the 1960s that Enbridge says is a spill risk due to corrosion.

But tribal and environmental groups say they not only want to see Biden nix a final federal water permit for the Line 3 replacement issued by the U.S. Army Corps of Engineers under President Trump in November; they also want him to reevaluate the presidential permit granted to the older Line 3 segment and potentially decommission the pipeline altogether. For now, the Biden transition team is keeping quiet on the issue, declining to comment publicly on Line 3.

Two Ojibwe bands, the White Earth and Red Lake Nations, alongside the Sierra Club and Honor the Earth, filed a federal suit in December seeking to halt construction on the project, arguing that the November water quality permit granted by the Army Corps of Engineers violates several federal laws and treaties, while also failing to consider several environmental impacts.

Pipeline opponents also filed additional lawsuits in state court challenging the project’s approvals by the Minnesota Public Utilities Commission and the Minnesota Pollution Control Agency. The two Ojibwe bands have also petitioned the Minnesota Court of Appeals for a halt on construction until the lawsuits can be heard and argue Enbridge is rushing construction before a legal determination can be made.

“My intention, by putting my body on the line, is to delay the spread of this pandemic pipeline so hopefully my relatives get their day in court. Because when Fond du Lac signed for this pipeline, they took away the voice of all the other Ojibwe nations, and as a Fond du Lac tribal member, I see it as my responsibility to ensure that they get that day in court and they do have their voice,” Martineau told Truthout.

Native Water Protectors in North Dakota and elsewhere are similarly pressuring Biden to revoke a critical authorization allowing continued operation of Energy Transfer Partners’ Dakota Access Pipeline, which ignited the historic Standing Rock protests in 2016 and 2017. Trump moved swiftly to revive both Dakota Access and Keystone XL during the first month of his administration.

In advance of the 2020 Iowa Caucuses, Biden told climate activists with Bold Iowa that he opposed the Dakota Access Pipeline. “Take my word. I’ve never broken my word. I’ve been opposed to the pipeline to begin with,” Biden told Bold Iowa’s Kathy Byrnes and Ed Fallon. Now, the activists are asking him to keep his promise and prevent a proposed expansion of the pipeline.

Moreover, Vice President Kamala Harris and other Democratic lawmakers signed onto a legal brief last year urging a federal judge to revoke a key permit for Dakota Access while an environmental study is conducted. Dakota Access opponents are still waiting on two court decisions that could again cease pipeline operations and determine whether its easement was rightfully revoked last year.

Tribal and climate activists say Biden must keep his word and go bigger than stopping one stalled out pipeline; he must more aggressively embrace his executive and legal authorities to stop all dirty energy expansion projects.

“The fight to stop Keystone XL was never just about one pipeline. Stopping this zombie pipeline means stopping Line 3, Dakota Access and all fossil fuel projects,” said Kendall Mackey, 350.org’s Keep It In The Ground campaign manager. “Coal, oil and gas projects, without a doubt, catalyze climate change and fail a meaningful climate test. The stakes are higher than ever, and that’s why we’re escalating the urgent demand that Biden move America off fossil fuels and ensure fossil fuel corporations pay for the damage they’ve caused.”

Biden has been clear that he will take planetary warming into account when considering pipelines for approval, and will require “any federal permitting decision to consider the effects of greenhouse gas emissions and climate change,” according to his climate plan.

But in order to meet the scientific timeline the Intergovernmental Panel on Climate Change recommends, it’s not enough for Biden to exclusively focus on transitioning to a clean energy economy; it’s also necessary to drive down fossil fuel extraction and production. The climate pollution that both Dakota Access and Line 3 would lock in are a key part of the equation, climate and tribal activists say.

“Out of all the pipelines out there, Line 3 is the closest you get to a Keystone clone,” said Andy Pearson, who is Midwest tar sands coordinator for the Minnesota branch of 350, in an interview. “It is the same size pipe carrying the same tar sands oil across the U.S. Midwest, mostly to export markets. If Keystone is a bad idea, Line 3 is definitely a bad idea, and they should both be stopped.”

When it comes to Line 3, Biden has clear authority to revoke the Army Corp of Engineers water quality permit, but whether or not he can likewise revoke a prior presidential permit issued for the original pipeline segment remains a question.

