350 Madison 350 Madison, January 24, 2018

By Peter Anderson, 350 Madison

The Wisconsin Court of Appeals heard oral argument this morning in the case of Enbridge v. Dane County, and it went extremely well. You can find background on this page; here, a quick summary will suffice.

350 Madison won a significant victory in April 2015 when the Dane County Zoning and Land Regulation (ZLR) Committee required that Enbridge obtain spill cleanup insurance as a condition of expanding its Line 61. This victory was undercut just three months later when the company, or someone acting on its behalf, lobbied key legislators to insert a last-minute provision in the state budget to prevent counties from requiring a pipeline company to obtain such insurance if the company had coverage for “sudden and accidental pollution liability.”

The drafters made a serious mistake, however, in crafting the budget amendment, with the result that, upon examination, the company does not qualify for the statutory override provision. Consequently, the only chance Enbridge had to survive a court battle was to have a judge who did not understand the record—and then do everything to obfuscate. Enbridge succeeded in that strategy when the case came before the circuit court in September 2016.

Today, however, was a different story: The questions posed by the three appellate judges demonstrated that they understood everything about the case and would not be confused by irrelevancies. They focused like a laser on the fact that Enbridge has never shown anyone—the ZLR or its insurance expert; the county board; the circuit court judge; or the court of appeals—its insurance policy, making it impossible to determine if in fact the company has the “sudden and accidental” coverage required to void the county’s conditional use permit. That gave Enbridge’s attorney, Eric McLeod, little chance to make a credible case, and he was left hemming and hawing.

The precise form of the final decision will matter. That said, the general outcome seems almost certain to sustain the ZLR’s original insurance condition. I would expect that decision in the next six to eight weeks.

Peter Anderson (right) with 350 Madison’s attorneys, PK Hammel (center) and Tom Burney (left). Photo: Monika Blazs.

Kudos to PK Hammel and Tom Burney, our pro bono attorneys, who put in hundreds of hours to pursue this case for us; to the 350 communication action team and our allies, who sent out the word, bringing 62 of our folks to literally pack the Supreme Court hearing room; and to Mary Beth Elliott for printing distinctive blue stickers with the message “INSURE LAND & WATER” to discreetly make sure the court knew who we were. The first thing Judge Gary Sherman did upon entering the courtroom was to take note of the large attendance—normally, there is no one watching.

 

Tar Sands Campaign

The Tar Sands Campaign is fighting Enbridge tar sands pipelines in Wisconsin. Our aims are to block expansion of Line 61 and to halt plans for an adjacent Line 66. We support efforts led by those most impacted, including tribes, landowners, and affected community members.

Divestment Campaign

2016 was the hottest year on record. The Divestment Team focuses on convincing institutions that investments in fossil fuel are not only ethically and fiscally irresponsible, but are literally wrecking the planet we call home—all for profit. Banks are our current focus since without their support, dirty pipeline projects can't get funded.

Community Energy Campaign

The Community Energy Team is focused on taking action on and responsibility for our own fossil fuel use. We work to create and change policies that impact our energy use and nurture a culture of reducing energy use and using clean, renewable energy to reduce our carbon footprint.