Pearson notes that because the Keystone XL segment (that expands TC Energy’s preexisting Keystone system) is completely new and crosses an international border, it needed a State Department permit, which the president can easily revoke. But because Enbridge considers Line 3 a replacement pipeline, its presidential permit, Pearson says, is already “grandfathered in.”

The issue, he says, is that the older presidential permit “doesn’t have anything in it about how large the pipeline can be, for example, in terms of its capacity. So Enbridge gets to do what it wants with that presidential permit.” That’s why Minnesota tribal and environmental groups are pushing Biden to go after the Clean Water Act permits, which the Trump administration issued without conducting a federal Environmental Impact Study that would weigh climate impacts and Indigenous treaty rights.

An Enbridge spokesperson told Truthout in a statement that the Army Corps permit review “included robust public participation, including consultation with 30 tribes” and touted Line 3’s replacement as an “integrity and maintenance driven” project aimed at guarding against leaks and protecting Minnesota’s hundreds of waterways.

But Pearson and other environmental advocates point out that newer pipelines that haven’t “been broken in yet” often leak more frequently in their first 10 years. Moreover, if the old pipeline is leak-prone and unsafe, he argues, it must be decommissioned.

“If the company isn’t able to meet Department of Transportation standards for pipeline safety, they need to stop operating the [existing] pipeline,” Pearson told Truthout. “It’s interesting to note that when they are under oath in the legal proceedings around this, Enbridge has never said that Line 3 is unsafe.… I think part of the reason there is that if they would admit that it was unsafe or operating below their safety standards, they would need to shut it down.”

Furthermore, the Minnesota Department of Commerce continues to argue that Enbridge failed to provide legally required long-range demand forecasts to establish that the pipeline is needed. The Department has appealed the state Public Utilities Commission’s decision to approve the project, and that appeal is still pending.

“[Enbridge is] trying to rush [construction] so that the pipe is in the ground when the court takes their permits away, so they can say, ‘Well, it’s too bad it’s built already. Please let us keep it,’” Pearson told Truthout. “They are literally building [the pipeline] right now, so the need for action from Biden is really acute.”

Separately, environmentalists say they are also worried about the potential for new anti-protest bills in the aftermath of the pro-Trump mob attack on the Capitol on January 6. As Truthout has reported, Republican lawmakers in at least nine states are already exploiting the attack to propose new “anti-riot” laws. At least one new bill includes “critical infrastructure” language designed to slap anti-pipeline protesters with harsher felony sentences.

A slew of new “critical infrastructure” bills were introduced and passed beginning in 2017 in response to the Standing Rock protests against the Dakota Access Pipeline. That year, North Dakota lawmakers passed three anti-protest laws. Fourteen of the 26 anti-protest laws already on the books in the U.S. criminalize protest by protecting “critical infrastructure,” according to a protest law tracker by the International Center for Not-For-Profit Law.

In Minnesota, Republican State Rep. Paul Novotny introduced the latest version of a so-called “vicarious liability” bill, H.F. 129 on January 14. The bill would create a felony penalty for those who train activists in nonviolent direct-action tactics if those activists then trespass on or damage “critical” oil and gas infrastructure. The bill has been referred to the Committee on Public Safety and Criminal Justice Reform Finance and Policy.

“I’ve been to the Capitol protesting Line 3, and I’ve been to the Capitol with Black Lives Matter. The amount of security I’ve seen on those days as opposed to what I’ve seen on the news when the fascists took the Capitol was completely different,” Camp Miigizi’s Martineau told Truthout. Still, she says, that double standard is not a reason to increase state surveillance and impose harsher penalties on tribal activists like herself; it’s a reason to treat Black and Brown protesters with the same restraint police reserve for white people.

“In the wake of what happened in the Capitol, I’m definitely concerned. [Lawmakers] use every opportunity they can to stifle dissent and resistance,” said Jessica Garraway, a direct-action trainer involved with Camp Miigizi’s recent actions. “We can’t allow them to spin that narrative. They’re going to try to appeal to people’s need to feel safe and secure. They’re going to conflate any kind of resistance with the behavior that we saw at the Capitol. So we have to be very careful about our messaging … while at the same time fighting for the fierce resistance that we need.”